CJC Database

Member State

Spain

Topic

Independence

Sector

Judicial Self-Governance

Deciding Court Original Language

Tribunal Constitucional

Deciding Court English translation

Constitutional Court

Registration N

3101-2021

Date Decision

30/01/2024

ECLI (if available)

ECLI:ES:TC:2024:15

National Follow Up Of (when relevant)

NO

EU legal sources and CJEU jurisprudence

Article 2 and 19.1 TUE; article 47 of the Charter

Judgment CJEU of 20 april 2021, Repubblika c. Ill-Primu Ministru, C-896/19; Judgment CJEU of 2 march 2021, A.B, C-824/18

ECtHR Jurisprudence

N/A

Subject Matter

model of judicial councils - appointment powers - procedural requirements of the reforms

Legal issue(s)

The case addresses whether the reform of the General Council of the Judiciary meets the procedural and substantive requirements set forth by the Constitution.

Request for expedited/PPU procedures

NO

Interim Relief

NO

National Law Sources

article 9.3, 93, 117, 124, 127, 136,2 and 165 of the Spanish Constitution

Facts of the case

To understand the case, it is first necessary to outline the context. In Spain, the 1978 Constitution assigned the governance of the judiciary to the General Council of the Judiciary (CGPJ). Among other duties, the CGPJ is responsible for appointing, promoting, and disciplining judges. The CGPJ is composed of 20 members (12 judges and 8 renowned jurists), with a mandate of 4 years, and since 1985, its members are elected by the Congress of Deputies and the Senate by a two-thirds majority. The need for a reinforced majority requires the government and opposition parties to agree on appointments.

In 2018, the CGPJ was due for renewal. However, political polarization prevented the government party (the Socialist Party) and the opposition party (the People's Party) from reaching an agreement. Thus, despite the fact that the parliamentary majority in 2018 was very different from that of 2011, the CGPJ continued with the same conservative majority composition. To break the deadlock and force an agreement, in 2021, the Socialist Party reformed the Organic Law of the Judiciary (LOPJ) through Law 4/2021 of March 29. The reform stipulated that while the Council was in "functions," it could not make any appointments. One year later, the LOPJ was reformed again, by means of Organic Law 8/2022, allowing the Council to appoint two members of the Constitutional Court.

The political groups VOX and the People's Party presented two constitutional appeals before the Constitutional Court. Both were dismissed by the Constitutional Court. The appeal from VOX was dismissed by Judgment 128/2023 of October 2, and the appeal from the People's Party was dismissed by Judgment 15/2024 of January 30.

Regarding the appeal filed by VOX, the constitutionality of the reform of the LOPJ was questioned from both procedural and material perspectives. In the appeal, it was argued:

Procedural Grounds:

1. The law was approved without the CGPJ issuing a prior report.

2. It was considered that reforming the LOPJ through a Bill constituted a legal fraud, violating Article 23 of the Constitution.

Material Grounds:

It was argued that the creation of the figure of the CGPJ "in functions" was contrary to Articles 122, 123.2, 124.4, 159.1, and 161.1(d) of the Constitution.

All these claims were dismissed.

In the case of the appeal filed by the People's Party, the constitutionality of the reform was questioned on the following grounds:

Formal Aspects:

i) Violation of Article 23 of the Constitution due to the approval of the bill through an expedited procedure.

ii) Violation of Article 93 of the Constitution for infringing European Union law.

Material Aspects:

i) It was argued that the legal reform was a mutation of the Constitution, contrary to Articles 167 and 169 of the Constitution, because it was carried out during a state of emergency.

ii) The reform violated Article 165 of the Constitution, as it also constituted a modification of the Organic Law of the Constitutional Court (LOTC).

iii) The reform of Article 598 Bis violated Article 9.3 of the Constitution.

Reasoning (role of the Charter or other EU, ECHR related legal basis)

Formal Aspects:

iii) Violation of Article 23 of the Constitution due to the approval of the bill via an expedited procedure.

The Constitutional Court concludes that the expedited procedure respected all legally required conditions. Thus, the provisions of Articles 93 and 94 of the Rules of Procedure of the Congress of Deputies were complied with. In this regard, the Court emphasized that the Bureau of the Congress is not required to justify its decision, as long as it verifies that those requesting the expedited procedure are properly authorized.

Furthermore, the Court considered that opposition members had the opportunity to present amendments and participate in the legislative process, meaning they were not deprived of the exercise of their representative functions.

iv) Violation of Article 93 of the Constitution for infringing European Union law.

The appellants claimed that the reform infringed Article 93 of the Constitution by violating European Union law. They argued that adherence to Articles 2 and 19.1 of the Treaty on European Union (TUE) required judicial reforms to be approved slowly and with prior consultation of affected parties, particularly judicial associations, judges, the CGPJ, and the Venice Commission.

The Court clarifies that a violation of European Union law does not imply a breach of Article 93 of the Constitution (the constitutional canon). Furthermore, the Court specifies that Article 93 of the Constitution cannot be used to evaluate the conformity or non-conformity of national laws with European Union law.

Next, the Court examines whether the reform violates the constitutional principle of judicial independence, recognized both domestically in Articles 117.1, 124, 127, 136.2, and 152 of the Constitution and at the European level in Articles 19.1 TUE and 47 of the Charter. In this section, the Court cites European Union jurisprudence.

