NOVEMBER 2024
Table of Contents
1. Who will judge the Judges who judge the Judges? The curious Case of Gonçalo Manoel de Vilhena de Almeida Ribeiro
Joseph H.H. Weiler
2. Selecting EU Judges: the Role of the 255 Committee according to the Treaty
Giuliano Amato, Marta Cartabia, Dieter Grimm, Miguel Poiares Maduro, Rui Manuel Moura Ramos & José Luis Da Cruz Vilaça
3. Sunlight is the best Disinfectant for EU judicial Selection
Alberto Alemanno
4. On the autonomous EU Concept of Suitability under Article 255 TFEU
François-Xavier Millet
5. (Not quite) In Defence of the Article 255 Panel
Kieran Bradley
6. Virtues and Vices of the 255 Committee – are we asking the right Questions?
Henri de Waele
7. A necessary Committee in Need of a necessary Upgrade
Daniel Sarmiento
8. The Role of the 255 Panel: some Observations
Allan Rosas
9. Judging the Judges who Judge the Judges. Concluding Reflections
Joseph H.H. Weiler
Who will judge the Judges who judge the Judges? The curious Case of Gonçalo Manoel de Vilhena de Almeida Ribeiro
Joseph H.H. Weiler
There is no need to explain or even remind readers of the larger than life role played by the Court of Justice of the European Union in the construction of Europe. Many of the critical features of the constitutional architecture of our Union were put in place by the jurisprudence of the CJEU in collaboration with Member State courts. It played and continues to play an equally fundamental role in the day-to-day life of the Union. In areas coming within the (ever growing) sphere of application of Union law it is the ‘supreme court of Europe’.
Its success is owed in large measure to the trust it has gained from the various political and juridical stakeholders in the European construct.
A crucial element in earning that trust has been, for the most part, the quality, the competence and the integrity of the Judges and Advocates General who have served as members of the Court.
Given its status as the ‘supreme court of Europe’, it is not surprising that the Treaties set the bar for appointment to the Court at the highest level:
‘The Judges and Advocates-General of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence.’ (Article 253 TFEU)
Article 253 TFEU is deceptively simple. For example, would a jurisconsult of recognised competence who does not possess the qualifications for appointment to the highest judicial office in his or her respective Member State be eligible to be appointed? And more importantly, what does recognised competence actually mean and how is it to be assessed?
But even as regards a person who is formally qualified though not appointed to such office, does this necessarily imply that he or she is automatically suitable for appointment to the CJEU? What does ‘qualified’ here mean? Is it formally qualified – where the traditions of the Member States differ quite radically. There can be someone who is formally qualified but has absolutely no experience in judging. Or, what if, apart from satisfying that formal requirement, the main reason they find their name put forward is their proximity (I pick this word delicately) to the appointing authority of their respective Member State?
As is often the case with such questions, much will depend on the procedure for appointment.
In the ‘good old days’, the procedure was simple enough: The government of a Member State would present the name of its candidate, who then had to be approved by a joint decision of all fellow governments (interestingly, not by the collective institutional decision of the Council of Ministers or the European Council).
This was clearly a defective procedure in at least two ways.
First, the selection process within the Member States varies dramatically from one to the other. In some, there is an orderly application procedure for candidates, accompanied by a transparent (as far as this is possible) process of evaluation and selection. In others, it is more akin to the Oracles of Delphi: The government simply announces, on a bright or dull morning, who its candidate will be with no transparency whatsoever. Interestingly, in Italy for example, the selection of candidates for the European Court of Human Rights follows the former approach, while for the CJEU, it adheres to the latter. The potential for abuse (I use here a non-delicate word) is, yes, transparent.
Second, for reasons which require no explanation, it is very difficult for any government of a Member State to object, let alone reject, a candidate put forward by another government.
The first defect will remain so long as the Union and/or its Member States do not establish principled guidelines for national procedures. Such guidelines should exist – it is anomalous that judges entrusted to ensure the rule of law in the Union will be elected in procedures which in some Member States (in my view) compromise such.
Enter the ‘255 Committee’, established by the Treaty of Lisbon back in 2009. Its role was to offer advice to the Governments of the Member States on the suitability of candidates. While the governments are not obliged to follow the advice of the Committee, they cannot proceed without first considering it. This was a hugely important and welcomed procedural innovation, and the ensuing practice has proven its value. The Committee is composed by former Members of the CJEU and others with equal qualifications of highest judicial office. These are the judges who judge the (potential) judges joining the Court.
The very fact that this Committee was established is an indication that the Member States and the Union recognised the deficiencies of the previous procedure.
The Committee has been highly successful in this task. It has been anything but a rubber stamp to the proposals put before them. The profile of the candidates is carefully examined and the candidates appear in person for an interview/hearing on the basis of which the consultative Opinion of the Committee is taken. On several occasions, the Committee has rejected candidates put forward.
Of the cases of which I am familiar, for what it is worth (not much) I concurred with the Opinions of the Committee. But no less important, given this procedure and the record of the Committee, Governments have been far more cautious and selective before submitting a candidate to the Court.
Not surpassingly, and this is how it should be, the Governments of the Member States have, to date, always followed faithfully the judgment of the Committee as to who may be appointed as a judge to both the General Court and CJEU.
The Committee has established a benchmark of 20 years relevant experience, particularly relevant in dealing with candidates who do not satisfy the first condition set in the Treaty (possessing the qualifications required for appointment to the highest judicial office). At a stretch, one could say that it could be relevant also for candidates who possess the necessary qualifications but have not actually been appointed to the highest judicial office. However, it is not a rigid benchmark, and the Committee may approve such candidates even without the full extent of if experience, provided they demonstrate other compensating qualities.
So far so good, though I am not enamored with the 20-year number. A formal 20-year rule will have an appreciable – and not always beneficial – impact on the age demographics of the Court. It is not just important that some of the judges should be closer in experience and sensibility to those of a younger generation. Long experience is indeed invaluable, but it also comes with the risk of being set in one’s ways, secure in one’s opinions, and less open to juridical innovation.
Be that as it may, I come now to a much trickier issue: The case of a candidate put forward by a Member State who is not simply qualified to be appointed to the highest judicial office, but actually serves or has served in that capacity.
The Portuguese government recently put forward the name of Gonçalo Manoel de Vilhena de Almeida Ribeiro, currently Vice President of the Constitutional Court of Portugal, with no less than nine years of experience on that court. He holds degrees from leading universities in Europe and the United States and is a scholar who has published some important work.
I think one would expect such a candidate, with those credentials, to sail through. Yet, he was rejected by the Committee.
To the best of my knowledge, in the Opinion of the Committee recommending his unsuitability for appointment to the CJEU, the sole criterion for his rejection was the fact that he lacks 20 years experience and the Committee did not find the necessary compensating factors.
This outcome requires careful unpacking without even entering into the merits. Inadvertently one hopes (errare humanum est), the Committee rewrote the Treaty. In effect, they added a requirement for appointment: It is not enough even to be a sitting judge on the highest judicial court of a Member State – one has to hold that office for at least 20 years unless reasons can be found to justify a lesser experience.
I do not wish to imply that there cannot be circumstances where the Committee may not recommend an appointment, even of a sitting member of the highest court of a Member State. To give but one example: The working language of the Court is French. A judge who is not able to at least speak and read French may be deemed unsuitable.
But nota bene (and we are all lawyers and know the crucial importance of presumptions and burden of proof): The presumption and the legitimate expectation both from the language and spirit of Article 253 TFEU is that a sitting apex court judge of a Member State would be qualified (and suitable) for appointment. In such cases, the burden would be on the Committee to explain why, despite this, there are reasons not to recommend the appointment. What happened in this case is a reversal of that presumption and a de facto amendment of the Treaty. It is clearly not enough to be qualified to serve in the highest judicial office – the candidate actually is serving in that capacity. One has to serve in that office for 20 years unless the Committee can find reasons to relax that standard which they themselves introduced.
Put differently, apart from the fact that this number of 20 years experience has been plucked out of thin air, it introduces, ex nihilo a new formal requirement for service on the Court.
A requirement of 20 years experience (applied flexibly as the Committee does) makes perfect sense for candidates who are not qualified to serve in high judicial office in their Member State. But to suggest that presumptively a sitting judge (or former judge) of a constitutional court of a Member State who has less than 20 years experience is not qualified to be appointed to the CJEU unless proved otherwise, is not only formally contra legem, it is, too, contra common sense.
The Selection of EU Judges and the 255 Committee
One may note, too, that several past and present distinguished judges of the European Court would have failed this test. And, I may add: I am convinced that many would-be extraordinary potential candidates from the national judiciaries – some of them with qualifications and experience which puts them on par with members of the 255 Committee itself – would refuse to be candidates if this approach by the Committee became the norm. ‘I have only 15 years experience, so I will have to show that I can compensate this by some other (Delphic) virtues to be judged by the Committee? Thank you but no thank you.’ The loss will be that of the CJEU.
In the specific case, to reject on this formal arbitrarily chosen 20-year rule alone, the Vice President of the Constitutional Court of a Member State, seems to me exceeding any test of reasonable decision making.
The Member States should not follow the Committee Opinion and confirm the appointment of Gonçalo Manoel de Vilhena de Almeida Ribeiro.
Joseph H.H. Weiler is a Professor at NYU School of Law, Senior Fellow at the Harvard Centre for European Studies, and former President of the European University Institute, Florence (2013-2016).
SUGGESTED CITATION: Weiler, J. H. H.; “Who will Judge the Judges who Judge the Judges? The Curious Case of Gonçalo Manoel de Vilhena de Almeida Ribeiro”, EU Law Live, 20/09/2024, https://eulawlive.com/who-will-judge-the-judges-who-judge-the-judges-thecurious-case-of-goncalo-manoel-de-vilhena-de-almeida-ribeiro-by-joseph-h-h-weiler/
Selecting EU Judges: the Role of the 255 Committee according to the Treaty
Giuliano Amato , Marta Cartabia , Dieter Grimm , Miguel Poiares
Maduro , Rui Manuel Moura Ramos & José Luis Da Cruz Vilaça
We are happy to accept the invitation of EU Law Live to engage with the, as usual, powerful and incisive piece written by Joseph Weiler on the role of the 255 Committee. The Court of Justice of the European Union is the fundamental pillar of a European Union founded on the rule of law. Throughout its history, the Court has played a crucial and celebrated role in the development of a Union of law. Even the most controversial decisions, which like any apex court the CJEU has occasionally had to take, have never casted any doubt on the prestige and credibility it has acquired among its peers, both in Europe and beyond. One crucial aspect for that has been the quality and diversity of the members composing the CJEU. The Court has benefited from the quality of the judicial appointments made by the Member States, but also from the diversity in legal traditions and judicial profiles that is embedded in the different legal orders of its Member States. These objectives are inherent in Article 253 TFEU, providing that ‘the Judges and Advocates-General of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence.’
In 2009, the Treaty of Lisbon introduced a panel with the purpose of providing the governments of the Member States advice on the suitability of candidates for membership in the Court, that is to say, whether they meet the requirements imposed by Article 253 TFEU. This panel (usually known as the 255 Committee) constitutes an important safeguard to guarantee that the different national candidates to Member of the CJEU continue to fulfill the qualifications and independence required by the Treaty. It is not a function of this Committee to add additional requirements beyond those set by the Treaty, much less to substitute its own criteria for those of the Treaty or conduct an autonomous selection process as if establishing an EU judicial career. Moreover, were the Committee’s assessment to become an examination or selection process, it would be necessary to provide candidates with the appropriate due process guarantees, particularly in the light of the legal consequences which, de facto, stem from the advice given by the Committee to the national governments.
