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European Court’s ‘Far-Reaching’ Repubblika Judgment Will Be Basis Of Next Decade Of Decisions

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A judgment handed down today by the European Courts of Justice with respect to Malta’s system of judicial appointments has effectively prohibited regressions in the rule of law across the EU.

This is likely to set a precedent for future challenges to government actions that could be deemed to weaken the rule of law. The principle of non-regression can be defined as a prohibition on state conduct that results in the weakening of the rule of law.

Experts in EU law who spoke to Lovin Malta described the judgment as “extremely important”, arguing that it is likely to form the basis of other judgments on the rule of law over the next decade.

Yesterday, the Grand Chamber of the ECJ – the highest formation of the court that is reserved for its most important cases –  handed down a judgment confirming that the Maltese laws governing judicial appointments used by Malta in 2019 did not breach EU law.

The ECJ had been asked to determine whether Malta’s legal framework for appointing judges and magistrates, and the fact that Malta’s Prime Minister had the final say on who was appointed, was in breach of EU law.

In its judgment, the court found that the appointment method did not in fact go against European law given that the Prime Minister was required to act on the advice of an independent body.

It did note however that Member States were “required to refrain from adopting rules which would undermine the independence of the judiciary”, an observation that has been interpreted as introducing a new interpretation of the EU treaties.

The decision was welcomed by the Maltese government, with Justice Minister Edward Zammit Lewis declaring the judgment to have shown the government had “never acted against the rule of law”.

“The Prime Minister can have decisive power to appoint members of the judiciary and the Judicial Appointment Committee is seen as another check and balance. We never acted against the rule of law and EU law. I’ll continue working in the best interest of the rule of law and good governance,” tweeted the Minister.

However, Professor Laurent Pech, the Dean of the Faculty of Law at Middlesex University and one of a handful of top experts on this area of EU Law, had a different interpretation of the judgment.

“Misleading take. The ECJ did not assess the Maltese government’s rule of law record. Rather, it held that as a matter of EU Law, the creation of a judicial appointments committee is obviously ok, as long as it is independent. It also held that the involvement of the Prime Minister is ok, as long as that power is constrained and not exercised arbitrarily,” Pech tweeted in response.

He added that the court’s decision had introduced the principle of non-regression when it comes to the rule of law.

Legal sources who spoke with Lovin Malta echoed Pech’s remarks, noting that while the court was hesitant to push any particular model of democracy onto member states, it had taken the approach to prohibit democratic regression.

They explained that the case sent before the ECJ by the Maltese courts had required it to answer the question of whether or not Malta’s laws were in line with EU law.

They added however that it said nothing about how the law was used.

In other words, the case revolved around how the Constitution was drafted and not whether it was being abused in practice.

Furthermore, they said that while the case related to judicial appointments, the judgment was in fact “much broader” since, as far as case law was concerned, the ECJ considered laws and administrative practices using the same standard.

This means that any new law that can be considered to result in a regression of the rule of law can now be challenged on the basis that it breaches the treaties.

Experts argue that it may also be possible to challenge new administrative practices that constitute practice that can be considered to result in a regression of the rule of law can now be challenged on the basis that it breaches the treaties, provided that a case can be built showing that it constitutes a trend of rule of law regression.

“The judgments of the next decade will be building on this,” the experts said of the “seminal” decision.

The case dates back to April 2019, when civil society group Repubblika presented a legal challenge to the Maltese government’s decision to appoint three judges and three new magistrates.

Repubblika insisted that the government should have refrained from appointing any new members of the judiciary until it had reformed its appointment method.

A year earlier, the Venice Commission had found that while the addition in 2016 of the Judicial Appointments Committee to vet prospective members of the judiciary was a step in the right direction, Malta’s Prime Minister still retained too much power.

The Commission called for further reform to ensure impartiality, a recommendation the Maltese government had agreed to implement, but not before it made further appointments to the bench.

The case was eventually referred to the ECJ by the presiding judge, who argued the question as to whether the provisions of Malta’s Constitution with respect to judicial appointments breached the EU Treaties could not be decided by a simple reading of the law without the assistance of the European Court.

Since the case was brought before the court, Malta has changed its method of judicial appointments last year. Prior to that, in 2016, 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.

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