Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 18 April 2024 (1)
Case C‑119/23
Virgilijus Valančius
v
Lietuvos Respublikos Vyriausybė,
joined parties:
Lietuvos Respublikos Seimo kanceliarija,
Lietuvos Respublikos Prezidento kanceliarija,
Saulius Lukas Kalėda
(Request for a preliminary ruling from the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania))
(Reference for a preliminary ruling – National procedure for the selection of a candidate for appointment as a judge of the General Court of the European Union – Article 19(2) TEU – Article 254 TFEU – Requirement that the candidate’s independence be beyond doubt – Judicial independence – Group of independent experts – Selection criteria – Ranked list of the candidates)
I. Introduction
1. The appointment of judges of the General Court is governed by Article 19(2) TEU and Article 254 TFEU. Those provisions – which are relatively brief and similarly worded – provide, inter alia, that the judges are ‘appointed by common accord of the governments of the Member States … after consultation of the panel provided for in Article 255’ and ‘shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office’.
2. Are the principles set out in those provisions applicable to the national procedures for the selection of the candidates to be proposed by the Member States’ governments for the office of judge of the General Court? If so, does the requirement of independence, laid down in those provisions, entail some specific obligations for the Member States in terms of how they should organise and run such procedures? More specifically, does EU law preclude a Member State, which has established a group of independent experts to assess the candidates and to draw up a list ranking those who satisfy the requirements of professional competence and independence, from selecting a candidate from that list other than the one in first place?
3. These are, in essence, the key questions which are raised in the present procedure.
II. Legal framework
A. European Union law
4. Pursuant to Article 1 of Council Decision 2010/124/EU of 25 February 2010 relating to the operating rules of the panel provided for in Article 255 of the Treaty on the Functioning of the European Union (2) (‘the Article 255 Committee’), those rules are set out in the annex to that decision. Points 6 to 8 of the rules read as follows:
‘6. Referral to the panel and request for additional information
As soon as the Government of a Member State proposes a candidate, the General Secretariat of the Council shall send that proposal to the President of the panel.
The panel may ask the government making the proposal to send additional information or other material which the panel considers necessary for its deliberations.
7. Hearing
Except where a proposal relates to the reappointment of a Judge or Advocate-General, the panel shall hear the candidate; the hearing shall take place in private.
8. Statement of reasons for opinion and presentation
Reasons for the opinion given by the panel shall be stated. The statement of reasons shall set out the principal grounds on which the panel’s opinion is based.
The panel’s opinion shall be forwarded to the Representatives of the Governments of the Member States. …’
B. National law
5. Article 52(3) of the Lietuvos Respublikos Vyriausybės įstatymas (Law of the Republic of Lithuania on the Government) of 19 May 1994 (3) provides:
‘The Government shall nominate candidates for judges of the Court of Justice of the European Union and the General Court of the European Union [(“the General Court”)] after obtaining the consent of the President of the Republic of Lithuania and consulting the Lithuanian Parliament in the manner provided for in the Lietuvos Respublikos Seimo statutas [(Statute of the Parliament of the Republic of Lithuania)].’
6. Points 2 to 4, 13, 15, 19, 21 and 22 of the Pretendento į Europos Sąjungos bendrojo teismo teisėjus atrankos tvarkos aprašas (Description of the selection procedure for candidates for the office of judge of the [General Court]), in the version applicable to the dispute in the main proceedings, adopted by Decree No 1R-65 of the Minister of Justice of the Republic of Lithuania of 9 March 2021, provide:
‘2. The Selection Working Group [(“the Working Group”)] is established by order of the Prime Minister of the Republic of Lithuania. The Working Group is composed of seven persons. It includes the Minister of Justice of the Republic of Lithuania (head of the Working Group) and a representative of the Parliament of the Republic of Lithuania, a representative of the President of the Republic of Lithuania, a representative of the Judicial Council, a representative of the Faculty of Law of Mykolas Romeris University, a representative of the Faculty of Law of Vilnius University and a representative of the Faculty of Law of Vytautas Magnus University. An official of the Ministry of Justice of the Republic of Lithuania is appointed secretary of the Working Group.
