This article is a response to Open letter to the European Parliament: Call out the EU Council on its rule of law hypocrisy ǀ View.
In a letter written by Miguel Poiares Maduro, several prominent international academics expressed the “the strong suspicion” that “the interference of national governments” undermined the choice of European prosecutors for the role of European Public Prosecution Officer (EPPO).
The severity of this accusation and the credibility of those waging these libellous claims made it urgent to provide an explanation clarifying some concerns of such an illustrious cohort.
First and foremost, it is crucial to establish that the ranking made by the independent panel does not legally bind the council.
In fact, according to Article 16(2) of the Council Regulation that sets up the EPPO, the panel’s opinion only becomes binding if the panel considers that a specific candidate does not fit all the requirements to be nominated European Prosecutor.
Judiciary branches across Europe have different levels of autonomy and independence from political power. Given the various methodologies and criteria used by national governments when selecting their three candidates, it is only natural that the regulation would grant the council the opportunity to take into consideration factors ignored by the committee or to assess certain factors differently.
The Portuguese prosecution service is, historically, amongst those with the most autonomy from political power, and is considered an example not only within the European Union but worldwide.
Following the Council Regulation, the Portuguese parliament approved a bill establishing an internal selection model of candidates for the EPPO, which gave the Superior Council of the Magistracy (Conselho Superior da Magistratura) and the Superior Council for Public Prosecution (Conselho Superior do Ministério Publico) responsibility regarding the selection of candidates.
Both councils are constitutional bodies with full autonomy and independence. They are responsible for magistrate’s careers, including overseeing career progression, exercising disciplinary action and assuring the independence of the judiciary.
The reasoning behind delegating this decision was a result of previous events, which jeopardised the autonomy of the judiciary.
In 2014, the Portuguese government refused to accept a decision by the Superior Council for Public Prosecution who had renewed the appointment of the Portuguese Eurojust member. At the time, the government in question decided to approve a law which forbade the superior council from rating the candidates.
Coincidentally, Poiares Maduro, who now demonstrates great concern for the rule of law, was then a high-ranking member of the government that approved the bill in question. One must wonder what Poiares Maduro, the minister, would think of the letter crafted by Poiares Maduro, the academic, and vice-versa.
Given that the EPPO is a position meant to be held by a magistrate, the Portuguese government has the belief that this appointment should be made by the bodies whose constitutional mandate includes career management for public prosecutors.
The Superior Council for Public Prosecution selected and rated several candidates. The candidate preferred by the European panel came in last in this ranking, with a 14 points difference from the top-ranking magistrate, who ended up appointed for EPPO.
The Portuguese government followed the independent recommendation made by the constitutional body responsible for magistrate’s careers. The ranking compiled by the superior council took into consideration the three magistrate’s careers and, considering the nature of the role of the EPPO, made an opposed ranking of the magistrates when compared to the European panel. The Portuguese government told the council and an evaluation of the two candidates was made.
This decision by the Portuguese government reaffirmed the autonomy of the judiciary. Therefore, it contributed to the independence of the EPPO and a better articulation between the EPPO and national authorities responsible for criminal investigation.
This topic is currently under discussion in Portugal, with the opposition having required the presence of the Minister of Justice in Parliament to provide further information.
It does not surprise that international academics with no exposure to Portuguese legislation would not be aware of these factors. Hopefully, however, the author of the letter had the honesty of providing them with the full picture, before enlisting them to make derogatory accusations.
The Portuguese government has consistently demonstrated its commitment to upholding the highest standards of transparency and respect for the EU’s governing bodies. Respect for the rule of law in Europe is too paramount to be instrumentalised as a weapon for political debates at the national level.
Those who choose to do so, while failing to provide accurate context, are very simply trying to use international institutions for political calculations and, by doing so, deeply shame the same European principals they claim to defend.
Francisca Van Dunem is Portugal’s Minister of Justice.