'Justice must not only be done, it must also be seen to be done' : selecting judges of the Court of Justice

Abstract

This research addresses the issue of the appearance of independence of the judges of the Court of Justice regarding the manner of their selection. It highlights the lack of interest of the literature in this issue despite its importance and it suggests that the selection procedure established by art. 255 TFEU weakens the appearance of independence of the judges of the Court of Justice. According to this procedure, national governments submit a candidate to the “255 Committee”, which gives a non-binding opinion on his or her suitability. Afterwards, all Member States decide on the appointment of the candidate at unanimity. With regard to the national stage of the selection, the procedure can be different from one Member State to another. After analysing these procedures in Belgium, France, and the United Kingdom, it turns out that the national selection procedures are sometimes very opaque and based on subjective criteria. With regard to the European stage of the selection, the powers of the 255 Committee are limited, although less then they seem to be. In conclusion, this research shows that the selection procedure of the judges of the Court of Justice does not affect their appearance of independence so that it would lead to a breach of the right to be judged by an independent tribunal. However, the manner of this selection weakens their appearance of independence. Given how great a role the Court of Justice plays in the European Union, this weakening should be a primary concern.