3. The Working Group, having regard to the six criteria for the selection of candidates for the office of judge of the [General Court] set out in the Treaties on which the Union is founded and specified in the sixth activity report of the [Article 255 Committee] … informs the public of the opening of the selection procedure by means of a notice published on the website of the Ministry of Justice, inviting those who meet the said selection criteria to submit an application file for the selection procedure …
4. The Working Group sets a deadline of at least 10 working days for candidates to submit their applications to the Ministry of Justice to take part in the selection procedure. …
…
13. The selection process includes an assessment of whether candidates meet the criteria set out in point 3 of the description, on the basis of the documents submitted by the candidates and a selection interview. …
…
15. At the selection stage, candidates are assessed on the basis of the six criteria set out in point 3 of the description: legal ability; professional experience; suitability for judicial duties; language skills; ability to work as part of a team in an international environment in which several legal traditions are represented; and guarantees of independence, impartiality, probity and integrity.
…
19. At the end of the selection process, each member of the Working Group gives the candidate a mark of between 1 and 10. The lowest score is 1 point and the highest is 10 points. The individual scores given by the Working Group members are added together. The ranking established on the basis of the results obtained is set out in a list. The list must include all the candidates who the Working Group considers to meet the criteria for selection as a judge of the [General Court], regardless of the number of points obtained.
…
21. At the end of the selection procedure, the head of the Working Group submits to the Lithuanian Government draft legislation on the appointment of the highest-ranked candidate for appointment as a judge at the [General Court], enclosing the minutes of the Working Group meeting with an annex (the ranking list drawn up by the Working Group indicating the number of points obtained by the candidates) and the curriculum vitae of the highest-ranked candidate.
22. This is a recommendation as to the highest-ranked candidate for the post of judge at the [General Court] addressed to the Lithuanian Government which, in accordance with section 52(3) of the Law on the Government, proposes a candidate for the post of judge at the [General Court].’
III. Facts, procedure and the questions referred
A. The selection procedure at issue
7. Mr Virgilijus Valančius, the applicant in the main proceedings (‘the applicant’), was appointed to the office of judge of the General Court on 13 April 2016, after being put forward as a candidate by the Lithuanian Government. The applicant’s term of office expired on 31 August 2019, but he continued to hold the office of judge of the General Court after that date, on the basis of Article 5 of the Statute of the Court of Justice of the European Union (‘the Statute’). (4)
8. By a decision of 31 July 2019, the Lithuanian Government requested that the President of the Republic of Lithuania and the Lithuanian Parliament give their consent to the candidacy of Mr Valančius for a further term of office. Following the failure of this nomination, due to the impossibility of reaching a consensus between the three national institutions involved, a call for candidatures with a view to the appointment of a candidate to the office of judge of the General Court was published in March 2021. At the same time, the Working Group was established by decree of the Prime Minister and the rules under which the selection procedure were to be carried out were approved by order of the Minister of Justice.
9. On 10 May 2021, the Working Group evaluated the potential candidates, agreeing on a list of eight persons who were found to meet the criteria for selection as a judge, sorted in descending order by score (‘the merit list’). The applicant was identified in the merit list as the most suitable candidate.
10. On 11 May 2021, the Ministry of Justice proposed the applicant’s candidature to the Lithuanian Government.
11. On 6 April 2022, the Lithuanian Government proposed that the President of the Republic of Lithuania and the Lithuanian Parliament approve the candidature of the person who was ranked in second place on the merit list. By decision of 4 May 2022, the Lithuanian Government, taking into account the agreement expressed by the President of the Republic of Lithuania and the Lithuanian Parliament, proposed that person as a candidate for the office of judge of the General Court (‘the first appointment decision’).
12. On 5 July 2022, the Article 255 Committee delivered an opinion that was unfavourable to that candidate.
13. On 14 September 2022, the Government of the Republic of Lithuania requested that the President of the Republic of Lithuania and the Parliament approve the proposal of the candidature of the person in third place on the merit list for the office of judge of the General Court, Mr Saulius Lukas Kalėda. Having received the approval of the two institutions, the Lithuanian Government decided to propose that person as a candidate (‘the second appointment decision’). (5)
14. Following a favourable opinion by the Article 255 Committee, Mr Kalėda was appointed as a judge of the General Court by the representatives of the governments of the Member States on 15 September 2023 and was sworn in at the sitting of the General Court of 27 September 2023, at which point the term of the applicant as a judge of the General Court came to an end.
