First general remarks

I have been given the opportunity[*] not only to congratulate Eurojust on the occasion of its 20th anniversary but equally to share a few thoughts on the recent jurisprudence of my Court – the Court of Justice of the European Union (CJEU) – on judicial independence and the Framework Decision on the European Arrest Warrant (FD EAW)[1].

Just as Eurojust remains a rather young institution, the Area of Freedom, Security and Justice still constitutes a relatively new – and since Lisbon an enlarged and reinforced – field of jurisdiction of the CJEU.

Following the Tampere meeting of the European Council in 1999, inter alia calling for the setting up of Eurojust and endorsing the principle of mutual recognition as the way forward for judicial cooperation in criminal matters[2], a number of new legislative initiatives were taken and eventually completed.

In the aftermath of 11 September 2001, the difficult negotiations on the FD EAW – the first EU legal instrument based on the principle of mutual recognition – were accelerated, and arguably to such a degree that the legal quality of the new instrument was affected.

Whether the resulting ambiguity stemmed from political difficulties or simple haste, the consequences have been more work for the CJEU. This comes notably, but not exclusively, in the form of requests for preliminary rulings submitted by national courts asking for binding interpretations of EU law.

It is perhaps unsurprising, then, that the CJEU has been asked many times to interpret the FD EAW and has delivered about 70 judgments on this instrument, nearly 30 of which were in its composition as a Grand Chamber.

Recently, several issues of interpretation and application of the principle of judicial independence have been raised before the CJEU. The court has had to examine whether some Member States have failed to fulfil their obligations to preserve the rule of law flowing from, in particular, Articles 2 and 19(2) TEU[3].

Such issues may arise in different fields, which may call for a more ‘tailored’ interpretation and application of the principle of judicial independence.

Recent jurisprudence of the Court demonstrates that the issue of judicial independence within the context of the European Arrest Warrant can be examined from at least two different angles.

First, the Court has, in some cases, been tasked with examining the level of independence required in order to be considered a ‘judicial authority’ within the meaning of Article 6(1) of the FD EAW. This notion, which is primarily based on the wording of the provision, concerns in principle all Member States but remains of particular importance to Member States where European Arrest Warrants are issued by public prosecutors.

Second, the issue of the possible general consequences for the application of the European Arrest Warrant, when judicial independence in the issuing Member State is threatened due to ‘systemic or generalised deficiencies’ in its judicial system, has on several occasions been raised before the Court. Albeit concerning only a very limited number of Member States, the key question in these cases has been whether the level of such systemic or generalised deficiencies in the issuing Member State may trigger a general exception to the obligation set out in Article 1(2) of FD EAW to give effect to a European Arrest Warrant[4].

Independence required in order to be considered a ‘judicial authority’ within the meaning of Article 6(1) of FD EAW

The CJEU has observed, on several occasions, that the principle of mutual recognition is, as reflected in recital 6 of FD EAW, the ‘cornerstone’ of judicial cooperation[5]. Article 1(2) of the FD EAW likewise sets as its starting point that Member States are required to execute any European Arrest Warrant based on the principle of mutual recognition and in accordance with the provisions of that framework decision.

When asked by a Dutch court whether a European Arrest Warrant issued by the Lithuanian Ministry of Justice or by the National Commissioner of the Swedish Police with a view to executing a custodial sentence can be regarded as a ‘valid’ European Arrest Warrant, the CJEU found that the obligation to execute a European Arrest Warrant on the basis of Article 1(2) of the FD EAW presupposes that the executing Member State is confronted with a European Arrest Warrant, within the meaning of Article 1(1) of the FD EAW. The CJEU further specified that it follows from that article that such an arrest warrant is a ‘judicial decision’, which, in turn, requires that it is issued by a ‘judicial authority’ within the meaning of Article 6(1) of the FD EAW[6].

The CJEU held that the term ‘judicial authority’, within the meaning of that provision, refers to the judiciary which must be distinguished, in accordance with the principle of separation of powers, from the executive. Thus, the term ‘judicial authority’ within the meaning of Article 6(1) of FD EAW cannot be interpreted as covering an organ of the executive of a Member State, such as a ministry or police service[7].

A similar question subsequently came back to the CJEU on references from Irish courts, in relation to European Arrest Warrants issued by the Public Prosecutor’s Offices in Lübeck and in Zwickau (Germany) for the prosecution of criminal offences.

In its judgment OG and PI, the CJEU noted that the FD EAW entails a dual level of protection of procedural rights and fundamental rights from which the requested person may benefit. Thus, in addition to the judicial control, when a national decision such as a national arrest warrant is adopted, further protection must be afforded at the second level at which a European Arrest Warrant is issued[8].

Given that it is the responsibility of the ‘issuing judicial authority’ referred to in Article 6(1) of FD EAW to ensure that second level of protection, it must be capable of exercising its responsibilities objectively and without risking its decision-making power being made subject to external directions or instructions, in particular from the executive. That independence requires that the statutory rules and the institutional framework at hand guarantee that the issuing judicial authority is not exposed to such a risk[9].

In light of those considerations, the CJEU concluded that German prosecutors in some Länder could not be regarded as sufficiently independent in order to act as a ‘judicial authority’ in the sense of the FD EAW, since they – exceptionally – might receive instructions in individual cases from the Minister for Justice[10].

Although such rare potential instructions were circumscribed by particular safeguards such as, for example, immediate written information from the Minister to the Parliament, the outcome was not changed[11].

The immediate effect of this judgment was that all European Arrest Warrants – including the pending ones – issued by prosecutors of Member States whose legal order did not provide for statutory rules and an institutional framework meeting these institutional standards, in principle became invalid given that they were issued by an authority that could not be regarded as sufficiently independent.

