Valančius (Appointment of Judges of the General Court of the European Union - Independence beyond doubt - Judgment) [2024] EUECJ C-119/23 (29 July 2024)

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(Reference for a preliminary ruling – Third subparagraph of Article 19(2) TEU – Second paragraph of Article 254 TFEU – Appointment of Judges of the General Court of the European Union – Independence beyond doubt – Ability required for appointment to high judicial office – National procedure for proposing a candidate for the office of Judge of the General Court of the European Union – Group of independent experts responsible for assessing the candidates – Merit list of candidates meeting the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU – Proposal of a candidate named on the merit list other than the top-ranked candidate – Opinion of the panel provided for in Article 255 TFEU on the suitability of candidates)

REQUEST for a preliminary ruling under Article 267 TFEU from the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania), made by decision of 9 February 2023, received at the Court on 28 February 2023, in the proceedings

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, C. Lycourgos, E. Regan, F. Biltgen and N. Piçarra, Presidents of Chambers, P.G. Xuereb, L.S. Rossi (Rapporteur), A. Kumin, N. Wahl, I. Ziemele and J. Passer, Judges,

having regard to the written procedure and further to the hearing on 16 January 2024,

– the Lithuanian Government, by K. Dieninis, R. Dzikovič, V. Kazlauskaitė-Švenčionienė and E. Kurelaitytė, acting as Agents,

– the Czech Government, by L. Dvořáková, M. Smolek and J. Vláčil, acting as Agents,

– Ireland, by M. Browne, Chief State Solicitor, and M. Lane, acting as Agents, and by D. Fennelly, Barrister-at-Law,

– the Netherlands Government, by M.K. Bulterman and C.S. Schillemans, acting as Agents,

– the Swedish Government, by C. Meyer-Seitz and A.M. Runeskjöld, acting as Agents,

– the European Commission, by F. Erlbacher, A. Steiblytė and P.J.O. Van Nuffel, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 April 2024,

1 This request for a preliminary ruling concerns the interpretation of the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU.

2 The request was made in proceedings between Mr Virgilijus Valančius and the Lietuvos Republikos Vyriausybė (Government of the Republic of Lithuania) concerning the legality of the decisions proposing the candidate of the Republic of Lithuania for the office of Judge of the General Court of the European Union.

3 Entitled ‘Referral to the panel and request for additional information’, point 6 of the operating rules of the panel provided for in Article 255 of the Treaty on the Functioning of the European Union, contained in the annex to 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 (OJ 2010 L 50, p. 18) states:

‘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.’

4 Article 52(3) of the Lietuvos Respublikos Vyriausybės įstatymas (Law of the Republic of Lithuania on the Government) of 19 May 1994 (Žin., 1994, No 43-772), in the version applicable to the dispute in the main proceedings (‘the Law on the Government’), provides that the Lithuanian Government is to propose candidates for the office of Judge of the Court of Justice and of the General Court after obtaining the consent of the President of the Republic and consulting the Lietuvos Respublikos Seimas (Parliament of the Republic of Lithuania; ‘the Lithuanian Parliament’) in accordance with the detailed rules laid down by the Lietuvos Respublikos Seimo statutas (Statute of the Parliament of the Republic of Lithuania).

5 Points 1 to 3, 13, 15, 19, 21 and 23 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 of the European Union), in the version applicable to the dispute in the main proceedings, adopted by Decree No 1R-65 of the Minister for Justice of the Republic of Lithuania of 9 March 2021 (‘the description of the selection procedure’), provide:

‘1. The [description of the selection procedure] shall be applied when organising the selection of the candidate of the Republic of Lithuania for the office of Judge of the General Court of the European Union (“the selection”). The purpose of this selection is to help the government, which, pursuant to Article 52(3) [of the Law on the Government], proposes candidates for the office of Judge of the General Court to make a proposal concerning a specific candidate.