B. The main proceedings and the proceedings before the Court of Justice
15. On 18 May 2022, the applicant brought an action for annulment of the first appointment decision before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania), seeking in particular that the Lithuanian Government be ordered to reopen the procedures for consultation and proposal of a candidate for the office of judge of the General Court in accordance with the procedures provided for by law, by submitting for consultation and proposal the name of the candidate ranked highest by the Working Group. In that context, the applicant argued that the national procedure for selection of a candidate for the position of judge of the General Court (‘the national procedure at issue’), as carried out, was in breach of the principles flowing from the third subparagraph of Article 19(2) TEU and the second subparagraph of Article 254 TFEU. Subsequently, the applicant extended the scope of his action in order to cover the second appointment decision also. (6)
16. The Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius), harbouring doubts as to the proper interpretation of the above provisions of EU law, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does Article 254 [TFEU], read in conjunction with Article 19(2) [TEU], which provides that the members 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”, require that a candidate for appointment to the [General Court] be selected in a Member State of the European Union exclusively on the basis of professional ability?
(2) Is a national practice, such as that at issue in the present case, whereby, in order to ensure the transparency of the selection of a particular candidate, the Government of a Member State responsible for proposing a candidate for appointment to the office of Judge of the [General Court] establishes a group of independent experts to assess the candidates, which, after interviewing all the candidates, draws up a ranked list of the candidates on the basis of clear and objective selection criteria laid down in advance and, in accordance with the conditions announced in advance, puts forward to the Government the candidate who has been ranked the highest on the basis of his or her professional ability and competence, but the Government proposes for appointment as a Judge of the European Union a candidate other than the candidate in first place on the ranked list, compatible with the requirement that the independence of the judge be beyond doubt and with the other requirements for judicial office laid down in Article 254 [TFEU], read in conjunction with Article 19(2) [TEU], taking account of the fact that a judge who may have been appointed unlawfully might influence the decisions of the [General Court]?’
17. By decision of the President of the Court of Justice of 26 September 2023, a request for information was sent to the referring court, asking it to state whether the fact that Mr Kalėda had been appointed as a judge of the General Court by decision of the representatives of the governments of the Member States of 15 September 2023 had any bearing on the subject matter of the main proceedings and, if so, whether that court wished to maintain its request for a preliminary ruling. By letter of 10 October 2023, that court indicated that the appointment had no bearing on the subject matter of the main proceedings and that it intended to maintain its reference for a preliminary ruling.
18. Written observations in the present proceedings have been submitted by the applicant, the Czech, Lithuanian, Hungarian, Netherlands, Polish and Swedish Governments, and by the European Commission. The applicant, the Czech Government, Ireland, the Lithuanian and Polish Governments and the Commission also presented oral argument at the hearing on 16 January 2024.
IV. Analysis
19. By its two questions, which can be considered together, the referring court essentially asks whether Article 19(2) TEU and Article 254 TFEU preclude national legislation or a practice whereby the government of a Member State, which has established a group of independent experts to assess the candidates to be proposed for the office of judge of the General Court and to draw up a list ranking the candidates who satisfy the requirements of professional competence and independence set out in the EU Treaties, may select a candidate from that list other than the candidate in first place.
20. Before assessing the substance of that question, I shall examine certain procedural issues of a preliminary nature.
A. Procedural issues: jurisdiction of the Court, admissibility of the request for a preliminary ruling and the need to reply
21. A number of arguments have been put forward by some of the Member States’ governments which have submitted observations contesting the jurisdiction of the Court and/or the admissibility of the request for a preliminary ruling and/or the Court’s need to reply to the questions posed by the referring court. Although those parties have, to some extent, merged their arguments on those three issues, I will nevertheless examine them separately.
1. Jurisdiction
22. First, some of the governments took the view that the Court lacks jurisdiction to answer the questions referred. In their view, since the procedure by which a government proposes a candidate is governed by national law only, the EU provisions of which interpretation is sought are not applicable in the main proceedings. Some of the governments also point to the complex nature of the appointment procedure for the office of judge of the General Court, which ends with the adoption of a decision taken by common accord of the representatives of the governments of the Member States that is not subject to review of legality by the Court. They contend that, a fortiori, the Court cannot have any jurisdiction to rule over the lawfulness of the national phase of that complex procedure.
