WORKING DOCUMENT ON COMPOSITION AND APPOINTMENT OF JUDICIAL ORGANS AND OF THE COURT OF AUDITORS
Prepared by: Mr Brendan DONNELLY (EPP, UK)
SUMMARY: The draftsman makes an analysis of the system of appointment ofthe members of the European Court of Justice, of the Court of first instance as well as of the Court of Auditors and makes some proposals as to solve the problems posed by the enlargement of the members of the Union, by the need of ensuring the independence of the judges (terms of office) and the need of an increased role for the EP in appointing the judges.
As to the first point, M. Donnelly points out that if in the short term the status quo can be maintained, in the future a solution could be envisaged so as to make in sort that each member state could have either a judge or an advocate general...
As to he terms of office, the draftsman suggests to increase the length on non-renewable mandates.
As to the increased involvement of the EP, M. Donnelly notes that an explicit assent should be foreseen for the nomination of the Court of Auditors, whereas the risks of an excessive politisation of the nomination in the Court of Justice and the Tribunal of First instance advises us to be more prudent. If the EP is to be consulted or is to be asked an assent to the nomination of the judges, then clear criteria should be introduced in order to avoid any political consideration in the selection of the candidates. (EP, Brussels, 19 January 1995)
1. The present system
The European Court of Justice
There are currently 15 judges, one per Member State. The only exception to this rule is when there are an even number of Member States, since there must always be an uneven number of judges; in this case there is an additional judge from one of the Member States, so that there were two Italian judges when there were only 12 Member States. The judges are appointed by common accord by the governments of the Member States, and no role is envisaged for the European Parliament in their appointment. They are appointed for a six year term, with half their number being renewed every three years. The judges generally sit in plenary sessions but also meet in chambers. Before enlargement there were two chambers of six judges each, and four chambers of three judges each. Their number may be increased by the Court when necessary. In addition to the judges there are nine advocates-general, currently one Greek, one Dane, one British, one Irish, one French, one German, one Spaniard and two Italians (of whom one was the seco
nd Italian judge until enlargement). The number of advocates-general is thus not related to the number of Member States. The means by which they are nominated and the length of their term of office is identical to that of the full judges.
The Court of First Instance
There are 15 judges at the Court of First Instance, one per Member State (the Court of Justice in its initial proposal for a Court of First Instance had originally suggested that there be only seven judges, but the Parliament's opinion had called for there to be one per Member State). They are chosen in the same way as judges and advocates-general at the European Court of Justice, also for six year terms, and with half their number being renewed every three years. They generally meet in chambers of three to five judges, but may also meet in plenary session whenever the legal difficulty or the importance of the case or special circumstances so justify.
Court of Auditors
There is currently one member of the Court of Auditors per Member State. They are named for six year terms of office (which can be renewed) by the Council acting unanimously after consulting the European Parliament. A negative opinion by the Parliament can be ignored by the Council, as happened in early 1994 when the Portuguese and Italian nominees were confirmed by the Council against the opinion of the Parliament. The members of the Court work in three audit groups dealing with particular policy issues (two with four members of the Court, one with three members) and in two other specialised groups (the Audit Development and Reports group with four members of the Court and the Statement of Assurance Group with three members).
2. The issues at stake
There are three main sets of questions that need to be asked as regards the composition and appointment of the EU's judicial organs and of the Court of Auditors:
- With a view to the likely further enlargement of the EU and in the name of efficiency, should a limit be set to the numbers of members of each organ? If so on what basis?
- With a view to reinforcing the independence of the institutions concerned, should the existing system of renewable six year terms of office for individual members and judges be altered, possibly by means of the introduction of one longer non-renewable term of office?
- With a view to reinforcing democratic accountability, should the system of nomination of members and judges be altered, for instance to provide for increased involvement by the European Parliament?
(i) Number of members
At present no major problem appears to exist, but if the EU expands to between 25 and 30 Member States the number of judges at the Court of Justice, judges at the Court of First Instance and members of the Court of Auditors might become cumbersome, if the existing rule of one per Member State is to be retained. Working in expanded Chambers or Groups could help to mitigate the problem but would be unlikely to solve it completely, in that they could not be multiplied indefinitely and in that plenary meetings and collective decision-making in general would undoubtedly be complicated.
