Opinion of the Advocate General — ECLI:EU:C:2020:1055
Date: 2020-12-17
Language of the case: Maltese
Subject matter: Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Malta

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date Lodged: 
5 December 2019 
National court: 
Qorti Ċivili Prim’Awla - Ġurisdizzjoni Kostituzzjonali (Malta) 
Date of the order for reference:  
25 November 2019 
Applicant:  
Repubblika 
Defendant: 
Il-Prim Ministru 
Intervener: 
WY 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-896/19 
 
2  
 
The parties 
1 The parties to the action in the main proceedings are ‘Repubblika’, an association 
registered as a legal person with the Registrar for Legal Persons, as the applicant, 
and the Prime Minister of Malta, as the defendant. WY was allowed to intervene 
in the present case, in the state it was when he filed his intervention. 
The dispute in the main proceedings 
2 The applicant’s action is based on Article 116 of the Constitution of Malta, which 
establishes an actio popularis. 
3 While clarifying that its action is limited to contesting the appointments that came 
into effect on 25 April 2019 (specifically the appointment of three new 
magistrates and the appointment as judges of three existing magistrates) as well as 
any other appointment that might be made pending the outcome of these 
proceedings, the applicant is requesting: 
– a declaration to the effect that under the current system of appointments to the 
judiciary, as regulated by Articles 96, 96A and 100 of the Constitution, Malta is 
in breach of its obligations under the combined provisions of the second 
subparagraph of Article 19(1) TEU and Article 47 of the Charter of 
Fundamental Rights of the European Union (‘the Charter’), as well as under 
Article 39 of the Constitution itself and under Article 6 of the European 
Convention on Human Rights (‘ECHR’); 
– a declaration to the effect that every appointment to the judiciary under the 
current system and pending the outcome of these proceedings is abusive, 
illegal, null and without effect; 
– that no further appointments to the judiciary be made unless they are made in 
accordance with the recommendations outlined in the Venice Commission’s 
Opinion dated 17 December 2018 and in accordance with the provisions of 
Article 19(1) TEU and Article 47 of the Charter. 
4 The defendant counters that the provisions of the Constitution are not in conflict 
with the EU Treaty, with the Charter, with Article 39 of the Constitution or with 
Article 6 ECHR. He argues that the Maltese legal system provides a mechanism 
that grants effective access to an independent and impartial court, ensuring an 
effective remedy under procedural law. The defendant insists that the Venice 
Commission’s recommendations are not binding on the State to which the 
recommendations refer, and therefore the State is not precluded from adopting 
other systems. In fact, by virtue of amendments introduced in 2016, which were 
unanimously approved by the Maltese Parliament, a Judicial Appointments 
REPUBBLIKA 
 
3 
Committee (‘JAC’) was established. Furthermore, a request for a declaration to 
the effect that the appointments made through the current system are null and a 
request calling for a halt to the appointment of members of the judiciary through 
the current system are absurd insofar as, should such a measure be adopted, it 
would have drastic repercussions on each and every appointment made in the 
Constitution’s history up to this day, thereby effectively paralysing the courts. 
5 The intervener refers to several legal systems in which the judiciary is appointed 
by the executive, including the Court of Justice, where the candidates appointed as 
judges are chosen by the executive of each Member State. 
The proceedings before the national courts 
6 The applicant brought its action by virtue of an application filed on 25 April 2019 
before the Qorti Ċivili Prim’Awla - Ġurisdizzjoni Kostituzzjonali (First Hall of 
the Civil Court (Constitutional Jurisdiction)) (the ‘Court’). It requested that the 
action be treated with urgency and called for an immediate halt to the 
appointments of magistrates and judges that were to enter into effect on the same 
day. 
7 By virtue of a decree delivered on the same day, the Court concluded that the 
appointments of the new members of the judiciary did not constitute 
circumstances that could create irreparable damage. 
8 On 26 April2019, the defendant and the Minister for Justice, who had been 
indicated as a defendant, raised a number of pleas of a preliminary nature as well 
as on the merits of the case. 
9 During a hearing held on 29 April 2019, the applicant requested that a preliminary 
reference be made to the Court of Justice and that the Court issue an interim 
measure until the delivery of the preliminary ruling. The defendant and the 
Minister for Justice objected to these requests insofar as a number of pleas 
concerning the nature of the case had to be determined before proceedings could 
continue. 
10 On 22 May 2019 the Court issued a partial judgment concerning the preliminary 
pleas raised by the defendant and the Minister for Justice. While it found that the 
applicant had no legal interest in bringing proceedings on the basis of Article 6 
ECHR or on the basis of a breach of the fundamental rights protected by the 
Constitution, it held that the applicant’s action was based on Article 116 of the 
Constitution and it could therefore continue on this basis. 
11 On the same day, the Court issued a decree whereby it rejected the applicant’s 
request for an interim measure and reserved the decision as to whether to make a 
preliminary reference. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-896/19 
 
