The Status of Constitutional Courts and the Appointment Procedures of Judges in the European Model of Constitutional Review: A Contemporary Analysis in Comparative Law

This study aims to comparatively examine the status of constitutional courts and the procedures for the appointment of their judges within the European model of constitutional review, with a particular focus on identifying which institutional designs generate more predictable and resilient outcomes in terms of balancing democratic legitimacy and judicial independence. The cases of Germany, Italy, Spain, Portugal, Poland, Serbia, and North Macedonia are analyzed with regard to the institutional position of the courts (independence from the ordinary judiciary), number of judges, the composition of nominating and appointing bodies, voting requirements, and eligibility criteria. (H1) In parliament-centered models, the introduction of supermajority requirements and/or mixed appointment mechanisms (legislature–executive–judiciary) strengthens both the legitimacy of the court’s composition and its balancing function, even in periods of political polarization. (H2) The codification and specification of eligibility criteria in clear and measurable terms reduce the politicizing effect of elastic notions such as “distinguished jurist.” (H3) In the European model, the role of the constitutional court as a “negative legislator” gains institutional coherence through its placement outside the ordinary judicial hierarchy. Methodologically, the study employs a comparative law approach through textual analysis of constitutional and organic provisions, as well as the relevant academic literature. The findings reveal that (i) in Germany, Italy, and Spain, supermajority requirements and/or mixed appointment procedures promote compromise and enhance institutional legitimacy; (ii) in Portugal and North Macedonia, parliamentary dominance is more pronounced, but transparent eligibility criteria and minority-protected voting mechanisms (similar to the Badinter principle) serve as counterbalances to politicization; (iii) in Poland, the unicameral–simple majority model is more vulnerable to institutional friction; and (iv) in the case of North Macedonia, statutory confirmation and specification of the “distinguished jurist” criterion, thereby legally clarifying the pool of candidates, should be considered a priority for reform. The analysis relies primarily on the positive law texts of the countries under review and accessible secondary sources; the dynamic impact of case law and the variability of national political contexts are noted but not comprehensively explored.