Thus far, the governments of the Member States have always followed the opinion of the 255 Committee. That is to be supported. We fear, however, that a practice of the Committee may put that cooperation into question. As Professor Weiler observed in his piece, the Committee has gone beyond simply assessing if the candidate fulfills the requirements established by the Treaty to, in practice, imposing a specific profile, based notably on a set number of years of experience. Such further requirements are not in the Treaties. Criteria of that type can (and have been) of assistance to the Committee in determining whether the Treaty requirements are fulfilled by a candidate. However, they cannot be applied in such a way that effectively creates a new requirement, much less an age requirement or a requirement that is used contrary to the explicit terms of the Treaty. Had these criteria been applied in the past, it would have barred from the
The Selection of EU Judges and the 255 Committee
Court personalities such as its current President or the former President Gil Carlos Rodríguez Iglesias, along with many other past and present members. Neither the Member State governments nor the EU institutions have been involved in what appears to be the development of criteria for an EU judicial career, rather than the straightforward verification that the candidates put forward by national governments meet the Treaty requirements. Indeed, the nature of the criteria made public in the last report of the Committee, and its practice in applying them, seem to favour the creation of an EU judicial bureaucracy. This is made most obvious by the Committee giving more weight to a short experience in the General Court (the first instance of the CJEU) than to a longer experience in a high court.
That being said, it is not the intention of the current authors to debate the ideal profile for the position of Judge at the CJEU, nor whether age and a specific length of experience should be among the requirements. It is our purpose to protect the criteria of selection enshrined in the Treaty and to raise awareness of the risks posed by the 255 Committee acting ultra vires or infringing upon due process guarantees, by developing and applying requirements that exceed or even contradict those included in the Treaty. What other conclusion can be drawn from the case highlighted by Professor Weiler, when the Committee rejects a candidate because he or she does not have 20 years of experience deemed ‘necessary’ – according to the Committee’s praxis – to fulfill ‘the qualifications for appointment to the highest judicial office in his country’, even though the candidate in question is the actual Vice-President of a Constitutional Court? In such a case, the Committee is simply imposing its own criteria over those of the Treaty. The Committee has excluded in the past other candidates for the same reason – a lack of 20 years of experience– including a case where the national selection was chaired by the President of the Supreme Court of that country (raising at least a presumption of compliance by the candidate with the Treaty requirement of being qualified for appointment to the highest judicial office in that country).
It is hard to know exactly how the Committee has applied its criteria due to the lack of transparency of the entire procedure. This was understandable in the light of the original understanding of the Committee’s role: purely advisory and strictly limited to assess the Treaty requirements to prevent any risk of an egregious nomination by a national government. However, both the practically binding nature of the Committee’s opinion and the expansion of the examination it conducts are, however, at odds with that lack of transparency. As far as can be determined, the Committee has adopted a much stricter use of the 20year experience criterion, to the extent that it is being applied in direct contradiction to the explicit terms of the Treaty. This poses a severe risk of the Committee overstepping its proper scope of competence, while also raising the likelihood of conflicts with national governments and undermining essential mutual trust with the highest judiciaries of the Member States. Additionally, it is crucial to prevent any potential increase in the number of controversial decisions taken by the Committee from reflecting negatively on the reputation of the CJEU.
The rule of law, which has been a central concern for the EU institutions in recent years, is grounded in the respect for the separation of powers and the limited competence of each body and entity within the European legal space. It is in this light that we emphasise the vital importance of the Committee (both in its current and future composition) exercising its function strictly as foreseen in the Treaties. Its purpose is to guarantee that the criteria which have served the EU judiciary and legal order so well in the past continue to do so. It is not within its mandate to evolve into a board of judicial selection for the CJEU, which develops its own criteria and a specific profile for an EU judge.
The Selection of EU Judges and the 255 Committee
Giuliano Amato is Former President of the Italian Constitutional Court and Former Prime Minister.
Marta Cartabia is Professor at Bocconi University, Former President of the Italian Constitutional Court and Former Minister of Justice
Dieter Grimm is Former Justice of the German Constitutional Court, Emeritus Professor at the Humboldt University, Berlin.
Miguel Poiares Maduro is Professor at the Católica Global School of Law and European University Institute, Former Advocate General at the Court of Justice of the European Union and Former Minister in the Portuguese Government.
Rui Manuel Moura Ramos is Professor at the University of Coimbra Law School, Former President of the Constitutional Court of Portugal and Former Judge at the Court of First Instance of the European Union.
José Luis Da Cruz Vilaça is Former Advocate General and Former Judge at the Court of Justice of the European Union, and Former President of the Court of First Instance of the European Union.
SUGGESTED CITATION: Amato, G., Cartabia, M., Grimm, D., Poiares Maduro, M., Moura Ramos, R.M., da Cruz Vilaça, J.L.: “Selecting EU Judges: the Role of the 255 Committee according to the Treaty”, EU Law Live, 23/09/2024, https://eulawlive.com/op-ed-selecting-eujudges-the-role-of-the-255-committee-according-to-the-treaty/
Sunlight is the best Disinfectant for EU judicial Selection
Alberto Alemanno
For over 50 years, the members of the Court of Justice have de facto been cherrypicked by their governments, according to their own procedures, and only then nominated by the Council. In the absence of a quality oversight system to assess the suitability of candidates, in line with the qualifications required by Articles 253 and 254 TFEU, Member States had little incentive to oppose nominees from other countries. Unsurprisingly, this has resulted in no formal rejections of candidates under such a system.
The reliance on the informal and widespread ‘old boys’ networks in the selection process has generally worked well. However, this approach was questioned during the last major enlargement (2004), driven mainly by distrust towards the new Member States and the limited number of candidates perceived (back then) as suitable for the job.
As a result, the Treaty of Lisbon established a dedicated panel – generally referred to as the 255 committee – tasked to ‘give an opinion on candidates’ suitability to perform the duties of the Judges and AdvocatesGeneral of the Court of Justice (CJ) and the General Court (GC) before the governments of the Member States make the appointments.
Since 2010, the panel has delivered more than 250 opinions concerning the suitability of the candidates put forward by the Member States. When it comes to the candidates proposed for a renewal of their term of office, their opinions have all been favourable (that is over 110). However, when it comes to the candidates for a first term of office, 30 out of the remaining 130 were unfavorable opinions. This is a rejection rate of over 20%.
Despite being merely advisory in nature, the panel’s opinions – whether favourable or otherwise – have, up to now, always been followed by the governments.
Nevertheless, this might be set to change.
A recent string of unfavourable opinions over the suitability of candidates, both to the CJ and the GC, have suddenly exposed to the many the true nature of the 255 committee: an embryonic form of self-governance over the EU judiciary. Those unfavourable opinions have also unveiled the committee’s Achilles heel, that is to say, its lack of transparency and accountability. As Joseph Weiler wittingly remarked : who judges the Judges who judge the Judges?
In the wake of these controversial opinions, the rationale behind the committee’s creation is suddenly flipped. It is now the 255 Committee – not the governamental choices of judicial appointees – that suddenly draws suspicion.
As argued in tempore non suspecto, this is because – despite the profound transformative effects the committee’s opinions have been having on judicial selection – they remain a ‘black-box’. Neither their input (candidates’ CVs, records of the national procedure, etc.) nor their output (panel’s opinion) are public. It
should come as no surprise that, in those circumstances, the committee’s function raises important, yet largely neglected, questions of democratic accountability, legality and, ultimately, legitimacy.
Since its inception, the committee has interpreted its mandate extensively to the point of continously reinterpreting the Treaty. Since 2011, it has not hesitated in harmonising not only the national selection procedures (e.g. by requiring the publication of open calls for application to the judicial posts), but also the criteria candidates must satisfy. In its very 1st Annual Activity report, the committee acknowledged that ‘[a]lthough the criteria established by the Treaty on the Functioning of the European Union are exhaustive, the panel nevertheless considers that they could be more clearly and precisely explained.’ In the same report, the panel enumerated six considerations, including ‘language skills’ and ‘aptitude for working as part of a team in an international environment in which several legal systems are represented’, that do not appear in any form in the text of the TFEU or in the panel’s operating rules. The panel has considered the ‘language skill’ category to include ‘the ability to acquire proficiency, within a reasonable time, in the working language of the European courts.’ Yet the panel never described how it measures a nominee’s ability to acquire proficiency in French, nor has it provided any reference to a ‘reasonable’ amount of time. States may overcompensate and simply nominate those fluent in French, which is however not a requirement foreseen by the Treaty.
The 7th Activity Report (section III) of the committee codified yet another additional and more cumbersome criterion. This introduced a minimum qualification requirement of ‘at least 20 years’ of experience of highlevel duties for candidates to the CJ, and ‘no less than 12 or even 15 years’ of experience of similar duties for the office of the judge of the GC’. While formulated as a presumption, this self-imposed requirement departs from what the Treaty foresees (‘qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence’), by putting a common number applicable to all EU Member States and that regardless of their different traditions and norms. It appears that it is the application of such a novel criterion that led the committee to deliver three consecutive unfavourable opinions.
Yet, due to the current lack of publicity of the relevant opinion, it is hard to know exactly what reasons led the Committee to deliver an unfavourable opinion and whether and how such a criterion – or others – have been applied.
This is because the 255 Committee has consistently maintained that, as its opinions are ‘intended exclusively for the Member State governments’, they must remain confidential. As a result, it concluded that ‘the positions it takes on the suitability of candidates for judicial office at European Union level may not be disclosed to the public, either directly or indirectly’ (6th Activity Report, p. 16).
A quest for transparency and accountability in EU judicial selection
In 2016, unpersuaded and deeply concerned about the blurred line between expertise checking and opinion checking in the suitability assessment, I had the chance to file a request for access – together with my students of the time – to all opinions delivered by the committee before the Council. In that request, we argued that the confidential nature of the committee’s opinions is not only legally unsound but also deeply problematic from a public policy perspective.
Traditionally, three major arguments are invoked to refuse third-party access to the panel’s opinions: (i) candidate privacy and data protection, (ii) safeguarding reputation, and (iii) the potential chilling effect on future nominations. All three justifications were used to reject our request, as well as the complaint we subsequently filed with the EU Ombudsman for alleged maladministration.
Let’s briefly unpack these arguments.
The privacy of the candidates and data protection
The argument that disclosing candidates’ identities violates their privacy is unconvincing in this Internet age. All candidates are – by definition – public figures and their identity is disclosed when they are designated by their own country. More important, as highlighted by the most recent three consecutive unfavourable initiatives examined by the present symposium, the private nature of the proceedings has not shielded unsuccessful candidates from public exposure. It is relatively easy to trace unsuccessful candidates online. Scholars have also identified Member States that have proposed candidates who received negative opinions. As a result, the Council bases its central privacy argument on protecting personal information that is already public. Ironically, the only information it effectively shields through non-disclosure of the panel opinions is a transparent, detailed understanding of the panel’s selection process.
The reputation of the candidates
The major argument invoked by the panel to oppose public access to their output is the need of protecting the reputation of candidates pro futuro. This suggests that the integrity of the candidates could be put at stake should their opinions be rendered public and this even in the case of subsequent appointment of the candidate in question. However, the argument does not hold when considered in the context of the current selection practice. As illustrated by the most recent unfavourable opinions, the current confidentiality policy does not only fall short of protecting the candidates’ reputation but – by denying access to the reasons leading to the panel’s opinions – it also threatens it, as it does threaten the legitimacy of the panel and, paradoxically, the very same reputation of its own members.
Let’s unpack the alleged reputational effects stemming from the current non-disclosure policy of the committee’s opinions. First, while the reasons leading to an unfavourable opinion remain confidential, both the identity of the candidate and the outcome of the panel’s opinion are publicly known. This is because the public announcement of a candidate’s designation by the relevant Member State, often reported in the media, and by her/his non-confirmation, automatically suggests that something went wrong. In other words, it is easy to deduce from the current selection system whether a given candidate has received a favourable or unfavourable opinion. Therefore, since the current policy only manages to conceal the reasons behind an unfavourable opinion, but not the identity of the candidate, it fails to fully protect the reputation of the candidates. But the issue goes even deeper.
