By: Ajit Singh Sidhu
Case c-896/19[1] is one of the line of seminal and recent cases that shows on the CJEU being able to stop and regulate the trend of the Member states that are trying to perverse the judiciary or change their constitution in a way that contradicts the essence of EU law. As here it was alleged that the constitutional amendment went against EU principles of an independent judiciary and respect for the rule of law. Th CJEU held it did not go against EU law principals .[2]
.In the constitution chapter VIII Article 96 which allows the president of Malta to select the president of the Supreme court of Malta with accordance to the Committee of Selection … advice and article 96A (6) which makes the Judicial appointments Committee to give advice to the president on the selection of judges and vet the judicial process of selection .
The action was brought by the Repubblika organisation that acts as a watch dog to uphold the rule of law in Malta . Outlined in No.940/2018 of the “Venice Commission of 17 December 2018[3] [ an opinion of the Malta legal and institutional functions on the checks and balance needed for the neutrality of the decision of the institution and staff effectiveness and democratic accountability ] with Article 19 (1) of the TEU [ the CJEU shall ensure that member states shall provide a sufficient legal protection in matters of EU law] [4] and Art 47 of the Charter of Fundamental rights[ a member state need to allow litigants to give them sufficient remedies in the national courts to allow for effective judicial protection in EU law ] [5].As another point of contention was also on the appointment of judges in 25 April 2019 of the 3 judges in the inferior court that were given a position in the Superior court.
To give some context a brief discussion of the doctrine of supremacy and the recent cases to support that the CJEU is regulating the instructions in member sates of the EU in respecting he rule of law need be discussed to shed some light . In ,C-6/64[ Costa v ENEL] has uphold the CJEU by its own judicial activism made clear and birthed the doctrine if supremacy that the EEC has made its own legal system and that member states are bound to apply and states buy joining the EEC the Member states have agreed to leave their sovereignty and based on Art 288 TEFU where the regulation would be binding on the EU [6]. Expanded International Handelsgesellschaft[Hbm] c-11/70 where the doctrine of supremacy has expanded and became more supreme than the constitution of the other Member states.[7]
This trend seen today in the three famous cases on Romania, Hungary and Poland .
. In Poland ,C-824/18 that the CJEU used Art 19(1) TEU to allow remove a constitutional amendment that impeded access to a fair trial and judicial independence[8]. As the legislature of Poland amended their constitution to reduce the age of judges [effectively replacing them with new and pro-government judges]. The CJEU by using the concept if supremacy to decide the case not only to uphold European values such as rule of law but declare a countries amendments invalid .
In Romania c -83/19 the CJEU declared a constitutional amendment that was contrary to the Commission Decision 2006/38 EU law and principles as respect for the rule of law .[9] As Romanian reforms allowed on judicial organisation , disciplinary regime on judges and financial lability of the state and personal liability of judges could easily undermine the concept of supremacy, which is against the EU .The CJEU used commission decision and EU which the requirements of Romanian to join the EU need to obey rule of law, have an impartial judiciary and law principals . This shows the EU acts as a state rather than an international organisation .
For Hungary in c-286/12 ,where the EU w doctrine of supremacy the CJEU strike down the constitutional amendments to make a compulsory retirement by the judges of judges , prosecutors and notaries who reach the age of 62 invalid , despite being in the constitution of Hungary. As it could impact access to justice .[10]
Now back to the issue at hand . based on para 17 of the decision in c-896/19 it was alleged that this reform in fact can cause the older magistrates and judges to be pressured can may impact the fundamental right to a fair trial in a reasonable period .
On the issues asked
Question 1= would the 2nd paragraph in Article 19(1) of the TEU apply in the context of appointment of judges ?
Based on the CJEU it does as para 45 the fact that it is the duty of the member state sufficient remedies to allow sufficient judicial protection in EU law matters based on Art 47 which need be taken into account when interpreting Art 19(1). As it need to be interpreted in a case where the local courts are aware of an action provided by local law that applies or at least impact EU law and too seek a ruling on conformity with EU law when it comes to selecting judges .Art 47 Charter need be taken into account when interpreting Art 19 [ this also shows the law is wide to cater of the selection of judges it can impact the access to citizen to justice ].
Question 2 = Was the amendment contrary to EU law ?
That Article 19 TEU need to be interpreted not precluding national provisions which allow the head of state[ in this case the Prime Minister] to have a lot /decisive power to appoint judges while providing for the involvement
, The courts felt in para 72 the amendment does not impact the independence of the judiciary as the commission for judicial appointments still act as a tool to prevent the perversion of the judiciary .Although the Prime Minister has the final say on the appointment , of judges as the vetting and section was done by the Committee there was still a sufficient degree of a check and balance by the Committee that composed of judges and non judges that was independent .It was controlled by the amendment in the Constitution and the Prime Minister could only lawfully use his power to reject and select in “exceptional “/extra ordinary circumstance and the Prime minister need to provide a reason if the judge chosen was not selected by the Committee ,which it can be opined very rare as based on the amendments the scrutiny procedure is very stringent , which would make it hard for the Prime minster to invoke on his power .
The CJEU felt the selection process contrary to others cases like in Poland and Hungary did comply with Article 19TEU and Article 47 Charter .
As seen as above Art 19(1) has a wide ambit and the courts can stretch its impact and Art 47 can in fact act as a beacon or net to prevent the perversion of the judiciary to ensure a fair trial is conducted by the Member state
[1] https://curia.europa.eu/juris/liste.jsf?num=C-896/19 [2] Ibid no1 [3] https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2018)028-e [4] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016M019 [5] https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A12016P047 [6] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61964CJ0006 [7] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61970CJ0011 [8] https://curia.europa.eu/juris/liste.jsf?num=C-824/18 [9] https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-05/cp210082en.pdf [10] https://curia.europa.eu/juris/liste.jsf?num=C-286/12
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