As set out in the Treaty on the Functioning of the European Union (TFEU), judges of the European Court of Justice are appointed by common accord of the Governments of Member States for a six-year term and judges are eligible for re-appointment. Member States are free to adopt their own domestic process for the nomination of judges of the Court of Justice.
Article 254 of the Treaty on the Functioning of the European Union sets out the criteria for persons to be appointed to the European Court of Justice as ‘persons who possess the ability required for appointment to the highest judicial office’. The qualifications for appointment to the highest judicial office in Ireland are set out in primary legislation and provide that a person who has practised for 12 years as a barrister or solicitor is qualified for appointment to the Superior Courts.
The President of the Court of Justice of the European Union wrote to the President of the Council of the European Union in April 2020 to note the forthcoming vacancies effective from October 2021, and request that appointments be made in good time and for Governments to submit their proposals as soon as possible to facilitate the management of cases before the Court. Member States were requested to submit their nominations by 30 November 2020.
Neither the President of the Council nor the President of the Court of Justice corresponded directly with me on the matter. The Attorney General brought to my attention in September that the President of the Council wished Ireland to fill the vacancy in good time and that there was no objection to a reappointment.
The recommendation of the preferred member of the European Court of Justice of Irish origin is a matter for the Irish Government solely. The recommendation is then subject to a ratification process under the EU Treaties. The decision to recommend the current serving judge for reappointment was that of the Government alone.
In considering candidates for appointment, the Government took into account the experience and qualifications of the present incumbent who had expressed his willingness to continue in the role for a further term, as well as those of such other candidates as had expressed their interest in being considered for the role.
Following his nomination by Ireland, Judge Regan’s nomination for re-appointment will be considered by the panel established under Article 255 of the Treaty on the Functioning of the European Union (TFEU). The panel’s task is to give an opinion on the candidate’s suitability to perform the duties of judge of the Court of Justice before the representatives of the Member States decide on the appointment.