23. In that regard, I would point out, at the outset, that the questions referred concern the scope of Article 19(2) TEU and Article 254 TFEU, an issue which requires the interpretation of those provisions of EU primary law and, as such, falls fully within the jurisdiction of the Court under Article 267 TFEU. (7)
24. In addition, I would recall that, according to settled case-law, although the organisation of justice in the Member States falls within their competence, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law. That may be the case, in particular, as regards national rules relating to the adoption of decisions appointing judges and, where applicable, rules relating to judicial review in respect of such appointment procedures. (8) It seems to me that such a principle must, a fortiori, be applicable with regard to national rules relating to the adoption of decisions intended to be – as I will explain later – part of the process of the appointment of members of the Court of Justice of the European Union.
25. Furthermore, I am not convinced that an analogy may be drawn between the present case and the cases in which the Court held that, pursuant to Article 263 TFEU, it lacks jurisdiction to review the validity of acts adopted by the representatives of the governments of the Member States acting, not in their capacity as members of the Council, but as representatives of their governments, and thus collectively exercising the powers of the Member States, as is the case when deciding to appoint members of the Court of Justice of the European Union. (9)
26. The contested decisions are not acts of an intergovernmental nature, but acts adopted by the Lithuanian authorities on the basis of national law. Those acts may well be considered, as argued by some governments, to be preliminary acts in the sense that they are meant to constitute a step in a complex procedure ultimately leading to the adoption of a decision of an intergovernmental nature. However, the fact remains that, if the contested decisions – which undoubtedly produce some legal effects – may be subject to judicial review under national law, the Court’s lack of jurisdiction with regard to another, different act (the appointment decision adopted by the representatives of the governments of the Member States) is plainly irrelevant with regard to determining the Court’s capacity (rather, its duty) to answer questions referred under Article 267 TFEU, provided they concern the interpretation of EU law.
2. Admissibility
27. Second, some of the governments argued that the questions referred are inadmissible, in so far as an answer to those questions is unnecessary to solve the dispute pending before the referring court. The reasons given for that position are twofold: (i) the referring court does not have the competence to grant the applicant the relief sought (an injunction against the government) since that would involve the exercise of the government’s prerogatives on foreign policy matters; and (ii) the questions are hypothetical in so far as the national procedure at issue – even assuming that the EU provisions in question were to be considered applicable – has, in any event, been carried out in accordance with those provisions.
28. It should be noted that, as is clear from settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling. It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (10)
29. I do not see any element capable of rebutting that presumption in the present case. In fact, there is a genuine dispute, pending before the referring court, in which the applicant has relied on the EU provisions the interpretation of which is the object of the questions referred. (11) Whether the EU provisions relied on are actually applicable in that dispute and, if so, whether they have been complied with, are issues that concern the substance of the questions referred and, accordingly, cannot affect the admissibility of those questions. (12)
30. Nor do I find the argument based on an alleged lack of power, by the referring court, to review the contested decisions or to grant the applicant the specific form of relief sought by him to be more convincing. It is well established that questions on the interpretation of EU law referred by a national court must be answered in the light of the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine. (13) Whether the application pending before the referring court is admissible or the order for reference was made in accordance with the relevant rules governing national proceedings are issues which go beyond the scope of the Court’s jurisdiction under Article 267 TFEU. (14)
31. By the same token, whether or not the competent national authorities have correctly applied the principles stemming from the relevant provisions of EU law in the national procedure at issue is, once again, an issue that is not for the Court to assess. For the purposes of the present proceedings, it suffices to point out that the parties in the main proceedings disagree on that point and that the referring court sought the Court’s assistance in order to rule in that respect. This is enough to declare the reference for a preliminary ruling admissible. In the context of a preliminary ruling procedure, it is the role of the Court of Justice to clarify the proper interpretation of the EU provisions at stake, and that of the referring court to apply those provisions, as interpreted, to the specific circumstances of the case, (15) drawing all appropriate consequences from a possible breach thereof. (16)
3. The need to reply
32. Third, some of the governments contend that, since Mr Kalėda has in the meantime taken office, the main proceedings have lost their purpose, which implies that there is no need to answer the questions referred. They take the view that, even if the national procedure at issue had infringed the applicant’s rights (quod non), the relief sought by him could no longer be granted: the decision of the referring court would not affect the validity of the decision of the representatives of the governments of the Member States to appoint Mr Kalėda as a judge of the General Court.