Second, as the first decade of the panel’s operation has shown, when the identity of a ‘failed candidate’ is widely known but the reasons for the failure remain undisclosed, it encourages gossip. By withholding the reasons behind the unfavourable assessment from the public, the actual confidentiality policy invites speculation, chattering, and even manipulation. Virtually no observer belonging to the EU legal epistemic
community – who is by nature the most merciless in judging the candidate and prone to speculating about the reasons for her/his failure – is currently unaware of the outcome and presumed reasons that have led to a negative opinion. One may therefore contend that the current policy seems more effective in shielding the panel from public scrutiny than on protecting the reputation of the candidates.
As I had the chance to argue in the past, the legitimacy of a judge increases, rather than decreases, if the public is aware of the reasons why that judge was appointed or not. Thus, disclosing the opinion of the panels would increase the perception of personal integrity of the judge and, as a result, of the jurisdiction to which he or she belongs. This increases the democratic legitimacy of the courts and does not necessarily harm – but rather protect – the rejected candidate. It has been shown that, in countries in which judicial candidates for the highest court are confirmed by a public hearing (such as the United States), disclosing the reasons for which a candidate was confirmed or rejected can increase both the independence and legitimacy of a court in the eyes of the public, without harming the reputation of rejected candidates, who were largely rejected based on legitimate factors such as partisanship, political philosophy, or insufficient experience. This is in keeping with the fact that judges are beholden to internal and external pressures and must uphold a strong judicial reputation both within the judiciary and outside of it. It has been shown repeatedly that these pressures are essential to the functioning and overall reputation of courts.
When considering the inevitable repercussions stemming from a negative opinion on the candidate’s reputation, we should not forget the limited scope and intensity of the review exercised by both panels upon the choice of the candidates. As stated by Jean-Marc Sauvé in a chapter discussing judicial appointments, in the case of an unfavourable opinion motivated by limited expertise, ‘similar lack of knowledge undermines in no way the ability of the candidates to hold their office, often a prominent one, on the national level; it is just does not recommend them, in the eyes of the Panel, to be appointed to the office for which they applied’. And yet virtually all candidates expecting to receive an unfavourable opinion have rather preferred to withdraw from the selection process – in an effort at mitigating the negative consequences stemming from that opinion – which as a matter of fact may not be circulated to all governments but in principle only to that of the candidate’s.
Finally, yet importantly, the lack of transparency around the panel’s motivation behind its opinion also threatens the panel’s legitimacy vis-à-vis the specialised legal community, and beyond that. Paradoxically, it affects the reputation of the committee’s members who are instead committed to protect that of the candidates they have negatively assessed.
The potential chilling effect on future candidatures
The final, related argument that is often invoked to justify the policy of limited disclosure pursued by both panels has to do with the concern that publicity would discourage further candidatures for the judicial jobs. It is believed that more openness might lead to a domino effect whereby potential candidates would be dissuaded from allowing their name to go forward. However, due to the limited confidentiality ensured by the current system, some risk of a chilling effect is inherent to any form of ‘quality review’ whose mission is to exercise external scrutiny on governmental choice, all the more so if this is as untransparent and unpredictable as that being currently performed by the 255 Committee. The former President of the GC contended that the procedure was already threatening to put off prospective candidates who may either fear a negative result or believe the whole scheme violates their dignity.
The Selection of EU Judges and the 255 Committee
Fast forward 13 years and this scenario is at play right now. At least three candidates to the CJ, whose identity and record of accomplishments is well known and is recognised as complying with the Treaty requirements, appear to have received an unfavourable opinion.
Transparency as a recipe for effectiveness, legitimacy and accountability of judicial selection
In these circumstances, all the arguments that have traditionally been invoked to justify its non-publicity policy appear refuted: the identity of the individual candidates appears to have been disclosed anyway; the candidates’ reputation is at stake as in the absence of publicity of the reasons justifying that decision they cannot defend themselves, instead being the object of speculation; and, future candidates might be chilled in being nominated due to the lack of predictability characterising the 255 Committee’s untransparent oversight.
Ironically, had the committee taken the original critique of its opaque policy more seriously at the time of its inception, it would now be in a stronger position to defend not only the reputation of candidate members – whom it claims to protect – but also that of its own members. Ultimately, by reconsidering the balance to be struck between the imperative of transparency and the candidates’ privacy concerns and adopting a more transparent publicity policy, the committee could have prevented the legitimacy of the entire judicial oversight system from being questioned.
The case for enhancing the transparency of the operation of the 255 Committee to legitimise both its process and outcome has never been more evident.
This is what prompted me to file yet another access request – this time to all unfavourable opinions formulated over the past two years – to encourage both the 255 Committee and the Council to reconsider their publicity policy.
Ultimately, it is not only legally possible but also in line with societal expectations for the advisory committee to gradually shift the balance away from privacy concerns towards more openness both during and after the selection process.
This would allow the 255 committee to address the significant democratic legitimacy and accountability concerns raised by its operation and help it discharge its final mission: to strengthen the authority of the CJEU by facilitating the acceptance of their rulings in the eyes of the public.
Alberto Alemanno is Jean Monnet Professor of European Union Law at the École des Hautes Études Commerciales (HEC) Paris and Visiting Professor at the College of Europe in Bruges. He is also the founder of The Good Lobby, a nonprofit committed to enhance the advocacy capacity of civil society organisations within and across the EU.
SUGGESTED CITATION: Alemanno, A.; “Sunlight is the best Disinfectant for EU judicial Selection”, EU Law Live, 25/09/2024, https:// eulawlive.com/op-ed-sunlight-is-the-best-disinfectant-for-eu-judicial-selection/
On the autonomous EU Concept of Suitability under Article 255 TFEU
François-Xavier Millet
The Article 255 panel was established by the Lisbon Treaty to ‘give an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court before the government of the Member States make the appointments’. That panel’s role is undoubtedly crucial in view of the wide jurisdiction and authority now enjoyed by the CJEU, which may, in the name of fundamental rights, integration or the rule of law, condemn Member States for their infringements of EU law or quash legislative acts adopted by EU institutions. The panel’s role is all the more important in the context of a court whose members – with the exception of the rotating Advocates-General (AGs) – are renewable. Once appointed, CJEU members de facto enjoy an irrebuttable presumption of suitability for the job since the Article 255 panel has never issued negative opinions for the renewal of a member. That presumption allows them to stay in office for numerous years, if not decades, as long as they do not fall out of favour with the authorities of their own Member State. Accordingly, it appears paramount to get it right upon first appointment through a rigorous selection procedure which guarantees that only the suitable nominees of a Member State may make it to the most powerful judicial positions in Europe.
Before the Lisbon Treaty, it was solely for the governments of the Member States to decide by common accord who was to be a member of the CJEU. The selection procedure was thus intergovernmental and diplomatic. Back then, there was a single two-tier requirement for Judges and AGs to be chosen. The nominees had to be a person ‘whose independence is beyond doubt’ and ‘who possess[ed] the qualifications required for appointment to the highest judicial offices in their respective countries or who [were] jurisconsults of recognised competence’. That requirement, which is still to be found in Article 253 TFEU for the Court of Justice – and, with a slightly different phrasing, in Article 254 TFEU for the General Court – was for the Member States alone to evaluate, with no oversight whatsoever at EU level.
In 2009, the Member States themselves appear to have taken the view that the nomination of CJEU members was too serious a matter to be decided in a purely intergovernmental fashion and that some degree of supranationality should be included within the selection process in the form of a panel entrusted with the task of examining the suitability of the candidates put forward by those Member States to occupy the position of Judge or AG at the CJEU. What does such an open-ended mission provided for by Article 255 TFEU specifically entail as regards the panel’s role and prerogatives? Is the panel to limit itself to monitoring whether the proposed candidate meets the requirement of Article 253 TFEU; or can the panel go beyond that and itself establish further assessment criteria? As with so many EU law issues, there are two main types of answers to these questions: a Member-State-minded answer and a supranational, EU-minded answer.
It is indeed possible to contemplate several interpretations as to the exact role of the Article 255 panel within the selection procedure of CJEU Judges and AGs. A first option, highly reminiscent of the pre-Lisbon intergovernmental method, is to consider that, because it is still formally a matter for the Member States to decide, with – regrettably – no possible judicial review of the appointment by the CJEU (see Sharpston
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(C-684/20 P) ), the Article 255 panel should display a high degree of deference towards the nominees put forward by a Member State. The panel’s opinion would thus be limited to examining whether the proposed candidate fulfils the two-tier requirement of Articles 253 TFEU, with no discretion to set further autonomous evaluation criteria. That power would be even more curtailed if the national selection procedure was carried out in an open, fair, democratic and transparent manner. In such a scenario, the suitability of the nominee would then be presumed and the work of the panel would be merely to rubberstamp the Member State’s proposal.
For the past fifteen years, since its creation, the Article 255 panel has operated in a rather different way. It has indeed set its own criteria for the purposes of assessing the suitability of the Member States’ nominees. Such an approach is hardly surprising for anyone familiar with the very logic of EU integration and the classic methods of interpretation of EU law: literal, contextual and teleological.
As a new provision introduced by the Treaty, Article 255 TFEU is to be interpreted separately from the earlier Articles 253 and 254 TFEU. The panel is not merely vested with checking whether the latter’s requirements are respected. Its role is broader inasmuch as it consists in examining the candidates’ suitability, with no further specification. Suitability is just yet another autonomous concept of EU law. Accordingly, it is natural that the Article 255 panel gives flesh to that concept by defining suitability criteria that are distinct from the requirements of Article 253 TFEU.
Article 255 TFEU was introduced to reinforce checks on the Member States with regard to judicial appointments with the view to avoiding candidates that would not be suitable for the job for reasons beyond the lack of independence or sufficient qualifications. Being a Judge or an Advocate-General at the CJEU requires specific skills and a specific set of knowledge other than those acquired as a result of being a judge in one’s own Member State. Through the open-ended Article 255 TFEU, the Lisbon Treaty granted the panel the necessary legal authority to establish its own, self-standing criteria and to evaluate whether a candidate fulfils them. It is actually somewhat reassuring that, for such positions of power in the EU, the selection procedure is thus truly hybrid and involves both the Member States and an EU body to ensure not only the procedural but also the substantive legitimacy of appointments. While the increasing use by the Member States of an open, transparent and democratic application process certainly confers a high degree of procedural legitimacy to the incumbent, the latter’s authority also greatly benefits from the substantive legitimacy that flows from those suitability criteria autonomously defined at EU level.
Of course, it is clearly possible to engage in a discussion on the suitability criteria to be employed. In an ideal world, those criteria should ensure a wide range of profiles represented at the CJEU, in particular diversity of age, gender, background and approaches to law. While the selection procedure for judicial appointments to the European Court of Human Rights – may cater for that and could therefore be an inspiration, that is however not the case for the CJEU: the Article 255 panel is not to pick a candidate from a list but merely to issue an opinion on the suitability of one person. The panel has accordingly little leeway in practice to define the suitability criteria. The latter must be tailored to the qualities that can be expected from a member of the CJEU. In that respect, the criteria that have been devised by the panel appear rather sensible. In particular, a fair command of languages and of EU law is not only suitable, but it is also necessary for a candidate to the position of Judge or AG at the CJEU. It is then for the panel to set the threshold as to what fair command means in practice. Judging from its activity reports, the Article 255 panel does not seem to be unreasonable in its assessment thereof inasmuch as it does not expect full proficiency in French, nor a
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thorough knowledge of every single field of EU law. It also appears reasonable by evaluating the various suitability criteria not individually but in the whole.
