MEP tries to remove Belgian judge from European Court

Date: 11/09/1997

By Rory Watson

THE European Parliament is poised to break new constitutional ground by calling for the removal of one of the judges from the European Court of Justice.

As MEPs examine ways of stamping out child sex tourism, attention has focused on the responsibility of Belgian judge Melchior Wathelet in his previous role as the country's justice minister. In 1992, he approved the conditional release of Marc Dutroux after he had served just half of a 13-year sentence for kidnapping and raping five girls.

Dutroux now faces new charges of kidnapping, murder and of criminal conspiracy after the discovery last year of the bodies of four young girls in a series of events which sparked off a tide of revulsion in Belgium and further afield.

The lead in drawing parliamentary attention to Wathelet, who was appointed to the Luxembourg Court in 1995, is coming from German Socialist MEP Martin Schulz.

In his draft report now being examined by the Parliament's civil liberties committee, Schulz argues that Wathelet's term of office at the Court, which ends in early October, should not be renewed.

He said that such a course of action would “signal the fact that the European Union, in order to combat child abuse, paedophile rings, paedophile activities and similar offences, is prepared to ensure that persons who have failed to fulfil their responsibilities satisfactorily in relation to such offences are precluded from achieving high office”.

Schulz explained that he took his tough stance “in the light of the findings in the investigation of the Dutroux case in Belgium and the serious failings of the official authorities in Belgium which came to light in the course of that investigation and the personal responsibility of certain individuals in that connection”.

Although Wathelet, and six other judges, were reappointed for another six-year term during the summer recess, the full Parliament may now press for his resignation if it agrees with Schulz.

The move is the first time that the Parliament, which has the constitutional right to vet and to dismiss the entire European Commission, has sought to try to influence the membership of the ECJ.

Although parliamentary criticism would be politically embarrassing for the Court, MEPs have no input into the selection and removal of its members. Judges are appointed by the “common accord of the governments of the member states”.

According to Article 6 of the protocol of the statute to the Court, a judge may only be removed from office if a unanimous vote of all his colleagues, including the advocates-general, confirms they no longer believe the individual concerned fulfils the requisite conditions and obligations of his office.

The protocol enjoys the status of an EU treaty and can only be changed by an Intergovernmental Conference.

Nor are the judges likely to take kindly to any attempt at political interference in their work by MEPs. During the recent IGC on the reform of the Union's treaties, the Parliament unsuccessfully pressed to be consulted on the appointment of the judges.

What many MEPs had in mind was the creation of a system of US Congress-style hearings during which individual judges would have to give an account of themselves to selected parliamentarians before taking up office.

A similar formula was used in early 1995 for the first time - and to good effect - by MEPs when parliamentary committees interrogated the new clutch of Commissioners under their President Jacques Santer.

But the idea of extending this to judges was firmly rejected by the ECJ in its submission to the IGC and received no backing from member states. The judges maintained that a hearing of each nominee by a parliamentary committee would be “unacceptable”.

“Prospective appointees would be unable adequately to answer the questions put to them without betraying the discretion incumbent upon persons whose independence must, in the words of the treaties, be beyond doubt and without prejudging positions they might have to adopt with regard to contentious issues which they would have to decide in the exercise of their judicial function,” they explained.