4  
12 The applicant appealed from the partial judgment and from the decree mentioned 
above. The defendant and the Minister for Justice appealed from the partial 
judgment. 
13 By virtue of a judgment delivered on 27 September 2019, the Qorti 
Kostituzzjonali (Constitutional Court) confirmed the partial judgment insofar as 
the Court had declared that the applicant had no legal interest in bringing 
proceedings on the basis of Article 6 ECHR or on the basis of a breach of the 
fundamental rights protected by the Constitution. The Constitutional Court 
confirmed that the applicant could continue with its action insofar as it alleged a 
breach of Article 19(1) TEU and of Article 47 of the Charter, on the basis of 
Article 116 of the Constitution. The Constitutional Court non-suited the Minister 
for Justice as he should not have been indicated as a defendant. 
14 The case was sent back before the Court for a decision on the merits. During a 
hearing held on 7 October 2019, the applicant requested the Court to make a 
preliminary reference. By virtue of a decree delivered on 4 November 2019, this 
Court upheld the request to make a preliminary reference to the Court of Justice 
concerning the interpretation of Article 19(1) TEU and Article 47 of the Charter. 
15 The Court specifies that, at a hearing held on 30 October 2019, the applicant 
clarified that, through its action, it was contesting all the appointments made on 
25 April 2019 as well as any other appointment that will be made without any 
change in the applicable legislation. 
Legal context 
16 The provisions that are relevant for this case, including the provisions contested in 
the main proceedings, namely Articles 96, 96A and 100, are found in Chapter VIII 
of the Constitution, which was promulgated in 1964. 
17 Article 96(1) and Article 100(1) provide, respectively, that the judges of the 
superior courts and the magistrates of the inferior courts ‘shall be appointed by the 
President [of the Republic] acting in accordance with the advice of the Prime 
Minister’. For a candidate to be appointed as a judge or as a magistrate, he or she 
needs to satisfy a number of criteria. With regard to the required professional 
experience, the candidate must show that he or she has practised as an advocate in 
Malta for a period of at least seven years in the case of a magistrate 
(Article 100(2)) and of at least twelve years in the case of a judge (Article 96(2)). 
18 The Constitution provides that the members of the judiciary are appointed until 
they reach the retirement age, namely until they attain the age of sixty-five years 
(Article 97(1) in the case of judges, Article 100(3) in the case of magistrates). The 
Constitution also provides that the members of the judiciary cannot be removed 
from office except by the President of the Republic upon an address by the House 
of Representatives supported by the votes of not less than two-thirds of all the 
members thereof and requesting such removal on the ground of proved inability to 
REPUBBLIKA 
 