Among those criteria, the highly contested criterion relating to the nature and, above all, length of prior professional experience calls for greater exploration here. Admittedly, prior professional experience has been wrongly presented by the panel in its activity reports as a condition to establish whether a candidate has the sufficient qualifications for a judicial position within the meaning of Article 253 TFEU. This articulation of the requirement lacks precision. A candidate who is carrying out judicial functions at the highest level nationally already should obviously be considered as possessing ‘the qualifications required for appointment to the highest judicial offices’. However, the purposes (or perhaps more so the consequences) of the prior professional experience criterion are different, yet equally relevant. First, it guarantees that the candidate has sufficient experience of the law, in the capacity of an academic, a judge, a lawyer or a senior legal officer to become fully acquainted with the subtleties of legal reasoning. Second, it may also be seen as securing the nomination of someone wiser in the ways of the world and more prone to collegiality. Third, it is not illegitimate to consider that being a member of a supranational court would constitute the peak of a professionally experienced person’s career.
Regarding specifically the length of that prior professional experience, setting it at 20 years for the Court of Justice and 12 to 15 for the General Court – figures that were there from the beginning in the panel’s activity reports – may seem slightly arbitrary. On the one hand, it is perhaps a bit too high in so far as it may prevent the arrival of younger profiles that may bring with them innovation and views more in tune with contemporary societal trends. On the other hand, it is advantageous in any selection procedure to have an objective criterion when the other criteria may be open to the criticism of being subjective. It also presents the advantage of avoiding the nomination of a person who might remain in office for decades, which is arguably not ideal for any position of power and raises another problematic issue that should also be part of this discussion, namely that of the CJEU members’ unlimited renewability.
In any event, the Article 255 panel has made it clear that it is possible to override the prior professional experience condition if the candidate shows ‘exceptional legal capabilities’, which refers back to the other substantive suitability criteria. Arguably, excellent knowledge of EU law in particular is then required. It is again for the panel to set the threshold of what is ‘exceptional’. Although that threshold seems slightly higher nowadays, it did not prevent some current or past young members of the CJEU from receiving a positive opinion from the panel.
Finally, there is a last issue which reflects another debate that EU scholars are familiar with when it comes to EU law. It is the issue of the legitimacy of the Article 255 panel itself, in connection with the lack of transparency. Over the past fifteen years, the Article 255 panel has acquired a kind of customary authority from the very fact that the Member States’ governments have never nominated a person in respect of whom the panel has issued a negative opinion while the latter’s is not binding. In so doing, the Member States themselves have recognised the legitimacy of that panel as an essential component of the selection procedure of Judges and AGs. However, at the same time, the Article 255 panel is, of its own doing, easily open to criticism given that it works behind closed doors and there is an absence of publicity of the individual opinions issued by the panel. The present symposium showcases the importance of publishing those opinions (and perhaps even broadcasting the candidates’ hearings, as happens for candidates to the US Supreme Court or to the European Commission) so that not only the candidate, but also the public,
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can take cognisance of all the precise reasons that led the panel to issue its opinion, be that negative or positive. ‘Justice must not only be done; it must also be seen to be done’. That aphorism also applies, for its own sake, to the Article 255 panel.
François-Xavier Millet is Professor of Law (University of the French West Indies) and Jean Monnet Chair on Comparative Regional Integration.
SUGGESTED CITATION: Millet, F.; “On the autonomous EU Concept of Suitability under Article 255 TFEU”, EU Law Live, 27/09/2024, https://eulawlive.com/op-ed-on-the-autonomous-eu-concept-of-suitability-under-article-255-tfeu/
(Not quite) In Defence of the Article 255 Panel
by Kieran Bradley
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 highlevel 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.
Kieran Bradley is a judge of the Administrative Tribunals of the International Monetary Fund and the Inter-American Development Bank Group, and a former judge of the European Union Civil Service Tribunal.
SUGGESTED CITATION: Bradley, K.; “(Not quite) In Defence of the Article 255 Panel”, EU Law Live, 30/09/2024, https://eulawlive. com/op-ed-not-quite-in-defence-of-the-article-255-panel/
Virtues and Vices of the 255 Committee –are we asking the right Questions?
Henri de Waele
It is commendable that EU Law Live is hosting a symposium on ‘The Selection of EU Judges and the 255 Committee’. Prima facie, one might query the need to do so, almost fifteen years after the entry into force of the new appointment method pursuant to the entry into force of the Lisbon Treaty. To be sure, the initiative does add handsomely to the burgeoning scholarship on the topic (see e.g. here, here and here).
Preferably however, the efforts are not directed towards a mere rehearsal of well-established points of critique, but help to advance the science or (paraphrasing Sir Isaac Newton) to ‘build on the shoulders of giants’. Current problems ought to be diagnosed thoroughly, and novel suggestions devised for addressing them effectively. Though contributors to the symposium have deservedly drawn attention to various existing drawbacks of the 255 Committee system, this piece believes we should aim to push the boundaries of debate a bit further.
What issues have been identified so far? Earlier in the series, kicking off the ruminations, Professor Weiler expressed his dismay with regard to one particular facet, the recent application by the 255 Committee of the ‘judicial experience’ criterion – which has to his mind been all too rigidly applied lately in the case of one Mr Gonçalo Manoel de Vilhena de Almeida Ribeiro. This contribution was followed by an op-ed by no fewer than six authors, echoing the exact same sentiment. Truth be told, that the 255 Committee has, in so doing, ventured beyond its own mandate is of itself hardly an original observation. What is more, Professor Weiler’s general, poignant question of ‘Who judges the judges who judge the judges’ could be said to trigger an infinite regression loop. After all, who then judges the judges judging who judges the judges? And so on.
The underlying problem appears to be one of accountability, and also one of democracy: is there ultimately sufficient control over those who are in control? In the context at stake, the answer may well be in the negative. Certainly, for those believing in the value of technocracy and the ideal of judicial selfgovernment, the contemporary procedure for appointing the Committee – with the European Parliament only being allowed to nominate one member, while the rest is nominated by the President of the CJEU – seems perfectly acceptable. For those craving a greater input legitimacy, e.g., drawing comparisons with the US Supreme Court or even the German Bundesverfassungsgericht, it seems rather deficient. There is a definite potential for reform here that would ensure a greater representation and openness. Already in 2015, a rapporteur of the Parliament recommended the establishment of a panel of experts to analyse the overall workings of justice in the EU and formulate proposals for enhancement. To his mind, that panel was to take into account, inter alia, gender parity, the possibility to recruit judges through public tender from among reputable law professors and judges from Member State high courts, alongside the option to impose a non-renewable nine-year tenure. In fact, the idea of open recruitment through tender was practiced at the Civil Service Tribunal (2005-2016) prior to its dissolution, while the Unified Patent Court (since June 2023) proceeds likewise. Despite the limited jurisdictions of these institutions, the
experiences show how states need not be principally opposed to independently functioning supranational judiciaries.
Focusing on the CJEU appointment decision, one may wonder: why should that crucial power rest solely with national governments, anointing candidates after considering the 255 Committee’s opinion, selected on the basis of (still non-standardised) domestic procedures? The democratic dimension could be amplified through a stronger involvement of the Parliament in the preceding phase, as Christoph Krenn has tabled before. Alternatively, might the decisive competence be bestowed onto an autonomous recruitment body composed of peers? Moving away from the ‘Member State prerogative’ model would help neuter the importance of a candidate’s origin, in favour of their individual merits in view of the specific needs of the court concerned. Nationality may still play a role in the eventual choice, to ensure reasonable geographic balance, yet next to other no less pertinent criteria – relegating the importance of, for example, the duration and type of previous judicial offices a nominee has held.
In his previous research, Alberto Alemanno asked the apposite question: ‘How transparent is transparent enough?’ In a similar vein, his latest answer makes clear that the setup right now, tried and tested over the past decade, is falling short in multiple respects. His playful call for a ‘disinfectant’ in the piece’s title suggests that the present architecture is riddled with disease. This could be perceived as an overstatement. His main bone of contention continues to lie with the alleged need to keep the opinions of the 255 Committee confidential, masterfully demolishing the arguments that have been employed thereby (the candidate’s privacy and data protection; avoidable reputational damage; the likely adverse effect on the willingness to be nominated). His exposé is briefest though on the third negative consequence a full disclosure is believed to have, where he puts that ‘some risk of a chilling effect is inherent to any form of “quality review” whose mission is to exercise external scrutiny on governmental choice’. With this sweeping statement, a key hesitation is swept under the rug – not least since Alemanno mentions himself how the existing (fairly convoluted) system already threatened to dissuade prospective nominees a long time ago. Understandable as space constraints are, an extended pondering may have prompted the thought it is not so easy to rectify one shortcoming without conjuring up a new problem elsewhere. Are some things simply as good as they can possibly get?
The virtues of the modern approach to appointments at the CJEU have to be recognised anyhow. The 2009 operation could have boiled down to the introduction of a paper tiger. In contrast, a refined screening mechanism was installed that made a more objective review possible. The old-fashioned process had the benefit of being straightforward, but proved vulnerable to political pressure, shady motivations and undue interference. In comparison, the creation of the 255 Committee was a breath of fresh air. At the same time of course, the changes made were neither large-scale nor wildly revolutionary. There are genuine vices to the nouveau regime, even if they do not seem wholly acute. That should not detract from the finding that the Committee has been successfully carrying out its task overall, manifestly performing the intended filtering function.
For a complete picture, lastly, one must not overlook the classic and eternal phrase: ‘Quis judicabit?’ Among insiders, it is common knowledge that members of the Court profit considerably from the zeal and wit of their assistants. Every judge and AG at the CJEU commands a cabinet consisting of several such legal secretaries. Consequently, the importance of the screening by the 255 Committee should be placed in perspective when the persons scrutinised turn out to regularly limit themselves to instructing their clerks, and running with the latter’s submissions. Thus in all likelihood, the judges’ productivity, as well as the
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substantive quality of their output, is linked closely to the abilities of their support staff – also enabling appointees who failed to impress the 255 Committee earlier to boast a fairly decent track record during their term of office. Vice versa, the prior demands nowadays placed on prospective CJEU judges might be way too stringent, in face of the invaluable support the office-holders are able to count on in their dayto-day work. In this light, indeed, perhaps this symposium should alter its focus. Should we not rather be seeking to scrutinise the methods of selecting référendaires instead…?
Henri de Waele is Professor of International and European Law at Radboud University Nijmegen, and Guest Professor of EU External Relations Law at the University of Antwerp.
SUGGESTED CITATION: De Waele, H.; “Virtues and vices of the 255 Committee – are we asking the right questions?”, EU Law Live, 03/10/2024, https://eulawlive.com/op-ed-virtues-and-vices-of-the-255-committee-are-we-asking-the-right-questions/
A necessary Committee in Need of a necessary Upgrade
Daniel Sarmiento
The Symposium on the ‘255 committee’ has garnered a lot of attention in the past few weeks, but this is hardly a surprise. The impact of the discussions reflects the objective importance of the 255 committee, due to the tasks it has been entrusted by the Treaty, so essential for the proper functioning of the Union judiciary and, more generally, for the Union’s commitment to the rule of law. The debate has also gone beyond the boundaries of a technical debate, mostly because of the systemic role played by the 255 committee, but also because of some surprising decisions issued lately by the panel. By the time the Symposium was launched, the role of the 255 committee was in the minds and conversations of many, a reality that raises the question of why this should be the case at all, if the committee is simply fulfilling the tasks entrusted to it by the Treaties.
Having the benefit of contributing to the Symposium at a rather late stage, now that most of the arguments against and in favour of the committee have been outlined, I will focus on a point that has been floating around during the discussions, but not as the sole focus of study: the need to undertake any amendments to the current framework governing the committee’s activities.
The title of this contribution already points in the direction of a potential conclusion: the necessary 255 committee needs some necessary upgrades. I will refrain from using the term ‘reform’, because it is my firm belief that the committee is a crucial piece of the Union’s institutional framework and it needs no overall reconsideration as to its role and tasks. I will stick to the term ‘upgrade’ because I believe that it reflects more properly the situation we are in at this time, in which the committee is considered to be of crucial importance, but requiring some degree of adaptation to the demands of contemporary institutional decision-making.