33. In that respect, it must be borne in mind that the preliminary ruling procedure presupposes, inter alia, that a case is pending before a national court, in which that court is called upon to give a decision that may take the preliminary ruling into account. (17)
34. In the present case, I agree with those governments that, even if the contested decisions were to be annulled by the referring court, that would not have a direct impact on the validity of the decision of the representatives of the governments of the Member States to appoint Mr Kalėda as a judge of the General Court. In this context, I would note, in passing, that the fact that Mr Kalėda meets the requirements set out in the Treaties appears to be common ground between the parties. Likewise, it seems to me that the applicant’s request to the referring court that it reopen the procedure for selection of a candidate for the office of judge at the General Court has, by now, become devoid of purpose in so far as the position for which the procedure took place is no longer available.
35. In this context, it may be worth adding, for the sake of completeness, that the final verification of whether a given candidate meets the requirements of competence and independence set out in the Treaties is a task that belongs to the representatives of the governments of the Member States, and that evaluation cannot be subject to judicial review by the EU Courts or the national courts. Once appointed, a member of the Court of Justice of the European Union cannot automatically be deprived of his or her office, as a result of an error (allegedly or actually) made during the selection process at the national level. That would conflict with the principle of irremovability of judges. (18)
36. However, that does not mean that errors made in the appointment process cannot be remedied. Article 6 of the Statute provides that ‘a Judge may be deprived of his office or of his right to a pension or other benefits in its stead only if, in the unanimous opinion of the Judges and Advocates General of the Court of Justice, he no longer fulfils the requisite conditions or meets the obligations arising from his office. … If the person concerned is a member of the General Court or of a specialised court, the Court shall decide after consulting the court concerned’. (19)
37. It follows from that provision that, should any element which may cast doubt on whether the assessment by the representatives of the governments of the Member States was made on the basis of complete, correct and genuine information emerge after the appointment of a judge, then the Court could investigate that matter and, if appropriate, decide to trigger the procedure laid down in Article 6 of the Statute. That may be the case, for example, where a candidate has consciously provided misleading information and/or falsified documents to the competent national authorities or to the Article 255 Committee. (20)
38. It is also important to note that the Court’s prerogative to scrutinise, post-appointment, such issues is defined by obligation, not by broad discretionary powers. As the Court has consistently stated, including in Simpson (a case which concerned an error in the appointment process in respect of a judge of the then European Union Civil Service Tribunal), it follows from the fundamental right to an independent and impartial tribunal previously established by law, enshrined under Article 47 of the Charter, that ‘every court is obliged to check whether, as composed, it constitutes such a tribunal where a serious doubt arises on that point. That check is necessary for the confidence which the courts in a democratic society must inspire in those subject to their jurisdiction. In that respect, such a check is an essential procedural requirement, compliance with which is a matter of public policy and must be verified of the court’s own motion’. (21)
39. Notwithstanding the above, it is not obvious to me that the dispute at issue has lost its purpose. Indeed, when questioned in that regard by the Court of Justice, the referring court stated that the case in the main proceedings was still pending, and that it considered that there was no need to withdraw the reference under Article 267 TFEU since an answer to those questions was still necessary to adjudicate in the dispute. (22) Furthermore, at the hearing, the applicant stated – without being contradicted by the Lithuanian Government – that, once the procedure resumes after the stay of proceedings ordered by the referring court under Article 267 TFEU, he would be able to amend the form of order sought by, for example, requesting a declaratory judgment, which could provide him with satisfaction as a form of reparation, or seeking pecuniary damages.
40. Therefore, taking account of the information provided both by the referring court and by the parties to the main proceedings, I take the view that an answer to the questions referred is still necessary for the referring court to be able to resolve the dispute pending before it.
B. Substance
41. The process and requirements for the appointment of judges of the General Court is governed by Article 19(2) TEU and Article 254 TFEU. Those provisions, which are similarly worded, state that the judges of the General Court must, in particular, be: (i) ‘chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office’, and (ii) ‘appointed by common accord of the governments of the Member States’, after consultation of the Article 255 Committee.
42. The first issue which is at the heart of the present case is whether the requirement, under those provisions, that judges of the General Court be chosen from persons whose independence is beyond doubt (‘the requirement of independence’) creates any obligation for the Member States in terms of the procedure for the selection of candidates to be proposed for such positions.
43. Most of the governments which submitted observations expressed a negative view in that regard. They stress that Article 19(2) TEU and Article 254 TFEU are concerned with the procedure by which candidates are appointed as judges, that is the procedure which takes place after a Member State has proposed a candidate. By contrast, those provisions do not contain any specific rule with regard to the manner in which Member States are to select the candidates. Accordingly, those governments contend that the procedure for the selection of the candidates falls within the exclusive competence of the Member States, which enjoy unfettered discretion in that regard.