2. The selection 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 for Justice of the Republic of Lithuania (head of the working group) and a representative of the Parliament, a representative of the President of the Republic of Lithuania, a representative of the Teisėjų taryba [(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, taking into account the six criteria for the selection of candidates for the office of Judge of the General Court, as set out in the Treaties on which the European Union is founded and detailed in the Sixth Activity Report of the Special Panel provided for by Article 255 [TFEU], published on the Panel’s website …, is to inform the public of the opening of the selection procedure by means of a notice published on the website of the Ministry of Justice, inviting persons fulfilling the specified selection criteria to submit their applications (a written application for admission to the selection procedure, a curriculum vitae and a motivation letter) to participate 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. The purpose of the selection interview is to supplement the assessment of candidates on the basis of the documents they have submitted.

15. At the selection stage, candidates are assessed on the basis of the six criteria set out in point 3: 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 merit list must include all the candidates who the working group considers to meet the criteria for selection as a Judge of the General Court of the European Union, regardless of the number of points obtained.

21. At the end of the selection process, the head of the working group submits to the government draft acts proposing the candidacy of the highest-ranked candidate for appointment to the office of Judge of the General Court of the European Union, enclosing the minutes of the working group meeting with an annex (the merit 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 office of Judge of the General Court of the European Union addressed to the Lithuanian Government which, in accordance with section 52(3) of the Law on the Government, proposes a candidate for the office of Judge at the General Court of the European Union.

23. No later than five working days from the end of the selection process, the merit list of candidates drawn up by the working group shall be published on the website of the Ministry of Justice, without indicating the number of points obtained by the candidates.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

6 By a decision taken by common accord of the governments of the Member States on a proposal from the Lithuanian Government, Mr Valančius was appointed a Judge of the General Court of the European Union (‘the General Court’) with effect from 13 April 2016. His term of office ended on 31 August 2019, but he continued to perform his duties as Judge within the meaning of the third paragraph of Article 5 of the Statute of the Court of Justice of the European Union.

7 In March 2021, a call for applications for the selection of a candidate from the Republic of Lithuania for the office of Judge of the General Court was published. The description of the selection procedure was laid down by Decree No 1R-65 and a working group composed mainly of independent experts (‘the working group’), responsible for making that selection, was set up. The working group then made that selection, at the end of which it drew up a merit list of candidates, in descending order in accordance with the score obtained (‘the merit list’).

8 On 11 May 2021, the Minister for Justice submitted to the Lithuanian Government a draft decision proposing the highest-ranking person on the merit list, namely Mr Valančius, as a candidate for the office of Judge at the General Court.

9 By decision of 6 April 2022, the Lithuanian Government submitted the name of the person in second place on the merit list for approval as a candidate to the President of the Republic of Lithuania and to the Lithuanian Parliament.

10 By decision of 4 May 2022, the Lithuanian Government, after obtaining the approval of 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.

11 On 18 May 2022, Mr Valančius brought an action before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania), which is the referring court, seeking, first, annulment of that decision, second, 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 and, third, that the Lithuanian Government be ordered to pay the costs.

12 On 5 July 2022, the panel provided for in Article 255 TFEU delivered an unfavourable opinion on the candidate proposed by the Lithuanian Government.

13 By decision of 14 September 2022, the Lithuanian Government submitted for approval to the President of the Republic of Lithuania and to the Lithuanian Parliament the candidacy of the person in third place on the merit list, namely Mr Saulius Lukas Kalėda, for the office of Judge of the General Court.

14 In that context, the referring court has doubts as to the interpretation of the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, in particular concerning the impact of those provisions on the national procedures for proposing candidates for the office of Judge of the General Court.

15 That court submits that the case-law of the Court of Justice, resulting in particular from the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), recognised that there is a link between the requirements of independence and impartiality of national judges and effective judicial protection in the fields covered by EU law, within the meaning of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union.