5 
perform the functions of their office (whether arising from infirmity of body or 
mind or any other cause) or on the ground of proven misbehaviour (Article 97(2) 
in the case of judges, Article 100(4) in the case of magistrates).  
19 These rules have been in force since Malta’s independence in 1964, without there 
ever having been any legal issue such as that raised in the present case. The same 
rules were in force before Malta ratified the ECHR as well as before Malta 
became a Member State of the European Union.  
20 In 2016 a number of constitutional reforms were introduced. These reforms saw 
the introduction, inter alia, of Article 96A, which establishes the JAC.  
Article 96A(1) provides that the JAC is to be composed of the Chief Justice, the 
Attorney General, the Auditor General, the Commissioner for Administrative 
Investigations (Ombudsman) and the President of the Chamber of Advocates. 
Article 96A(2) provides that the JAC is to be chaired by the Chief Justice or, in 
his absence, by the next most senior judge in office. Article 96A(3) to (8) provides 
as follows: 
‘(3) (a)  A person shall not be qualified to be appointed or to continue to 
hold office as a member of the [JAC] if he is a Minister, a Parliamentary 
Secretary, a Member of the House of Representatives, a member of a local 
government or an official or a candidate of a political party: 
Provided that where the President of the Chamber of Advocates is not 
qualified to be appointed or to hold office as aforesaid the Chamber of 
Advocates shall nominate another advocate to sit on the [JAC] in his 
stead. 
(b) The office of a member of the [JAC] shall become vacant if any 
circumstances arise that, if the person were not a member of the [JAC], the 
person would not qualify for membership thereof. 
(c) A member of the [JAC] may abstain or be challenged in the same 
circumstances as a judge of the Superior Courts. 
[...] 
(4) In the exercise of their functions the members of the [JAC] shall act on their 
individual judgement and shall not be subject to the direction or control of 
any person or authority. 
(5) There shall be a Secretary to the [JAC] who shall be appointed by the 
Minister responsible for justice. 
(6) The functions of the [JAC] shall be: 
(a)  to receive and examine expressions of interest from persons interested 
in being appointed to the office of judge of the Superior Courts (other than 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-896/19 
 
6  
the office of Chief Justice) or of magistrate of the Inferior Courts, except 
from persons to whom paragraph (e) applies; 
(b)  to keep a permanent register of expressions of interest mentioned in 
paragraph (a) and to the acts relative thereto, which register shall be kept 
secret and shall be accessible only to the members of the [JAC], to the Prime 
Minister and to the Minister responsible for justice; 
(c)  to conduct interviews and evaluations of candidates for the above-
mentioned offices in such manner as it deems appropriate and for this 
purpose to request information from any public authority as it considers to 
be reasonably required; 
(d)  to give advice to the Prime Minister through the Minister responsible 
for justice about its evaluation on the eligibility and merit of the candidates 
for appointment to the above-mentioned offices; 
(e)  when requested by the Prime Minister, to give advice on the eligibility 
and merit of persons who already occupy the offices of Attorney General, 
Auditor General, Commissioner for Administrative Investigations 
(Ombudsman) or of magistrate of the Inferior Courts to be appointed to an 
office in the Judiciary; 
(f) to give advice on appointment to any other judicial office or office in 
the courts as the Minister responsible for justice may from time to time 
request: 
Provided that the evaluation referred to in paragraph (d) shall be made 
by not later than sixty days from when the [JAC] receives the 
expression of interest and the advice mentioned in paragraphs (e) and 
(f) shall be given by not later than thirty days from when it was 
requested, or within such other time limits as the Minister responsible 
for justice may, with the agreement of the [JAC], by order in the 
Gazette establish. 
(7) The proceedings of the [JAC] shall be confidential and shall be held in 
camera and no member or secretary of the [JAC] may be called to give 
evidence before any court or other body with regard to any document 
received by or any matter discussed or communicated to or by the [JAC]. 
(8) The [JAC] shall regulate its own procedure and shall be obliged to publish, 
with the concurrence of the Minister responsible for justice, the criteria on 
which its evaluations are made.’  
21 As outlined in Article 96A(6), the function of the JAC is to, inter alia, identify 
those candidates who could be recommended to the Prime Minister for 
appointment as members of the judiciary. This function is reflected in 
REPUBBLIKA 
 
