The Attorney General’s unappealing intention

In this long read, Jacques René Zammit looks at the pending case before the Constitutional Court concerning the system of judicial appointments in Malta. The system of references to the Court of Justice of the European Union is explained and questions on how this impinges on Malta’s Constitutional sovereignty are answered.

In a case started by NGO Repubblika, where the organisation claims that the system of judicial appointments in Malta is contrary to EU law, a request was made at Constitutional level to refer the issue to the Court of Justice of the European Union (CJEU).

A few moments after the Constitutional Court announced that it would accede to this request, the Attorney General (AG) announced his intention to appeal that decision. The government issued a statement soon after, announcing that it would be seeking leave to appeal. Earlier, the AG had described the request to refer as ‘premature’ explaining that the Maltese Court should itself look into the merits of the case before referring any matter to the CJEU in Luxembourg.

There’s no denying that the legal strategy of the government was to keep the CJEU out of this as much as possible. The government would drop its intention to appeal three days later, but the concerted effort – in and out of the courts – was initially a very clear attempt to ‘keep this local’.

Former Labour Justice Minister Joseph Brincat requested to intervene in the case. Quoted in the Times of Malta, he said his request was not “frivolous” but based on the fact that he truly believed that it was not right “to have attacks upon and inferences against the Maltese judicial system, deeply rooted in traditions, irrespective of any opinion of any judge or magistrate.”

Former anti-EU Prime Minister (now MEP) Alfred Sant upped the ante by describing the request to refer  to the CJEU as ‘shameful’. The Malta Independent reported: “Writing on Facebook, the former Prime Minister said that Malta’s Constitution, the best democratic tool we have had since Independence, is now subject to a decision by a foreign institution on matters that strictly regard the administration of the country.”

What is this reference about? Why is a ‘foreign court’ interfering in our constitutionally defined system of judicial appointments? Does it really impinge on our sovereignty as a nation? Is the government right to think of opposing such a procedure? In order to understand all this, we need to look into the context and understand what the preliminary reference procedure and the CJEU are all about.

What is the preliminary reference procedure?

The preliminary reference procedure is one of the core procedures within the EU law system. Described in Article 267 of the Treaty of the Functioning of the European Union, it defines an interaction between national courts in all the member states and the CJEU in Luxembourg. That’s the technical stuff done. Let’s look at what it really means in concrete terms: for the EU, for the member states and above all for EU citizens.

First, we must understand that the Court of Justice of the European Union is the ultimate ‘referee’ when it comes to interpreting and applying EU law across the Union. That task is enshrined in the Treaty. The reason for this is easily understood.

The Union generates a large amount of law that, over time, has been interpreted to be binding and directly applicable on and in all Member States. In the absence of a centralised interpretation from the start the EU would have faced a situation where multiple national courts tasked with interpreting and applying EU law risked coming up with separate, diverse interpretations for the same rules and facts.

The preliminary reference system solves that very problem. Whenever a court in a Member State is faced with an interpretational issue concerning a matter with an EU law element, that court can either solve the issue itself or, if it feels that there is insufficient clarity on how to interpret that law, it will stay (pause) proceedings before it and refer the matter to the CJEU.

The CJEU does not look beyond the EU element. Its role is to provide the interpretational tools to the Member State court to apply the law in question. Such CJEU interpretations, once made, are binding on all courts faced with similar facts related to that law.

So, on a purely procedural level, the idea of a reference has absolutely nothing to do with a violation of judicial sovereignty. While the Member States bound themselves to the corpus of EU law and its effects when they joined the EU, they also made sure that the judicial network within the Union could collaborate to ensure uniform and equal application of the law from a local level.

Rather than an inroad into judicial sovereignty, this was an empowerment of national courts that took a front seat in the development of the EU acquis. Some national courts quickly caught on to the act and became prolific referrers of matters in order to get first say on how such laws should be applied.

More than two thirds of the cases brought before the CJEU in 2018 were preliminary references (568 in total) from national courts. In stark contrast to the average trend in other Member States, the Maltese judiciary has been largely reticent about referring cases to the CJEU. In 15 years of EU membership the grand total of references from Maltese courts is… three.

Ok. But why is the EU telling us how to appoint our judiciary?

That’s the next thing we need to understand. This is not just any preliminary reference. The Constitutional Court is examining a question concerning the way judges are appointed in Malta.

Repubblika is claiming that something is amiss – quoting, among others, the results of recent Rule of Law reviews by the Venice Commission, the organisation is arguing that the system of judicial appointments is flawed. Crucially, the argument extends to the fact that such a flawed system is in violation of our EU obligations. By our, I mean those of the Maltese State.

Back to the Treaty. Remember that the preliminary reference procedure relies on a collaboration between national courts and the CJEU. This EU-wide network of judiciaries is crucial to the proper functioning of EU law. National courts are the main port of call for citizens, natural and legal, who would like to have their EU acquired rights enforced.

