Juan Gálvez Galisteo (PhD Candidate, University of Seville)
1. The context: election system of the governing body of judges in Spain and the request for an Opinion from the Venice Commission
On 13 October 2025, the European Commission for Democracy through Law (known as the Venice Commission) of the Council of Europe made public its Advisory Opinion No. 1248/2025, adopted at its 144th Plenary Session, in which it responds to the request submitted by the General Council of the Judiciary – the governing body of judges in Spain – concerning the reform proposals included in its February report and their possible alignment with European standards on judicial independence. The request was submitted with the intention of determining whether the proposed reforms could be adjusted to the European standards that institutions of the European Union and the Council of Europe – such as the Venice Commission – have been establishing through their soft-law instruments in recent years.
Advisory Opinion No. 1248/2025 was adopted on 9 and 10 October, approximately one month after the rapporteurs visited Spain and met with authorities and stakeholders involved in the General Council of the Judiciary and its renewal process. To properly contextualise and understand the Commission’s document, it is necessary to briefly outline its most recent background. In the summer of 2024, the governing body of judges in Spain was finally renewed after nearly six years of an unprecedented deadlock, given that this constitutional institution – which must be renewed every five years – had remained in an interim situation since 2018, when its renewal should have taken place.
Following the appointment of new members, Organic Law 3/2024 of 2 August amending Organic Law 6/1985 of 1 July on the Judiciary was enacted. This law tasked the newly appointed General Council of the Judiciary members with drafting, within six months, a report identifying and assessing the systems for selecting judicial council members in European counterparts, in order to comply with the guidelines established by the European Commission and its Rule of Law Reports. Moreover, in line with Article 122 of the Spanish Constitution, the law explicitly requested the incorporation into the selection mechanism of direct participation of judges and magistrates, as has been recurrently recommended by bodies such as the Group of States against Corruption (GRECO), the European Commission, the Consultative Council of European Judges (CCJE), and the Venice Commission itself.
Thus, on 5 February 2025, the General Council of the Judiciary published a report fulfilling its mandate, setting out two alternative proposals for reform. Option A provides that members of judicial origin would be nominated either by a judicial association or by twenty-five judges, with candidates being directly elected by their peers. Option B allows a certain degree of involvement by judges, although the final decision is left to Parliament. Under this proposal, candidates require the endorsement of 30 judges or a judicial association; thereafter, the judiciary would select a pool of candidates three times the number of available positions, from which Parliament would make the final appointment of General Council of the Judiciary members.
Regarding Option A, the Venice Commission welcomes the intention to reflect the European standard that judges should be elected by their peers. However, it considers that the strong involvement of judicial associations introduces the risk of internal politicisation, since these associations have shown close links to the political sphere. Nonetheless, the Venice Commission believes that, at least during the initial stages of implementing a new system involving direct participation by judges, these associations should not be excluded. Likewise, it considers that the requirement of endorsements for candidates not proposed by associations should be reduced or eliminated so as not to strengthen the associations’ role in the nomination process, thereby avoiding disadvantages for “independent” candidates. This issue becomes particularly significant given that 42% of judges in Spain were not affiliated with any association in 2024.
By contrast, the Venice Commission considers Option B an alternative that would further exacerbate the risk of politicising the institution. While it views positively the intention to include an initial phase in which candidates are selected by their peers, the Commission clarifies that the European standard of peer election aims precisely to avoid the final decision being taken by the executive or Parliament, even with a qualified majority.
Additionally, the Venice Commission recalls the need to ensure proper proportionality among the different categories of judges within the Council, as well as representation of different specialisations, genders, and geographic areas. Pluralism should also apply to lay members, who should represent academia and other legal professions. Likewise, the requirement concerning years of judicial experience should not be excessively restrictive. The Venice Commission also reviews the proposal for an electoral committee included in Option A, composed of three Supreme Court judges and a secretary. It finds such a committee appropriate and supports its composition by members of the judiciary but recommends increasing the number of members and ensuring that the secretariat receives adequate technical support. It also suggests alternative arrangements, such as the General Council of the Judiciary itself assuming these tasks. Finally, the Venice Commission identifies shortcomings in both options concerning mechanisms for ensuring effective judicial protection that guarantee impartiality and transparency in the process, avoid conflicts of interest, and allow decisions on appointments to be appealed — particularly in Option B due to parliamentary involvement.