In my view, the 255 committee is in need of an upgrade in two specific areas which are closely connected: transparency and accountability. The first has been a source of concern since the very origin of the committee’s activities in 2010. The second is more recent and it has to do with the broad discretion granted to the committee, which has gradually evolved from an advisory body into an examination board, but lacking procedural guarantees.
From the moment of its creation, the 255 committee has worked and delivered its decisions in almost absolute obscurity. This is not entirely strange to decision-making in the judicial sphere, where the secrecy of the deliberations is a well-accepted practice in most European countries and with no apparent signs of reform in sight. It is widely accepted that judicial deliberations, for the sake of the ‘tranquility’ of their development and to ensure the independence of the judges, should take place in conditions of strict confidentiality. The 255 committee works in similar terms, but elevating the degree of confidentiality to the extreme: not only the deliberations of its members are secret, but so are the hearings in which candidates are heard, together with the decisions providing the reasons for its positive or negative opinions. The official line of argument has been closely attached to the inter-governmental nature of the procedure of appointment of judges and Advocates General, but also to the protection of privacy and
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reputation of candidates. Both arguments respond to very different logics, and both arguments are equally weak as a justification to preserve the total opaqueness of the committee’s work.
After more than a decade of activity, it can be said that these conditions (or lack) of transparency are totally unacceptable for a mature democratic organisation, as the Union aspires to be. They are also counterproductive for the 255 committee itself, with the risk of damaging it irreparably in the long run.
The Court of Justice of the European Union is currently the most powerful court in the European continent and one of the most relevant courts in the world. Its judgments address all the existential issues of our time and they do so with an impact that covers a range of close to half a billion individuals. The Union is a democratic organisation that relies on the representative mandate of its citizens, both through the actions of national governments in the Council and the direct representatives of Union citizens in the European Parliament. The Court of Justice acts as a counterbalance to the Union’s legislature and sets the terms of interpretation of the Treaties, which are only subject to highly (at present, close to impossible) revision procedures. It is therefore unimaginable that the candidates that intend to sit on this supreme among supreme courts of Europe are scrutinised with a reasonable degree of transparency, so that the citizens can have an informed opinion of who is sitting in that court and by way of what merits. Is it conceivable that the members of the Court of Auditors and of the Executive Board of the European Central Bank are subject to a public hearing in the European Parliament, but the judges who will sit at the very apex of the Union’s judicial system pass through a secretive committee which only the Permanent Representatives of the Member States can communicate with?
To make things worse, the cloud of obscurity and secrecy contributes to undermine the work of the 255 committee and damages its reputation. Some of its decisions will be difficult to make and at times they will be tragic (cases in which, no matter what the committee decides, it will be criticised). On most occasions, the difficulty of the individual case and how it was eventually overcome can be perfectly explained through sound and coherent arguments. But alas, nobody knows and nobody ever will, because the committee’s decisions are confidential. It is perfectly possible that a candidate had a horrendous day and failed to do a good performance in the hearing, thus failing to comply with the committee’s standards. But nobody will know. Nobody will follow the hearing, nobody will read the committee’s opinion and those who do know will speak with caution, off the record, in ways that can get lost in translation, thus paving the way for misinformation and, of course, conspiracy theories. Who is the winner of this outcome? The reputation of the candidate? Certainly not. The tranquility of the committee and its environment to make decisions? I very much doubt it. The winners are those who have an interest in undermining the committee altogether, particularly those who have been frustrated in the past when the committee did its job and refused to confirm a candidate who was genuinely unfit for purpose.
I will now turn to accountability and procedural fairness, which is the second area in which an upgrade is, in my view, needed. It is difficult to make the argument in the absence of public information, but at this point and after more than a decade of experience and direct and indirect leaks of the development of hearings in the committee, it can be argued that the 255 committee has turned into something more than an advisory body of the representatives of the governments, having evolved into more of an examination board. The criteria used by the committee and published in its annual reports are a good example of the committee’s concern with specific features of the candidates, even performing pseudo-mathematical operations in which age, experience and knowledge are put into the equation to provide an optimal outcome. From the information available to date, there is ample gossip about the questions being made to candidates on
specific judgments about competition, trademarks and staff cases. The development of these hearings appears to vary depending on the severity or robustness of the national selection procedures (if any), but there is a broad understanding in the legal community that the 255 committee prioritises its role as an examination board rather than as a consultative body. This is all very well, and nobody should be surprised by this evolution, which is partly visible in the annual reports published by the Council. But this evolution tilts the balance of power in favour of the committee, which has the expertise to question candidates on very technical matters, unlike the representatives of the governments, whose role is to make the political decision of appointment. By developing into a technical and strict examination board in which candidates can go through serious difficulties to prove their technical merits, the committee has assumed a role that is probably in conformity with the Treaty. However, with greater power comes greater responsibility, which, if we use the language of institutional dynamics, amounts to greater accountability.
Is there accountability in the committee’s actions and decisions? In principle, the answer is in the affirmative: the representatives of the governments can always ignore the opinion of the committee, which is not binding. However, it is obvious that this is no genuine tool to provide an effective counterbalance. Rejecting an opinion of the committee would amount to a declaration of institutional war that could very well trigger an immediate collective resignation of the committee’s members, considering their services no longer needed if their views are to be freely ignored by the governments of the Member States. So what genuine accountability is there? It could be argued that transparency would be an efficient tool in itself, enough to incentivise the committee into making careful and well-reasoned decisions. But as previously explained, there is no transparency at all, so hardly can there be any accountability on this ground. Overall, the evolution of the committee towards an examination board begs the question of how an unsuccessful candidate can disagree and, eventually, bring the matter to the review of another body of law. It is true that the committee is not a court, nor are its decisions binding. But considering that the only remedy to challenge the committee’s view is a nuclear option that could very well cause the institutional disintegration of the entire system, it would be advisable to introduce some form of mechanism to ensure the candidate that the unfavorable decision affecting him or her can be reviewed at some point.
Having said this, some creative thinking seems to be needed. It does not have to be revolutionary nor excessively creative. Maybe some tweaking here or there would be enough, but the current design certainly needs an upgrade at least on the two areas just mentioned.
When it comes to transparency, the traditional criticism has focused on the confidentiality of the committee’s opinions. However, I consider that the publication of these documents would not necessarily fix the weaknesses mentioned above. To what extent will the opinion disclose the failings of a candidate if nobody really knows how the candidate performed during the hearing? And considering the importance that the hearing has assumed in the decision-making process of the committee, it is my view that the hearings should be public and streamed, in the same way that hearings in the European Parliament are made available online. Good candidates will perform well, weak candidates will show their limitations for everyone to see. If a negative opinion finally arrives, even if its reasoning is confidential there will be sufficient elements for the public to understand why. It is as simple as watching the online hearing. Considerations of privacy and reputational harm are simply unjustified in precluding a public broadcast. A candidate that wishes to sit in Europe’s highest court cannot hide behind his or her right to privacy to refuse to show the merits that justify an appointment to high judicial responsibilities. Furthermore, in most Member States it will be perfectly well known that a candidate has been proposed to fill the
position, since many of the national procedures are either public or the final decision is announced and fully accessible in the media.
Therefore, whilst it is conceivable that the committee’s opinions remain confidential, or are provided in a confidential and a non-confidential version to ensure certain degree of discretion, it is imperative that the hearings of the candidates are public and available online. The public deserves it, the candidates deserve it, but so does the Court of Justice and the committee itself.
On the point of accountability, the matter is not so straightforward. As aforementioned, the committee is not a court and its decisions are not binding. However, the only remedy available is just as untenable as it is unrealistic, so an alternative needs to be thought of. I agree with Kieran Bradley that a mechanism in which the representatives of the governments ask the committee to reconsider a decision can be useful. However, such a decision will be left mostly in the hands of the governments of the Member States, not of the candidate. It is true that a committed candidate will probably sway his or her government to push for a request of review, but leaving the matter in the hands of the Member States looks like no remedy at all. In my view, and as a first step subject to future improvements, I suggest that the candidate receiving a negative opinion should have a right to request a second hearing before the committee. This course of action will give the candidate a second chance (everybody can have a bad day), it will allow the committee to obtain a more complete overview of the candidate’s profile and it will reassure the public and, above all, the representatives of the governments of the Member States, that whatever decision is finally made, it will have been the result of a well-thought-out and fair procedure.
These are rather modest proposals that would not alter the nature of the committee’s tasks nor its current approach towards its role. They would simply give the public sufficient comfort as to the legitimacy of the committee’s decisions, allow the candidates to have a fair procedure and, above all, it will allow the committee to perform the essential tasks that it has been assigned, without a hint of doubt or contestation. A very significant impact for such a modest, but necessary, upgrade.
SUGGESTED CITATION: Sarmiento, D.; “A necessary Committee in Need of a necessary Upgrade”, EU Law Live, 04/10/2024, https:// eulawlive.com/op-ed-a-necessary-committee-in-need-of-a-necessary-upgrade/
The Role of the 255 Panel: some Observations
Allan Rosas
EU Law Live has organised a Symposium on the role of the so-called 255 panel. As is well known, this panel has been set up under Article 255 TFEU with a view to giving opinions on candidates’ suitability to perform the duties of Judge and Advocate-General at the Court of Justice and the General Court of the EU. As EU Law Live has invited me to contribute to the Symposium, allow me, in my capacity as President of the 255 panel, to make some observations on the role and practice of the panel.
Unlike some of the previous contributors to the Symposium, I cannot enter into a discussion about the content of any particular opinion the panel has given on the basis of Article 255 TFEU. According to the Council Decision relating to the operating rules of the panel (2010/124/EU), the deliberations of the panel ‘shall take place in camera’ (Rule 5), the hearing of the candidate ‘shall take place in private’ (Rule 7) and the panel’s opinion ‘shall be forwarded to the Representatives of the Governments of the Member States’ (Rule 8(2)). It has always been considered that the opinions are forwarded to the Representatives of the Governments of Member States only and that they remain confidential. This practice has also been condoned by the European Ombudsman (Decision 1955/2017/THH). Hence the following observations will be at a general level, focusing on the considerations the panel has long since used to perform the task entrusted to it under Article 255 TFEU. These considerations are explained in the activity reports of the panel (the most recent being the 7th report adopted on 25 February 2022), which are public and available on the panel’s website.
It should be recalled that Articles 253 to 255 TFEU are very general in nature. If for instance the requirement, in Article 253, concerning the Court of Justice, of possessing ‘the qualifications required for appointment to the highest judicial office in their respective countries’ is understood to mean that all persons who hold such an office nationally automatically fulfil the requirements, one wonders why Article 255 was added to the Lisbon Treaty, entrusting the panel with the task of giving an opinion on candidates’ ‘suitability’ to perform the duties of members of the Union Courts. Moreover, such automaticity would imply that the requirements for becoming a Member of the Court of Justice would vary depending on the Member State.
The insertion of Article 255 TFEU in the Lisbon Treaty was considered a major achievement, designed, in the interest of the rule of law, including the requirement of judicial independence and impartiality, to enhance the likelihood that persons appointed to become members of the Union Court possess the necessary abilities and qualifications. In a judgment of 29 July 2024 (C-119/23, Valančius), the Court of Justice has observed, inter alia, that ‘the involvement of independent advisory bodies’ at national level may contribute to rendering the appointment process more objective (para. 56) while the verification of the ‘suitability’ of candidates proposed by the Member States is also the responsibility of the panel provided for in Article 255 TFEU (para. 58).