16 The role of the Judges of the General Court is precisely to ensure such effective judicial protection. In addition, under the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, those judges must also satisfy the requirement of independence, which cannot be understood as having a more limited scope than that arising, for national judges, from the second subparagraph of Article 19(1) TEU, as interpreted by the Court of Justice.

17 As regards, in particular, decisions appointing judges, the referring court submits that both the case-law of the Court of Justice, arising in particular from the judgments of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232), and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798) and that of the European Court of Human Rights, arising in particular from the judgment of 1 December 2020, Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418), establish a direct link between the lawfulness of the selection and appointment procedures for national judges, as an element inherent in the right to a tribunal previously established by law, and the requirements of the independence and impartiality of those judges.

18 According to the referring court, that direct link gives rise to an obligation to check whether an irregularity committed in the appointment of judges creates a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and impartiality of the judges concerned, which would entail an infringement of that right.

19 Thus, as regards the appointment of a Judge of an EU court, or the proposal of a candidate for the office of judge of such a court, the question whether the body with the authority to make appointments or proposals complies with the substantive conditions and essential procedural rules for such an appointment or proposal is of paramount importance, in that it makes it possible to determine whether the impartiality and independence of the EU Court concerned are guaranteed.

20 In those circumstances, the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius) 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]?’

The facts subsequent to the request for a preliminary ruling and the procedure before the Court

21 By decision of 19 April 2023, the Lithuanian Government, having obtained the approval of the President of the Republic of Lithuania and the Lithuanian Parliament, proposed Mr Kalėda as a candidate for the office of Judge of the General Court.

22 On 12 May 2023, Mr Valančius sought the annulment of that decision in the administrative proceedings brought before the referring court following the lodging of his action against the decision of 4 May 2022, while maintaining the other heads of claim referred to in paragraph 11 of the present judgment.

23 By decision of 15 September 2023, the governments of the Member States appointed Mr Kalėda as a Judge of the General Court for a term of office ending on 31 August 2025.

24 By a request for information of 26 September 2023, the Court of Justice asked the referring court to clarify whether the appointment of Mr Kalėda as a Judge of the General Court had any bearing on the subject matter of the dispute in the main proceedings, in relation to an application for a mandatory injunction, and whether it wished to maintain its request for a preliminary ruling.

25 By letter of 10 October 2023, that court indicated that that appointment had no bearing on the subject matter of the main proceedings and that it intended to maintain its request for a preliminary ruling.

26 Several of the governments which have submitted written observations in the present case raise doubts as to whether the Court of Justice has jurisdiction to rule on the request for a preliminary ruling. They consider, in essence, that the procedure for the appointment of a Judge of the General Court comprises different stages, the first being the national stage of the proposal of the candidate for the office of Judge of the General Court. That stage does not fall within the scope of EU law, in particular the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, but is governed exclusively by national law. Thus, the Court of Justice does not have jurisdiction to rule on the compatibility with those provisions of any national rules governing that national stage of proposal.

27 Furthermore, some of those governments maintain that the procedure for appointing a Judge of the General Court ends with the adoption of a decision taken by common accord of the governments of the Member States, which is not subject to review by the Court of Justice. Consequently, the Court of Justice does not, a fortiori, have jurisdiction to hear and determine the national stage of a proposal in the context of such an appointment procedure.

28 In that regard, it should be recalled that, under the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, Judges of the General Court are appointed by common accord of the governments of the Member States, after consulting the panel provided for in Article 255 TFEU. Under that provision, a panel is to be established in order to give an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court before the governments of the Member States make the appointments referred to in Articles 253 and 254 TFEU. As is apparent from the first paragraph of point 6 of the operating rules of the panel provided for in Article 255 TFEU, set out in the annex to Decision 2010/124, a referral is made to that panel on the basis of a proposal of a candidate by the government of a Member State, which is sent to the President of that panel by the General Secretariat of the Council.