The Venice Commission ultimately concludes that, despite other differences, the main distinction between the two alternatives lies in the involvement or non-involvement of Parliament in the appointment process. It notes that although Option B includes some degree of participation by judges, this remains insufficient, as the final decision is entrusted to political institutions, meaning that the proposal falls short of European standards. As for Option A, which does comply with the European standard of peer election, the Venice Commission warns of risks of internal politicisation stemming from the involvement of judicial associations and suggests several measures to mitigate these risks and design an election system with stronger guarantees.
2. Critical assessment of the Venice Commission’s Advisory Opinion No. 1248/2025
It is evident that, of the two options presented by the current General Council of the Judiciary members in their report, the Venice Commission has made clear its preference for Option A, as it is the only proposal that provides for complete participation by judges in the appointment of General Council of the Judiciary members of judicial origin. In doing so, the Commission simply reaffirms and remains consistent with its previous positions, expressed in earlier advisory opinions to other States, and remains closely aligned with the positions of institutions such as the European Commission and the CCJE. Option B is rejected because it fails to prevent the involvement of other institutions – in this case, the Spanish Parliament – in the appointment of judicial members, which again confirms what the Commission has previously stated and is fully consistent with the criteria outlined in the European Commission’s annual Rule of Law Reports.
What remains to be seen is whether both the General Council of the Judiciary report and the recommendations of the Venice Commission will have a practical impact and will be positively received by the European Commission. The Venice Commission recommends incorporating the modification into the constitutional text, although it acknowledges that it may also be developed through organic legislation. The current climate of political polarisation makes it difficult to reach consensus in Parliament, just as polarisation can also be observed within the General Council of the Judiciary, where decision-making has become increasingly fractured.
In any case, it should be recalled that any change in the system for appointing members of judicial origin would require constitutional recognition, as recommended by the Venice Commission, implying a constitutional amendment to Article 122.3. Nevertheless, even if the Venice Commission’s recommendations are ignored in this formal regard, they could be applied in substance, ensuring at least that the proposal meets European standards and reflects the Venice Commission’s opinion through organic legislation, as currently foreseen by the Spanish Constitution.
Given Spain’s current political landscape, characterised by widespread societal polarisation, reaching the level of consensus required for a constitutional amendment (a three-fifths parliamentary majority) appears highly challenging. Even implementing changes to the appointment system through an organic law in line with the Venice Commission’s guidelines would likely involve intense political and social debate, as is common with most current political issues. This would very likely produce sharply opposing positions, as has been the case with recent developments concerning the General Council of the Judiciary. Political parties will undoubtedly use the Venice Commission’s observations as ammunition in public debate – hopefully to build a stronger judicial council. Yet, any attempt at reform may still fail to adhere strictly to the Commission’s recommendations, and any proposal may risk generating conflict rather than consensus.
Just as Spain’s political sphere – and, by extension, Spanish society – is polarised, the General Council of the Judiciary has also exhibited significant internal polarisation.[1] In recent years, clear voting blocs have emerged, making it difficult to reach agreements, with decisions frequently aligning with the preferences of those who originally nominated each member. This dynamic has resurfaced in the context at hand: the new General Council of the Judiciary appointed in 2024 still appears divided, struggling to reach unanimous decisions. With the mandate entrusted by Organic Law 3/2024, the General Council of the Judiciary had the opportunity to demonstrate a renewed commitment to consensus-building – something essential for establishing a new system for electing General Council of the Judiciary members and for restoring public confidence in the institution. However, the inability to produce a single, unified reform proposal has made internal polarisation once again apparent.
In any case, an institutional-engineering reform that modifies the appointment system for judicial members – providing some degree of direct involvement by judges in selecting their peers – could be welcomed, and the greater the level of judicial participation, the closer the system would align with European standards, as indicated by the Venice Commission. This would also ensure compliance with the standard requiring that at least half of the judicial council’s members be elected by their peers. Nevertheless, questions remain concerning the appointment of lay members and whether tensions would reappear at future renewal periods. Furthermore, if members continue to take decisions along factional divisions – whether dividing judicial and lay members or dividing along other internal blocs – the institution will remain burdened in its functioning and in public trust.
