Today’s judgment of the EU court on Malta’s former system of judicial appointments has elicited disappointment from European constitutional scholars for not being bold enough in advancing the EU’s legal framework.

Yet the judgment leaves the door open to potential claims in the future for breaches of EU law arising from the same system of appointments. It also sets new minimum standards for the system of judicial appointments in the EU, and militates against non-regression in “shared values” and rule of law.

The European Court of Justice (ECJ) was ruling on questions referred to it by the Maltese lower constitutional court at the request of NGO Repubblika. The organisation mounted a challenge against the system of judicial appointments, as well as six judicial appointees, in April of 2019.

Repubblika referenced an earlier opinion of the Council of Europe’s Venice Commission which stated that the Maltese system “falls short of ensuring judicial independence” and that the “prime minister should not have the power to influence the appointment” of members of the judiciary.

The system of appointment was eventually reformed last summer to something approaching the Venice Commission’s recommendations. The justice minister and prime minister both referred to these reforms in their reaction to today’s ECJ judgment.

Misleading take. ECJ didn't assess Maltese gov's #ruleoflaw record. Rather it held that as a matter of #EULaw, creation of a judicial appointment cttee is obviously ok *as long as *independent* + a PM involvement is ok *as long as* power is constrained/not exercised arbitrarily https://t.co/NGv5kaVRy8

— Laurent Pech 🇺🇦 (@ProfPech) April 20, 2021

EU law expert and University of Maastricht academic Matteo Bonelli told The Shift before the judgment was delivered that the ECJ judges naturally take into account any interim reforms, even though this would not be stated in the judgment.

This case was decided by the 13 judges of the Grand Chamber, the highest court within the ECJ, which acknowledged early in the 20 page judgment that “the present case raises sensitive and complex questions”.

At face value, the ruling marks a pause from the judicial activism seen in similar judgments in the case of Portugal and Poland in 2018 and 2019, when the EU court opened “a new sphere of EU law”, according to a paper by EU scholars Monica Claes and Matteo Bonelli.

Yet that new sphere is scattered throughout the 20 pages of today’s judgment, even though the court opted for nuance rather than activism. Such circumspection was probably inevitable given the context: the ECJ was ruling on the so-called preliminary reference in which it simply had to answer questions on interpretation of EU law by the referring court.

There was no manifest regression in legal provisions of the mechanism of judicial appointments by Malta since EU accession, and the judgment was on the letter of the law rather any real-life scenario.

The judgment reads: “However, Repubblika’s challenge in that regard rests solely on the alleged non-conformity with EU law of those constitutional provisions pursuant to which those appointments were made, without Repubblika’s invoking any infringement, arising from those appointments, of a right conferred on it under a provision of EU law”.

The key part is the point that Repubblika did not invoke any particular infringement – any real life scenario, constraining the court, at least to some extent, to merely rule on the letter of law.

This means that, if a concrete case had to be taken to the ECJ in the future, or to the Maltese constitutional court, then today’s judgment would offer neither prop nor refuge. The court could be bound to assess the case on its own merits.

At stake are principles concerning the independence of the judiciary which, as the judgment reiterates, is “of fundamental importance for the EU legal order”.

In its case, Repubblika invoked some of these provisions in the EU Treaty and Charter of Rights which are principally concerned with a concept known as “effective legal protection”.

This refers to fundamental principles of the rule of law: the right to be judged by an impartial tribunal or court (reflected in the European Convention of Human Rights by the right to a fair trial or hearing), and the right for an effective remedy in case of abuse or injustice that impinges on fundamental rights and protections, which are enshrined in EU law.

As today’s judgment stated: “The guarantees of independence and impartiality required under EU law presuppose rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body [court] to external factors and its neutrality with respect to the interests before it”.

As to the interpretation of EU law within the context of the questions before it, the ECJ said that EU law “must be interpreted as not precluding national provisions which confer on the Prime Minister of the Member State concerned a decisive power in the process for appointing members of the judiciary, while providing for the involvement, in that process, of an independent body responsible for, inter alia, assessing candidates for judicial office and giving an opinion to that prime minister”.

This now allows the Maltese constitutional court, presided by Chief Justice Mark Chetcuti, to continue hearing the case in Malta and craft his own judgment.

Yet the ECJ’s ruling also has a broader impact on EU countries as it has set more firm minimum standards.

Chief of these is the point that no political leader, whether president or prime minister or chancellor, can have a “decisive power” to appoint anyone to the judiciary without the advice of an independent body.

Moreover, the principle of non-regression from “shared values” of EU countries, such as the rule of law and legal protections, has been reinforced.

The judgment states: “A Member State cannot, therefore, amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU”.  This is the article on ‘effective legal protection’.