The European Court of Justice (ECJ) has ruled that the method of appointment of members of the judiciary used by Malta back in 2019 did not breach EU law. 

The case was filed by Repubblika in April 2019 after the civil society group objected to the appointment of three judges and three new magistrates.

Repubblika had argued that no further judicial appointments should be made until a system of appointments was implemented that could guarantee judicial independence. The case was eventually referred to the ECJ by Judge Mark Chetcuti. 

In a decision handed down today the court noted that “EU law does not preclude national constitutional provisions such as the provisions of the Maltese law relating to the appointment of members of the judiciary”. 

“It does not appear that those provisions might lead to those members of the judiciary not being seen to be independent or impartial, the consequence of which would be to undermine the trust which justice in a democratic society governed by the rule of law must inspire in individuals,” the court said.   

Malta changed its method of judicial appointments last year, following recommendations made by the Venice Commission.

Prior to that, the government had introduced the requirement for candidates to be vetted by a judicial appointments committee. Before that, the power to appoint members of the judiciary lay solely in the Prime Minister’s hands. 

In reaching its conclusion, the court made a number of observations, starting off with the fact that the Treaties of the European Union did not preclude national provisions giving the Prime Minister “decisive power” in the process for appointing members of the judiciary.

It added however that this should be done on the basis of the recommendation by an independent body tasked with assessing candidates and providing an opinion to the Prime Minister.

It stressed that the EU was composed of states which have “freely and voluntarily” committed themselves to bloc’s common values, including the rule of law. Member states, it said, had an obligation to ensure that these values were protected.  

“A member state cannot, therefore, amend its legislation, particularly in regard to the organisation of justice, in such a way as to bring about a reduction in the protection of the value of the rule of law,” the courts said, adding that member states should refrain from adopting rules which undermine the independence of the judiciary. 

With this in mind, however, the court noted that the creation of the 2016 judicial appointments committee served “on the contrary, to reinforce the guarantee of judicial independence in Malta”, when compared to the arrangements in place prior to 2016. 

“In this present case, the court finds that there are a series of rules which appear to be such as to guarantee that independence,” it said. 

Furthermore, the courts said that while the Prime Minister had the power to appoint members of the judiciary, the exercise of that power was circumscribed by the requirements of professional experience laid down in the Constitution. 

It acknowledged that it was technically possible for the Prime Minister to bypass the committee and recommend names directly to the President, provided that they explained their reasons for doing so to parliament. In this regard, the court noted that this power should only have been used in exceptional circumstances. The provision was in fact never used. 

Reacting to the decision, Repubblika noted that since it had filed the case, Malta had reformed its method of judicial appointments. This, it said, was a win for Repubblika’s activism, adding that had it not been for the civil society group, the government would never have reformed the system.

What do you make of the court’s decision?