7 
Article 96(3) and (4) with regard to judges and in Article 100(5) and (6) with 
regard to magistrates. These provisions entered into force in 2016.  
22 Article 96(3) and (4) of the Constitution provides as follows: 
‘(3) Without prejudice to the provisions of sub-article (4), before the Prime 
Minister gives his advice in accordance with sub-article (1) in respect of the 
appointment of a judge of the Superior Courts, (other than the Chief Justice) 
the evaluation by the [JAC] established by article 96A of this Constitution as 
provided in paragraphs (c), (d) or (e) of sub-article (6) of the said article 96A 
shall have been made. 
(4) Notwithstanding the provisions of sub-article (3), the Prime Minister shall 
be entitled to elect not to comply with the result of the evaluation referred to 
in sub-article (3): 
Provided that after the Prime Minister shall have availed himself of the 
power conferred upon him by this sub-article, the Prime Minister or 
the Minister responsible for justice shall: 
(a) publish within five days a declaration in the Gazette 
announcing the decision to use the said power and giving the 
reasons which led to the said decision; and 
(b) make a statement in the House of Representatives about the 
said decision explaining the reasons upon which the decision was 
based by not later than the second sitting of the House to be held 
after the advice was given to the President [of the Republic] in 
accordance with sub-article (1): 
Provided further that the provisions of the first proviso to this 
sub-article shall not apply in the case of appointment to the office 
of Chief Justice.’ 
23 Article 100 is drafted in similar terms to Article 96, but addresses the appointment 
of magistrates to the inferior courts. Article 100(5) and (6) provides as follows: 
‘(5) Without prejudice to the provisions of sub-article (6), before the Prime 
Minister gives his advice in accordance with sub-article (1) in respect of the 
appointment of a magistrate of the Inferior Courts the evaluation by the 
[JAC] established by article 96A of this Constitution as provided in 
paragraphs (c), (d) or (e) of sub-article (6) of the said article 96A shall have 
been made. 
(6)   Notwithstanding the provisions of sub-article (5), the Prime Minister shall 
be entitled to elect not to comply with the result of the evaluation referred to 
in sub-article (5): 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-896/19 
 
8  
Provided that after the Prime Minister shall have availed himself of the 
power conferred upon him by this sub-article, the Prime Minister or 
the Minister responsible for justice shall: 
(a) publish within five days a declaration in the Gazette 
announcing the decision to use the said power and giving the 
reasons which led to the said decision; and 
(b) make a statement in the House of Representatives about the 
said decision explaining the reasons upon which the decision was 
based by not later than the second sitting of the House to be held 
after the advice was given to the President [of the Republic] in 
accordance with sub-article (1).’ 
24 Matters relating to the discipline of the members of the judiciary fall under the 
exclusive responsibility of the Committee for Judges and Magistrates (‘CJM’). 
The CJM is established and regulated by Article 101B of the Constitution. 
Article 101B(1) provides that the CJM is to consist of three members of the 
judiciary who are not members of the Commission for the Administration of 
Justice and who are to be elected from amongst judges and magistrates. This 
article specifies that, in disciplinary proceedings against a magistrate, two of the 
three members are to be magistrates and, in disciplinary proceedings against a 
judge, two of the three members are to be judges. The Chairman of the CJM is to 
be elected by the members of the CJM from amongst themselves 
(Article 101B(2)). In accordance with Article 101B(3), any member of the CJM 
may be challenged and is to abstain in the same circumstances as a judge of the 
superior courts. In such a case, the Commission for the Administration of Justice 
is to appoint a substitute member. If the CJM finds that a member of the judiciary 
has committed a breach of a serious nature, Article 101B(10) provides as follows:  
‘(10) If the [CJM] finds that the judge or magistrate has breached the Code of 
Ethics for Members of the Judiciary it shall: 
[…] 
(c) if it considers that the breach is of such a serious nature that it merits 
the removal of the judge or magistrate from office, it shall report its findings 
to the Commission for the Administration of Justice which shall consider 
whether the evidence constitutes prima facie proof and, if it considers that 
such degree of proof exists, the Commission shall suspend the judge or the 
magistrate concerned and shall refer the matter to the Speaker of the House 
of Representatives and to the Prime Minister. During the period of 
suspension of a judge or a magistrate in accordance with the provisions of 
this paragraph, which shall not exceed six months, the judge or magistrate 
shall be entitled to half the salary and allowances appertaining to his office 
and after the lapse of the said period of six months he shall again start 
receiving his salary and all the allowances of his office irrespective of 
REPUBBLIKA 
 
