‘The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’ Madison’s famous proclamation in the Federalist Papers (No 47) forms the theoretical basis underpinning the doctrine of the separation of powers in many modern democracies.

As with all constitutional principles and doctrines, the separation of powers is rather nebulous. The United Kingdom’s constitutional model is certainly not paradigmatic of strict separation. Bagehot, in “The English Constitution”, had asserted that ‘the efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers.’ But what about the judiciary? What degree of interaction between the executive and the judiciary is acceptable under prevailing constitutional norms? And does EU law have a role to play in this debate? Granted, if there are no surprises, EU law will cease to apply in the UK at the end of this month, but these questions will remain of enormous significance to the remaining 27 Member States.

In this post, I endeavour to present and critically dissect the Opinion of ECJ Advocate General (AG) Hogan in Case C-896/19 Repubblika v Il-Prim Ministru, where these questions were addressed.

Background and Questions Asked 

The facts of the case are straightforward: Repubblika is a Maltese association whose purpose is to promote the protection of justice and the rule of law in Malta. In April 2019, it brought an actio popularis before the First Hall Civil Court (the referring court), challenging the system of appointments of judges and magistrates in force at the time the proceedings commenced, as regulated by the Constitution of Malta. The Maltese Court, based on Article 267 TFEU, referred three questions to the ECJ, the first two of which are of interest in the context of this post.

By its first question, the referring court sought to establish whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be considered to be applicable when a national court is assessing the validity of a procedure for the appointment of judges such as that provided for by its Constitution. By way of reminder, the second subparagraph of Article 19(1) TEU stipulates that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’, while Article 47 of the Charter states, inter alia, the following: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’ and ‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.’

By its second question, the referring court asked whether Article 19 TEU, when read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation under which the executive power – in this case the Maltese Prime Minister – enjoys a discretionary and decisive power in the process of the appointment of members of the judiciary.

The questions are obviously of practical importance to many EU Member States, where the active involvement of the executive in the selection and/or appointment of judges is the norm. In the UK, after the Constitutional Reform Act came into force, the Judicial Appointments Committee reigns supreme, but the Lord Chancellor’s role is far from negligible, especially when it comes to the UK Supreme Court.

On the applicability of relevant EU law provisions 

Coming to the Opinion itself, the AG’s answer to the first question was in the affirmative: Article 19(1) TEU and Article 47 of the Charter must indeed be considered to be applicable. Article 19 TEU is directly applicable is such cases; Article 47 of the Charter is not applicable per se, but Article 19(1) TEU must nevertheless be interpreted in the light of Article 47 of the Charter and the case-law relating thereto. Therefore, both provisions need to be taken into account by the national judge when assessing the validity of a procedure for the appointment of judges such as that provided for by the Maltese Constitution.

The reasons why the AG arrived at this conclusion are presented in paragraphs 35 to 48 of his Opinion. In a nutshell, as regards the applicability of Article 19 (1) TEU, the AG relied on a number of recent ECJ judgments dealing with rule of law questions in Member States like Poland. He asserted that, even though the organisation of justice in the Member States falls within the competence of the Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU [para 39]. This obligation applies in particular in relation to any national body which can rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and which therefore fall within the fields covered by that law.

The AG drew support for such an interpretation from the history and context of the integration of Article 19 in the Treaty. To succinctly summarise his line of argument, the EU is based on the rule of law (Art. 2 TEU). The rule of law requires, inter alia, compliance with EU law, which in turn requires the existence of effective judicial review, which guarantees effective judicial protection of individuals’ rights under EU law. The latter is imperiled by the absence of effective guarantees of judicial independence.

The AG also reinforced his argument by observing that the principle of the effective judicial protection of individuals’ rights under EU law is ‘a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 ECHR, and which is now reaffirmed by Article 47 of the Charter’ [para 40]. Thus, the answer to the first question “flowed” naturally: Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, is applicable when a national court is assessing the validity of a procedure for the appointment of judges such as that provided for by its Constitution.

Does EU law prohibit national constitutional provisions allowing the executive to play a role in the appointment of members of the judiciary?

Coming to the crux of the matter, i.e. the second question raised by the Maltese referring court, the AG had to go to more depth in order to reach an answer. First, he stressed that the mere fact that judges are appointed by a member of the executive does not in itself give rise to a relationship of subordination of the former to the latter or raise doubts as to the former’s impartiality, if, once appointed, they are free from influence or pressure when carrying out their role [para 55]. He also noted that it would be pointless to deny that politics has played a role in the appointment of judges in many legal systems, including those in many Member States. The AG then went on to state that neither EU law nor, for that matter, the ECHR impose any fixed, a priori form of institutional guarantees designed to ensure the independence of judges [para 70].

However, this does not mean EU law imposes no obligations at all in this area. First, judges must be free from any relationship of subordination or hierarchical control by either the executive or the legislature and, second, judges must enjoy actual guarantees designed to shield them from such external pressures [para 70]. Therefore, if the procedure for the appointment of judges were to present a defect of such a kind and of such gravity as to create a real risk that other branches of the State – in particular the executive – could exercise undue discretion via an appointment which was contrary to law, thereby undermining the integrity of the outcome of the appointment process (and thus giving rise in turn to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned), then the appointment procedure in question might be contrary to Article 19(1) TEU [para 71].

According to the Advocate General, the critical considerations, remain whether, viewed objectively, a national judge enjoys sufficient guarantees of institutional independence and protection against removal from office so that he or she may exercise their functions in a manner which is wholly autonomous and free from any subordination to a directive or control from either the executive or the legislature [para 81].

Judges must, moreover, enjoy fiscal autonomy from the executive and the legislature, so that their salaries are not impaired (otherwise than by generally applicable taxation or generally applicable and proportionate salary reduction measures) during their term of office. It is also important that they enjoy sufficient protection against dismissal, save for just cause and their disciplinary regime must include the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions [para 94]. Ultimately, AG Hogan decided that it is for the Maltese court to ascertain whether these guarantees are in fact in place.

Conclusion

The EU edifice is built on certain fundamental values (rule of law) and principles (effective judicial protection), which in the opinion of AG Hogan necessitate an essentially independent judiciary. In turn, this means that EU law imposes certain limits regarding the manner in which a Member State’s executive may be involved in the appointment of judges. EU law also safeguards the latters’ independence post-appointment. Having now examined the Opinion, we can say that the nuanced and balanced way in which the AG formulates his conclusions is noteworthy. Overall, his Opinion was not surprising given the recent ECJ judgments in a string of rule of law cases. Due to the relatively amorphous nature of EU law requirements on national judges’ independence, the vast majority of Member States’ regimes, if examined, will be found to be compliant. The ECJ’s judgment in this case is, in my view, unlikely to deviate from the AG’s Opinion; it is nevertheless expected with interest.

Dimitrios Kyriazis (DPhil, Oxon) is a Research Fellow in Law at the New College of the Humanities, where he was until recently (2017-2020) Head of the Law Faculty. He has previously served as Stipendiary Lecturer in Law at Oxford University (Mansfield College) and Teaching Fellow in Law at UCL.

(Suggested citation: D. Kyriazis, ‘Does EU law preclude national constitutional provisions under which the executive plays a role in the appointment of members of the judiciary?’, U.K. Const. L. Blog (21st Dec. 2020) (available at https://ukconstitutionallaw.org/))