The Foreign and Commonwealth Office has recently commenced the selection process for appointing the UK’s next judge at the Court of Justice. He or she will succeed Sir Konrad Schiemann, who retires next summer. The process consists of an open competition: the FCO’s website states that the successful candidate will be appointed on merit and in accordance with the Equality Act 2010. Coincidentally, a parallel process for the appointment of the UK’s next judge at the European Court of Human Rights (ECtHR) is also underway; the deadline passed just a few days ago.
This reminded me that in a post in October I mentioned that Lord Mance of the UK Supreme Court was about to give the UKAEL Annual Lecture on “The Composition of the European Court of Justice”. The text of that lecture has recently been made available. It makes for interesting reading. He charts the evolution of appointments to international courts and tribunals, in particular the Luxembourg and Strasbourg Courts, highlighting that until recently nominees to the Court of Justice were simply endorsed by the Governments of the Member States without any real discussion. The one Luxembourg court which since its inception in 2005 has had an element of competition is the Civil Service Tribunal; at present, it is in splendid isolation on that front, although there may soon by a hybrid structure for the General Court, as noted in my earlier post.
Among the pertinent points Lord Mance makes are the following:
- Tenure of judges remains six years renewable; no amendments to this rule were made by the Treaty of Lisbon. It is therefore unavoidable that some judges may (or may appear to) feel under stress as to whether they will be reappointed. That risk is diminished by the fact that deliberations are in secret and result in single judgments; but “the practice of unanimous judgments may sometimes be regretted, for the obscurity of committee style compromises to which it may lead”; there is also a strange contrast with the ECtHR, which permits minority judgments – a practice “which prevails satisfactorily”.
- The remit of the panel established under Article 255 TFEU, on which he sits, is limited. It has no remit to shape the composition of the Court of Justice or General Court or to favour any particular professional career or expertise. Nor can it do anything about the non-renewal of a serving judge’s mandate, even if (s)he is doing an excellent job. Its job is simply to assess the suitability of a particular candidate put forward by the Member State in question.
- It is unlikely that the Governments address their minds to the balance of skills, experience or gender on the Court, especially in the absence of anything in the Treaties requiring them to do so, when appointing judges.
- The absence of any consideration of the wider picture – the Court’s overall needs – at any stage “may be regretted”. As Lord Mance says, “the present system is one of random selection”, not natural selection; “it is a matter of luck whether the Court ever gets the benefit of those with particular skills and experience”.
In a world in which the Luxembourg courts are being asked to rule on an increasingly wide range of legal issues, from high constitutional law to private international and family law, it does make sense for the Court to have appropriately diverse expertise. Likewise, the Court should be, so far as possible, representative of those subject to the law it interprets and rules on, yet the gender imbalance at both Courts is obvious. Stating these problems is, however, easier than finding solutions to them, particularly absent a fundamental re-working of the way in which appointments are made.
One deficiency in the appointments process could be overcome with little difficulty. At present there is no requirement that Member States conduct a proper, objective selection process prior to nominating a candidate for office. Indeed, there have to date been no principled statements on the part of the institutions or Member States themselves urging the adoption of objective and transparent selection processes at national level. This stands in contrast to the selection of judges for the ECtHR, where the Parliamentary Assembly of the Council of Europe has exhorted ECHR member states to ensure they have in place appropriate procedures “to ensure that the authority and credibility of the Court are not put at risk by ad hoc and politicised processes in the nomination of candidates”. Whilst some EU Member States do have proper selection processes, others do not.
Lord Mance noted in his lecture that the Article 255 panel does enquire of each nominating state whether any national selection committee was constituted and if so whom it comprised and what its recommendations were. Whilst this might provoke mild embarrassment for the Member State, it is no substitute for the real thing. The Luxembourg Courts have always had a pivotal role to play in the interpretation and development of EU law. Is the real thing really too much for the citizens of Europe to ask for?