9 
whether the case referred has been concluded or otherwise. In the event that 
the proceedings before the House of Representatives do not lead to the 
removal from office of the member of the judiciary then the member of the 
judiciary shall be paid the salary and allowances which shall have been 
withheld from him during all the period of his suspension.’ 
25 Article 101B(15) provides that, with regard to the exercise of their functions, the 
members of the CJM ‘shall act on their own individual judgment and shall not be 
subject to the direction or control of any other person or authority’. 
26 Both the JAC (Article 96A(1)) and the CJM (Article 101B(1)) are subcommittees 
of the Commission for the Administration of Justice, established by virtue of 
Article 101A of the Constitution and regulated by Chapter 369 of the Laws of 
Malta. The provisions of Article 101A that could be relevant are the following: 
‘(1) There shall be a Commission for the Administration of Justice which shall 
consist of the President [of the Republic], who shall be the Chairman, and 
nine other members as follows: 
(a) the Chief Justice who shall be Deputy Chairman and shall preside over 
the Commission in the absence of the Chairman; 
(b) the Attorney General, ex officio; 
(c)  two members elected for a period of four years by the judges of the 
Superior Court from among themselves; 
(d) two members elected for a period of four years by the magistrates of 
the Inferior Courts from among themselves; 
(e)  two members appointed for a period of four years as to one by the 
Prime Minister and as to the other by the Leader of the Opposition, being in 
each case, a person of at least forty-five years of age, and who enjoys the 
general respect of the public and a reputation of integrity and honesty; 
(f) the President of the Chamber of Advocates, ex officio. 
(2) The President [of the Republic] shall only have a casting vote; when the 
Deputy Chairman presides over a meeting of the Commission he shall retain 
his original vote together with the casting vote. 
[...] 
(4) (a) A person shall not be qualified to be appointed or continue to hold 
office as a member of the Commission for the Administration of Justice: 
(i) if he is a Minister, a Parliamentary Secretary, a Member of the House 
of Representatives or a member of a local government authority;  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-896/19 
 
10  
[…] 
[…] 
(5) […] 
(b) Where a member of the Commission has been challenged or has 
abstained, the President [of the Republic] acting in accordance with his own 
deliberate judgement shall appoint as a substitute member to sit on the 
Commission, a person who in his opinion has as far as may be the same 
qualities and qualifications as the member substitute. 
(c) Where the members who are to be elected under paragraph (c) and (d) 
of sub-article (1) of this article, or who are to be appointed under paragraph 
(e) of the same sub-article, are not so elected or appointed within two weeks 
from a call for the purpose by the President [of the Republic], the President 
[of the Republic] who in making such appointment shall act in accordance 
with his own deliberate judgement shall himself appoint members in their 
stead who where possible in his opinion shall have the same qualities and 
qualifications as such members. 
[…] 
(7) In the exercise of their functions the members of the Commission and of any 
of its committees shall act on their individual judgement and shall not be 
subject to the direction or control of any person or authority. 
[…] 
(9) There shall be a secretary of the Commission for the Administration of 
Justice who shall also act as secretary of any committee of the Commission. 
The Secretary of the Commission shall be appointed by the Commission 
from among public officers assigned to the Courts or from among members 
of the legal professions. The Secretary shall hold office until such time as his 
appointment is terminated by the Commission. 
(10) A person appointed as a member of the Commission for the Administration 
of Justice or any of its committees may be removed from office by the 
President [of the Republic], acting in accordance with the advice of the body 
or the holder of the office appointing such member, but he may be removed 
only for inability to discharge the functions of his office (whether arising 
from infirmity of mind or body or any other cause) or for misbehaviour. 
(11) The functions of the Commission for the Administration of Justice shall be: 
(a) to supervise the workings of all the superior and inferior courts and to 
make such recommendations to the Minister responsible for justice as to the 
REPUBBLIKA 
 
11 
remedies, which appear to it [conducive] to a more efficient functioning of 
such courts; 
(b) to advise the Minister responsible for justice on any matter relating to 
the organisation of the administration of justice; 
[…] 
(f) to draw the attention of any judge or magistrate on any matter, in any 
court in which he sits, which may not be conducive to an efficient and 
proper functioning of such court;  
[…] 
(h) such other function as may be assigned to it by law. 
(12) The Commission for the Administration of Justice shall each year make a 
report to the Minister responsible for justice on its activities during the 
previous calendar year, and shall at any time, when it deems fit or as may be 
required by the said Minister, make a report on any particular matter to the 
said Minister. 
(13) The powers of the President [of the Republic] under any law with regard to 
the subrogation of judges and magistrates and to the assignment of duties of 
judges and magistrates shall be exercised on the advice of the Minister 
responsible for justice, so however that, the Minister shall, in advising the 
President [of the Republic], act in accordance with any recommendation on 
the matter by the Chief Justice: 
Provided that where the Chief Justice fails to make a recommendation 
to the Minister, and in any case where the Minister deems it so 
appropriate, the Minister may advise the President [of the Republic] on 
the matter, in any manner which, in the circumstances, he considers 
appropriate: 
Provided further that in any such case he shall immediately publish in 
the Gazette, a notice of that fact together with the reasons therefor, and 
he shall make a statement of such fact in the House of Representatives 
not later than the second sitting immediately after he has so advised the 
President [of the Republic]. 
(14) The question whether the Commission for the Administration of Justice has 
validly performed any function vested in it by or under this Constitution 
shall not be enquired into in any court.’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-896/19 
 
