Is a microstate about to provide EU rule of law with its Van Gend moment?

In fifteen years of EU
membership, Maltese courts have been remarkably reluctant to refer questions of
interpretation to the CJEU.  This could
be about to change in litigation which could have far-reaching consequences for
the direct effect of member states’ rule of law and human rights obligations.  The dispute raises important, novel questions
concerning the extent to which EU law of a classical constitutional nature
could be democratised in much the same manner as the law of the internal market
was democratised through Van
In the case of Pace
Axiaq et al vs Prim Ministru
, an NGO has asked the Civil Court to seek
a preliminary ruling concerning the compatibility with EU law of Malta’s system
of judicial appointments.  The NGO
contends that a system which grants the executive absolute power over
appointment and promotion breaches the right to a fair trial and the right to
an effective remedy (Art 19 TEU and Art 47 Charter of Fundamental Rights).  The applicants also seek to enjoin the
government to refrain from making further appointments to the bench until constitutional
reforms have been implemented.
In a decree issued on 22 May 2019,
the Civil Court rejected the Maltese government’s request to summarily dismiss
the case.  The Court found that, while
the applicants could not rely on the Maltese Constitution or the ECHR, they did
have a juridical interest insofar as they rely on EU law. 
The case, should it be referred
to the CJEU, would enable the further development of jurisprudence through which
the Luxembourg court has operationalised the rule of law in the EU.  In particular, it could render individuals
enforcers of the principles in the Juizes
judgment (discussed here)
in which it was held that “every Member State must ensure that the bodies
which, as ‘courts or tribunals’ within the meaning of EU law, come within its
judicial system in the fields covered by that law, meet the requirements of
effective judicial protection” (para 37).
Systematic backsliding in the absence of systemic change
The applicants in Pace Axiaq rely in great measure on the
ongoing proceedings in Commission
v Poland
(discussed further here).  Their submissions refer also to the damning
indictment of Malta’s rule of law failings in a report by the Council
of Europe’s Venice Commission
.  The
report, which was prompted by the assassination of journalist Daphne
Caruana Galizia
, noted that the independence of the judiciary is severely
compromised by the present system of appointments.
The Maltese government has, in
fact, committed to introducing legislation which will make the judiciary
self-perpetuating, thereby severing the executive’s control over the judicial
branch.  The catch, however, is that
appointments to the bench have continued; indeed, six appointments were made
quite hurriedly following the filing of Pace
.  The net effect is that
partisan capture could be perpetuated if a secure partisan majority of judges
is installed by the executive prior to any legislative innovation.  As former ECHR judge Giovanni
Bonello observes
, permanent capture is quite likely given that the vast
majority of judicial appointees since the 2013 change of government have either
occupied a prominent role in the governing party or have close family or
business relations with persons who do. 
Equally importantly, the threat
to the independence of the judiciary is to be considered in a
broader context of institutional capture
The Maltese constitution relies on trust insofar as the separation of
powers is concerned.  The executive has
extensive powers of appointment and removal of officials responsible for the
enforcement of criminal law, including financial regulation required by EU law. This has always been problematic in
conceptual terms, and internal criticism is not a new phenomenon.  Recent events, however, demonstrate that
there has been significant movement towards a deliberate
culture of impunity
in the highest political offices.  Erosion of the independence of the judiciary
therefore takes on an altogether more worrisome flavour given many considered
the judiciary to be a significant bar to the further (or complete, by some
accounts) erosion of the rule of law, and the principle of sincere cooperation.
Malta is not Poland, but…
The Maltese rule of law crisis is
distinguishable from its better-known Polish counterpart, however.  Poland has adopted regressive laws following
EU membership, and thereby compromised the standard of judicial independence
which had been scrutinised prior to accession. 
The European Commission has been clear that this type of formal backsliding
engages EU law, specifically Article 7 TEU, and requires redress as a matter of
Union law.
In Malta, in contrast, the laws
which the applicants in Pace Axiaq contend
are contrary to EU law have been in place for as long as Malta has been an
independent state.  Of course, nowhere in
the treaties is the enforcement of fundamental rights and rule of law
obligations contingent on regression, but the absence of formal regression means
that a clear demarcation between compliance and its absence is lacking.  Indeed, the Maltese government, cognisant of
the Commission’s formulaic
systemic backsliding criteria
, has been eager to emphasise the Commission’s
role in the enforcement of rule of law obligations, arguing that there is no
private route to enforcement. 
The potential innovation in Pace Axiaq, and the reason why a
preliminary ruling is in fact necessary, is that the petitioners rely instead on
the direct effect of certain human rights obligations: Article 19(1) TEU, which
requires national courts to “provide remedies sufficient to ensure effective
legal protection in the fields covered by Union law”, and Article 47 of the
Charter of Fundamental Rights, which guarantees the right to an effective
remedy and the right to a fair trial.  The
matter is then brought within the scope of the Wachauf
formula by way of the duty of sincere cooperation in Article 4(3) TEU; it is
argued that the entire substance of the effectiveness of EU law may be at
stake, and that all future judgments could be called into question should
judicial independence be further compromised.
Paradoxically, Pace Axiaq could provide the Maltese
courts with an opportunity to make their greatest contribution to the rule of
law at a time when their own independence is most under threat.  Much like the establishment of the internal
market required the development of direct effect and citizen-led enforcement of
the law, supranational judicial oversight would go a long way towards
fulfilling EU law’s promise of a system founded on the rule of law and
fundamental rights.
Barnard & Peers: chapter 9
Photo credit: The Judiciary of

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