Malta’s system of appointing judges - in which the country’s prime minister has decisive power in the process, while providing for an independent body to assess candidates and give an opinion - is not contrary to the EU Treaty (Article 19) or to the provisions of the EU Charter of Fundamental Rights on the right to an effective remedy and to a fair trial (Article 47), the Court of Justice of the European Union ruled on Tuesday 20 April (Case C-896/19).
The Court, hearing a case brought by the Civil Court of Malta following a complaint by the Maltese association Repubblika, is guided by the Opinion of the Advocate General (see EUROPE 12625/32). It is of the opinion that the Maltese system of appointing judges, which has been enshrined in the country’s Constitution since its accession to the EU in 2004, is not likely to lead to a lack of independence or impartiality of Maltese judges that would undermine the confidence that the judiciary should inspire in litigants in a democratic society.
Echoing proceedings on the respect of the Rule of law against Poland and Hungary, the European judge notes that the Union brings together States which have voluntarily adhered to its common values (Article 2), which respect these values and undertake to promote them. A Member State may not therefore amend its legislation, particularly in the field of the organisation of justice, in such a way as to lead to a regression in the protection of the value of the Rule of law (Article 19 TEU), he stresses.
According to the Court, the establishment in 2016 of the Judicial Appointments Commission strengthens the guarantee of independence of Maltese judges. A body of this sort contributes to making the process objective by limiting the margin of manoeuvre available to the Prime Minister, provided that it is itself independent. The Court also notes the existence of rules guaranteeing the independence of the Appointments Committee.
The Court further notes that the decision making power of the Prime Minister is limited by the conditions of professional experience of candidates provided for in the Maltese Constitution. And, if the Prime Minister presents the President of the Republic of Malta with a candidate not proposed by the independent commission, they must communicate the reasons for their choice to the legislature. According to the Court, if the Prime Minister exercises this power only exceptionally and maintains strict and effective compliance with the obligation to state reasons, their power is not such as to create legitimate doubts as to the independence of the chosen candidates.
The Court’s ruling demonstrates that “the Maltese government respects the Rule of law”, that “our reforms have been recognised and that our judicial system has been effectively strengthened for the benefit of our citizens”, Maltese Prime Minister Robert Abela said on Twitter.
According to Repubblika, the Maltese government would not have revised the appointment system if the association had not brought the case to court. Last week, four judges were appointed by the Maltese president without government involvement, it noted.
See the judgment: https://bit.ly/3x7Zi8B (Original version in French by Mathieu Bion)