12  
The parties’ submissions concerning the preliminary reference 
27 After the applicant had requested the Court to make a preliminary reference 
during a hearing held on 7 October 2019, the Court ordered the filing of 
observations on whether such a reference should be made or not. 
28 In its observations, the applicant submitted that, from an objective point of view, 
the almost unfettered discretion given to the Prime Minister with regard to the 
appointment of members of the judiciary, as it results from a reading of the 
relevant articles in the Constitution, is such that it does not give reassurance and 
creates a doubt with regard to the separation between members of the judiciary 
and external factors that could have an impact on their impartiality and 
independence. 
29 With regard to the merits of the case, the applicant adds that it will be established 
as a fact that at least 19 members of the judiciary appointed since 2013 were 
highly active within the Labour Party, currently in government, or were appointed 
in a way that creates a suspicion of political interference in the judiciary. Globally, 
the appointments made since 2013 concern the Chief Justice as well as 11 new 
judges from a total of 23 judges (that is, 48% of the judges), and 12 new 
magistrates from a total of 22 magistrates (that is, 55% of the magistrates). All of 
these were appointed by the same Prime Minister, who has the final word when it 
comes to the appointment of members of the judiciary. The applicant submits that 
this discretion is arbitrary, is not subject to clear and objective rules or criteria, is 
not subject to review by the courts and is not legally bound by the advice given by 
the JAC, which was established by the amendments introduced in 2016. This 
means that there is no mechanism of ‘checks and balances’ on the Prime 
Minister’s discretion. 
30 In the hearing held on 30 October 2019, the applicant clarified that through its 
action it was challenging all the appointments made on 25 April 2019 as well as 
any other appointment that might be made after that date. It submitted that these 
appointments were made notwithstanding the Opinion issued by the Venice 
Commission where it expressed its view about the way the members of the 
judiciary are appointed in the Maltese legal system. In particular, in point 43 of its 
Opinion, the Venice Commission had concluded that: ‘the constitutional 
amendments 2016, which introduced the JAC, were a step in the right direction, 
but fall short of ensuring judicial independence. Further steps are required. The 
principle of independence of the judiciary requires that the selection of judges and 
magistrates be made upon merit and any undue political influence should be 
excluded. The Prime Minister should not have the power to influence the 
appointment of Justices and Judges-Magistrates. This would open the door to 
potential political influence, which is not compatible with modern notions of 
independence of the judiciary.’ 
31 The applicant insists that the preliminary reference should be heard with urgency 
and that in the meantime interim measures should be granted. 
REPUBBLIKA 
 
