This is the fifth Op-Ed of a Symposium on “The Selection of EU Judges and the 255 Committee”. Previous Op-Eds were authored by Joseph H.H. Weiler; Giuliano Amato, Marta Cartabia, Dieter Grimm, Miguel Poiares Maduro, Rui Manuel Moura Ramos & José Luis Da Cruz Vilaça; Alberto Alemanno and François-Xavier Millet. More Op-Eds on this topic will be published soon on EU Law Live
The authority accumulated over the years by the Article 255 panel contributes significantly to the legitimacy of the CJEU. While the criteria the panel has adopted are in themselves unexceptionable, the ‘20-year rule’ for appointment to the Court of Justice is based on a dubious analogy with the Union civil service and hinders the achievement of demographic diversity on the Union bench. However, appointing to the Court a candidate who has been rejected by the Article 255 panel would be a grave and possibly irreversible step. Where a government takes the view that the panel has manifestly erred in rejecting a nominee, it could provide the panel with further information to convince the panel to reconsider its opinion.
Authority beyond text
Until very recent times, the Article 255 panel had led a charmed life. Without exception, its opinions on the suitability of candidates for appointment to the CJEU, both positive and negative, over the fourteen years of its operation, have been followed by the Member State governments, notwithstanding – or perhaps because of – the fact that it has rejected more than one-fifth of the candidates nominated for a first term of office. This stands in marked contrast, for example, to the record of the European Parliament, a Union institution rather than an ancillary body, whose opinions on the suitability of candidate members of the Court of Auditors have on several occasions been overridden by the Council. One might even have argued that the authority of the panel’s opinions was such that the duty to follow them comes close to comprising a constitutional convention, if there were such a thing in Union law. That authority has recently come under question, with the rejection of a number of nominees who, in the view of certain eminent commentators, are manifestly qualified for appointment to the CJEU.
Requirements for appointment
The Treaty requirements for appointment to the Court of Justice date from the Treaty of Paris. Of these, the expression ‘jurisconsult of recognised competence’ is rather obscure. In all probability, it is a truncated version of Article 2 of the Statute of the International Court of Justice, the prime exemplar of an international court. Appointment to the ICJ was open to those who were qualified to accede ‘in their respective countries to the highest judicial offices’ or who were ‘jurisconsults of recognized competence in international law’. In 1951, requiring recognised competence ‘in the law of the European Community’ would, obviously, have made little sense. Be that as it may, this cryptic locution has opened the door of the Court of Justice to academics, government legal advisers, Union officials, and all manner of high-level lawyers in non-judicial positions.
While the panel asserts that the requirements of Article 253 TFEU are ‘exhaustive’, the six criteria it relies on in effect supplement the Treaty provisions. This is obviously the case, for example, of ‘a sufficient knowledge of Union law’, which is missing from Article 253 TFEU but is an explicit requirement, for example, for appointment to the arbitration panel under the 2019 Brexit Withdrawal Agreement. Compliance with some of the criteria can be tested objectively, such as language skills, or the ‘aptitude to work in an international environment’ as the panel defines it; the candidate’s legal capacities may be assessed on the basis of their recent publications, and the brief presentation of up to three ‘complex legal cases’ the candidate has handled which the panel demands in advance of the interview. Only the criterion governing the candidate’s professional experience has a quantitative element, ‘20 years’ experience of high-level duties’. A presumption of insufficiency of experience can be overridden ‘where candidates demonstrate exceptional legal capabilities’.
An analogy too far
The panel’s guidelines on professional experience are based on an explicit analogy ‘between the office of judge and positions of an equivalent level in the European Civil Service’ (7th Activity Report). The speed at which an official who ascends the ranks of the Union civil service reaches such a level may depend on a variety of factors and choices which have little to do with their legal acumen and competence, such as the rules on promotion of officials, the availability of worthwhile senior positions, or the candidate’s nationality. Nor does it follow that such officials would necessarily have twenty years experience of high-level duties, as the analogy appears to assume. Even the most talented official may have to undergo years of more menial duties before reaching a level which could be compared with that of a Union judge. The justification for the application of a rule based on the vagaries of the Union civil service to a candidate coming from academia or qualified for appointment to, or a fortiori sitting on, a supreme court is not immediately obvious. Moreover, while the panel purports to take account of the ‘length and nature’ of the candidate’s professional experience, a 20-year guideline may discount, or at least undervalue, the nature of such experience, whereas precocious appointment to a supreme court or recognition of academic brilliance, could be taken as indicative of the very qualities the Court might need.
Diversity undermined
The value of judicial diversity is hardly up for discussion. The 2015 Regulation doubling the number of General Court judges took a first tentative step towards promoting gender balance among its members. A recent study on apex court appointments concludes that, while it is justified to require ‘a reasonable number of years of prior experience’ for such appointments, ‘there is no cause for a minimum age of eligibility’ (pp. 8 and 7). The Article 255 panel examines the suitability of individual nominees and is not realistically in a position to promote diversity per se on the Union bench, beyond not giving ‘preference to any particular type of professional path’. However, by adopting, and applying too strictly, an age-based criterion for evaluating professional experience, the panel may stifle demographic diversity, at a time when disaffection with the European Union is already widespread amongst younger citizens.
A word to the wise
It has been suggested that, where the panel’s opinion appears to the Member States governments to be manifestly erroneous, they should simply override it. Even if they were unanimously minded to do so – and who’s to say a right-thinking government might not object on principle to overriding the panel – they should balance the value of appointing a single ‘suitable’ judge against the negative repercussions such a decision would have on the authority of the panel.
According to the Court’s case law, the fundamental right to a fair trial requires that the ‘rules governing the appointment of [CJEU] judges [must] not give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges to external factors and their neutrality with respect to the interests before it’(Valančius, C-119/23, para. 71). The panel provides the only (very weak) form of social legitimacy for a nontransparent process in which governments nominate and governments appoint members of the CJEU. For the governments to appoint a judge who, for whatever reason, has been rejected by the panel could create a very reasonable doubt that the governments can place ‘their’ candidate in the Court without regard to the candidate’s suitability for office. In this area, as the Court of Justice has repeatedly asserted, public confidence in the judiciary and its independence are paramount (ibid., para. 49). Overriding a negative opinion would contravene the very raison d’être of Article 255 TFEU and could gravely undermine public confidence in the Court.
Selection panels, like courts, even apex courts like the Court of Justice, occasionally make mistakes. Apex courts, however, are usually able to correct such mistakes, where in subsequent proceedings a party points out the flaw in the earlier decision, whether in legal reasoning or practical implications. Can it really be that the Panel should be treated as infallible and its opinions without any form of review?
Rule 6 of the operating rules of the panel entitle it to ‘ask the government making the proposal to send additional information or other material which the panel considers necessary for its deliberations’. There is no obligation on the panel to ask for such information, and it is quite conceivable that in a particular case the panel’s omission to do so has been informed by its own 20-year rule.
Where, in the light of the panel’s reasons, the nominating government takes the view that the panel has failed properly to assess the suitability for office of its candidate, it may spontaneously provide the panel with further and better information regarding the particular respect in which the candidate has fallen short. Such an initiative, which is consistent with the spirit and objectives of both Rule 6 and Article 255 TFEU, would be in the interests of the panel, the governments individually and collectively, and ultimately of the CJEU.
