Despite the ever-growing importance of the jurisprudence of the Court of Justice of the European Union (CJEU) in shaping the evolution of the European construction, the national nomination and selection procedures of judges and advocate generals to be proposed to posts at the European Union's highest courts is currently not a well-researched topic in comparative legal literature. The present article therefore aims to present and analyse the national selection procedures of the judges and advocate generals of the CJEU and of the judges of the General Court in fifteen EU Member States, namely in Austria, Belgium, France, Hungary, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Romania, Portugal, Spain and Sweden. The article also seeks to highlight thought-provoking aspects of the work of the article 255 committee and reflect on the specificities of the carrier path of the candidates who the committee allowed to proceed.
Jóllehet az Európai Unió Bíróságának ítélkezési gyakorlata jelentősen hozzájárul(t) az európai uniós integráció fejlődési irányának meghatározásához, az uniós bírósági fórumok bíráinak nemzeti jelölési eljárásai jelenleg kevéssé kutatott területnek tekinthetőek. A témabeli összehasonlító jogi szakirodalom hiányára tekintettel a jelen cikk célja az Európai Unió bíróságára kinevezendő bírák és főtanácsnokok, valamint a Törvényszék bíráinak jelölésére irányuló nemzeti szabályozási megoldások, ill. kiválasztási gyakorlat bemutatása tizenöt uniós tagállamban (Ausztria, Belgium, Franciaország, Magyarország, Írország, Olaszország, Litvánia, Luxemburg, Hollandia, Románia, Portugália, Spanyolország és Svédország). A cikk továbbá rá kíván mutatni a 255. cikk szerinti bizottság munkájának elgondolkodtató elemeire, ill. reflektálni kíván a bizottság által továbbengedett jelöltek karrierútjának jellegzetességeire is.
As a generally acknowledged fact, Member States must reach a common accord in the Council when appointing the judges and advocate generals of the Court of Justice of the European Union (CJEU) and the judges of the General Court. However, this approval can be seen as rather formal, as the meaningful deliberation on the candidates nominated by the Member States to the CJEU takes place in the expert committee established by the Treaties (the so-called article 255 committee[1]). This means that the nomination and the selection of judges and advocate generals of the Court of Justice of the European Union and of the judges of the General Court is an interdependent three-phase process, whereas neither the first, nor the second part (national nomination phase and EU-level hearing and selection) is sufficiently covered by current legal literature.
The lack (or relatively limited nature) of comparative literature in this field might probably be explained by the fact that national nomination procedures show different approaches (legal or political) and even where the nomination procedure is regulated, the national solutions vary greatly as regards their elaborateness and legal nature. Substantial information on the governmental decision processes is also seldom available. However selection procedures of judges of the European Court of Human Rights (ECtHR) seems prima facie better regulated.[2]
The situation is somewhat similar as regards the work of the so-called article 255 committee too. Although the article 255 committee regularly - but not on a regular, annual basis - publishes reports on its activity,[3] neither the committee's opinion on the competence of the candidates, nor the reason for an eventual refusal of a candidate are made public. As a consequence, activity reports remain tacit on the committee's eventual professional preferences or secondary considerations - although the role of the article 255 committee has grown to become legally decisive with political repercussions back in the Member States.
The question for the present research thus arises: are national nomination procedures of the candidates who are to be interrogated by the article 255 committee solely guided by objectivity and professionalism, or can nominations include subjective - it is to say political or discretional - considerations too? With a view to answering this question, the article uses the methodology of comparative law in order to evaluate the national nomination and selection procedures from the following aspects: can these procedures be seen as regulated; and if so, then how complex the procedures are; which institutions, bodies or persons are involved in the national process (if applicable); does the nomination procedure incorporate democratic legitimation and at which level the decision on the final nominee is taken; what are the main professional criteria at national level and how are these channelled into the process as guarantees.
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Besides these aspects, the article also aims to identify elements of the work of the article 255 committee which provide the committee with a possibility to ambitiously and autonomously evolve the significance of its work when evaluating candidates to the positions of the CJEU judges.[4]
The Treaties are quite laconic as regards the composition of the CJEU and of the General Court, and the selection of the judges and advocate generals of these judicial fora. The current dispositions relating to national nominations are laid down in the third subparagraph of article 19 (2) of the Treaty on the European Union[5] (TEU) and in articles 254-255 of the Treaty on the Functioning of the European Union (TFEU). These treaty provisions basically prescribe the impartiality and independence[6] of the future judges and advocate generals and set the level of their required professional ability. The Treaties explicitly identify the three stages of the nomination of a judge or advocate general to the CJEU and of a judge to the General Court: first, there shall be a national nomination - the rules of which are left to the discretion of the Member State concerned; second, an evaluation shall take place by a specialised committee (the article 255 committee) whose legal authority is created by the TFEU itself; and third, the (formal) appointment of the CJEU judges takes place by the common accord of the Member States.[7]
In principle the Member States are free to propose a candidate to the posts of the CJEU and of the General Court as long as the nominee satisfies the criteria prescribed by the Treaties, namely the "independence beyond doubt" and the required professional abilities. This latter is set at different levels for judges and advocate generals of the CJEU and judges of the General Court. While for the exercise of judicial functions at the CJEU the requirement is "to possess the qualifications required for appointment to the highest judicial offices in their respective countries" or to be a jurisconsult "of recognised competence"; for the judges of the General Court the threshold is somewhat lower as they have to "possess the ability required for appointment to high judicial office." Thus requirements are less stringent as regards the professional preparedness and the professional advancement of judge-nominees of the General Court back home. The aspect of gender balance also comes up in the Statute of the Court of Justice of the European Union,[8] which advises the nomination of one woman and one man to the post of judges per Member States, but this recommendation is only applicable with regard to judges of the General Court. (The suitability of the candidates to perform the duties of judges and advocate generals is scrutinised by the article 255 committee, as it will be discussed under point 4.)
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