As the panel, already in 2010, that is, shortly after its creation, wished to provide a structure for its understanding of Articles 253 to 255 TFEU as well as to enhance transparency, it elaborated six considerations or criteria for assessing candidates’ suitability. To quote the 7th report of 2022, although
the criteria established by the TFEU are exhaustive, ‘the panel nevertheless considers that they could be further clarified and specified’. A similar statement is already to be found in the first report of 2011. The six considerations as formulated in the 7th report are ‘the candidates’ legal capabilities’, ‘their professional experience’, ‘their ability to perform the duties of a judge’, ‘their language skills’, ‘their ability to work as part of a team in an international environment’ and ‘whether their independence, impartiality, probity and integrity are beyond doubt’. These considerations have since the early days of the panel’s work been constantly applied by the panel and explained in several activity reports.
As to the criterion of a certain length of high-level professional experience, in particular, it is based on the idea that considerable and high-level professional experience is valuable for the functions of a judge at the highest level. Similar considerations exist also for other types of functions, and at national judicial level as well. As explained in the panel’s activity reports, the requirement of 20 years of high-level duties, for the Court of Justice, and twelve or even fifteen years of experience of the same nature, for the General Court, is a ‘presumption’ which ‘can, however, be overridden where candidates demonstrate exceptional legal capabilities’. There are many cases where, despite the fact that the consideration of 20 years of high-level professional experience was not fulfilled, the opinion on a candidate was nevertheless positive.
Some of the scholars contributing to this Symposium seem to call into question an essential ingredient of the panel’s practice so far, considering that the nature of the considerations applied by the panel, and its practice of applying them, would favour the creation of some sort of ‘EU judicial bureaucracy’. It needs to be repeated, the application of the panel’s considerations is not recent but dates back to the early days of the panel’s existence. The idea was to render some structure and transparency for the way the panel should assess the suitability of candidates.
It should be added that the proportion of negative opinions has been quite constant over the years (this is not an objective but an empirical statement), ranging from roughly 20 to 25 % of the opinions concerning a first term of office. Moreover, as the panel has stated in its activity reports, it does not give preference to any particular professional path nor any one field of legal competence more than another. Even a cursory look at the current members of the Union Courts (who in most cases have been appointed for their first term on the basis of a favourable opinion of the panel), or indeed the members of the panel itself, will display a wide variety of legal and professional backgrounds. It is not the intention of the panel to create an ‘EU judicial bureaucracy’, whatever is meant by this expression.
In my humble opinion, and that of my colleagues on the panel, reducing the role of the panel to a simple check whether the requirements contained in Article 253 TFEU are fulfilled would amount to turning the clock back from one of the achievements of the Lisbon Treaty. The rule of law, I am afraid, would not be served.
Allan Rosas Dr.Jur., Dr.Jur. h.c., Dr.Pol.Sc. h.c., is Professor Emeritus and Visiting Professor at the College of Europe (Bruges), the Global School of Law (Católica University, Lisbon) and the University of Helsinki. He is President of the Article 255 TFEU panel and of the Independent Ethical Committee of the European Commission. He was Judge at the European Court of Justice from January 2002 to October 2019.
Judging the Judges who Judge the Judges Concluding Reflections
Joseph H.H. Weiler 1
I am grateful to EU Law Live for having given me the opportunity to publish Who will Judge the Judges who Judge the Judges which gave rise to the ensuing symposium.2 I am grateful, too, for all those who reacted to my original piece, both publicly and privately, not least to Judge Rosas,3 the current Chair of the 255 Committee, from whose characteristically thoughtful, measured and respectful comments we can, and should, all learn.
EU Law Live has invited me to contribute a Follow Up to the symposium.
It is my intention in this Follow Up to step back and take a broader look at some of the issues concerning the selection and appointment of judges to the Court, both at national and European level, with, of course, reference where relevant to the possible role or otherwise of the 255 Committee. In doing so I will be taking on board some of the very helpful comments published in the Symposium, including those critical of my original contribution.
Preliminary Observations
First, I would like to emphasise that neither my original contribution, nor any of the reactions thereto, have called into question the individual competence, integrity, experience and good faith of any of the current or former members of the Committee. They have all been and are jurists of the highest order, more than qualified to fulfill the essential task entrusted to them. This goes without saying but it is nonetheless important to say. This remains true even when critical of this or that procedure, or some specific decisions in recent cases. Yet, there is nothing that is so good which cannot be made better. It would be a pity if one were to succumb to that all too human reaction when one’s work is scrutinised and critiqued, namely ‘circling the wagon’ and deflecting in omnibus manner all such critique.
After all, present company excluded, also the competence, integrity, experience and good faith of all those who contributed to the Symposium cannot be denied. When you have comments by, inter alia, presidents and judges of national constitutional courts, a former minister of justice, a former Advocate General of the Court and others who have held judicial office and served in the legal service of Institutions of the
1. Professor at NYU School of Law, Senior Fellow at the Harvard Centre for European Studies, and former President of the European University Institute, Florence (2013-2016).
2. Weiler, J. H. H., ‘Who will Judge the Judges who Judge the Judges? The Curious Case of Gonçalo Manoel de Vilhena de Almeida Ribeiro’, EU Law Live, 20/09/2024.
3. Rosas, A., ‘The Role of the 255 Panel: some Observations’, EU Law Live, 07/10/2024.
Union (and even perhaps professors – on occasion, even they may have something interesting to say), some weight should be given to these views.
A second general preliminary observation may be relevant when considering the issues raised in the Symposium. The Union of today is manifesting some features the intensity of which is unprecedented. At the political level, the phenomenon which strikes me as most significant is not just the vagaries of public support for the integration project as evidenced in, say, long-term Eurobarometer data or in the results of recent elections to the European Parliament. Even more significant is the normalisation and centralisation of so called Euroscepticism in Member State politics. When we look at the map of electoral politics we no longer have the comfort of treating Euroscepticism as epiphenomenal –the usual whipping boys being Hungary and Poland. Think Marine Le Pen in France (who won the European elections with close to a third of the popular vote significantly more than any other party, and obtained close to a quarter of the votes in the national elections), the rise of AfD in Germany and Geert Wilders in The Netherlands, to give but a few examples from Founding Members of the Union.
It is of more than anecdotal significance, if Politico is to be trusted, when a mainstream politician such as Michel Barnier, the former ‘Brexit Commissioner’ and currently Prime Minister of France, found it expedient, on leaving the Commission, to propose in the context of the immigration debate in his shortlived bid for the Presidency of the Republic, a referendum in France in order, inter alia, ‘…no longer [to] be subject to judgments of the CJEU’.4
As regards the legal order, there are striking data to indicate some seismic tremors which prudence suggests should not be brushed aside as ‘mere’ tremors. I refer to a stream – not yet a river– of cases where the very foundation of the legal order, the authority of the CJEU as the final arbiter on issues of European law, has been called into question. Here too, we no longer have the luxury of dismissing these as aberrations of one or two recalcitrant Courts from recalcitrant Member States – the usual whipping boys being, again, Hungary and Poland. Apex courts in Denmark, the Czech Republic, Italy, France, Romania and of course Germany constitute a broader and significant spectrum.
We should be careful not to stick our head in the sand and fall into the polarization trap (Art thou for us, or for our adversaries? Joshua 5:13) – you are either a Europhile of Eurosceptic and dismiss pell-mell all these indicators as the Barbarians at the Gate. The political and legal tremors are surface signs of deeper tectonic changes in the EU. If Europe is dear to us, we disregard them at our peril. It is precisely in this type of situation where the wisdom of Giuseppe Tomasi di Lampedusa in Il Gattoparde could guide us: ‘Everything has to change for everything to remain the same.’ Well, perhaps not everything, but there is plenty of space for necessary reflection between ‘everything should change’ and ‘nothing should change.’
The issue of the process of selection of judges to the CJEU is admittedly just a small, but not unimportant, cog in such reflection. Its authority as the Primus Inter Pares of the European judicature is to be guarded with care. When it comes to the procedures of selecting its Members, surely the maxim Uxorem Caesaris tam suspicione quam crimine carere oportet (typically rendered as Caesar’s wife must be above all suspicion) would be wise to follow.
Deselecting and Reselecting Judges to the Court
The focus on the role of the 255 Committee in scrutinising new appointments to the Court draws away attention from an issue no less critical namely the ‘deselection’ and reselection of sitting judges. Judges and those AGs from Member States who are entitled to a ‘permanent’ AG, are appointed for a term of 6 years, renewable. There is no EU imposed limit on the number of renewals, the length of service or a mandatory age of retirement.
The decision not to renew a Judge or AG – effectively to deselect – or to reselect him or her is the prerogative of the executive branch of the Member States. The issue of renewability (coupled with the indeterminate term of judicial service on the Court) is in my view hugely troublesome and, I would respectfully suggest, falls well short of the very principles of judicial independence that the Court itself has rightly established, as well as the best practices of senior judicial appointments in Europe.
I am unaware of any apex court in Europe or in other of the countries with which I am familiar where continued service of an apex judge is subject to renewal at the discretion of the Executive Branch of his or her Member State.
I discard the possibility that this dependence will consciously affect judicial decisions and Opinions (even if the subconscious is, as we know, a dark territory). But the appearance of dependence is egregious and unacceptable by any standard.
In the United States which ‘boasts’, especially in recent polarised times, one of the worst procedures for selecting judges (de facto, a modern version of ‘Packing the Court’ by those who hold political power in the American Congress) the judges are appointed for life. This aggravates the ‘packing process’ the effects of which last well beyond the political constellation which appointed them and also prevents a more satisfactory process of refreshing the Supreme Court. But at least, once appointed, the judges are no long dependent on the other branches of government for continued service. (It is no wonder that a process has attracted severe criticism and various initiatives for reform are afoot).
In other countries judges are appointed until a statutory age of retirement, in others still, like Germany and Italy, and this in my view is the Gold Standard, judges are appointed for a fixed terms of 9 or 12 years balancing the need for experience and the desire for new faces and new minds. The European Union has adopted the worst of all worlds: Renewability, which casts the specter of dependence and a term of 6 years which on its own is too short. Some might think that unlimited renewals and an indeterminate term of service is also not ideal. Caesar’s wife would blush.
In its well-known and important decisions on the Rule-of-Law in Poland, the Court tersely and correctly addressed the question of removal (and extension of judicial office after retirement – a different version of renewability) as regards the principle of independence and appearance of independence of judges.
In e.g. case C-192/18 (Commission v Poland) the Court held:5
5. Judgment of the Court of Justice of 5 November 2019, Commission v Poland, C-192/18, EU:C:2019:924.
As is also clear from settled case-law, the necessary freedom of judges from all external intervention or pressure requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office … (para. 112)
It then continued:
The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term.
While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed (para. 113).
In these general statements of principle, the Court did not address, prudentially perhaps, the issue of renewals. But in response to one of the pleadings of the Government of Poland, the issue was briefly addressed in paragraphs 132 and 133,
Finally, the Republic of Poland’s argument concerning a similarity between the national provisions thus challenged and the procedure applicable at the time of any renewal of the term of office of a judge of the Court of Justice of the European Union cannot succeed. (para. 132)
Unlike national judges who are appointed until they reach the statutory retirement age, the appointment of judges within the Court of Justice occurs, as provided for in Article 253 TFEU, for a six-year fixed term. Moreover, under that article, a new appointment to such a post held by a judge whose term of office is coming to an end requires, as was the case in respect of the initial appointment of that judge, the common accord of the Governments of the Member States, after consultation of the panel provided for in Article 255 TFEU….(para. 133)
I entirely agree with the decision of the Court. The similarity between the Polish situation and the CJEU procedure notwithstanding, could not and should not have served as a valid argument for the Court to decide the Polish case otherwise than it did. Two wrongs do not a right make.