29 It is apparent from those provisions, read together, that, as the Advocate General observed in points 52 and 53 of his Opinion, the procedure for appointing a Judge of the General Court consists of three stages. At the first stage, the government of the Member State concerned proposes a candidate for the office of Judge of the General Court and sends that proposal to the General Secretariat of the Council. At the second stage, the panel provided for in Article 255 TFEU gives an opinion on that candidate’s suitability to perform the duties of a Judge of the General Court, having regard to the requirements laid down in the second paragraph of Article 254 TFEU. At the third stage, following consultation with that panel, the governments of the Member States, through their representatives, appoint that candidate as a Judge of the General Court, by a decision taken by common accord on a proposal from the government of the Member State concerned.

30 It follows that the decision of the government of a Member State to propose a candidate for the office of Judge of the General Court, such as the decisions at issue in the main proceedings, constitutes the first stage of the appointment procedure governed by the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU. Such a decision therefore falls, on that basis, within the scope of those provisions.

31 As the Advocate General stated in points 24, 58 and 59 of his Opinion, although the proposal, like the appointment, of a candidate for the office of Judge of the General Court falls within the competence of the Member States, they are nevertheless required, in the exercise of that power, to comply with their obligations deriving from EU law and, in particular, from the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU (see, by analogy, judgments of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52, and of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland), C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 57 and the case-law cited), the interpretation of which clearly falls within the jurisdiction of the Court of Justice under Article 267 TFEU (judgment of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment), C‑508/19, EU:C:2022:201, paragraph 57 and the case-law cited).

32 The fact that decisions appointing Judges to the General Court, taken by common accord by 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, are not subject to judicial review by the EU Courts under Article 263 TFEU (see, to that effect, order of 16 June 2021, Sharpston v Council and Representatives of the Governments of the Member States (C‑685/20 P, EU:C:2021:485, paragraphs 46 and 49 and the case-law cited) is irrelevant in this context.

33 As the Advocate General observed, in essence, in point 26 of his Opinion, the fact that the Court of Justice does not have jurisdiction to examine the legality of those appointment decisions has no bearing on its jurisdiction to answer questions referred for a preliminary ruling concerning the interpretation of EU law raised by the referring court in a dispute concerning the legality of national decisions proposing a candidate for the office of Judge of the General Court.

34 It follows that the Court of Justice has jurisdiction to rule on the present requests for a preliminary ruling.

35 The Lithuanian Government expresses doubts as to the admissibility of the request for a preliminary ruling. First of all, according to that government, the interpretation sought of the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU bears no relation to the subject matter of the dispute in the main proceedings, since that dispute is governed by national law alone and, under that law, the referring court does not have jurisdiction to hear that dispute. Next, the questions referred are hypothetical, in that the dispute in the main proceedings concerns neither the legality of the national procedure for proposing a candidate for the office of Judge of the General Court nor compliance with that procedure in the present case. Lastly, an answer to the questions referred is no longer necessary to enable the referring court to rule on the dispute in the main proceedings, since that dispute has become devoid of purpose as a result of the appointment of Mr Kalėda as a Judge of the General Court, which prevents the claims of the applicant in the main proceedings from being satisfied in relation to the reopening of the procedures for consultation and for proposing a candidate for the office of Judge of the General Court.

36 In that regard, it should be noted that, according to settled case-law, in the context of the procedure established by Article 267 TFEU, it is solely for the national court before which a 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 of Justice. Consequently, where the questions submitted concern the interpretation of EU law, the Court of Justice is in principle bound to give a ruling (judgment of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias, C‑66/22, EU:C:2023:1016, paragraph 33 and the case-law cited).

37 The Court of Justice may refuse to rule on a question referred by a national court for a preliminary ruling only where it is 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 of Justice does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias, C‑66/22, EU:C:2023:1016, paragraph 34 and the case-law cited).

