The ongoing conflict around the Judicial Council in Spain, which Spain’s governing coalition wants to reform, reminds us of a fact ignored by mainstream media outlets and apparently also by European institutions: for the last few decades, its members have been appointed by Spain’s parliament. Why is that fact exceptional? It is in fact the same method for appointing judges in the much decried reform of Poland’s Judicial Council by the Law and Justice (PiS) party. It is true that the proposed changes in the way members of the Spanish General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ) are appointed did raise some concerns in Brussels when the ruling leftist coalition proposed a bill to make it possible for parliament to appoint its members with a simple majority. AP Photo/Czarek Sokolowski Law experts from the Venice Commission of the Council of Europe, right, are meeting with Poland’s Senate Spokesman Tomasz Grodzki, third left, in Warsaw, Poland, Thursday, Jan. 9, 2020 to discuss Polish judicial reform. The current three-fifths majority needed to appoint members of the CGPJ makes it necessary for the ruling party or coalition to agree the composition of the judicial body with the main opposition party. Until recently, Spain was ruled alternatively by the socialist party (PSOE) or the center-right People’s Party (PP), but with the decline of those two parties, the two-party system has been replaced by a system of coalitions, making things more complicated. For over two years now, the PP has been blocking the renewal of members of the CGPJ to force the exclusion of far left Unidas Podemos from any agreement on the composition of the judicial council.
Unidas Podemos is the PSOE’s junior coalition partner in the government of Prime Minister Pedro Sánchez, and Pedro Sánchez refuses to exclude his far left partners from the process. Unidas Podemos could count on two appointments and its regional nationalist friends in parliament could count on one appointment to the CGPJ which has 20 members in total, all of them being chosen by parliament — ten by the Congress of Deputies and ten by the senate — among lawyers for eight of its members as well as judges and magistrates for the remaining 12 members. Another option being discussed by Spain’s governing coalition is to reduce the power of the current CGPJ as long as it has not been renewed. Among other limitations, the current members of the CGPJ, whose mandate should have ended over two years ago, could no longer appoint new judges to fill vacancies. As per the European treaties, the way judicial systems function lies within the competence of individual member states. For years, EU institutions have nevertheless been interfering in the judicial reforms conducted by the right-wing, conservative governments of Hungary and Poland. The European Commission has always been at the forefront of such interference. Because of this, if it is to pretend that it treats all member states equally, it has no choice but to intervene in the Spanish case. So the European Commission did criticize in November the bill which would have reduced the required majority to appoint members of the CGPJ from three-fifths to one half of votes in each house of parliament, and in December it said it would “follow the situation closely and wait for more information from the Spanish government.” Didier Reynders, the European commissioner for Justice, also expects the Spanish government to consult with the Venice Commission, which is a consultative body of the Council of Europe, before it conducts any reform of the CGPJ. AP Photo/Olivier Matthys, Pool European Commissioner for Justice Didier Reynders speaks during a plenary session at the European Parliament in Brussels, Tuesday, Nov. 24, 2020. This is an interesting development, as the opinions delivered by the Venice Commission are not supposed to be binding. In the Polish case, however, the European Commission has based much of its argumentation against the Polish reform of the National Judicial Council (Krajowa Rada Sądownictwa, KRS) on opinions delivered by the Venice Commission. An opinion delivered in December 2017 concerning Poland, in particular, took the view that in order to meet “European standards” a judicial council should have a majority of members appointed by judges, and not by parliament. Since the 2017 reform of the KRS this is no longer the case in Poland, but in Spain it has not been the case either since the law on the CGPJ was adopted in 1985! In both countries, the constitution leaves to parliament the decision as to who should appoint the magistrates and judges sitting on the judicial council.
In both countries, as per the current state of affairs which is not criticized by the European Commission in the case of Spain, a majority of three-fifths is required to appoint members of the judicial council. The difference in the way those members are appointed is that if no such majority can be found this will block the appointment process in Spain, as it has been the case for the last two years, while in Poland a second round of vote will be held, during which each MP votes for his or her preferred candidate, the 15 candidates with the highest number of votes winning a seat in the KRS. This is meant to ensure that opposition parties get to appoint some of the candidates while preventing a situation where they could block the process of appointment as seen in Spain. Just like in other areas, such as education , freedom of the press or the protection of borders against illegal immigration , the EU institutions’ shameless double standard and partiality in their approach to member states is all too obvious.
