The “255 Committee” and the Procedure for Appointing EU Judges. The (Perhaps Unintended) Implications of the Valancius Judgment

Keywords: EU judges' appointment procedure – “255 Committee” – judicial independence – art. 19 TEU – art. 254 TFEU – judicial review.

In its judgment of 29 July 2024, delivered in the Valančius case,[1] the Court of Justice ruled, for the first time, on the limits that EU law places on Member States in relation to the procedure for appointing judges and advocates general to the Court of Justice. This is, as expressly acknowledged by the Court itself, a complex procedure consisting of three logically and chronologically linked stages.[2] The first, which falls within the competence of the Member States, concerns the proposal of the candidate by the Government of the Member State in the light of the requirements laid down by the Treaties; the second relates to the opinion – formulated by the Committee provided for in art. 255 TFEU (the so-called “255 Committee”) – on the suitability of the candidate to perform the duties of judge and advocate general; the third concerns the decision to appoint the candidate adopted by common accord of the Member States, on a proposal from the Government of the Member State concerned and after consulting the “255 Committee”.

The judgment provides an opportunity to reflect on the intricate relationship between the different stages of the appointment procedure to rule out legitimate doubts as to its integrity and, consequently, as to the independence of the judges so appointed. Although not immediately obvious, the arguments and solutions adopted inappropriately entrust the “255 Committee” with a central role in ensuring the integrity and correctness of the overall procedure and its individual stages.

The Valančius case, which concerns the first stage of the procedure, stems from a preliminary reference by the Estonian court (Regional Administrative Court, Vilnius). The Estonian legislation provides for an open call for applications and entrusts a panel of independent experts with the selection of candidates who, following the evaluation, are ranked on merit. The national court questioned whether the Estonian government’s designation of a candidate – who, although included on the merit list, is not the first-ranked candidate – is compatible with EU law. Indeed, Mr Valančius, who was ranked first, had not been selected by the Estonian government, which instead opted for another candidate placed lower on the merit list. The Court of Justice was therefore called upon to determine whether, and to what extent, art. 19(2) TEU and art. 254(2) TFEU – which provide that the judges of the General Court are to be “chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office” – affect the power of the Member States to define the selection procedures.

The preliminary question the Court of Justice had to address concerned its competence to review the national proposal. The Court stated that the proposal stage (like the appointment stage), although falling within the competence of the Member States, is governed by the Treaties and therefore comes under their scope. Consequently, Member States are required to exercise that power in compliance with their obligations deriving from EU law.[3]

This approach is well known and recurs in all those cases where the exercise of state competence intersects with legal positions governed by EU law and thus falls within its scope.[4] In such situations the Court – with a vague formula – states that “while it is true that EU law does not undermine the competence of the Member States as regards [...], the fact remains, however, that EU law must be respected in the exercise of that power”.[5] The ambiguity of the formula stems not so much from the reference to the obligation of Member States to exercise national competences in accordance with EU law. The ambiguity lies, rather, in the challenge of determining the scope of the Court of Justice's scrutiny when assessing whether national competence has been exercised in compliance with EU law. This difficulty was evident in the Valančius judgment, much more so than in other decisions in which the Court was called upon to establish, mutatis mutandis, the conformity of the procedures for appointing judges – within the framework of the domestic judicial system – with the requirements of independence and impartiality.[6]

The Court ruled that the Member State’s proposal of a candidate must comply with EU law; in particular, it must fulfil the substantive requirements and guarantees of independence under arts 254 TFEU and 19 TEU.[7] After reconstructing the notion of judicial independence,[8] the Court indicated that a proposal decision is in conformity with the Treaties when the substantive requirements and procedural rules are “such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges appointed […] and their neutrality” and “thus preclude a lack of appearance of independence or impartiality on their part”.[9] Reasonable doubts emerge where the irregularity in the appointment procedure is “of such a kind and of such gravity that it creates a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process”.[10] On this basis, the Court concluded that the involvement of representatives of the executive or legislative power, as in the present case, in a selection procedure entrusted to independent bodies (a procedure that each Member State remains free to establish or not), “is not in itself such as to give rise to such reasonable doubts” as to the regularity of the national selection procedure.[11]

The Court reached this conclusion by applying the solution previously adopted, albeit in a different context, in the X. Y ruling.[12] In that case, the Court had held that the involvement of the executive or legislative power in the appointment procedure did not, in itself, give rise to any doubt as to the independence of the judges appointed. However, the Court had not limited itself to a summary and narrow review; rather, it proceeded to assess other relevant factors or circumstances which, taken together, would give rise to legitimate doubts about the independence of the judge concerned. In contrast, the approach followed in Valančius did not entail a full review. The Court refrained from making an overall assessment, based on “any evidence that is objective, reliable, specific and properly updated concerning [...] the general context of appointment of judges in that Member State”.[13] Instead, it simply noted that the involvement of representatives from the legislative or executive bodies in the nomination process could not, by itself, undermine the appointment procedure.