38 In the present case, as regards, first of all, the argument that there is no connection between the interpretation of EU law sought and the dispute in the main proceedings, in so far as the latter is governed by national law alone, it should be noted that, as has been observed in paragraph 30 of the present judgment, the national decision to propose a candidate for the office of Judge of the General Court constitutes the first stage of the appointment procedure governed by the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU. The dispute in the main proceedings concerns the legality of national decisions proposing a candidate for the office of Judge of the General Court in the light of the requirements laid down by those provisions. In those circumstances, it is not obvious that the interpretation of those provisions sought bears no relation to the subject matter of that dispute.

39 As regards the referring court’s alleged lack of jurisdiction to hear that dispute, it is sufficient to recall that, in the context of the preliminary ruling procedure referred to in Article 267 TFEU, it is not for the Court of Justice to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and their procedure or, in particular, to examine whether an application pending before a referring court is admissible under those rules (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 96 and the case-law cited). The Court of Justice is therefore bound by an order for reference made by a court or tribunal of a Member State, in so far as that order has not been rescinded on the basis of a means of redress provided for by national law (judgment of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 70 and the case-law cited). It is not apparent from the file before the Court of Justice that the order for reference was rescinded in the present case.

40 Next, as regards the argument concerning the hypothetical nature of the questions referred, it must be pointed out that, contrary to what the Lithuanian Government claims, they are based on the referring court’s doubts as to the compatibility, with the provisions of EU law which it seeks to have interpreted, of the detailed rules according to which the national procedure for proposing a candidate of the Republic of Lithuania for the office of Judge of the General Court was actually implemented in order to lead to the adoption of the proposal decisions at issue in the main proceedings. In so far as the dispute in the main proceedings concerns the legality of those decisions in the light of those provisions of EU law, it does not appear that the issue raised by the questions referred is hypothetical.

41 Lastly, as regards the argument that an answer to those questions is no longer necessary to enable the referring court to rule on the dispute in the main proceedings because of the subsequent appointment of Mr Kalėda as a Judge of the General Court, it should be noted that, in its reply to the Court of Justice’s request for information of 26 September 2023, the referring court stated that that appointment had no bearing on the subject matter of the dispute in the main proceedings and that it intended to maintain its request for a preliminary ruling. Furthermore, it is common ground between the parties to the main proceedings that that dispute is still pending.

42 Since it is not apparent either from the file before the Court of Justice or from the reply of the referring court to the Court’s request for information that the applicant in the main proceedings has withdrawn his action or that all of his claims have been satisfied in full or can no longer be satisfied, so that the dispute in the main proceedings has become manifestly devoid of purpose, an answer to the questions referred appears still necessary to enable the referring court to rule on that dispute (see, to that effect, judgment of 2 February 2023, Towarzystwo Ubezpieczeń Ż (Misleading standard assurance contracts), C‑208/21, EU:C:2023:64 paragraph 46 and the case-law cited).

44 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU must be interpreted as precluding the government of a Member State, which has established a group of independent experts responsible for evaluating candidates for the office of Judge of the General Court and drawing up a merit list of candidates who satisfy the requirements laid down in those provisions, from proposing, from among the candidates on that list, a candidate other than the best-ranked candidate.

45 In order to answer those questions, it should be recalled at the outset that, under the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, Judges 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.

46 As regards, in particular, the requirement of independence laid down in those provisions, it must be borne in mind that that requirement forms part of the essence of the right to effective judicial protection and to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgments of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraphs 70 and 71, and of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office), C‑718/21, EU:C:2023:1015, paragraph 61).

47 That requirement of judicial independence laid down, inter alia, in Article 19 TEU thus gives concrete expression to one of the fundamental values of the European Union and its Member States enshrined in Article 2 TEU, which define the very identity of the European Union as a common legal order and which must be complied with both by the European Union and the Member States (see, to that effect, judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraphs 127 and 232 and the case-law cited, and of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 67).

