JUDGING THE JUDGES WHO JUDGE THE JUDGES
Judging the Judges who Judge the Judges Concluding Reflections
J.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.
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.
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 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 short-lived 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.
4. Dallison P. and Braun, E., ‘Barnier the Brexiteer? French candidate gets tough with EU on campaign trail’ Politico, 9 September 2021.
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
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
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).
The issue of renewability is hugely troublesome and 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
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)
5. Judgment of the Court of Justice of 5 November 2019, Commission v Poland, C-192/18, EU:C:2019:924.
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 nonreappointment, 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:
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 ItaloGerman 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.
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
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.
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.
6. Oxford University Press, 2015.
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.
If the Member States find 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, there would be no need for Treaty amendment to correct the situation
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.
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.
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. This is how it should be
7. ‘Portugal says rejection of judge for EU court “illegal”’, Euractiv, 31/10/2024.
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.
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.
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.
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?
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 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.
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.
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.