Against this background, the question arises as to why the Court carried out a limited review rather than a full one. The answer would seem to lie in the crucial role assigned to the “255 Committee” within the overall appointment procedure. Since the Committee is called upon to assess the suitability of the candidate, it is not far-fetched to contend that, by emphasising this function of the Committee, the Court also entrusts it with the responsibility of assessing the conformity of the proposal in light of the overall requirements of the Treaties. Indeed, the Court has ruled that: “[t]he fact that the panel provided for in Article 255 TFEU gave a favourable opinion on the candidate proposed by the Lithuanian Government […] is such as to confirm that the decision of the governments of the Member States to appoint that candidate meets the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU”.[14] On the assumption, therefore, that the assessment of the candidate’s suitability corresponds to the review of the proposal’s legitimacy, the limited judicial review of the proposal would be explained in the light of the control exercised by the Committee through the opinion. In other words, the Court seems to suggest that the Committee’s favourable opinion would render a more in-depth judicial review unnecessary.

If this reading is correct, the implications of the ruling are significant. First of all, the 255 Committee’s assessment would be conceived as an integral part of a complex control mechanism in which the Committee’s “technical” assessment would be grafted onto a judicial review in the strict sense. In this perspective, where the opinion – irrespective of its positive or negative outcome – confirms the Court’s prima facie assessment, a more in-depth judicial review would not be necessary. Only if the prima facie assessment differed from that of the Committee, then the Court would not be exempt from carrying out a necessarily more intensive review.

Secondly, if the opinion plays a role in determining the scope of the Court’s scrutiny, the “255 Committee” could no longer be viewed solely as an advisory body, but rather (and most importantly) as a body that, albeit de facto, participates in the judicial function. Against this background, the absence of transparent procedural mechanisms guaranteeing the legitimacy of the Committee’s overall decision-making process[15] would hardly be compatible with a role that, although non-jurisdictional, is intertwined with a broader jurisdictional function. This shortcoming would not only undermine the credibility of the “255 Committee” in its capacity as a “board of judicial selection for the CJEU”,[16] but also the credibility of the Court itself.

Thirdly, the de facto involvement of the “255 Committee” in the exercise of the jurisdictional function rests upon an assumption of uncertain soundness: the correspondence between the assessment of the candidate’s suitability and the review of the procedure’s legitimacy. However, as can be easily guessed, a candidate judged to be suitable in terms of his or her competences might not necessarily have been appointed through a procedure that respects the judge’s independence requirements. Similarly, a proposal based on a decision-making procedure free from interference by the executive or legislative power does not necessarily guarantee the candidate’s suitability in terms of capacity. The two assessments, in other words, have an autonomous scope ratione materiae, are based on different requirements and perform different functions. The 255 Committee’s assessment is intended to verify that the candidate possesses the substantive qualifications to perform the duties of judge and advocate general; the Court’s review, if any, is intended to establish that the appointment is the result of a procedure that excludes substantial doubts as to the judge’s independence.

Ultimately, one cannot escape the impression that the judgment raises more questions than it resolves. The complex nature of the appointment procedure – which is divided into stages that, although distinct, are coordinated – makes it difficult to check the conformity of each stage, without a general assessment of the entire procedure. This difficulty has probably prompted the Court to embark on a path impervious in its reasoning and uncertain in its outcome, assigning to the “255 Committee” the role of guarantor of the entire procedure. If this role were to be confirmed in the future, a careful and in-depth reflection on the Committee’s function in the context of the judicial review exercised by the Court would a fortiori be required. It is then preferable to think that the Valančius judgment is nothing more than the consequence of a careless attitude on the part of the Court, which negligently avoided pondering the far-reaching implications of its finding.