48 Since the requirement of independence, which entails two aspects, independence in the strict sense and impartiality (see, to that effect, judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 121 and 122 and the case-law cited), is inherent in the task of adjudication and that Article 19 TEU jointly entrusts the Court of Justice of the European Union and the national courts with the task of ensuring judicial review in the EU legal order, that requirement applies both at EU level, in particular as regards the Judges of the General Court, and at the level of the Member States as regards national courts (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraphs 32 and 42 and the case-law cited).

49 Furthermore, the requirement of a tribunal previously established by law is closely linked, in particular, to the requirement of independence in that both seek to observe the fundamental principles of the rule of law and the separation of powers, principles which are essential to the rule of law, the value of which is affirmed in Article 2 TEU. The need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlies each of those requirements (see, to that effect, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 124, and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 56).

50 The requirement of a tribunal previously established by law encompasses, by its very nature, the process of appointing judges (see, to that effect, judgments of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 74 and the case-law cited), while the independence of a tribunal may be measured, inter alia, by the way in which its members are appointed (see, to that effect, judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office), C‑718/21, EU:C:2023:1015, paragraph 60 and the case-law cited).

51 In that regard, the substantive conditions and detailed procedural rules governing the appointment of judges must be such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges appointed to external factors and their neutrality with respect to the interests before them (see, to that effect, judgment of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 71). To that end, those substantive conditions and detailed procedural rules must, in particular, be drafted in a way that precludes not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned and thus preclude a lack of appearance of independence or impartiality on their part liable to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in individuals (see, to that effect, judgment of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraphs 96 and 97 and the case-law cited).

52 In that context, an irregularity committed in the context of the procedure for appointing judges within the judicial system concerned may lead to a breach of the fundamental right to an independent and impartial tribunal previously established by law, where that irregularity is of such a kind and of such gravity that it creates a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process. Such an irregularity may give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned. That is the case where what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system (see, to that effect, judgments of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraphs 75 and 76, and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 72 and 73 and the case-law cited).

53 As regards Judges of the General Court, the substantive conditions and procedural rules relating to their appointment must make it possible to rule out any reasonable doubt, in the minds of individuals, as to whether they satisfy the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, which relate both to ‘independence beyond doubt’ and to the ‘ability required for appointment to high judicial office’. To that end, it is necessary, in particular, as the Advocate General observed in points 59 to 61 and 65 of his Opinion, to safeguard the integrity of the entire procedure for the appointment of Judges of the General Court and, consequently, the outcome of that procedure at each stage.

54 Thus, as regards, in the first place, the national stage of proposal of a candidate for the office of Judge of the General Court, which is more specifically at issue in the main proceedings, it should be noted, first, that, in the absence of specific provisions to that effect in EU law, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing the proposal of such a candidate, provided that those rules cannot give rise, in the minds of individuals, to reasonable doubts as to whether the proposed candidate meets the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU.

55 Therefore, as the Advocate General observed, in essence, in point 54 of his Opinion, each Member State remains free to decide whether or not to provide for a procedure for selecting and proposing a candidate for the office of Judge of the General Court.

56 In that regard, the fact that representatives of the legislature or the executive are involved in the judicial appointment process is not in itself such as to give rise to such reasonable doubts in the minds of individuals (see, to that effect, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 75 and 76 and the case-law cited). That said, the involvement of independent advisory bodies and the existence, in national law, of an obligation to state reasons may be such as to contribute to rendering the appointment process more objective, by circumscribing the leeway available to the appointing institution (see, to that effect, judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraphs 66 and 71 and the case-law cited).

57 Second, as regards the substantive conditions laid down for the selection and proposal of candidates for the office of Judge of the General Court, the Member States, while having a wide discretion in defining those conditions, must nevertheless ensure, irrespective of the procedural rules adopted for that purpose, that the proposed candidates meet the requirements of independence and professional ability laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU.

