The Treaty on European Union and the EU Charter of Fundamental Rights do not stand in the way of the Maltese Constitution, under which the executive, including the Prime Minister, plays a role in the procedure for appointing judges, Advocate General Gerard Hogan said in his opinion delivered on Thursday 17 December (Case C-896/19).
The Maltese association Repubblika is bringing a challenge before the Civil Court of Malta on the system of appointment of judges governed by the Maltese Constitution. It is asking whether the EU Treaty (Article 19) and the provisions of the EU Charter of Fundamental Rights concerning the right to an effective remedy and access to an impartial tribunal (Article 47) preclude the national Constitution, under which the Prime Minister enjoys discretionary and decisive power in the procedure for appointing members of the Maltese judiciary.
The Advocate General notes first of all that the provisions of EU law relied on apply to the case in point, in accordance with European case law (Case C-619/18, see EUROPE 12281/12). It also notes that neither EU law nor, for that matter, the European Convention on Human Rights (ECHR) impose a pre-established form of institutional guarantees to ensure the independence of judges.
According to Mr Hogan, the mere fact that judges are appointed by a member of the executive branch is not, in itself, such as to create a relationship of dependence of the appointee on the appointee or to create doubts as to the impartiality of judges if, once appointed, they are not subject to any pressure or instructions in the performance of their duties.
It is for the national court to assess whether there are sufficient guarantees of institutional independence in Malta. In particular, Maltese judges must enjoy: - financial autonomy from the executive or legislative branch, so that their salary is not affected during their term of office; - sufficient protection against dismissal, except for just cause; - necessary safeguards to prevent the disciplinary system from being used for political control of the content of judicial decisions.
As regards the specific recommendations of the Venice Commission of the Council of Europe, the Advocate General considers them desirable. However, the fact that the Maltese system does not fully comply with these standards does not, in itself, suggest that Maltese judges do not enjoy sufficient guarantees of independence to meet the requirements of the Treaty.
Finally, Mr Hogan concludes that, in the event that the court which referred the case finds that the power of the Prime Minister is incompatible with EU law, that fact must be taken into consideration only for future appointments. Otherwise, it would inevitably give rise to serious concerns about legal certainty that could affect the functioning of the Maltese judicial system, he believes.
See the conclusions: https://bit.ly/3gUJnD7 (Original version in French by Mathieu Bion)