The Supreme Court annuls the appointment of one of its judges because the CGPJ excluded candidates specialized in commercial

It considers that the criteria of the CGPJ "lacks legal support" and was "discriminatory"

MADRID, 19 Dic. (EUROPA PRESS) -

The Supreme Court (TS) has annulled the appointment of one of its magistrates because the General Council of the Judiciary (CGP) excluded commercial specialists from the shortlist of candidates. Specifically, the magistrates have revoked the agreement of the Plenary of the CGPJ of March 4, 2021 by which Antonio García was appointed magistrate of the Social Chamber of the High Court.

In a sentence, to which Europa Press has had access, the Sixth Section of the Contentious-Administrative Chamber has estimated the appeal presented by five applicants for this position who were excluded from the shortlist raised to the Plenary by the Permanent Commission.

The governing body of the judges argued in its report that commercial specialists were not included in the proposal because this specialty had its own quota by law in the Civil Chamber.

The Supreme Court has concluded that the criterion adopted by the CGPJ to exclude specialists in commercial law "lacks legal support and was discriminatory for such candidates."

The magistrates have indicated that in the procedure for the provision of a position as a generalist, the condition of a specialist may be valued "as one more merit, but not as a preferential criterion in the decision, neither for the configuration of the shortlist nor for the awarding of Square".

In 19 pages, the Chamber has explained that these principles of merit and ability operate at all times --both in the configuration of the shortlist and in the final designation of the chosen candidate and in the application of said criteria the condition of specialist is undoubtedly one more piece of information to assess-- but without it being determinant in any of the two moments of the procedure for adjudication of the place.

The Supreme Court has specified that the nullity of the agreements due to a procedural infringement committed by the CGPJ -- without the designated magistrate or the rest of the contestants for the position having any responsibility -- should not cause them more damage than that limited to the necessary amendment of the offense committed by the Council.

Thus, the High Court has ordered the actions to be taken back to the moment prior to the approval of the report and proposal of candidates to the Plenary by the Permanent Commission, omitting the reference made to the magistrates specialized in commercial law, as it is contrary to law .

Likewise, the Chamber has agreed that the Permanent Commission must assess the merits of the specialist magistrates and include them in the proposal if it considers such inclusion justified based on their weighting of merits and excellence.

The court has stressed that, after the approval of the new proposal in plenary, the name of the magistrate who will fill the vacancy produced by the retirement of Mr. Eduardo Baena Ruiz must be approved.

The Supreme Court has indicated that both the resolution of the Permanent Commission and that of the Plenary "should be adopted in the shortest possible time and, in any case, within two months of notification" of the sentence.

On the sidelines, the court has specified that both the Plenary and the Permanent Commission will act in the composition they have at the time it is to be executed, but with the powers they held at the time the annulled agreements were adopted, without them being therefore affect the subsequent modification.