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/