Alicja Slowik , 26 août 2024

Since the landmark case Associação Sindical dos Juízes Portugueses (C‑64/16), the Court of Justice of the European Union has been increasingly called to rule upon the issues pertaining to the organisation of justice in the Member States, such as those concerning the status or independence of the judiciary (Getin Noble Bank (C‑132/20) ; W.Ż. (C‑487/19)). In the recent case Valančius (C‑119/23), the Court was invited to give clarifications on the requirement of judicial independence in the context of national procedure for the  selection of the candidate for the position of Judge at the General Court of the EU. The preliminary reference in Valančius provided the Court of Justice with an unprecedented opportunity to interpret the rules governing the appointment of Judges of the General Court enshrined in Articles 19(2) TEU and 254 TFEU.

The procedure for the appointment of Judges at the General Court consists of three main stages. First, the government of the Member State concerned proposes the candidate for the office of Judge at the General Court. Secondly, the panel provided by Article 255 TFEU (‘the Article 255 Committee’) issues an opinion on the candidate’s suitability to perform the duties of Judge at the General Court taking account of the requirements of independence and professional ability enshrined in the third subparagraph of Article 19(2) TEU and the second subparagraph of Article 254 TFEU. According to these provisions, ‘the members of the General Court shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office’. Thirdly, on the basis of the opinion issued by the Article 255 Committee, the governments of the Member States appoint that candidate as a Judge of the General Court, by a decision taken by common accord on a proposal from the government of the Member State concerned.

In the case at hand, Mr. Valančius was appointed as a Judge of the General Court by the Government of Lithuania in 2016. His term expired in 2019, yet he continued to perform his duties in conformity with Article 5 of the Statute of the Court providing that a Judge shall continue to hold office until his successor takes up his duties. The procedure for the selection of a candidate for the office of Judge of the General Court was launched in 2021. In accordance with the national procedural rules, a Working Group composed predominantly of independent experts established a merit list of potential candidates who met the criteria for selection as judge to the General Court. Mr Valančius was the best-ranked candidate on the merit list. Yet, the Lithuanian Government proposed as a candidate for the office of Judge of the General Court, the person who was ranked in second place on the merit list. As this proposal received an unfavourable opinion of the Article 255 Committee, the government subsequently proposed as a candidate Mr. Kalėda who ranked third in the merit list. In September 2023, Mr. Kalėda was appointed as a Judge at the General Court

Mr. Valančius decided to challenge the appointment decisions of the Lithuanian Government before the Regional Administrative Court in Vilnius. He argued that the national procedure for selection of a candidate for the position of Judge of the General Court was in breach of the principles enshrined in Articles 19(2) TEU and Article 254 TFEU. The Regional Administrative Court decided to stay the proceedings and asked the Court of Justice to interpret these provisions and to determine whether, in situation where a group of experts establishes the merit list of the candidates who satisfy the requirements laid down in Articles 19(2) TEU and Article 254 TFEU, the Member States is entitled to select a candidate other than the best-ranked person on that list.

The Court of Justice first confirmed its jurisdiction to rule upon the preliminary reference addressed by the Regional Administrative Court. It highlighted that the decision of the government of a Member State to propose a candidate for the office of Judge at the General Court constitutes the first stage of the procedure laid down in the third paragraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU. It thus falls within the scope of these provisions. Although the Court of Justice cannot review the decisions to propose a person as a candidate for the office of Judge at the General Court, it is fully competent to answer the questions on the interpretation of Articles 19(2) TEU and 254 TFEU raised in a dispute at the national level concerning the legality of such decisions.

The Grand Chamber then emphasised that the requirement of judicial independence laid down in the third subparagraph Article 19(2) TEU and the second paragraph of Article 254 TFEU forms part of the right to effective judicial protection which encompasses the process of judicial appointment. The Court admitted that it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing the proposal of a candidate for a judge, provided that those rules cannot give rise to reasonable doubts as to whether the proposed candidate meets the requirements of independence and professional ability laid down in Articles 19(2) TEU and 254 TFEU. The involvement of independent advisory bodies and the existence, in national law, of an obligation to state reasons contributes, in principle, to rendering the appointment process more objective.

The Court pointed out that the verification of the suitability of candidates proposed by the Member State in the light of the requirements of independence and professional ability is also the responsibility of the Article 255 Committee. In addition, ensuring the observance of these requirements is the task of the Member States if they decide to appoint as a Judge of the General Court the candidate proposed by one of their governments. The mere fact that the Lithuanian Government decided to propose a candidate other than the best-ranked person on the merit list established by the group of independent experts is not, in itself, sufficient to support the conclusion that that proposal may give rise to reasonable doubts as to whether the candidate proposed meets the requirements laid down in the Treaties. The Court of Justice added that the favourable opinion of the Article 255 Committee on the proposed candidacy indicates that the appointment in question meets the conditions of independence and professional ability.

The Court of Justice concluded that Articles 19(2) TEU and 254 TFEU do not preclude a Member State, which has established a group of independent experts to assess the candidates for the office of Judge of the General Court and to draw up a list ranking those who satisfy the requirements of independence and professional competence, from selecting a candidate from that list other than the best-ranked person.

Valančius is the first judgment in which the Court of Justice interpreted the content of Article 254 TFEU and recognised its jurisdiction to control the lawfulness of the process of appointment of judges of the Court of Justice of the European Union. It remains to be seen whether, alike the ruling in Associação Sindical dos Juízes Portugueses (C‑64/16), the Valančius case triggers the outbreak of a new wave of preliminary references dealing with the requirement of judicial independence – this time in the context of selection of candidates for the office of Members of the Court of Justice of the EU.

Reproduction autorisée avec la référence suivante : Alicja Słowik, Process for the appointment of EU judges at national level, actualité n° 23/2024, publiée le 26 août 2024, par le Centre d’études juridiques européennes, disponible sur www.ceje.ch