Is a court judgment invalid because a judge was not properly appointed?

What is it about?

Can the decisions of a court be set aside because the procedure to appoint one of the judges was not properly followed? This article, the first of two, analyses recent rulings of the two European courts laying down the law on the question. In its judgment in the FV case, the General Court of the European Union held that all vacancies for posts of judge in the Union’s Civil Service Tribunal should be advertised, and that the appointment of a judge to an unadvertised post was illegal. It also concluded that any judicial decisions in which that judge participated were invalid. In deciding on the same point in the Simpson case, the Court of Justice, which is the court of final appeal for the European Union, adopted a more nuanced approach. It held that a flaw in the appointment procedure only justifies setting aside the judge’s decisions if there was a real risk that the government or parliament could influence the procedure in a way that undermined the judge’s independence and impartiality. Where the fundamental rules governing the composition of the court and the designation of its members have been complied with, there is no reason to question the judge’s appointment. In so holding, the Court followed the example of the ‘other European court’, the European Court of Human Rights, in Ástráðsson v Iceland, where the minister had imposed her choice of candidate for the court of appeal in preference to the candidate chosen by the official selection committee.

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Photo by Jeremy McGilvrey on Unsplash

Photo by Jeremy McGilvrey on Unsplash

Why is it important?

The right to a fair trial by a properly-constituted tribunal is an essential element of the rule of law, which is one of the foundations of a democratic society. In principle, judges should be appointed in accordance with the pre-established procedure. A minor irregularity in the procedure will not necessarily mean, however, that the trial is ‘unfair’. Where a judgment is challenged on the grounds that a/the trial judge’s appointment was irregular, the appeal court will verify whether the judge was qualified for appointment, and whether the trial court was otherwise properly composed. If so, then the decisions of an irregularly appointed judge should not be set aside; this would be particularly disruptive where the irregularity only comes to light years after the appointment. It is important that those concerned are able to rely on court judgments in regulating their personal and professional affairs. Until very recently, it was not clear how a procedural irregularity in the appointment of a judge could affect the validity of the judge’s judicial decisions. This article offers a bird’s eye view of the question gleaned from four judgments handed down by the competent courts, and presents the state of the law as it applies throughout almost the entire continent of Europe.

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