The magistrate of the Constitutional Court José María Macías considers that The Court of Guarantees failed to respect European Union law by not submitting to the Court of Justice of the European Union a preliminary question concerning the removal of the General Council of the Judicial Power from the power to appoint two members of the TC and the return of this power a few months later, when the government was interested.
Macías formulated a dissenting vote with the judgment of the Constitutional Court which approved the organic law approved in July 2022 to reinstate to the governing body of judges the power to elect two magistrates of the TC, which was necessary for the Executive could name the two that corresponded to him.
This power was withdrawn in March 2021, when the government promoted legal reform so that the General Council of the Judiciary (CGPJ) could not make discretionary appointments due to the expansion of its functions. This modification was also validated by the Constitutional Court in a judgment rendered in October 2023 by 7 votes to 4.
“My disagreement does not extend to the fact that, thanks to Organic Law 8/2022, the CGPJ has recovered the competence for the appointment of magistrates of the TC of which he should never have been deprivedbut rather because the defects in dealing with a legislative initiative which escapes the requirements of the rule of law clause have been reiterated, as interpreted by the case law of the Court of Justice of the European Union (CJEU) “, explains Macías.
The magistrate recalls that both the law removing the powers of the CGPJ and that exclusively restoring the power to appoint two members of the TC were approved “in an accelerated manner” (by emergency and in single reading), and without participation of the CGPJ, the Venice Commission and the operators and sectors concerned by the reform”.
“In accordance with the jurisprudence of the CJEU which interpreted the constitutive treaties (the EU Treaty and the Charter of Fundamental Rights of the EU), although the constitutional organization or justice falls within the scope of autonomy of the Member States, the issues directly related to the rule of law, the separation of powers and The independence and impartiality of magistrates are included in the rule of law clausewhich constitutes an area covered by EU law in which it has the power to impose direct obligations on member states,” he says.
Macías refers to CJEU judgments which “declare the requirements of independence and impartiality applicable to judges (including in their appointment and dismissal procedures); they proclaim the separation of powers and the non-interference of the executive or legislative power in the judicial power; demand the independence of the governing body of judges, and even of the constitutional courts. » And he emphasizes that these judgments “promulgate directly binding clauses, subject to the principle of primacy and direct effect of EU law in these subjects. »
Binding law for the TC
For this reason, he adds, “we cannot claim that the TC cannot assess the non-compliance of the norm with EU law, nor that these European standards on the rule of law and the judicial power do not constitute a primary law and directly binding on the Constitutional Court”.
The dissenting vote mentions the judgments of the CJEU (relating to Poland, Hungary, Romania, Malta or Bulgaria), which establish that the process of appointing judges, including those of constitutional courts, is part of the judicial independence inherent in the rule of law of the European Union.
“EU law already does not tolerate a governing body of judges being mediated by other political powers“, neither in his appointment nor in the exercise of his essential powers, including, in Spain, judicial appointments, including those of magistrates of the TC”, he underlines.
According to him, the “ignorance” of the legislator of the powers of the CGPJ “to first limit them, then expand them, in the interest of the co-elector Executive (…) testifies to a instrumentalization of the CGPJ in the appointment of TC judges, which inevitably raises legitimate doubts in the minds of defendants as to their imperviousness and neutrality.
Macías emphasizes that the TC’s refusal to pose a preliminary question to the CJEU “requires that motivation be provided as to its impertinence, redundancy or obvious uselessness”.
“This motivation is not at all contained in the decision with which I do not agree and I cannot fail to point out that the relevance of this omission may also imply a violation by the TC from the point of view of the obligations that the Kingdom of Spain assumed with the signing of the European Convention on Human Rights”, he underlines.
According to him, both the reforms of 2021 and those of 2022 present “a significant “fumus” of incompatibility with Articles 2, 19.1.2 of the TEU and Article 47 of the Charter”, therefore “the circumstances which, in accordance to the case law of the CJEU, exempt the TC from the obligation to ask a preliminary question.”
“On the contrary,” he concludes, “submitting the preliminary question to the CJEU was imperative”.