The preliminary reference procedure on its own ensures accessibility at national level. You do not have to trundle all the way to grey and rainy Luxembourg and speak in some pesky language (like French or German) to have your EU rights clarified and applied. You just need to walk to Valletta and speaking in your language to your court in a familiar environment the case gets going. Referrals will get to Luxembourg in Maltese and the result comes back to your doorstep in Maltese for your Maltese court to apply. How’s that for citizen empowerment?

Beyond preliminary references, the same argument applies. Take for example the mutual recognition of judgments – a dialogue between national courts – or the European Arrest Warrant issued in one Member State and implemented in another Member State’s court. National Courts have been ‘enrolled’ for a large part of the enforcement aspect of EU law.

This is why Article 19 of the TEU that sets up the CJEU also includes the following sentence: “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”. Those ‘remedies’ include properly appointed, properly functioning courts in every Member State. The measure of such functionality is, of course, the by now famous ‘Rule of Law’ principles.

Think of the Europe-wide network as a chain of courts functioning in unison to guarantee efficient, uniform and direct application of EU law. That chain depends on mutual confidence and trust between all the courts involved at all tiers both national and supra-national. When a link in that chain goes rotten it is all the rest of the chain that suffers.

Many EU actors have a vested interest in having proper functioning judiciaries in all Member States. As we have seen mutual trust principles mean that other Member States need to be sure that the courts in one Member State can be trusted to apply EU law (that now also extends to a Charter on Fundamental Rights whenever it is called into play). Citizens of that Member State whose judiciary is under scrutiny are the actor that is most in need of ensuring that a proper functioning court can grant and enforce their rights.

Therefore, the EU interest in looking into the structure of the judiciary in Member States does not stem out of some imposition of EU supremacy. It is in fact the need to ensure that citizens across the EU, and particularly those in the country under scrutiny are still able to make use of “remedies sufficient to ensure effective legal protection…”. The scrutiny is in your interest.

That is why in recent times the CJEU has been called to examine cases in Portugal, Germany, the Netherlands and Luxembourg concerning various aspects of judicial independence. By guaranteeing that independence it guarantees a proper functioning network that applies EU law.

More importantly, cases from Poland and Hungary have been referred to the court on similar lines as the Repubblika case. In such cases, the CJEU is asked to examine the very structure of judicial appointments – and the justification is Article 19.

What about the AG’s opposition to the referral?

Back to the start. The AG’s first instinct upon the decision to refer by Malta’s Constitutional Court was to announce his intention to appeal – an intention confirmed by government in its statement. Now we can better understand what was happening in light of what has just been explained.

Repubblika have got to the level of the Constitutional Court in order to obtain a judgment on judicial independence. The Constitutional Court has agreed that an answer to the question could require elucidation from the CJEU also considering recent case-law on the matter. This rare accession to a referral request by a Maltese court would have been subject to an appeal by the AG in the name of the government. This would mean that a Constitutional Appeal court would have to decide whether the referral can be made or instead order the Constitutional court to decide the matter itself without bringing the CJEU into question.

What the AG did not seem to appreciate was that recent jurisprudence of the CJEU itself concerning national appeals against referrals did not leave much leeway for his action. Actually, it rendered such appeals practically useless.

In its Cartesio judgment in 2008, the CJEU had limited the scope of such appeals to almost nothing when it stated that “(the right of a court to make a ruling) cannot be called into question by the application of those rules, where they permit the appellate court to vary the order for reference, to set aside the reference and to order the referring court to resume the domestic law proceedings.”

In layman’s terms the judgment of an appellate court on a question of referral would be transformed into an ‘advisory statement’ if you like and the court that originally intended to refer may refer anyway in the end.

Given the track record of our judiciary on preliminary references it comes as no surprise that the AG’s first instinct would be to appeal a possible decision to refer. The withdrawal of the intention to appeal by Thursday can only be seen in this light. The declaration of intention (with accompanying press release) cannot be undone and is of itself further proof of the government’s attitude to the whole judicial process where the CJEU is involved.

The intention to appeal can be read as an attempt to keep proceedings ‘in-house’ – right where the very subject-matter of the proceedings operates. That the government feels more confident fighting judicial battles on what it sees as ‘home’ territory is very telling. It is yet another clue that goes to supporting the thesis that the judiciary is not as independent and transparent as it should be.

This very reference procedure is clearly one that makes both the national and EU courts a ‘home’ for all citizens who need to obtain effective legal protection. Seen in this light, the AG’s declaration of his unappealing intention to appeal and therefore to deny full effective legal remedy complete with CJEU interpretation frames the battle squarely as the ‘Government vs the Citizens of Malta’.

The case will still have to be argued in Luxembourg – it is not an easy task. What is important at this juncture is to make sure that everybody understands the importance of this procedure. The Rule of Law is not an abstract concept. Fully functioning, independent and transparent courts are a right of each citizen of the EU. This case, to be ultimately decided by a Maltese Court based on the EU Court interpretation is about that.

Jacques René Zammit blogs at www.akkuza.com. He is a lawyer specialising in EU Law. Having worked as a reféréndaire in a Judge’s Cabinet at the CJEU for 15 years, he is currently a Press Attaché at the Court.