Laurent Fabius was prime minister under France’s first modern socialist president, François Mitterrand. Almost two decades later, another socialist leader, François Hollande, appointed him President of the Constitutional Council, the French equivalent of Spain’s Constitutional Court, in 2016. Fabius was French foreign minister at the time. Nobody tore their clothes. Not even when, a year later, the new tenant of the Élysée, Emmanuel Macron, appointed a member of the Guarantee Court, Nicole Belloubet, as Minister of Justice for his first term. In neighboring Italy, a country undergoing political upheaval, two-time Prime Minister Giuliano Amato has just ended his tenure as President of the Constitutional Court without controversy.
The PP is now denouncing in Brussels the appointment of former justice minister Juan Carlos Campo and Laura Díez, director general of constitutional affairs in La Moncloa until six months ago, as an “institutional attack”. But the back and forth between politics and the institution that oversees the laws has not only existed before in Spain (and with the PP in government): it is in Europe and even in the judiciary that makes the laws of the Twenty monitors, usual -seven, the Court of Justice of the European Union (ECJ).
“Constitutional courts are a creation of the 20th century, they were designed mainly to ensure the scrutiny of the constitutionality of parliamentary laws,” recalls Daniel Sarmiento, a lawyer and law professor at the Complutense University of Madrid, with extensive experience in European Union law. Therefore, he stresses, even in some EU countries it is “necessary” for these courts to have judges “with political experience”. There they are, he points out, Belgium or Germany, where it is normal for there to be former ministers or MPs in their constitutional courts.
In the Belgian case, it is even required by law. The Belgian constitutional decree stipulates that out of the 12 judges that make up the Guarantee Court, three of them are selected “on the basis of at least five years’ experience as members of Parliament”.
It is therefore not surprising that the Justice Commissioner, Belgian Didier Reynders, was fairly calm when asked for his opinion on the matter this week: “It is not the only country where this situation occurs,” pointed out in this context, who held high positions in the Belgian government before he joined the European Commission – he was even Deputy Prime Minister and Minister for Foreign Affairs. So far, neither the Commissioner for Justice nor the Vice-President of the Commission and Commissioner for Transparency, Věra Jourová, have commented on the letter sent to them by the PP spokesman in Europe, Dolors Montserrat, and the President of the Popular Party European Union (EPP), the German Manfred Weber. According to the representatives of the people, the appointments of the Spanish government imply a “violation of the EU’s constant demands on the member states to guarantee the independence of the judiciary”.
Weber’s signature on the letter from the PP caused some astonishment. Because the presence of politicians in the Federal Constitutional Court is also normalized. The only thing the German court mandates is that anyone appointed to the post of judge immediately resigns from office at the federal and state levels. The current President of the Federal Constitutional Court, Stephan Harbarth, is also a friend of Weber’s party: Before he took over the leadership of the Federal Constitutional Court, he was a member of the CDU for many years, and the current President of the EPP is a member of the Bavarian state group, the CSU.
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Sarmiento doesn’t think the PP-PPE’s “complaint” will get much traction in Brussels. “The EU ensures that states have minimum standards to guarantee the independence and non-politicization of their courts, including constitutional ones, but they are ‘minimum standards’. In general, Brussels has been very reluctant on these issues, given that the Union’s competence in this area is also limited,” he stresses.
Therefore, it is very likely that the European Commission will not do anything in this regard. “The jurisprudence of the Court is designed for very extreme cases like the Polish one. This is far from the case of Spain,” he stresses, referring to the battle Warsaw is waging with Brussels and Luxembourg, the seats of the ECJ. A year ago, this court ordered Poland to pay the European Commission a fine of one million euros a day for failing to shut down its controversial Disciplinary Chamber of the Supreme Court, a body which the European Commission believes protects the independence of the Polish judge undermines.
Even in the CJUE, the presence of politicians on its bench is common. Just like that of the Luxembourg judge François Biltgen, who ruled the judiciary of this small European state until shortly before the court coat was donned, which ensures compliance with the laws of the 27.
The first Spanish precedent for appointment to a previous political office dates back to 1995, when Felipe González appointed Manuel Jiménez de Parga, who years earlier had been a constituent MP of the UCD and Labor Minister with Adolfo Suárez, as constitutional judge. The Sánchez government is not even a pioneer in electing judges for the Constitutional Court with political lanes: in the last renewal, that of 2013, the popular ones also chose two very political names: Enrique López, current Minister of Justice of Madrid and a strong man History of the PP in the World of Justice, and Francisco José Hernando, now deceased, then President of the General Council of the Judiciary and a conservative reference and opposition to the government of José Luis Rodríguez Zapatero. The election of MP Andrés Ollero to the Guarantee Court in 2012 also caused controversy at the time – but beyond that, it was not about controversy.
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