The Constitutional Court points out that while the Court of Justice of the European Union (CJEU) recognizes that the involvement of judicial councils in appointment processes can help objectify the process, it is necessary for the council to be independent beforehand (CJEU Judgment of November 19, 2019, C-585/18). However, as long as the principle of non-regression is respected (CJEU Judgment of April 20, 2021, C-896/19), the design of national judicial councils remains the competence of the state.

In this regard, the Court notes that European Union law does not regulate the parliamentary procedures that must be followed for judicial reforms, as this is the responsibility of the member states. Finally, although the Court notes that soft law recommendations (such as those suggesting consultations with affected parties before judicial reforms are processed) have a non-binding and non-compulsory character, they are not mandatory.

Material Aspects:

Before addressing the specific material issues raised by the appeal filed by the People's Party, the Constitutional Court recalls its previous jurisprudence on the CGPJ regarding two matters:

1. The appointment and renewal system for its members.

2. The functions attributed to the Council.

Regarding the specific material issues, the Court concludes as follows:

iv) The reform of the law is a mutation of the Constitution contrary to Articles 167 and 169 of the Constitution, as it was carried out during a state of emergency.

The Court considers that when the legislator reforms the law and introduces the figure of the CGPJ "in functions," it cannot be considered that the Council is exercising powers belonging to the constituent authority. Therefore, there is no violation of Article 167 of the Constitution, nor can the Organic Law 4/2021 be considered a constitutional mutation.

Moreover, the Court emphasizes that it is not necessary to resort to constitutional reform (Article 167 of the Constitution) because the reform of the Organic Law has not altered the content of Article 122 of the Constitution. Additionally, the legislator has some discretion in regulating the competences of the Council.

v) The reform violates Article 165 of the Constitution, as it also constitutes a modification of the Organic Law of the Constitutional Court (LOTC).

The appellants argue that the reform of the Organic Law of the Judiciary has removed or restricted the Council’s ability to bring a conflict of attribution before the Constitutional Court. According to the appellants, this measure could only be agreed upon through reform of the Organic Law of the Constitutional Court.

First, the Court recalls that the Constitution does not grant the CGPJ the competence to bring a conflict of attribution before the Constitutional Court. Second, although Article 165 of the Constitution requires organic law, it does not specify a preference for a particular organic law. Therefore, if the decision is made to recognize or remove the CGPJ’s ability to raise a conflict of attribution before the Constitutional Court, it can be done through either the LOPJ or the LOTC.

vi) The reform of Article 598 Bis violates Article 9.3 of the Constitution.

Article 598 bis of the LOPJ states that the Council, while in functions, cannot remove the secretary or the deputy secretary-general of the Council. This rule is considered contrary to Article 9.3 of the Constitution. The Constitutional Court considers that the measure is not a singular law because it applies not only to prevent the removal of the current secretary and deputy secretary-general, but also to all secretaries and deputy secretaries-general who hold office while the council is in functions.

Relation of the case to the EU Charter

The Constitutional Court recognizes that the CJEU, based on a systematic interpretation of Articles 2 and 19.1.II TEU and Article 47 of the Charter, has developed a standard on judicial independence to protect the status of judges. However, it does not consider that the reform of the judicial council violates this case law.

Relation between the EU Charter and ECHR

N/A

Use of Judicial Interaction technique(s)

Consistent interpretation

Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)

N/A

Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)

The Constitutional Court refers to the case law of the Court of Justice of the European Union (CJEU) regarding judicial independence. The Constitutional Court not only cites the rulings but also elaborates on the principles established by the CJEU in this regard. It is acknowledged that judges must carry out their duties without external pressures and that Judicial Councils (if independent) can contribute to ensuring the independence of judges.

Although the Constitutional Court recognizes the importance of the CJEU’s case law in protecting the independence of judges in Member States, it also emphasizes that the CJEU has not imposed a particular legislative method on States for enacting reforms affecting judicial councils.

Strategic use of judicial interaction technique (purpose aimed by the national court)

The Constitutional Court invokes the case law of the Court of Justice of the European Union (CJEU) to dismiss the arguments of those who question the constitutionality of the judicial council reform. In this way, the Constitutional Court highlights that the CJEU does not require consulting the reformed body before approving the reform, nor does it prevent the reform from being processed through an expedited procedure.

Impact on Legislation / Policy

N/A

Notes on the national implementation of the preliminary ruling by the referring court

N/A

Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?

N/A

Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?

Commission Recommendation (EU) 2017/1520 of 26 July 2017 regarding the rule of law in Poland complementary to Recommendations (EU) 2016/1374 and (EU) 2017/146 Commission Recommendation (EU) 2018/103 of 20 December 2017 regarding the rule of law in Poland complementary to Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520

Did the national court take into account national case law on fundamental rights?

N/A

If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information

N/A

Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?

N/A

Impact on national case law from the same Member State or other Member States

N/A

Connected national caselaw / templates

N/A

(Link to) full text

hj.tribunalconstitucional.es

Author

David Mier Galera, Pompeu Fabra’s University

Spain, Tribunal Constitucional (Spanish Constitutional Court), 15/2024, 30 of January 2024