It should also be noted that European courts will be attentive to any reform of the General Council of the Judiciary. Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) recognise a margin of national discretion in organising the judiciary, but the requirements of EU law concerning judicial independence constitute a limit. This has been particularly evident in recent years due to systemic rule-of-law deficiencies[2] in certain Member States, most notably Poland. In this regard, the case Associação Sindical dos Juízes Portugueses v. Tribunal de Contas[3] (“Portuguese Judges”) has been paradigmatic,[4] serving as a cornerstone in defending the fundamental value of the rule of law (Article 2 TEU).[5] The European judicial bodies have dealt with matters such as appointment and dismissal, retirement and salary of judges.[6]
It is also worth noting that none of the proposals made by General Council of the Judiciary members in their report considers the possibility of changing the model of the judicial governing body itself; only the judicial council model is examined. This model can be found in other European countries, such as Italy and Portugal, but it is not the only option – for example, Germany does not have such body. European institutions, when defining standards, respect national constitutional traditions and recognise that no single model is perfect, although they have generally expressed a preference for judicial councils. It is striking that, despite vulnerabilities observed in recent years – particularly the risk of political colonisation of these bodies by populist or illiberal forces – the General Council of the Judiciary report does not reflect on alternative institutional arrangements.[7]
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In conclusion, it would be beneficial to reflect on a model of judicial self-governance that ensures not only independence in the appointment and exercise of office within the governing body of judges, but also a legislative framework establishing statutory guarantees, irremovability, incompatibilities, and responsibilities that safeguard independence in matters relating to the judicial career,[8] in accordance with the requirements of a democratic state governed by the rule of law. Consequently, reconsidering Spain’s model for governing the judiciary is an urgent task – one that must remain aligned with the functions assigned to the General Council of the Judiciary under the Spanish constitutional system, while acknowledging that Spanish judges are also part of the European Union’s judicial structure.
[1] Sergio Martín Guardado, “Polarización política y crisis en la renovación del Consejo General del Poder Judicial”, Revista de Derecho Político, 117 (2023): 131–152, https://doi.org/10.5944/rdp.117.2023.37924.
[2] Armin von Bogdandy and Michael Ioannidis, “La deficiencia sistémica en el Estado de Derecho. Qué es, qué se ha hecho y qué se puede hacer”, Revista De Estudios Políticos, 165 (2015): 19–64. Retrieved from https://recyt.fecyt.es/index.php/RevEsPol/article/view/39410.
[3] Judgment CJEU Associação Sindical dos Juízes Portugueses v. Tribunal de Contas, 27 February 2028, case C-64/16, ECLI:EU:C:2017:395.
[4] Alessandra Silveira, Joana Abreu, Pedro Froufe, and Sophie Perez, “União de direito para além do direito da União – as garantias de independência judicial no acórdão Associação Sindical dos Juízes Portugueses,” Julgar, May 2018. Available at http://julgar.pt/uniao-de-direito-para-alem-do-direito-da-uniao-as-garantias-de-independencia-judicial-no-acordao-associacao-sindical-dos-juizes-portugueses/.
[5] Inês Pereira de Sousa, “O acórdão Associação Sindical de Juízes Portugueses como antecâmara para a intervenção do TJUE na crise do Estado de direito na União Europeia”, Revista Ibérica Do Direito, 1(1) (2021): 84-94, https://revistaibericadodireito.pt/index.php/capa/article/view/28.
[6] João Pedro Sousa, «Judicial independence and judges’ remuneration: echoes of the “Portuguese Judges” judgment in the joined cases C-146/23 and C-374/23», The Official Blog of UNIO – Thinking and Debating Europe, 27 March 2025, https://officialblogofunio.com/2025/03/27/judicial-independence-and-judges-remuneration-echoes-of-the-portuguese-judges-judgment-in-the-joined-cases-c-146-23-and-c-374-23/.
[7] Rafael Bustos Gisbert, “Política, independencia y autogobierno judicial: Cuatro miradas”, Revista De Estudios Políticos, 198 (2022): 93–120, https://doi.org/10.18042/cepc/rep.198.04.
[8] Ana Carmona Contreras, “Democracia, Estado de Derecho e independencia judicial en España: Un análisis en perspectiva europea”, Estudios De Deusto 70 (1) (2022): 141-57, https://doi.org/10.18543/ed.2498.
Picture credits: by Sora Shimazaki on pexels.com.
Author: UNIO-EU Law Journal (Source: https://officialblogofunio.com/2025/11/18/judicial-independence-in-the-eu-and-the-election-of-the-governing-body-of-judges-in-spain-commentary-on-the-venice-commissions-advisory-opinion-no-1248-2025/)