44. In the next pages, I shall explain why I do not share that view. Before engaging with those arguments, however, some preliminary remarks on the concept of ‘judicial independence’, and what it entails in situations such as that at issue in the main proceedings, are in order.
1. One concept of judicial independence
45. The Court has consistently stated that Article 19 TEU gives concrete expression to the core value of the rule of law under Article 2 TEU, (23) entrusting the responsibility for ensuring judicial review in the EU legal order to the Court of Justice of the European Union and the national courts. (24) The right to effective judicial review by an independent tribunal – which is now enshrined in Article 47 of the Charter – has been referred to by the Court as forming part of ‘the essence of the rule of law’. (25) The Court has also held that the guarantee of independence – which has two aspects, independence stricto sensu and impartiality (26) – is inherent in the task of adjudication and is, thus, required both at EU level (as regards the members of the Court of Justice of the European Union) and at Member State level (as regards the members of the national courts which may rule on questions concerning the application or interpretation of EU law). (27)
46. In addition, the Court has made clear that the guarantee of independence presupposes the existence of rules, governing the administration of justice, such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of a judicial body to external factors and its neutrality with respect to the interests before it. (28)
47. More specifically, it follows from consistent case-law that two sets of rules must exist. One set of rules – which could be considered as having an ex ante nature – aims at ensuring that only persons who are and appear independent may be appointed judges. Those rules include the substantive conditions and procedural rules governing the adoption of appointment decisions. (29) Another set of rules – which could be considered as having an ex post nature – aims at ensuring that persons appointed as judges exercise judicial functions so that no objectively justified doubt regarding their independence may arise. Those rules encompass, inter alia, those setting out grounds for abstention, rejection and dismissal of members of the judiciary (30) and other aspects of the judges’ activity. (31)
48. It thus follows expressis verbis from the above case-law that, in EU law, there is only one concept of ‘judicial independence’, (32) which applies equally to the EU Courts and the national courts. To that end, the respective legal systems must have, inter alia, rules which govern the appointment of judges, emanating from the legislature (33) and formulated in a sufficiently clear, precise and comprehensive manner, (34) such as to preserve the judges’ actual and apparent independence. (35)
49. Having clarified the above, the next issue which should be considered is whether and, if so, how, the principles illustrated above can be applied in a situation such as that at issue in the main proceedings.
2. The procedure for the selection of candidates for the office of judge of the General Court
50. At this juncture, I must return to the objections, referred to in point 43 above, raised by some governments concerning the applicability of the principles stemming from Article 19(2) TEU and Article 254 TFEU to the national procedure at issue.
51. Admittedly, that procedure and the decisions that the Lithuanian Government adopted at the end of it do not, if taken in isolation, concern the appointment of a judge, since they only lead to the selection of a candidate for that office. Nevertheless, that element is, to my mind, of no significance in this context. In fact, the arguments put forward by some governments in that respect strike me as being extremely formalistic.
52. The national procedures for the selection of candidates and the decisions concluding those procedures are integral components of the overall process which leads to the appointment of the judges of the General Court. That process is composed of three distinct stages: one taking place at national level (for the selection of the candidate), one taking place at EU level (before the Article 255 Committee (36)) and one taking place at intergovernmental level (when the representatives of the governments of the Member States adopt a decision).
53. Each of those three stages represents a necessary phase of the process. In particular, the representatives of the governments of the Member States cannot take a decision concerning the appointment of a member of the Court of Justice of the European Union unless a formal proposal to that end has been put forward by a national government (and the person in question has been interviewed by the Article 255 Committee).
54. There can be no doubt, in my view, that – given the silence of the Treaties on this point – Member States enjoy ample leeway with regard to how the procedure for the selection of their candidates is organised, structured and run. They can put in place a standard procedure which is applicable in all cases of similar appointments or, by contrast, resort each time to an ad hoc procedure. Those procedures can be relatively simple and straightforward, or be composed of different procedural steps, for example by involving different institutions and/or bodies in the selection process.