58 In the second place, verification of the suitability of candidates proposed by the Member States for the performance of the duties of a Judge of the General Court, in the light of the requirements set out in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, is also the responsibility of the panel provided for in Article 255 TFEU.

59 For the purposes of the adoption of its opinion on that suitability, that panel must check that the proposed candidate meets the requirements of independence and professional ability which, in accordance with the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, are required to perform the duties of a Judge of the General Court.

60 In that context, as that panel stated in one of its activity reports, although the existence of an open, transparent and rigorous selection procedure is a relevant factor in checking compliance with those requirements by the proposed candidate, the absence of such a procedure does not, by contrast, constitute, in itself, a ground for casting doubt on such compliance.

61 For the purposes of such a check, the panel provided for in Article 255 TFEU may, as laid down in the second paragraph of point 6 of its operating rules, set out in the Annex to Decision 2010/124, ask the government making the proposal to send additional information or other material which the panel considers necessary for its deliberations, and that government is required, by virtue of the principle of sincere cooperation laid down in Article 4(3) TEU, to provide it with such information and material.

62 In the third place, the task of ensuring observance of the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU is also incumbent on the governments of the Member States, through their representatives, if they decide, having regard to the opinion delivered by the panel provided for in Article 255 TFEU, to appoint as a Judge of the General Court the candidate proposed by one of those governments. Once appointed, that candidate becomes a Judge of the European Union and does not represent the Member State which proposed him or her.

63 In the light of the foregoing, it must be held that, where, as in the case in the main proceedings, a Member State has established a procedure for the selection of candidates for the office of Judge of the General Court in the context of which a group composed mainly of independent experts is responsible for evaluating those candidates and drawing up a merit list of those that satisfy the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, the mere fact that the government of that Member State decided to propose a candidate on that merit list other than the best-ranked candidate is not, in itself, sufficient to support the conclusion that that proposal is such as to give rise to reasonable doubts as to whether the candidate proposed meets those requirements.

64 In the present case, it is apparent from paragraphs 1 to 3, 13, 15, 19 and 21 to 23 of the description of the selection procedure that, first of all, that group of experts was required to assess those candidates in the light of the requirements referred to in those provisions, as specified by the panel provided for in Article 255 TFEU in its activity reports. Next, the merit list drawn up by that group included only candidates considered by it to satisfy those requirements. Finally, the reference by the same group to the best placed candidate on that merit list merely constituted a recommendation to the Lithuanian Government, which, in accordance with Article 52(3) of the Law on the Government, was responsible for proposing the candidate for the office of Judge of the General Court.

65 The fact that the panel provided for in Article 255 TFEU gave a favourable opinion on the candidate proposed by the Lithuanian Government who was placed third on that merit list is such as to confirm that the decision of the governments of the Member States to appoint that candidate meets the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU.

66 In the light of all the foregoing considerations, the answer to the questions referred is that the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU must be interpreted as not precluding the government of a Member State, which has established a group of independent experts responsible for evaluating candidates for the office of Judge of the General Court and drawing up a merit list of candidates meeting the requirements laid down in those provisions, from proposing, from among the candidates on that list, a candidate other than the best-ranked candidate, provided that the candidate proposed satisfies those requirements.

67 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

The third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU

must be interpreted as not precluding the government of a Member State, which has established a group of independent experts responsible for evaluating candidates for the office of Judge of the General Court of the European Union and drawing up a merit list of candidates meeting the requirements laid down in those provisions, from proposing, from among the candidates on that list, a candidate other than the best-ranked candidate, provided that the candidate proposed satisfies those requirements.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Valančius (Appointment of Judges of the General Court of the European Union - Independence beyond doubt - Judgment) [2024] EUECJ C-119/23 (29 July 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C11923.html Cite as: EU:C:2024:653, ECLI:EU:C:2024:653, [2024] EUECJ C-119/23

Court of Justice of the European Communities (including Court of First Instance Decisions)