Consequences of a ‘systemic or generalised deficiency’ in the judicial system of the issuing Member State

By contrast, the possible general consequences when judicial independence in a specific Member State is threatened due to ‘systemic or generalised deficiencies’, potentially relate to the judicial system of a Member State as a whole, rather than to the specific legal framework governing the issuing of a European Arrest Warrant. Regardless, the issue has still been raised before the CJEU on several occasions.

This occurred when an Irish court confronted with European Arrest Warrants issued by Polish courts was concerned with possible general deficiencies in the Polish judicial system. The Irish court in this respect made reference to, inter alia, reports from the Venice Commission and asked the CJEU whether the general violations of the principle of judicial independence in Poland described in such reports implied that there was no longer a sufficient basis for the necessary mutual trust required to execute the European Arrest Warrants at hand.

In the Minister for Justice and EqualityAranyosi and Căldăraru judgment[12], the CJEU stated that the principles of mutual recognition and mutual trust between Member States might be subject to limitations ‘in exceptional circumstances’[13]. The CJEU also stressed that the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial which is of cardinal importance as a guarantee that all of the rights individuals derive from EU law are protected. Moreover, it ensures that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded[14].

The CJEU continued to follow the reasoning and methodology of the judgment in Aranyosi and Căldăraru by reminding the executing judicial authority to first assess whether there is a real risk, connected with the lack of independence of the courts of the issuing Member State, that such systemic or generalised deficiencies may result in the fundamental right to a fair trial being breached. Furthermore, this assessment should be made on the basis of material that is objective, reliable, specific and properly updated[15]. Should the executing judicial authority find that there is generally such a real risk in the issuing Member State, it must, as a second step, assess specifically and precisely whether in the particular circumstances of the case at hand there are substantial grounds for believing that the requested person, if surrendered to the issuing Member State, would be exposed to that risk[16]. In this latter assessment, the judicial authority of the requested Member State must take into account the personal situation of the requested person, as well as the nature of the offence for which he or she is being prosecuted and the factual context that forms the basis of the European Arrest Warrant[17].

Essentially, the same question has come back to the CJEU on references from a Dutch court confronted with several European Arrest Warrants issued by Polish courts. The Dutch court had serious doubts as to the independence of the judiciary in Poland due to recent developments in relation to the ‘judicial reform’ in Poland. This Dutch court referred in this respect, notably, to the jurisprudence of the CJEU on the new appointment conditions and procedures for the members of the Disciplinary Chamber of the Polish Supreme Court and in the area of disciplinary and control procedures[18].

The CJEU first addressed this issue in the L and P judgment where it found that an executing judicial authority confronted with evidence of systemic or generalised deficiencies concerning the independence of the judiciary of the issuing Member State, still cannot deny solely on that basis, the status of ‘judicial authority’ to all judges or all courts of that Member State[19].

The CJEU further explained why, in the OG and PI judgment[20], the CJEU had held that the public prosecutors’ offices in these cases did not satisfy the requirement of independence inherent in the concept of ‘issuing judicial authority’ within the meaning of the FD EAW. It was not due to material evidencing the existence of a systemic or generalised deficiency in the judiciary’s independence but rather was attributed to the statutory rules and institutional framework adopted by that Member State. This implied that the public prosecutors’ offices were placed in a legally subordinate position to the executive, and thus were exposed to the risk of instructions in a specific case concerning the adoption of a decision to issue a European Arrest Warrant[21].

Referring to the Minister for Justice and Equality judgment[22], the CJEU then recalled that, where the executing judicial authority has evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the issuing Member State, that authority cannot presume that there are substantial grounds for believing that the requested person would, if he or she was surrendered to that Member State, run a real risk of breach of his or her fundamental right to a fair trial, guaranteed by the second paragraph of Article 47 of the Charter, without carrying out a specific and precise verification. Even when such deficiencies are widespread and serious, the possibility of refusing to execute a European Arrest Warrant based on Article 1(3) of the FD EAW thus presupposes a two-step examination, where the general and individual steps cannot overlap with one another[23].

In the more recent Openbaar Ministerie judgment, the CJEU provided further indications on the assessment that the executing judicial authority is required to carry out with regards, in particular, to the second part of this two-step examination. This judgment confirms that the object of this second part of the assessment is to determine whether the person concerned, if surrendered, would run a real risk of a breach of his or her fundamental right to a fair trial before a tribunal previously established by law, as enshrined in the second paragraph of Article 47 of the EU Charter. The judgment also makes it clear that this test applies both in the context of a European Arrest Warrant issued for the purposes of executing a custodial sentence or detention order and of a European Arrest Warrant issued for the purposes of conducting a criminal prosecution[24].

Final remarks

The recent jurisprudence of the CJEU on judicial independence and the FD EAW confirms that the issue of the independence requirement to be considered a ‘judicial authority’ within the meaning of Article 6(1) of the FD EAW and the issue of the possible general consequences on the operation of the mechanism of the European Arrest Warrant established by the FD EAW, when judicial independence in an issuing Member State is threatened due to ‘systemic or generalised deficiencies’, are conceptually distinct. However, these aspects may occasionally both be of relevance in a specific case, as was the case in the judgment in L and P[25].

It is worth noting that the standards of judicial independence to be met in this context, so as to fall within the (outer) limits of the notion of ‘judicial authority’ within the meaning of Article 6(1) of the FD EAW, were deduced rather strictly by the Court from the wording of the provision.

The case law on the possible general consequences of a ‘systemic or generalised deficiency’ in the judicial system of the issuing Member State illustrates the limitations placed by the Charter on the operation of the mechanism of the European Arrest Warrant designed by the EU legislator. This case law also reflects, perhaps, the importance attached to preserving an Area of Freedom, Security and Justice, in which judicial cooperation is based on the principle of mutual recognition.