Standards for judicial councils in the case law of the CJEU and the ECTHR. From soft law to hard law?

• Pages: 467-487
• Author: Núria González Campañá

— 467 —

STANDARDS FOR JUDICIAL COUNCILS IN THE CASE LAW OF

THE CJEU AND THE ECTHR. FROM SOFT LAW TO HARD LAW?1

NÚRIA GONZÁLEZ CAMPAÑÁ



SUMMARY: 1. INTRODUCTION. 2. CJEU CASE LAW CONCERNING COU-

NCILS FOR THE JUDICIARY. 2.1. C–216/18 PPU–Minister for Justice

and Equality. 2.2. C–619/18 Commission v Poland (Independence of

the Supreme Court). 2.3. C–585/18 AK v KRS. 2.4. C–824/18 AB v KRS.

2.5. C–791/19 Commission v Poland (Disciplinary regime applicable

to judges). 2.6. C–718/21 KRS. 2.7. C–647/21 DK, MC and MF. 3. ECtHR

CASE LAW CONCERNING COUNCILS FOR THE JUDICIARY. 3.1. 21 June

2016 Ramos Nunes de Carvalho v Portugal. 3.2. 22 November 2021, Re-

czkowicz v Poland. 3.3. February 2022, Advance Pharma v Poland. 3.4.

22 June 2023 Lorenzo Bragado v Spain. 3.5. 8 June 2023 Alonso Saura v

Spain. 3.6. 23 November 2023, Walesa v Poland. 4. CONCLUSIONS.

1. INTRODUCTION.

As it is well known, Councils for the Judiciary (or Judicial Councils) are

common in constitutional democracies. They exercise governing functions of

the Judiciary with the aim of guaranteeing its independence, and these functions

include appointments, promotions, transfers, the inspection of the functioning

of the Courts and the disciplinary responsibility of the members of the Judiciary.

Attributing this type of powers to the Councils prevents another branch of the

state, particularly the executive branch, from directly or indirectly influencing

judicial independence.

1 This chapter was written within the framework of the activities of “Grupo de Estudios

sobre la Democracia y Constitucionalismo” (GEDECO) and the Jean Monnet Chair in European

Constitutional Democracy (EUCODEM).

NÚRIA GONZÁLEZ CAMPAÑÁ

— 468 —

The Venice Commission has admitted that in some constitutional

democracies with a long-established legal culture and traditions of restraint,

Councils for the Judiciary might not be necessary, and the fact that the executive

branch may have an influence on judicial appointments has not, in practice, led to

an erosion of judicial independence.2

In the case of Spain, the Judicial Council (Spanish acronym CGPJ) is a

“constitutional and autonomous body” established in Article 122 of the Spanish

Constitution. The constitutional definition aims at making the otherness of this

body clearly explicit with respect to the Judiciary, as well as its non-dependence

on the other powers of the state.3 It is also well known that the CGPJ is formed

by the President of the Supreme Court and 20 members: 12 judges and 8 jurists

(non-judges), with its members being appointed for non-renewable terms

of 5 years. While the Constitution requires the 8 jurists to be elected by a 3/5

majority in each chamber of the Spanish Parliament (4 in the Congress and

4 in the Senate), the constitutional text does not specify how the 12 judicial

members are to be elected. The model of appointment of these 12 members

has undergone important variations over time and represents one of the most

controversial issues of the CGPJ.4 At the moment, and according to Article 567 of

Organic Law 6/1985 of the Judiciary, these 12 members are also appointed by a

3/5 majority in each chamber (6 in the Congress and 6 in the Senate). This could

be “easily” changed, however, as amending any Organic Law “only” requires

an absolute majority (i.e., half+1, which means less than 3/5). In the Spanish

system, in practice, absolute majority means the party (or parties) supporting

the government, while the qualified 3/5 majority requires that the political

party (or parties) supporting the government reach an agreement with the main

opposition party.5 When there is no will to reach a deal between the two main

Spanish political players (i.e. the Socialists [PSOE], and the Popular Party [PP]),

the appointment is blocked, as happened between 2018 and 2024. For six years,

all members of the Spanish CGPJ continued to act with their mandate expired,

2 Venice Commission, CDL-AD(2010)004, Report on the independence of the judicial

system. Part I: the independence of judges, para. 32.

3 AGUIAR DE LUQUE, Luis, “Artículo 122”, in RODRÍGUEZ PIÑERO, Miguel and CASAS

BAAMONDE, María Emilia (Ed.), Comentarios a la Constitución Española, vol. II, BOE, Madrid, 2018,

p. 725.

4 A brief summary of all the legislative changes affecting the election of the 12 judicial

members undergone since 1978 to be found in CASTELLÀ ANDREU, Josep Maria, “Reformas

legislativas del Consejo General del Poder Judicial y del Tribunal Constitucional y erosión

democrática en España”,  4, 2022, p. 2260.

5 A critical review of the system at TORRES, Aida, “Judicial Self-Government and Judicial

Independence: the Political Capture of the General Council of Judiciary in Spain”,  

Journal 19 (7), 2018, p. 1770.