Adjudicating Europe

The EU Law Blog has an interesting post on the Committee recently established by Article 255 of the Treaty on the Functioning of the EU. This Committee is in charge of scrutinizing the candidates proposed by Member States to fill the position of Judge or Advocate General at the EU Court of Justice (+ General Court). It was a mystery in the making and for some time many thought that it would simply act as a puppet-committee, probably terrified of vetoing proposals coming from the all-mighty Member States.

Well guess what: it appears that the Committee has not only shown its teeth. It has, in fact, taken a big bite at some of the candidates.

At the EU Law Blog they point out at the mysterious disappearance of Mr. Christos Vassilopoulos from previous proposals to hold the post of Greek Judge at the General Court, obviously (and it must thus be interpreted) as the result of the Committee’s negative opinion on the suitability of the candidate. The same applies to the Romanian candidate to hold a post at the same court. Some journals have already confirmed this point, although no official statement has been issued by the Council as yet.

So we must assume (at least from the press and from gathering bits and pieces from official documents here and there) that the Committee has said “no-go” to two candidates proposed by Member States. At the same time, it has given a green light to others, like Alexandra Prechal and Mark van der Woude.

Is this all positive?

I would say at first sight that… yes indeed! If the Committee is willing to do its job, then we should all celebrate the news. Nothing is more in the interest of the EU and EU Law than having competent and respected judges sitting at the Union’s highest courts. And it is common ground that in the last years this was not always the case.

However, does anybody know on what grounds has this Committee handed its decision? It appears that all its documents are confidential and are only in the hands of the Member States. Governments will therefore know what the criteria are, but us lawyers are completely in the dark. Therefore we must assume, but only assume, that the Committee is using high standards of excellence when deciding upon candidates.

But what if that is not the case? What if the Committee, a quasi-unanimous body made up of national judges from high jurisdictions, is deciding on criteria that push Member States to appoint… national judges! Corporatism is an old friend of national judiciaries, and why shouldn’t it be present in this Committee too?

Lawyers, judges, academics or civil servants need to know on what grounds the judges that will sit in the highest EU courts are being chosen. Output legitimacy might not be good enough; transparency is sometimes a value in itself, particularly when those who are being chosen with no transparency whatsoever are called to interpret and decide what exactly the term means.

- Pescatorius