The System of Guarantees of Judicial Independence of CJEU Judges – Institutional Disadvantages

https://doi.org/10.63189/GJIW7394

The legal framework governing the system of guarantees of judicial independence of judges of the Court of Justice of the European Union (CJEU) is the result of a long process of institutional evolution and reflects a deliberate policy aimed at strengthening the authority of the Court. The normative content of these regulations leaves no doubt that judicial independence is regarded as an axiological cornerstone of the EU judiciary and, at the same time, as a guarantee of fair and impartial adjudication. Through these safeguards, the Court of Justice of the European Union is intended to be perceived as a judicial body possessing all the characteristics traditionally associated with courts of law. In other words, they are designed to ensure that the CJEU is recognized by national authorities, EU institutions, European nations, and Union citizens alike as a court par excellence.

It should be recalled that, under the current legal framework, the key provision in this respect is Article 253 of the Treaty on the Functioning of the European Union (TFEU). Pursuant to this provision, judges of the Court of Justice are selected from among persons whose independence is beyond doubt. At the same time, candidates must possess the qualifications required for appointment to the highest judicial offices in their respective countries or be jurisconsults of recognized competence. The provision also establishes the principle of fixed terms of office. Judges, appointed by common accord of the governments of the Member States after consultation with the competent panel, serve a six-year term and may be reappointed.

An analysis of this arrangement, which expressly proclaims the principle of judicial independence, reveals that it is not without weaknesses. The most notable drawback is the visible involvement of strictly political institutions in the judicial appointment process. As is widely acknowledged, the participation of political actors in such decision-making mechanisms often attracts criticism from those who advocate a strict separation between the judiciary and the political branches of government. Consequently, one may legitimately ask to what extent the method of selecting CJEU judges complies with European standards of judicial independence. This question is all the more justified given that the Court of Justice itself has repeatedly emphasized the importance of such standards in its case law.

A significant weakness of the current appointment procedure lies in the mechanism for nominating candidates to the Court. The Treaties provide that candidates are proposed by the governments of the Member States. This solution has existed since the establishment of the Court and has been preserved in successive treaty revisions, becoming a permanent feature of the EU legal order (Article 167(1) of the Treaty Establishing the European Economic Community, Article 223(1) of the Treaty of Nice, and Article 253 of the Treaty of Lisbon).

It is evident that such a legal structure makes candidacy heavily dependent on decisions taken by national political authorities. More specifically, the decisive role belongs to the government holding office at the time when the right to nominate a candidate arises. Importantly, this decision is entirely discretionary. The problem is compounded by the fact that nomination procedures are regulated primarily by national law. In many cases, this results in a lack of transparency and openness. In practice, the final decision often rests exclusively with diplomatic and political actors, leaving little room for either public scrutiny or institutional oversight.

It would be unrealistic to expect that such actors are guided by considerations other than the broadly understood political interests of their state and a sense of ideological affinity between those selecting and those selected. Political actors operate according to their own logic. Of course, it must also be acknowledged that the mere fact that a person is nominated by a government does not guarantee that he or she will remain loyal to that government once appointed. After taking office, a judge enjoys freedom in the exercise of judicial functions and may issue decisions that are entirely inconsistent with governmental preferences. Indeed, such independence is precisely what the principle of judicial independence requires. A judge of the Court of Justice should be capable of acting independently of the political interests of his or her home state while also maintaining distance from personal convictions and ideological preferences.

Another weakness concerns the method of selecting members of the Article 255 Panel, the body responsible for assessing the suitability of candidates proposed by the Member States. It should be noted that this Panel was introduced by the Treaty of Lisbon. Prior to that reform, no comparable institution existed within the European Communities, meaning that candidates proposed by national governments were not subject to any supranational scrutiny.

According to Article 255 TFEU, the Panel consists of seven persons chosen by the Council of the European Union from among former members of the Court of Justice and the General Court, members of national supreme courts, and lawyers of recognized competence, one of whom is proposed by the European Parliament. All members are ultimately appointed by the Council.

This arrangement clearly demonstrates that the Treaties do not provide for the participation of representatives of the judiciary elected directly by judges themselves. As a result, the Article 255 Panel can hardly be regarded as comparable to judicial councils operating in many Member States, where representatives of the judiciary play a significant, and sometimes dominant, role. The Panel is entirely the product of political appointments, since the Council—the institution responsible for these decisions—is composed of ministers representing the governments of the Member States, and therefore of active political actors.

To some extent, this concern is mitigated by the requirement of intergovernmental consensus underlying appointments and by the fact that, in practice, the Panel is typically composed of former CJEU judges or members of high-ranking national courts. Nevertheless, the decision-making process remains inherently political and inevitably places the institution within the sphere of politics.

A final weakness concerns the rules governing the duration of judicial office. Under the current system, judges are appointed for renewable six-year terms. Such a model of short and renewable tenure constitutes a remnant of classical public international law, in which international courts were often perceived as bodies performing essentially arbitral functions and remaining subject to state influence. By its very nature, this arrangement does not contribute to strengthening judicial independence.

The greatest concern stems from the possibility of reappointment. This mechanism creates a significant degree of dependence on the national authorities involved in the nomination process. One may even speak of a specific conflict of interests. A judge who wishes to secure reappointment may be tempted to avoid decisions that could be perceived as unfavorable to his or her home state. Conversely, a government's refusal to support a judge for a further term may function as a form of sanction imposed on a judge whose rulings fail to align with governmental expectations.

In either case, the current framework increases the likelihood of political pressure that may, at least hypothetically, influence judicial decision-making. Such a situation is difficult to reconcile with the very essence of judicial independence, which seeks to ensure the greatest possible separation between political power and judicial authority.

It is worth recalling that a similar problem once existed within the European Court of Human Rights. There, too, judges originally served renewable terms of office. This issue was ultimately resolved through reforms introduced by Protocol No. 14 to the European Convention on Human Rights, which entered into force on 1 June 2010. The reform replaced the renewable six-year term with a single non-renewable nine-year term. As a consequence, it eliminated the incentive that had previously affected every judge of the European Court of Human Rights who might have sought re-election.

In conclusion, it should be emphasized that although institutional arrangements may weaken guarantees of judicial independence and impartiality, the ultimate determinant of public confidence remains the attitude of the judge. Even where the legal framework creates certain temptations, a judge should never yield to them. Regardless of the institutional model in place, judges are bound to apply the law and to be guided exclusively by its requirements.

For judges of the Court of Justice of the European Union, this requires a particular capacity to maintain distance from the interests of their state of origin, from current political interests operating at both national and European levels, and from their own personal beliefs and preferences. Only such an attitude makes it possible to give genuine effect to the principles of judicial independence and impartiality, which constitute the very foundation of judicial office.