13 
32 For his part, the defendant submits that the right to an effective remedy and to a 
fair trial is respected in Malta. In this context, the appointments that came into 
effect on 25 April 2019 were made in strict observance of the provisions of the 
Constitution and in accordance with EU law. The defendant submits that there is 
no difference between these particular appointments and any other appointment of 
a member of the judiciary made since the promulgation of the Constitution of 
Malta in 1964, apart from the fact that, unlike the appointments made prior to 
2016, these candidates were the subject of an evaluation carried out by the JAC, 
established in Article 96A of the Constitution, with regard to their suitability. The 
JAC is composed of members who enjoy independence not only from a 
constitutional point of view but also with regard to their respective functions. 
33 The defendant also submits that the system for the appointment of members of the 
judiciary is in conformity with the requirements of Article 19(1) TEU and of 
Article 47 of the Charter, as interpreted by the Court of Justice of the European 
Union. In fact, this system reflects the way in which judges are appointed to the 
Court of Justice of the European Union under the first paragraph of Article 253 
TFEU, where the opinion delivered by the panel set up under Article 255 is not 
binding on the final decision taken by the governments of the Member States. In 
the Maltese system, the JAC, established under Article 96A of the Constitution, 
makes its recommendations with regard to the suitability of a person to serve as a 
member of the judiciary. While this recommendation is not binding, the decision 
not to accept it is subject to an obligation of publicity, in accordance with 
Articles 96(4) and 100(6) of the Constitution. 
34 The defendant considers that interim measures are not necessary in this case 
insofar as no specific right conferred by EU law is being invoked. Furthermore, it 
cannot be said that the applicant will suffer irreparable damage in the absence of 
such measures. 
35 With regard to the request for an expedited procedure under Article 105 of the 
Court of Justice’s Rules of Procedure, the defendant submits that, although the 
applicant refers specifically to the appointments made on 25 April 2019, it seems 
that the applicant is effectively contesting all the appointments made since 2013 
(that is, when there was a change in the political party in government). 
Considering that the system for the appointment of members of the judiciary had 
remained as it was originally, when the Constitution was promulgated, until 2016, 
when the mechanism for an evaluation of suitability by the JAC was introduced, 
the applicant’s claim necessarily affects every appointment of a judge or a 
magistrate made up to the present date. In this light, the defendant submits that the 
highly sensitive nature of the case calls for absolute caution in its treatment. For 
this reason, the defendant objects to this preliminary reference being treated under 
the expedited procedure. The defendant submits that the short time-limits 
applicable in the context of such a procedure do not allow the parties to develop 
their arguments with the detail required by such a case, which may have drastic 
repercussions on the Maltese legal system, on the legal certainty of every 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-896/19 
 
14  
judgment or decree issued by a Maltese court until today, and, generally, on the 
constitutional order of the country. 
Motivation of the preliminary reference 
36 Having analysed in great detail these observations, the Court is of the opinion that 
the case requires guidance from the Court of Justice with regard to the 
interpretation of Article 19(1) TEU and of Article 47 of the Charter in the context 
of the circumstances of this case. 
37 The Court refers to the judgment delivered on 24 June 2019, Commission v 
Poland (C-619/18, EU:C:2019:531), to which the parties have made several and 
detailed references in the present case. In the Court’s view, a number of aspects 
raised by the present case were addressed in the above-mentioned judgment. 
However, there are a number of aspects that go beyond what was decided in that 
judgment and that do not appear to have been already addressed. 
38 The Court considers that the main issue brought for its evaluation concerns the 
Prime Minister’s discretion, under Articles 96, 96A and 100 of the Constitution, in 
the appointment of all the members of the judiciary and how this discretion was 
improved, or not, by the constitutional amendments of 2016. However, the Court 
considers that this issue should be addressed in the context of an evaluation of the 
system as a whole, including the right to an effective remedy and to a fair trial in 
Malta. 
The preliminary questions 
39 In light of the above, the Court requests the Court of Justice to address the 
following aspects in order to provide it with the necessary assistance in 
determining the case before it: 
1. Should the second [subparagraph] of Article 19(1) TEU and Article 47 of 
the Charter of Fundamental Rights of the European Union, read separately 
or together, be considered to be applicable with respect to the legal validity 
of Articles 96, 96A and 100 of the Constitution of Malta? 
2. If the first question elicits an affirmative answer, should the power of the 
Prime Minister in the process of the appointment of members of the 
judiciary in Malta be considered to be in conformity with Article 19(1) TEU 
and with Article 47 of the Charter of Fundamental Rights, considered as 
well in the light of Article 96A of the Constitution, which entered into effect 
in 2016? 
3. If the power of the Prime Minister is found to be incompatible, should this 
fact be taken into consideration with regard to future appointments or should 
it affect previous appointments as well? 
REPUBBLIKA 
 
15 
Request for an expedited procedure 
40 Considering that this issue is not only one of a public and national interest but also 
one that casts a serious doubt on the continuation and the foundation of the 
judicial system, and to the extent that this issue depends on the outcome of this 
case, the Court is asking the Court of Justice to treat this case with urgency under 
the expedited procedure laid down in Article 105(1) of the Rules of Procedure of 
the Court of Justice.