The European Commission has been asked to look into whether Malta’s system of judicial appointments violates EU law.

Civil society activists Repubblika have asked Brussels to examine whether the discretion of the Office of the Prime Minister on deciding on judicial appointments is allowed by the EU.

If the Commission concludes there could be a violation, Malta could end up before the European Court of Justice.

Last December, the Council of Europe’s democracy experts, known as the Venice Commission, had highlighted “power imbalances” in the island’s judicial appointment system.

Although the government has committed to implementing the experts’ recommendations on the matter, it has also forged ahead with a series of appointments to the Bench.

Prime Minister Joseph Muscat has in the past maintained that the Venice Commission’s recommendations require exhaustive debate and consultation prior to implementation. Appointments to the Bench, therefore, could not be left to wait for this process, he says.

In their formal complaint, seen by Times of Malta, Repubblika raises concerns about a number of the provisions of the Constitution as well as their implementation by the government.

These provisions afford the Office of the Prime Minister “unfettered discretion” to appoint judges and magistrates to the judiciary without any form of judicial review, the complaint reads. The appointments were not subject to any limitations or objective criteria, it adds.

The NGO argues that such a state of affairs could be in breach of the EU Treaty that forms the basis of EU law and sets out the general principles of the union.

Last October, the Commission took Poland to the European Court of Justice for cutting the age at which Supreme Court judges are required to retire.

In June, the ECJ handed down a landmark judgment which ruled that Warsaw had breached EU law in the way it handled the judiciary, harming their independence.

Repubblika’s complaint specifically mentions this ruling as legal precedence for the arguments it raises.

“In Malta, the discretion of the Prime Minister is even wider, even more unfettered, even more nebulous and even more abused than that prevailing in Poland. It cannot stand the test of Article 19(1) TEU. The independence of the judiciary in Malta is truly at risk,” the complaint reads.

The NGO also points out that although the Constitution had been amended in 2016 to provide for the setting up of a Judicial Appointments Committee, its recommendations were merely consultative in nature and did not constitute any legally-binding obligation on the Prime Minister.

The Prime Minister is also empowered to promote magistrates to the rank of judges, “under the same unfettered discretion afforded to him by the Constitution”.

He has the power to appoint the Chief Justice unilaterally and to appoint retired judges to public office, such as to head public institutions.

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