Justin Borg-Barthet, Senior Lecturer in EU Law at the University of Aberdeen, writes:
Despite being an EU member for fifteen years, Maltese courts have been hesitant to refer legal interpretation questions to the Court of Justice of the European Union (CJEU). This could change with a case that has significant implications for the direct effect of EU member states’ rule of law and human rights obligations. This legal challenge raises new and critical questions about democratizing EU constitutional law, similar to how the internal market law was democratized through the Van Gend case.
In the Pace Axiaq et al vs Prim Ministru case, a non-governmental organization (NGO) asked the Civil Court to request a preliminary ruling from the CJEU regarding the compatibility of Malta’s judicial appointment system with EU law. The NGO argues that giving the executive branch complete authority over judicial appointments and promotions violates the right to a fair trial and an effective remedy (Article 19 of the Treaty on European Union and Article 47 of the Charter of Fundamental Rights). They also seek to prevent the government from appointing more judges until constitutional reforms are implemented.
On May 22, 2019, the Civil Court denied the Maltese government’s request to dismiss the case outright. The Court determined that while the applicants couldn’t base their case on the Maltese Constitution or the European Convention on Human Rights (ECHR), they had legal standing based on EU law.
If referred to the CJEU, this case could further develop the jurisprudence through which the Court has operationalized the rule of law within the EU. Specifically, it could enable individuals to enforce the principles established in the Juizes Portugueses judgment. This ruling stated that all EU member states must guarantee that their judicial bodies, as defined by EU law, fulfill the requirements for effective judicial protection.
Systematic Backsliding Without Systemic Change
The Pace Axiaq applicants heavily rely on the ongoing Commission v Poland proceedings. Their arguments also cite a report by the Council of Europe’s Venice Commission which criticizes Malta’s rule of law shortcomings. This report, prompted by the assassination of journalist Daphne Caruana Galizia, highlighted that the current judicial appointment system significantly compromises judicial independence.
While the Maltese government has committed to legislation enabling the judiciary to be self-perpetuating, thus removing executive control, appointments have continued. Six appointments were made quickly after Pace Axiaq was filed. Consequently, partisan control over the judiciary could persist if the executive establishes a secure majority of partisan judges before any legislative changes. Former ECHR judge Giovanni Bonello suggests that this permanent control is highly probable, given that most judicial appointments since the 2013 government change have involved individuals with prominent roles in the ruling party or close ties to those who do.
Furthermore, the threat to judicial independence must be viewed within a broader context of institutional capture. The Maltese constitution depends on trust in the separation of powers. The executive branch has significant power to appoint and remove officials who enforce criminal law, including financial regulations mandated by EU law. While this has always been conceptually problematic and subject to internal criticism, recent events suggest a deliberate shift toward impunity within the highest levels of government. The erosion of judicial independence is even more concerning given that many considered the judiciary a significant obstacle to the further (or some argue, complete) erosion of the rule of law and the principle of sincere cooperation.
Malta is not Poland, But…
Malta’s rule of law crisis differs from the more well-known situation in Poland. Poland adopted regressive laws after joining the EU, jeopardizing the judicial independence standards evaluated before accession. The European Commission argues that this formal backsliding violates EU law, particularly Article 7 of the Treaty on European Union, requiring remediation under Union law.
Conversely, the laws in Malta that the Pace Axiaq applicants claim violate EU law have been in effect since Malta gained independence. The treaties do not require a regression for the enforcement of fundamental rights and rule of law obligations. However, this lack of formal backsliding makes it difficult to distinguish between compliance and non-compliance. The Maltese government, aware of the Commission’s criteria for systemic backsliding, emphasizes the Commission’s role in enforcing rule of law obligations, asserting that there is no private route for enforcement.
The potential innovation in Pace Axiaq, and the reason a preliminary ruling is crucial, is that the petitioners instead rely on the direct effect of specific human rights obligations. They cite Article 19(1) of the Treaty on European Union, which requires national courts to provide sufficient remedies for effective legal protection in areas covered by Union law, and Article 47 of the Charter of Fundamental Rights, guaranteeing the right to an effective remedy and a fair trial. This issue falls under the scope of the Wachauf formula through the duty of sincere cooperation in Article 4(3) of the Treaty on European Union. The argument is that the core of EU law effectiveness is at stake and that all future judgments could be questioned if judicial independence deteriorates further.
Paradoxically, Pace Axiaq could provide Maltese courts with an opportunity to make a significant contribution to the rule of law at a time when their independence is threatened. Similar to how establishing the internal market required developing direct effect and citizen-led enforcement of the law, supranational judicial oversight could help fulfill EU law’s promise of a system grounded in the rule of law and fundamental rights.
*Reblogged from Verfassungsblog
Barnard & Peers: chapter 9
Photo credit: The Judiciary of Malta