For the leftwing government of Prime Minister Pedro Sanchez, the worry is that Spain could find itself compared to Hungary and Poland, which have been criticised by the European Union for trying to exert control over the judiciary.   

The proposed reform, which was submitted by Sanchez's Socialist-led coalition, would change how members are appointed to the General Council of the Judiciary (CGPJ), an independent body of judges and jurists.

Known as Spain's legal watchdog, the CGPJ is responsible for naming judges and ensuring the independence of both courts and judges.   

It has 20 members — 12 judges or magistrates and eight lawyers or other jurists — elected by both chambers of the Cortes (parliament).   

The reform specifically affects the appointment of the 12 judges.

'An institutional anomaly'

Alarm bells began ringing at the end of September when the European Commission singled out Spain in its report on the rule of law for not renewing membership of the CGPJ as it should have done two years ago.   

And it stressed the importance of ensuring that the council “is not perceived as being vulnerable to politicisation”, in a clear nod to the necessary separation of executive and judicial powers.

The council's mandate expired in December 2018 and since then it has been operating on an interim basis, given that Sanchez has been unable to push through the appointments for lack of parliamentary support, notably from the
rightwing opposition Popular Party.   

For nearly two years, Spain has been plagued by “an institutional anomaly”, according to Carlos Lesmes, interim head of the CGPJ, whose members normally serve five-year terms.

The current impasse is just one aspect of a bitter standoff between the Socialists and their hard-left coalition ally Podemos, and the PP, which started with the government's handling of the coronavirus pandemic.

Until now, the 12 judges in the CGPJ have been appointed by a three-fifths majority vote, but under the proposed reform that would be changed to an absolute majority.

The government has defended the move as the only way to break the impasse caused by the PP's dogged refusal to reach an agreement.   

But as well as angering the opposition, the proposed reform has also sparked concern in part of the judiciary.

Appointing these 12 council members by an absolute majority could allow the leftwing coalition to bypass the PP and chose judges of a certain ideological persuasion, whereas under the current system, all parties are compelled to compromise.

'Taking a step back'

The draft proposal has set alarm bells ringing at the European Commission, with spokesman Christophe Wigand telling AFP that Brussels was following the developments in Spain “closely”.

“Member states must follow EU standards to ensure that judicial independence is not compromised,” he said.

The European Association of Judges (EAJ) has also expressed “its great concern that Spain is taking a step back” with respect to the basic requirements for ensuring judicial independence.   

“The present option will increase the risk of undue political influence in the appointment of the members of the Judicial Council, damaging the perception of the society of an effective judicial independence,” a statement
said.   

But experts said the proposed reform did not mean Madrid should be put it in the same category as Warsaw or Budapest, who were criticised late last month in an EU report for undermining European legal standards and democratic
values.   

“Spain isn't Poland or Hungary,” said Pablo Castillo, an expert in law and political science at Sheffield University in northern England.    

Sanchez's proposal “is not going to lead to a collapse of the rule of law in Spain, although it's hardly supporting the independence of the judiciary,” he told AFP.

“But the proposed reform of the CGPJ in Spain does echo things that have happened in these two countries,” he admitted.

“The question of judicial independence is not black or white, it's a question of nuance.

By AFP's Marie Giffard