Judicially Reviewable Appointments At The Luxembourg Court? A ...

Advocate General Sharpston has delivered an important Opinion on the sensitive issue of irregularities in the appointment procedure of EU judges. What on earth happens when the appointment of an EU judge is vitiated by an irregularity and the judge nevertheless takes the oath and starts rendering judgments? That is the delicate question underlying the Simpson case, now under a review procedure at the Grand Chamber of the Court of Justice.

The case is as follows: in 2013 the Council made a call for applications to fill two positions at the Civil Service Tribunal. Shortly after, the Council decided on a reform of the General Court that would put an end to the Civil Service Tribunal. In the meantime, the mandate of another judge at the Civil Service Tribunal expired. In 2015, shortly before the extinction of the Tribunal, the Council made a decision of appointment of three, not two judges, to fill all the vacancies of the time, although only for the short time left until the termination of the Tribunal and the transfer of its jurisdiction to the General Court.

During the time in which the Civil Service Tribunal continued to rule on cases until its closure, it rendered judgments and orders in cases in which the three newly appointed judges sat. According to the applicants on appeal against those decisions, the appointment of the three judges was unlawful and they should have never sat in those cases, since the Council had only called the position for the appointment of two judges, not three. The General Court, on appeal, agreed with the appellants and ruled that the judgments should be set aside as a result of an irregularity in the appointment procedure.

It is in the context of the review of these decisions of the General Court that the Court of Justice will now rule on the case.

In her trademark clear and elegant style of reasoning, AG Sharpston takes the reader in a tour de force over a variety of arguments. It is quite stunning how such a complex case can be made simple to read, and how the reader can be walked through the landmines of the case coming out of it in one single piece. But that’s what the AG manages to do, concluding that the General Court should have never quashed the judgments of the Civil Service Tribunal on the grounds of irregularities in the appointment procedure of the judges sitting in those staff cases.

First and foremost, the AG wades through the case-law on the right to an effective legal remedy, as interpreted by Strasbourg in its most recent decisions (mostly in Ástráosson vs. Iceland). She comes to the conclusion that a distinction must be made between the irregularities that shed a doubt on the confidence of citizens in the proper administration of justice as a whole, and those irregularities that do not raise such doubts. In her Opinion, she argues that the decision to appoint three judges instead of two, whilst respecting the selection criteria and ensuring that all three candidates comply with the conditions required by the call, does not pose a risk to the credibility of the administration of justice as a whole. I strongly recommend the reading of these passages of the Opinion, which provide a comparative study of how Member States handle similar cases, and it distinguishes the present case from the leading precedents in the Strasbourg case-law.

But there are other important questions that also require the AG’s attention. Can the decision of appointment of a judge be subject to review through a plea of illegality? The decision is not a general provision (a requirement under Article 277 TFEU), but its effects can be very broad once the appointment takes effect. She argues in the negative, but at the same time she also recalls that removing from the applicant the plea of illegality does not deprive her of the power to request judicial review if irregularities in the actions or standing of the judge appear in the course of judicial proceedings.

And of course, there is an elephant in the room that the Opinion only very subtly mentions. This case is only possible because it concerns the appointment of judges at the Civil Service Tribunal, a decision that falls upon the Council. However, the reasoning of the AG hardly applies to the appointment of judges and Advocates General at the General Court and the Court of Justice, whose appointment is not for the Council to decide, but to the representatives of the Member States, thus meeting in an intergovernmental formation that is not subject to any form of EU judicial review.

At a time in which the Court of Justice is being called to review judicial reforms in some Member States, the stakes in Simpson are quite high. The case is not only about technical and procedural issues, quite the contrary. It is another chapter in the evolving development of a European framework on judicial integrity and the proper functioning of the courts in turbulent times. And it is to be expected that what the Court of Justice demands from national judiciaries should be the same standard that it applies to the Union courts as well.

Or is it really?

We will soon find out. In the meantime, you are kindly invited not to miss the AG’s Opinion in the Simpson case.