The main solution would be to break the existing automatic links between the number of posts available and the number of Member States. This would indeed be a major change but is not completely unprecedented, in that there are fewer Advocates-General than the numbers of Member States and on certain occasions the European Court of Justice has had more than one judge from one of the Member States. Moreover, the European Court of Justice had originally proposed that there be only seven judges at the Court of First Instance.
If the link is to be broken, however, on what basis should the available posts be filled? Reserving them for nationals of the larger Member States would raise fears about "directoires" of the powerful, whereas rotation or other systems would meet with other political difficulties. One possible solution would be for certain offices to be grouped together so that each Member State, for example, would have the right to either a judge or an Advocate-General at the Court of Justice.
(ii) Term of office
While no serious problems have emerged so far as regards the independence of individual office holders from their national governments, the introduction of longer non-renewable terms of office might help to assert the principle of such independence for the future. A model for this already exists in Article 109 A of the Treaty which lays down a single non-renewable term of eight years for Members of the Board of the European System of Central Banks.
(iii) Nomination procedures
The present system of nomination gives the powers of nomination and of final decision to the Council in all the cases in question. The European Parliament is consulted on nomination to the Court of Auditors (although its opinions can be ignored) but it has no say whatsoever in any of the judicial nominations.
Strengthening the involvement of the European Parliament in the nomination process, for instance by introducing consultation or assent of the Parliament for the judicial nominations or the assent procedure for the Court of Auditors could help to draw attention to the qualities of the individual nominees and on the objectives that they intend to pursue.
3. Initial orientation of your draftsman
(i) Number of members
Maintenance of the status quo appears to pose no significant problems in the immediate future. There is also scope for some further extension of the system of working in Chambers or Groups. In the longer term, however, there might be a problem of numbers and restrictions may have to be introduced, with the fairest system appearing to consist of "package solutions", so that each Member State would have the right, for example, to either a judge or Advocate-General. Membership of the Court of First Instance could also be put into the package. This solution would not be available for the Court of Auditors, where either the status quo could be maintained or a rotation system introduced. Cutting the national link altogether for all these offices would be a more radical and more "communautaire" option but is probably unrealistic in the current institutional climate.
(ii) Term of office
While this does not appear to be a matter of crucial importance, the idea of moving over to a longer non-renewable term of office should be further investigated.
(iii) Nomination procedures
The argument for change is most compelling in the case of the Court of Auditors, which has always had strong links with the European Parliament, and where introduction of the assent procedure (with Parliament being able to veto a nomination if necessary, possibly by absolute majority of its members) would appear to be justified.
Nomination procedures to the European Court of Justice and to the Court of First Instance pose a more difficult problem because the advantages of increased democratic scrutiny of individual appointments are at least partially offset by the risks of politicisation of such appointments.
The idea of introducing consultation or assent of the European Parliament for such nominations (with confirmation hearings of the nominees) does merit further examination. Any new procedures of this kind must, however, be accompanied by the establishment of a clear set of criteria. These should ensure that any parliamentary scrutiny avoids political considerations and concentrates entirely on verifying the qualifications required of office-holders in Articles 167 and 168 A of the Treaty, namely that a nominee can demonstrate his or her independence and that they have held high judicial office or can otherwise show outstanding legal abilities.
4. Concluding remarks
The present paper has inevitably had an institutional focus, and has not concentrated on the importance of the European Court of Justice, the Court of First Instance and the European Court of Auditors for the European Union and its citizens. Nevertheless, the functioning of these bodies is not a dry technical matter, but one of broader significance, for these bodies have an important role in ensuring that the European Union is brought closer to its citizens, in the cases of the Court of Justice and the Court of First Instance by acting as guarantors of European citizens' rights, and in the case of the European Court of Auditors by trying to make sure that European taxpayers' money is well spent. If these bodies function properly they help to ensure that the European Union remains fully subject to the rule of law and in which fraud and financial mismanagement are minimized. For these reasons it is vital that these bodies adapt to the new institutional framework of the EU and to the challenge of enlargement. T
hey must thus remain as efficient as possible, remain representative of the states and peoples of Europe and respond to the needs for transparency and democratic accountability whilst fully retaining their operational independence from national and political direction.