Moreover, even if the need to ensure ‘…freedom of judges [or appearance of such] from all external intervention or pressure’ calls into question the current procedures as regards the de-selection (effectively removal) and reselection of CJEU judges, this is not a problem of the Court’s making and it is not for the Court to resolve. The task of the Court is scrupulously to follow the Treaty based rules and procedures, which it clearly does, as outlined in paragraph 133. Neither is it a task for the Article 255 Committee. As the Court states, the Committee does review re-nominated judge in accordance with these rules and procedures and it would be bizarre if they held that a judge that has just finished a six-year term is not qualified to serve on the court. That, to my knowledge, has never happened, and rightly and understandably so.
Yet, scrupulously following the extant rules and procedures does not resolve the problem, if these rules and procedures result in compromising principles of dependence and independence enunciated by the Court itself in paragraph 112, cited above, and elsewhere.
The reality of the practice is widely known and quite visible. Understandably, most if not all judges hope (and perhaps expect) to be renewed upon expiry of their first (and at times subsequent) term of six years. (When a judge decides that he or she no longer wishes to serve, they indicate such to their colleagues and respective governments). Hope springs eternal in every human breast –but the judge whose six-year term expires, cannot be sure their hope will be fulfilled. It depends on the good will of the government of his or her Member State. It is this reality which is the crucial factor which compromises the principle of independence enunciated in paragraph 112, cited above. De jure, the mandate of the judge has expired. De facto in cases when a government does not re-nominate, the judge will have been removed, on occasion to their chagrin and disappointment. This type of ‘removal’ has happened from time to time, even recently. No accountable procedure needs to be followed, no reason needs to be given and is often not given. (In one such case, a judge told me that he learnt of his non-reappointment, on the radio whilst driving his car.)
The reasons for such ‘removal’ may be pure or otherwise. Be this as it may, motives pure or otherwise, it is this very dependence for renewability, which compromises independence.
Anecdotally, in a public discussion in which I participated with judges of the Luxembourg and Strasbourg Courts which touched on the desirability or otherwise of allowing separate and dissenting opinion in judgments of the CJEU, a then sitting judge of the CJEU opined that one reason against such a practice is this very fact: They depend for their renewability on their governments.
A legal pedant could argue, following paragraph 133 of the ruling in Commission v. Poland, that judges of the CJEU are appointed for six years. A Member State has the right not to renew him or her upon the expiry of their mandate. If they decide to renew, the argument might continue, such renewal should be regarded as a de novo appointment and so long as the relevant rules and procedures are followed all is well.
In the light of the reality of the situation, as described above, this reasoning, I respectfully suggest, constitutes nothing less than formalist sophistry.
The similarity with the Polish situation is not cosmetic. There is, of course, a vast difference between the political context in which the Polish case was decided and the regular practice of Renewal in the context of the EU. But the principle enunciated in paragraph 112 of the ruling cited above is present in both situations. There is not a difference in principle between the situation of a Polish judge who seeks and hopes for an extension of his or her mandate when the age of retirement kicks in and is then dependent on the decision of the Polish minister and that of an CJEU judge whose six year term expires and seeks and hopes for renewal and, mutatis mutandis, depends on the discretionary will of his or her Member State minister.
Imagine a Polish like situation in another Member State, where, for example, for pragmatic reasons a government decided to allow extension of service beyond retirement at the discretion of the Minister with no need to give reasons when such was granted or not granted. Would the Court, should the Court, decide the case differently? I think not.
This, as mentioned, is absolutely not a reason for the Court to have decided the Polish case differently. But it is every reason for the Union to put its house in order.
Matthew 7:3-5, at least to me, comes to mind:
The Selection of EU Judges and the 255 Committee
And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye? (Mat. 7:3-5)
The Polish practice was no mere mote, but the beam is very real.
I do not think that I alone am concerned about this reality. At least twice in its input to past IGCs the European Parliament proposed adopting the Italo-German approach. Likewise, in the coalition agreement of the current German government regarding the tenure of the CJEU-Judges we find
Um den EuGH zu stärken, sollte die Richterwahlzeit auf einmalig zwölf Jahre verlängert werden.
(To strengthen the ECJ, the term of office for judges should be extended to a single twelve-year term.)
If you agree that this is a very real and serious problem and further agree with me that it is neither the task of the Court, nor that of the Article 255 Committee to resolve, what can and should be done? It is often thought that it can only be achieved by an amendment of the Treaty. I do not believe this is necessarily the case.
Here, interestingly, the specific procedure for confirming new judges to the Court by Common Accord of the Governments of the Member States may provide a more expeditious route. The current discretion of the Member States, jointly and severally, to renew or not renew an appointment of new judges, can become the proverbial lemon which is turned into lemonade.
If the Governments of the Member States consider the German proposal desirable, it is within their power to agree and declare, jointly and severally, by Common Accord, that in confirming a new judge or AG to the Court, renewal after six years would be automatic upon request of such a judge. At the same time, they could also agree and declare, ex ante, that no second renewal would be proposed by a Member State and approved by the Governments acting by Common Accord.
Independence and appearance of independence would thus be guaranteed within the constitutional parameters of the Treaty and the extant procedures.
This, of course, would only apply to future appointments. What then of sitting judges of the Court? The same procedure may apply. The Member States may decide and declare, jointly and severally, by Common Accord, that for any sitting judge who has served more than 12 years, no renewal will be requested nor approved upon expiry of the current term.
Such a procedure, general in scope and announced ex ante, will not compromise or call into question the independence and integrity of any individual sitting judge.
Selecting Judges for the CJEU at the Member State Level
The ‘bible’ on this theme is surely Michal Bobek’s magisterial Selecting Europe’s Judges: A Critical Review of the Appointment Procedures to the European Courts 6 Although there have been some changes from the 2015 publication date, this is indispensable reading.
6. Oxford University Press, 2015.
One of the principal takeaways from the book is the huge variation among the Member States. It is still the case (and I mentioned an example in my initial contribution to the Symposium) that in some Member States this procedure lacks any measure of transparency, is entirely in the hands of the Executive Branch, at times a single Minister, and constitutes a veritable black box. The suspicion that proximity, personal or otherwise to the powers that be rather than the best qualifications, cannot be excluded. As is well known, this has happened from time to time and it seems the 255 Committee has been effective in weeding out some such cases.
This is not to suggest in any way that judges which have emerged from these national black boxes and subsequently approved by the 255 Committee are not qualified or even the most qualified. But the lack of transparency surely falls short of best practice and might cast an unnecessary shadow, especially in his or her Member State of the judge so selected.
One need not expect or even desire absolute uniformity among the Member States in their internal procedures for nominating judges to the CJEU. But a minimum set of principled standards should be followed.
If the Member States find, as they should that the status quo for nominating judges at the national level is undesirable and that some basic principles of transparency and accountability should be established, here, too, there would be no need for Treaty amendment to correct the situation. The Member States could establish, acting in Common Accord, such a set of principles with which all national procedures should conform as a necessary condition for approving their nominations.
Selecting the Members of the 255 Committee
Members of the 255 Committee are appointed by the General Council on a proposal of the President of the Court. It seems natural that the Court itself, in the person of its President, will have a major role in proposing such names. I am unaware of any instance where the Council has rejected the proposals made by the President. To judge by the excellent quality of the Members so selected the system has worked well. Still, it might be advisable to have greater clarity about the criteria and method of arriving at the proposed members.
When reviewing the composition of the Committee over the years, it seems that recently, both in the selection of the Presidents of the Committee and its Members, the specific gravity of former Members of the Court has increased. This, too, may seem natural: Who better to judge the suitability of candidates than former judges who have fulfilled the functions and understand its requirements.
I am not sure if this subtle change is by happenstance or a result of a policy decision. A slight note of caution might thus be in order. The Court should resist the understandable temptation of trying to ensure that the profile of new judges will replicate that of the existing membership. I will address this issue below when discussing the criteria for selecting or rejecting candidates by the Committee.
Back to the 255 Procedure
Necessary reforms of the national procedures should be occasion for at least considering equally necessary reforms of the Union procedures. Moving from a national black box to a Union black box is not the ideal way of selecting judges to the CJEU. Matthew 7:3-5 is relevant here, too.
The
In my September 20th piece on EU Law Live I highlighted what I considered some serious issues attendant on a recent decision of the 255 Committee rejecting the candidacy of the Vice President of the Portuguese Constitutional Court. Some other recent rejections were questioned in the symposium. One central issue was the Committee’s introduction of a presumptive 20-year experience requirement for qualification as a CJEU judge.
I do not wish here to repeat at length the various objections to such. One objection was, simply put, the unconstitutionality of such a requirement. Readers will no doubt have seen the reaction to the decision of the 255 Committee by the Foreign Minister of Portugal which tersely highlighted the issue of illegality. 7
I also referred to the potential impact of the 20-year rule on the age demographics of the Court questioning the desirability or otherwise of such.
Here, however, I want to explore a different and no less crucial consequence of the 20-year rule as regards the transparency of the 255 procedure.
To remove any doubt: the internal deliberations of the 255 Committee, after examining the file of the candidate and the subsequent audition or Hearing with him or her, take place in camera and are thus confidential. Let me state clearly and unequivocally: This is how it should be. It would compromise both the quality of the deliberation and the independence of its individual Members, if such a hearing or the record of such, were in public or subsequently made public.
Setting aside the question of the legality or otherwise of the 20-year rule, the problem is not with the confidentiality of the deliberation but with the opaqueness of the motivation when the Committee decides to reject a candidate. It is for this reason that I referred to such as a Black Box.
The Report the Committee sends the Governments in such cases is, for obvious reasons, confidential. However, this does not prevent Member State officials and former Members of the Committee to discuss, in general terms, and without reference to any specific Report or individual decision, the character of such reports. Likewise, it would be unnatural if the rejected candidate did not receive a copy of the decision, and in this case the Committee has no right to impose a gag order on such an individual.
Be this as it may, the Report is brief and will typically be around 3 pages long. The bulk of the Report is simply a summary of the CV of the candidate. The negative decision comes at the end and is extremely brief. A simple statement that the candidate does not meet the 20-year experience requirement. Nothing more.
To understand how problematic and unsatisfactory this aspect of the procedure is, here, too, I have to address, as I did in relation to the de-selection and re-selection of sitting judges, the reality of the process rather than its formalist patina.
When the Committee deliberates, they consider, as they should do, the overall suitability of the candidate to fulfill the role of a CJEU judge based, as mentioned, on his or her CV but in particular based on the audition before the Committee. After all, if all that was needed were to ascertain whether the candidate meets the formal requirements in the Treaty, would one need this high-powered Committee? The very raison d’être of the Committee was and is to go beyond the formal requirements.
7. ‘Portugal says rejection of judge for EU court “illegal”’, Euractiv, 31/10/2024.
The very fact that the procedure includes an audition signals, appropriately, that a CV alone is not sufficient to ensure that a candidate is suitable for the function of a CJEU judge. In reality, the Committee having weighed, as it should, all relevant factors that emerge from the CV and the Hearing, will reach a decision that the candidate is not suitable.
Here comes the Achilles Heel of the procedure: The 20-year rule, which enables the Committee to ‘camouflage’ the real reasons and hide behind the formalism of not meeting the required 20 years experience.
The Committee, in its Activity Reports, has explained that they take as their (self invented) baseline the 20 year rule, but are willing to make exceptions for candidates who have exceptional qualities to override the inexperience presumption. Try to simulate such a deliberation – it inevitably comes down to the same process – one of weighing all the relevant factors, in which the audition plays a crucial part. Once the Committee reaches a negative option, ipso facto the candidate will be held not to have those exceptional qualities and vice versa. Put differently, it is difficult, neigh impossible, to try and convincingly motivate what one did not find rather than what one has found.
It is this last opaque step in the procedure that is unacceptable and this for several interrelated reasons.