55. In that regard, I thus find quite reasonable the approach followed by the Article 255 Committee, which has stated that the existence of ‘an open, transparent and rigorous national selection procedure’ is an element which is positively taken into account when assessing a candidate’s suitability; whilst the absence of any such procedure cannot by itself constitute grounds for considering a candidate to be unsuited for the office.(37)
56. In that connection, it may be worth recalling that, as the Court has consistently stated, no provision of EU law (including Articles 2 and 19 TEU) requires Member States to adopt a specific constitutional model governing the relationship and interaction between the various branches of the State, in particular as regards the definition and delimitation of their competences. (38) In addition, the Court has also held that, as is apparent from Article 4(2) TEU, the European Union respects the national identities of the Member States, inherent in their fundamental structures – political and constitutional – which implies that those States enjoy a certain degree of discretion in implementing the principles of the rule of law. (39)
57. Hence, as regards the appointment of national judges, the Court has found that, in principle, the mere fact that national legislation provided for the decisions in question to be adopted by, or after consultation with, the President, (40) the Prime Minister (41) or the legislative bodies (42) of the State is not, per se, an element capable of casting doubt on the judges’ independence vis-à-vis those institutions. The Court has also ruled that the involvement of consultative bodies, for example composed by other judges, provided those bodies are themselves sufficiently independent, may contribute to rendering that process more objective, by circumscribing the leeway available to the other institutions involved in the process. However, the involvement of such bodies cannot be considered necessary. (43) Nor is it problematic per se that the institution which has the decision-making power enjoys a certain discretion in selecting the candidates to be appointed. (44)
58. All that being said, the Court has consistently made clear that the Member States’ ample leeway in structuring the relationship between public powers, defining their own judicial architecture and – last but not least – regulating the appointment process in respect of national judges, does not absolve them from complying with EU law. In particular, Member States are required to comply with the requirement that courts be independent, which stems from Articles 2 and 19 TEU. (45) Indeed, as stated in point 24 above, it follows from settled case-law that, although the organisation of justice in the Member States falls within their competence, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law.
59. Those principles must necessarily be applicable with regard to the process for the appointment of judges of the General Court and to each of its three stages. It appears, in my view, artificial and unreasonable to argue that the first stage in that process, despite its essential character and the decisive role played by the decision which is taken at the end of it, should be considered an ‘EU-law-free area’. (46) In fact, it is no accident that, in its case-law concerning judicial independence, the Court has often referred to the process of appointing judges, (47) which I understand as encompassing all the various procedural steps which ultimately lead to the formal appointment of judges.
60. On the other hand, however, it is equally clear to me that each stage cannot be considered in isolation: what really matters is how the overall process, composed of the various stages, may be objectively perceived by the public. (48)
61. Against that background, I take the view that a Member State cannot be considered to be in compliance with EU law if the national procedure for the selection of candidates for a position of member of the Court of Justice of the European Union, as conceived by the national legislature or simply as applied in practice by the competent authorities, (49) may undermine the integrity of the overall process of appointment and, as a consequence, the outcome thereof. (50) That is the case if, notwithstanding the existence of EU provisions which regulate, on the one hand, the other two stages of the appointment process (51) and, on the other hand, other aspects of the judicial activity to ensure that it is carried out free from any external influence, (52) the procedure for the selection of candidates is such that it may give rise to justified doubts concerning the independence of the person chosen.
62. To give some extreme examples: that would be the case, for instance, of a call for applications which lists the affiliation to a specific political party as a requirement to be met by candidates, or of a decision choosing a candidate who has openly declared (to the press, before a public body or committee and so forth) that he or she would act in the interest of his or her home State, or as instructed by the institution that selected him or her.
63. Therefore, I also cannot agree with the argument put forward by some governments that the decision of whether a given candidate meets the requirements set out in the Treaties is a task that belongs solely to the Article 255 Committee.
64. It goes without saying that the Article 255 Committee is meant to play a crucial role in that regard. Indeed, the verification of ‘the candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court’ constitutes the very raison d’être of such committee. It is also quite clear, in my view, that the establishment of the Article 255 Committee – whose roots can be traced back to the ‘advisory committee’ envisaged in the so-called Due Report of January 2000 (53) and in the Final Report of the Discussion Circle on the Court of Justice of March 2003 (54) – was not meant to represent a simple pro forma exercise, but to actually ‘raise the bar’ for the Member States.(55)
65. That notwithstanding, the fact remains that the Article 255 Committee is merely a consultative body which gives a non-binding opinion on the matter. Its role cannot be construed as that of the one and only body charged with the task of verifying the candidates’ professional competence and independence. For the reasons stated above, it is, in my view, for all the institutional actors involved in the process (national authorities, Article 255 Committee and representatives of the governments of the Member States), each of them acting within its sphere of competence and at the relevant stage of process, to ensure that those requirements are met.
