(CN) — European magistrates on Thursday waded into contentious battles over judicial independence in Poland and Malta and legal challenges to the way judges are appointed in those countries, where critics say the rule of law has been eroded.
In the case of Poland, Advocate General Evgeni Tanchev, an adviser for the European Court of Justice, said European courts have a right to get involved in a dispute over judicial appointments to the Polish Supreme Court. His findings came in the case involving five Polish judges who say they were unlawfully denied a chance to challenge a move to not appoint them to the high court.
Tanchev said the judges need to be allowed an opportunity to appeal a decision by the National Council of the Judiciary, a body set up in 2017 to appoint new judges. Critics allege it was crafted by Poland’s ruling party to unlawfully seize control of the judiciary.
Tanchev’s legal opinion is the latest chapter in a clash over how Poland’s ruling government, the far-right nationalist Law and Justice party, has enacted sweeping judicial changes that critics say are diluting judicial independence and eroding democracy in the former communist country. Among those changes, the Polish government is seeking to exert more control over the Supreme Court and other courts in what it says is a bid to give the judicial system a new start by removing corrupt Soviet-era judges.
But Tanchev said it was essential to allow the plaintiffs, the five Polish judges, a chance to challenge the government’s procedures.
The Bulgarian advocate general even suggested Poland was veering toward authoritarianism and cited David Neuberger, a former head of the British Supreme Court: “Once you deprive people of the right to go to court to challenge the government, you are in a dictatorship.”
Besides saying the Polish judges have a right to appeal, Tanchev’s legal opinion was notable for its robust defense that EU law stands above national laws. The balance of power between the EU courts, which are relatively new, and national courts is a source of major friction in the EU and was a pivotal reason why many British politicians backed the United Kingdom’s exit from the bloc and its laws.
In May, the legal world in Europe was rocked when the German Federal Constitutional Court for the first time rejected a ruling by the European Court of Justice in a case related to the European Central Bank’s efforts since 2015 to help the EU economically through a bond-buying program.
Then, in September, the disciplinary chamber of the Polish Supreme Court followed Germany’s example and declared that it was not bound by a European Court of Justice preliminary ruling in a separate but related case over Poland’s alleged attack on the independence of the judiciary brought against Poland by the European Commission.
Tanchev declared that the German Constitutional Court’s unprecedented ruling endangered “the whole system of the EU community based on the rule of law.”
Citing an essay written by Koen Lenaerts, a Belgian jurist and the president of the European Court of Justice, Tanchev added: “’EU law is not ‘foreign law’, but it is rather by its very nature and in its own right ‘the law of the land’ in each member state and primacy goes hand in hand with the principle of equality of member states before the law, since it rules out ‘cherry-picking’ that may serve individual national interests.’”
“The EU does not have a superstructure to deal with conflicts of courts, but the rule of law serves as a bridge to deal with such conflicts,” Tanchev wrote.
Advocates general serve the function of legal advisers to the European Court of Justice, which is based in Luxembourg. Their opinions are not binding on the high court but they often indicate how the court will ultimately rule. Unlike judgments issued by the courts, advocate general opinions are more lively, discursive and colorful, though they are still dry compared to many opinions issued by U.S. courts.
In the matter involving Malta, Advocate General Gerard Hogan examined a lawsuit brought by a civil association called Repubblika seeking to make the Maltese government more open and democratic. In its suit, Repubblika charged that the process for appointing judges in Malta was deeply flawed because the prime minister was given too much discretion in choosing judges.
Malta’s political system was exposed as deeply corrupt in the wake of the 2017 murder of investigative journalist Daphne Caruana Galizia. Since she was killed in a car bombing, the Maltese public have demanded better government.
In this matter, though, Hogan found that under EU law national governments and constitutions can allow the executive power, such as a prime minister, to play a role in appointing judges. Still, he said national governments must ensure that judges “enjoy guarantees of independence” and are financially autonomous.
“What matters,” he wrote, “is that judges must be free from any relationship of subordination or hierarchical control by either the executive or the legislature.”
In a statement, Repubblika expressed disappointment at Hogan’s findings but added that the case will ultimately be decided by the European Court of Justice and Maltese courts. The group said the EU court should “give the same weight” to allegations over the erosion of judicial independence in Malta as it has done in dealing with Poland.
However, the group also added that its April 2019 lawsuit challenging the system of judicial appointments had already “achieved its goal” by spurring the Maltese government to change the way judges are appointed and taking away a prime minister’s discretion in choosing judges. Constitutional changes were passed this summer to enact those reforms.
In a statement, the Maltese government welcomed Hogan’s findings and said he confirmed the island nation’s system for appointing judges was lawful.
“His assessment shows that the judiciary in Malta enjoys strong legal protection for its independence,” the government said.
Hogan also found nothing wrong if judges have political affiliations, it said.
“An association with a political party does not mean that person is not an independent and impartial judge,” the government said. It noted judges on the world’s top courts, such as the U.S. Supreme Court and German Federal Constitutional Court, are affiliated with political parties.
The Maltese government said Hogan’s ruling dispels the notion Malta is a corrupt country. It blamed foreign actors for portraying Malta as a “backward country where democracy and the rule of law do not work.”
“Malta is a country where the principles of the rule of law are put into practice,” the government said.
In recent years, besides the killing of Caruana Galizia, Malta has come under fire for selling passports to non-EU citizens for very high sums – so-called “golden passports” – and for acting as a tax haven.
Courthouse News reporter Cain Burdeau is based in the European Union.