A court challenge to Malta’s judicial appointments system that has escalated to the European Court of Justice may be resolved by late June or early July “at the earliest”.

“This is an approximation and only an educated guess,” said Jacques Rene Zammit, a press officer at the court. He added that it could be decided earlier or later than that, depending on whether there will be a hearing and the nature of the deliberations.

The ECJ goes into recess for the summer, which would push resolution of the case towards the latter part of the year.

The president of the Chamber of Advocates, Louis de Gabriele, recently raised concerns about the potential for a “severe impact” on the efficiency of the justice system if the government does not replace judges due to retire this year while it waits for the court’s judgment. This, he said, would stretch further an already overstretched court system.

Malta’s Constitutional Court, which referred the case to the ECJ after a request by civil society organisation Repubblika, had requested that the case be handled with “urgency under accelerated procedure”.

Yet sources involved in the case said that it appeared the ECJ had ignored the request for urgency. 

The government recently said it was planning to change the system of judicial appointments soon, using the recommendations of the Council of Europe’s Venice Commission as the “basis” for the new system.

The justice minister said last week that the reform was “an absolute priority” that would be carried out in the “shortest time possible.”

Questions sent to the Ministry for Justice seeking more precise information on the government’s timings for reform – and whether it would be rolled out before the summer – remained unanswered.

Requested case be handled with urgency under accelerated procedure

The issue escalated to the ECJ after Repubblika challenged the system of judicial appointments in a constitutional suit filed hours before six “rushed” judicial appointments last April 25.

The NGO based its lawsuit on the report of the Venice Commission of December 2018, which held that the prime minister’s discretion in making judicial appointments “falls short of ensuring judicial independence.”

The Venice Commission recommended a new system in which an independent body which has at least half its members drawn from the judiciary assesses candidates for judicial office upon calls for application, and then ranks them and recommends them directly to the President of Malta.

The European court has since invited all parties, including the European Commission and every EU country, to make submissions, if any.

Repubblika is understood to be preparing submissions that would elaborate on the incompatibility of Malta’s system of judicial appointments with Article 19 of the EU Treaty.

The Justice Ministry did not reply to this newspaper’s questions on what submission it might be making.

Justice sources said the government’s pronouncement that it would change the system of appointments before the ECJ’s judgment indicates it may announce the reform and then request dismissal of the case by the ECJ.

An expert in EU constitutionalism at the University of Maastricht, Matteo Bonelli, said the ECJ “can in principle dismiss the case, and do so quickly with an order, if there are changes in the national legislation that fundamentally change the scenario”.

He adds, however, that irrespective of any reform, the questions that the Constitutional Court referred to the Luxembourg court would remain relevant from a purely legal perspective, especially since the NGO is contesting judicial appointments that have already concluded.

The ECJ can in principle dismiss the case, and do so quickly with an order, if there are changes in the national legislation that fundamentally change the scenario

Of the three questions that the Maltese Constitutional Court referred to the ECJ, the third one probes whether, if the system of appointments is deemed incompatible with EU law, the incompatibility should apply only for appointments going forward or also appointments that have already been made.

In its lawsuit, Repubblika requested the nullification of judicial appointments made since its lawsuit was filed – the six appointees sworn in last April 25. 

In a seminal case concerning the judiciary at the ECJ last year, Poland made amends and then requested the dismissal of the case in the course of the proceedings, arguing that proceedings had become “devoid of purpose.” The ECJ rejected Poland’s pleadings and eventually went on to rule against Poland. 

Malta’s case has aroused interest among EU constitutional scholars and legal circles because it will be the first time that the ECJ will elucidate on EU law requirements within the system of judicial appointments.

Poland’s case impinged on judicial independence through changes in the retirement system of Supreme Court judges; Malta’s case revolves around the appointment system of all the judiciary. The eventual judgment is set to influence the system of judicial appointments throughout the EU.

Under the so-called preliminary reference procedure – a form of “dialogue” between the ECJ and referring national court – the ECJ usually enunciates on broad principles and requirements of EU law. 

“In case the reform [to Malta’s system of judicial appointments] is approved and generally considered positive,” Dr Bonelli pointed out, “the European Court of Justice would certainly take that into account and would probably be much more prudent in its intervention”.

He added that the ECJ is likely to reiterate “the relevant standards of judicial independence deriving from Article 19 but leave it to the national court to then apply them to the concrete case”