Several of the contributors to the Symposium took forceful issue with my recommendation that in the case of the Portuguese candidate the governments should not follow the negative avis of the Committee. There is much force in this critique. In effect, the decision of the Committee on this view although formally advisory would and should, according to this view, be binding and final. But in this case, you cannot have your cake and eat it.: Binding and final but at the same time lacking in transparency and with absolutely no mechanism for review? In effect, binding, final and non-reviewable? Infallible? Whoever heard of such? If we discard the 20-year justification as window dressing, as we should, is a candidate for any official post, who has been rejected on the merits, not entitled to know the reasons for such? (and to make the soup even thicker, consider the delicacy of a candidate who would wish, based on Les Verts, to challenge such a decision before the Court. The 255 Committee is nominated by the Court and de facto a quasi organ. Would there not be a structural conflict of interest, Nemo Judex in Causa Sua? This means that the only instance which, in effect, may review the decision are the Governments of the Member States. But how could they review it if the real reasons are not disclosed? The current procedure ensures that neither the proposing government nor its fellow governments which have to decide by common accord will have any basis on which to review the Avis and are expected to accept it, Delphi like, as Torah from Sinai.
I do not believe that such accords with the most basic norms of correct and principled administrative procedures.
There is a further problem resulting from the opaqueness of the final 255 Committee negative decisions and this consideration goes beyond the interests of the immediate stakeholders.
It is not just the specifics of any given decision regarding an individual appointment which are, arguably, unacceptably opaque. The criteria, which the Committee employ in reaching such decisions, equally lack transparency.
This is important not only, obviously, for governments and individuals considering candidacy. It is of far wider interest – for these criteria in effect determine the judicial and political profile of the Court of Justice of the European Union. Good people and true can differ as to what this profile should be. I hope
I am not alone in thinking that this is an issue, which should not be decided sub silencio by a Committee, distinguished, and thoughtful as it Members may be.
How to fix the Transparency Dilemma?
As is often the case in public policy, it is easier to articulate the problem than it is to find adequate solutions. I do not, therefore, wish to propose ‘The Solution.’ Any proposed solution would carry some costs. Instead, I wish to give some directions worthy in my view of discussion and consideration with two such directions in particular.
• I have already expressed my firm conviction that the deliberation of the Committee must be and remain confidential. I see, however, no compelling reason why the Hearing (the audition) should not be in public as is the case in some jurisdictions. A public hearing can be polite and courteous and yet searching. In some jurisdictions such a Hearing takes place before a Parliamentary Committee. The disadvantage is that it risks becoming politicised. This, however, would not be the case with the 255 Committee whose questions would be professional and indirectly, but importantly, would also give indication of the criteria the Committee employs, and the qualities it expects a judge on the Court to have. Members of the Committee could, e.g., agree in advance on the type of questions and the order of questioning to eliminate the impression of hostility by this or that Member. One may adopt different modalities. For example, a publically open session and a closed session in which only the Committee, the candidate and a representative of each Member State and the European Parliament would be present. There are plenty of permutations. All are better, in my view, than the current procedure.
• When the Committee reaches a negative opinion, it should motivate its decision, articulating alongside the virtues of the candidate the factors which led the Committee not to recommend the appointment. From the perspective of the individual this will always be a bitter pill and one should, at all costs, attempt to formulate the negative in such a way that would not abjectly humiliate a candidate. There are many possibilities to achieve this. One might consider such a motivated decision to be addressed only to the Governments and the candidate – though leaks are almost inevitable. One might consider a temporal stage. For example, Panel decisions at the WTO are initially sent in confidential draft form to the Governments in questions, allowing them to submit observations, before the Panel takes a final decision. Even if the decision of the Committee should be regarded as de facto binding, would it not be wise before they take their final decision to hear observations and objections from the proposing Member State? Other possibilities exist. With all possible drawbacks, I think some such approach is better than the current Delphic model.
As mentioned, even the most elegant solution to either or both of these directions comes with costs. It might, for example, have a chilling effect on the willingness of potential candidates to allow their name to go forward. It is not clear to me whether the current procedure (‘flunked by the 255 Committee with no more) does not have a similar or even greater chilling effect. But, beyond that, can our society not expect that if someone aspires to become a judge on the highest jurisdiction of the European Union, he or she, would and should be willing to subject themselves to at least some form of public scrutiny – the precise details of which to be worked out democratically?
• A third direction worth considering is whether one should not borrow from the practice of the Council of Europe and the ECHR and invite (or require) Member States to put forward more than
one candidate? I see at least two potential virtues in such a procedure. If the Committee has to select, say, one out of three, the potential ‘humiliation’ to a rejected candidate is significantly reduced. It is one thing to be told that you are not qualified. It is quite another to be told that someone else seemed better qualified.
Additionally, it is far less likely that the Committee would end up flunking all three candidates avoiding the ‘embarrassment’ to the proposing Member State. And it would also allow the Committee to base its preference not simply on the qualification but also on areas of expertise which the Court might be lacking.
Be all this as it may, for the reasons explained above, I do not think that current status quo is satisfactory and meets our common standards of reasonable decision making, and if these solutions, or a variant of them, does not find favor, others would need to be found.
The Criteria for Selecting CJEU Judges
This, in my view, is the most delicate and potentially controversial aspect of the procedure. I present my views here in the interest of debate and discussion. I find myself wavering on these issues.
Some criteria are easy (or easier) enough such as linguistic ability. If a prospective appointee, even if hugely accomplished, does not speak or read a word of French, this might be a valid reason for rejection. It is said that one can learn on the job. I do not think that it would be unreasonable for the Committee to insist that one should learn before the job and reach at least a minimal standard (fluent bad French – an unofficial commonly spoken language in the European corridors of power) before putting one’s name forward. To my knowledge, rejection on this ground has happened at least once.
The trickiest question concerns prior expertise in the law of the European Union. To many this would seem a ‘no brainer’. How could you even contemplate appointing a judge to the CJEU if he or she have no deep expertise in EU law?
Here are some considerations, which might persuade at least some that there is no easy answer to what seems such a rhetorical question.
I will start with the wisdom of Aristotle, Aquinas and Maimonides: It is all a matter of degree. No experience at all? Tabula rasa? Well of course that must be a No.
However, if we take as a foil the candidature of, say, a serving judge in the highest jurisdiction of a Member State. How likely is it that they have no knowledge of EU Law, not least the interaction of EU law and national law? Can anyone who graduated from a European law faculty in the last 20 or more years, be totally innocent of EU Law? And an even more subversive question: Given the huge growth of EU law in the last decades, what does it even mean to be an expert in EU law? If someone would approach me and state that he or she were an expert in American Law or German Law, I would laugh. I have spent a lifetime as a student of EU law and do not consider myself an expert in ‘EU law,’ and more often than not, when asked about this or that aspect of EU law, I have to admit that I cannot give an answer without considerable more research and study. We are back, thus, to the realisation that it is a question of degree. A far more important criterion in my view is the inherent qualities of the judge as a jurist – the ability to assess legal argumentation with hermeneutic sensibility and sophistication. In endless discussions over the years with Members of the Court, I have learned from them, how initial anxiety disappears and how fast the learning curve becomes with the help, of course, of talented référendaires and colleagues in the
The Selection of EU Judges and the 255 Committee
various chambers. All this leads to the conclusion that the so-called Expertise in European law, beyond a certain modest base is secondary to the other qualities one looks for in a judicial appointment.
But there is more to this somewhat subversive reflection. In today’s world, I would be more worried by a court none of the judges of which had deep understanding of, say, the technology undergirding the Information society – more important than having specific expertise in the minutiae of the DSA. Do you really know what an Algorithm in AI means? Hand on your heart, please. I think the same is true in, say, the area of taxation and more And, Last but not least, given the challenges I mentioned in the opening paragraphs of this conclusion to the Symposium, I would give preference to a potential judge with deep experience in constitutional law and constitutional hermeneutics, over specific expertise in EU law which, as mentioned, will be picked up when sitting as an EU judge.
What is of concern taking into account, inter alia, some of the indicia already mentioned – such as the growing specific gravity given to former Members of the Court in the composition of the Committee, or the three year experience criterion by service on the General Court mentioned by some of the contributions to the Symposium, (apparently 3 years in the General Court presumptively counts more than, say, 18 years of national experience) is that, satisfied as it is with itself, the impression might be given that the Court wants to replicate itself and is not just interested in expertise with European Law, but wishes to appoint judges who will be loyal to the Court’s current hermeneutic Ethos and its understanding of the Telos of European integration.
The principal Treaty requirement for judges is that a candidate to the Court should be qualified to hold the highest judicial office in his or her Member State. One knows full well that there are different traditions in the various Member States as regards age, experience and the like. This not only militates against the 20 year rule, but is also an indication which gently points to a general desire not to have all judges of the Court cut from the same cloth even on the fundamentals of the European construct.
To give one example, what would, or should, be the attitude of the 255 Committee to a candidate who, say, expresses criticisms or skepticism of this or that important part of the jurisprudence of the Court? Is that a reason that such a voice should not be heard in the deliberations of the Court? Or a candidate whose views rather than his or her knowledge, on any issue do not find favor with the Committee? It is troubling that one simply does not know how the Committee handles such cases.
I do not have clear answers to these issues regarding the appropriate criteria, but surely they should be aired in public.
Da Capo
I want to end this reflection by returning da capo to my initial contribution to the Symposium and the one issue which drew the most critical comment both in public and in private, namely that the governments of the Member States should reject the avis of the Committee as regards the Portuguese candidate.
Several friends and ‘friends’ who expressed agreement, full or partial, with my analysis, resisted strongly this proposal. ‘The Committee will resign’; ‘this will destroy an important institution which has, on the whole, functioned well and saved the Court from some really terrible appointments’; ‘no one will agree to serve on the Committee if this were to happen’ – were just some of the comments I received and you read.
The Selection of EU Judges and the 255 Committee
I have great sympathy for the sentiment underlying these comments. Surely one would not want to destroy the 255 Committee. One can critique this or that aspect of its current procedure without denying its essential role, past and future.
I also have sympathy for the potential reticence of prospective Members of the Committee if its avis could willy nilly be disregarded. (Though the Committee is a human institution and errare humanum est.) I myself had, some 10 years ago the privilege of serving on the so-called ERC Identification Committee, a Committee responsible for ‘advising’ the European Commission on the appointments to the European Research Council which disburses countless millions in research funds, a matter of ‘life or death’ to many universities and European research prowess in general. When invited to become of a Member of that Committee (the 255 Committee of the European Research Council – vive la difference) I was assured by the Commission that although ‘advisory’ our recommendations would always be followed. I doubt that I would have accepted had it been otherwise.
There is, however, one outcome which I considered no less harmful: That nothing would happen. That despite all the imperfections, small and not so small, in the way we go about selecting judges to the European Court, inertia would kick in, as it so often does, some oohs and aahhs would be sounded, the wagons would be circled and it would be business as usual. The specific matter is now moot since the Portuguese government has withdrawn the Candidate. In an unprecedented development, apparently the Chair of the Committee has agreed to appear before the Governments and discuss the case. But if there is any merit in what I have written it is clear that the problem is systemic, not a specific decision in a specific case. At a minimum a high-powered Committee, of ‘Wise Men and Women’, including of course, but not dominated by Members, past or present, of the Court itself, could be established to make recommendations on necessary revisions to the current system. Remember Lampedusa!
I understand that many readers and stakeholders will find some of my analysis and some, or all, of my proposals misguided and worse. I trust and hope that no one will read them ad personam. Given my age and experience (more than 20 years…), it would, in my view, be a betrayal of my privileged position as a tenured law professor, if I refrained from expressing freely my views, both positive and negative, on all aspects of the functioning of our Union, including its judicature.
Joseph H.H. Weiler is a Professor at NYU School of Law, Senior Fellow at the Harvard Centre for European Studies, and former President of the European University Institute, Florence (2013-2016).
SUGGESTED CITATION: Weiler, J.H.H.; “Judging the Judges who Judge the Judges. Concluding Reflections”, EU Law Live Weekend Edition Nº206, 09/11/2024, https://eulawlive.com/weekend-edition/weekend-edition-no206/