66. It is thus in the light of the above principles that I shall now address the questions referred by the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius), as reformulated in point 19 above.
3. The national procedure at issue
67. It follows from the above considerations that, in order to deal with the issues that arise in the present case, the key question is whether the national procedure at issue, as conceived and/or applied by the Lithuanian authorities, is such as to undermine the integrity of the process of appointment of the judge of the General Court in question.
68. That assessment is, in principle, for the referring court to make, in the light of all relevant circumstances. However, with a view to assisting that court, I will say that I see no element of law or of fact, of a systemic or circumstantial nature, (56) that, in and of itself or examined in combination with others, (57) could give rise to objectively justified doubts, in the minds of individuals, as to the independence of the candidate proposed by the Lithuanian Government for the office of judge of the General Court.
69. First, it appears important to emphasise – from the outset – that all the persons who were included in the ranked list produced by the Working Group had been considered, by that body, to fulfil the requirements of competence and independence set out in the EU Treaties. (58) Moreover, as stated above, I understand that no doubt as to whether Mr Kalėda actually met those requirements has arisen in the main proceedings.
70. Second, I also understand that, in the national procedure at issue, the Lithuanian Government has by no means disregarded the legal framework which it had itself laid down and with which it was required to comply. (59) In particular, according to the applicable national law, the Working Group appears to be a consultative body and its recommendation concerning the appointment of the highest-ranking candidate does not appear to be binding on the Lithuanian Government.
71. Third, no provision of EU law, including Article 19 TEU and Article 254 TFEU, requires governments to propose the candidate that is, in their view, ‘best placed’ for the office. For the appointment of a judge of the General Court, the EU Treaties only require candidates to meet the two requirements of competence and independence set out therein. Provided that the government in question considers that various candidates meet those requirements, it has discretion to propose the candidate of its choice.
72. In that regard, I would add that, when selecting candidates, governments are certainly not prevented from using additional selection criteria, provided that those criteria are compatible with those of competence and independence as set out in the Treaties. For example, I do not find it objectionable that a government may wish also to take into account considerations of gender or geographical balance. (60) In the same vein, I am of the view that the criteria laid down in the relevant Lithuanian legislation (legal competence, professional experience, suitability for judicial duties, language skills, ability to work as part of a team in an international environment in which several legal traditions are represented, and guarantees of independence, impartiality, probity and integrity (61)) are entirely compatible with those laid down in the Treaties.
73. That being said, I shall, last but not least, recall that, under the case-law of both the Court of Justice (62) and the European Court of Human Rights, (63) not every irregularity that may be committed during the process for the appointment of a judge necessarily casts doubt on the independence of that judge. It all depends on the nature of the irregularity and the circumstances in which it occurred. (64) Serious doubts arise, in particular, when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State (in particular, the executive) – or, I would add, any other public or private natural or legal person – could exercise undue influence on that judge. By contrast, minor irregularities do not normally raise issues of independence of the judges in question.
74. Hence, it seems to me that no element among those referred to in the request for a preliminary ruling or in the parties’ written and oral observations is capable of calling into question, in the minds of individuals, the independence of the candidate selected by the Lithuanian Government. (65) In particular, I fail to see anything which could lead an objective observer to consider that that person might, for example, consider himself to be in a position of subordination or dependence (66) with respect to a national authority, or would, at any rate, be inclined to yield to an external influence, (67) direct or indirect, (68) when carrying out his judicial function at the General Court.
75. Accordingly, I take the view that the national legislation or practice in question, as laid down in the relevant national laws (and, as far as I can see, as actually applied in the national procedure at issue), is compatible with Article 19(2) TEU and Article 254 TFEU.
V. Conclusion
76. In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) to the effect that Article 19(2) TEU and Article 254 TFEU do not preclude national legislation or a practice whereby the government of a Member State, which has established a group of independent experts to assess the candidates to be proposed for the office of judge of the General Court and to draw up a list ranking the candidates who satisfy the requirements of professional competence and independence set out in the EU Treaties, may select a candidate from that list other than the candidate in first place.