Abstract
The case law of the Court of Justice from 2016 to 2019 on the interpretation of ‘judicial authority’ in Article 6(1) FD-EAW essentially examines whether a public prosecutor can be an issuing judicial authority and if so, how Member States’ systems for issuing EAWs ensure effective judicial protection for the person concerned. For the Advocate General, applying the Court’s ‘rule of law’ jurisprudence, effective judicial protection when deprivation of liberty is involved can only be assured by a body with the highest level of judicial independence, being a court. The Court’s broader approach of including public prosecutors with sufficiency of independence from the executive and requiring their decisions to be amenable to review by a court, when applied in practice arguably falls short of the requisite standard of effective judicial protection. There is also a lack of clarity about access to the interpretative jurisdiction of the Court by public prosecutors acting as judicial authorities. Effective judicial protection and EU cooperation in criminal matters would now be better served by the designation in all Member States of a court as the issuing judicial authority for the FD-EAW. This is against the background of the uniquely coercive nature of the EAW in terms of deprivation of liberty; the differences in Member States’ institutional arrangements for public prosecutors and the post-Lisbon effective constitutionalisation of judicial protection of rights of individuals.
Keywords
Introduction
This article examines the case law of the Court of Justice of the European Union (the Court) on the interpretation of ‘judicial authority’ in Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States
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(FD-EAW), and in particular whether a public prosecutor can be a judicial authority. Article 6(1) FD-EAW provides as follows:
‘The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State’.
After setting out briefly the context in which the ‘judicial authority case law’ arose, the case law is presented focusing in particular on the differences in approach between the Court and the Advocate General (AG). The consequences for Member States are then briefly referenced.
The case law and the different conclusions of the AG and the Court as to whether a judicial authority should exclude public prosecutors is then analysed, looking at the rationale and effect of the Court’s judgments in the context of ensuring effective judicial protection. Then, the issue of access to the Court by a judicial authority that is a public prosecutor by way of the preliminary reference procedure in Article 267 TFEU is raised. Finally, it is concluded that effective judicial protection is best ensured where the authority that issues an EAW is a court.
Overview and context
Overview
Between 2016 and 2019, there were eleven references to the Court on the interpretation of issuing ‘judicial authority’ and ‘judicial decision’ in the FD-EAW. Six references came from the Netherlands, three from Ireland, and one each from Germany and Luxembourg. The resulting Opinions and judgments were delivered in four ‘batches’: October and November 2016 (three cases); April and May 2019 (three cases); September and October 2019 (one case); November and December 2019 (four cases). With joined cases, this has produced nine Opinions and nine judgments, including two Grand Chamber judgments. Eight Opinions were given by AG Campos Sánchez Bordona with one by AG Sharpston.
Initially establishing that an issuing judicial authority could not be an authority that was part of the executive (police or government minister), the focus in the case law then moved to whether and in what circumstances a public prosecutor could be an issuing judicial authority and how effective judicial protection is ensured in the process to issue an EAW. The Court and AG Campos Sánchez Bordona came to different conclusions. While the Court identified circumstances in which a public prosecutor could be a judicial authority, the AG consistently argued that this role should be reserved only to courts.
Context
The context and legal landscape may explain why these questions about issuing judicial authorities for the FD-EAW have only come before the Court now – some 12–15 years after its coming into force. 2 The judicial authority case law emerged against the backdrop of considerable changes in the legal basis for judicial cooperation in criminal matters 3 and of the evolution of the Court’s approach to mutual trust and fundamental rights in the Area of Freedom, Security and Justice (AFSJ). This evolution ‘from security closer to justice’ 4 occurred not just in EAW cases but also in the area of asylum. 5 The initial years of operation of the EAW also led to intense debate about the disproportionate use of the EAW for minor offences, 6 leading ultimately to a consensus that a proportionality assessment should be carried out in each case by the issuing judicial authority. 7
The context also includes the attempts by the EU (in particular the Court) to address potentially existential rule of law issues in which the EAW continues to be enmeshed. 8 The two step test identified by the Court for assessment of surrender in the context of detention conditions and the non-derogable right of protection against inhuman and degrading treatment in Aranyosi and Căldăraru 9 was subsequently applied in LM 10 to the possible violation of the derogable right to a fair trial in the context of surrender to Poland, where rule of law and in particular judicial independence deficiencies had been identified. 11
The EAW case law must also be viewed in the context of the seminal judgment of 27 February 2018 in Associação Sindical dos Juízes Portugueses (ASJP), 12 where the Court, responding to rule of law backsliding in some Member States, 13 took the opportunity of a case on remuneration of Portuguese judges to confirm the rule of law as a fundamental value in the EU legal order. Drawing in particular on the second paragraph of Article 19(1) TEU, 14 which was added by the Lisbon Treaty, the Court has confirmed that Member States must ensure that their national courts ‘meet the requirements essential to effective judicial protection’ – central to which is guaranteeing the independence of their courts. 15
Case law
October–November 2016: Poltorak, Özçelik and Kovalkovas
On 10 November 2016, the Court delivered judgments in three cases: Poltorak, Özçelik Kovalkovas. 16 These were preceded by Opinions of AG Campos Sánchez-Bordona on 19 October 2016. 17 They were all references from the District Court in Amsterdam about the interpretation of the concepts of judicial decision and issuing judicial authority in the FD-EAW.
The referring courts in all three cases referred to the judgment of 1 June 2016 in the Case of Bob-Dogi, where the Court found that a national arrest warrant (NAW) grounding an EAW must be distinct from the EAW itself, stating that:
‘The European arrest warrant system therefore entails, in view of the requirement laid down in Article 8(1)(c) of the Framework Decision, a dual level of protection for procedural rights and fundamental rights which must be enjoyed by the requested person, since, in addition to the judicial protection provided at the first level, at which a national judicial decision, such as a national arrest warrant, is adopted, is the protection that must be afforded at the second level, at which a European arrest warrant is issued, which may occur, depending on the circumstances, shortly after the adoption of the national judicial decision’.
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This focus on what was happening in the EAW system at issuing stage and the articulation by the Court of the dual level of protection of the procedural and fundamental rights of the requested person as integral to the EAW system was an important aspect of the spotlight that was to come on the question of what authority was assuring the second level of protection when the decision to issue an EAW was taken.
In Poltorak, Özçelik and Kovalkovas, the Court and the AG came to similar conclusions in terms of the questions posed. In the cases of Poltorak and Kovalkovas, the Court and AG found that the Swedish Police Authority and the Lithuanian Ministry of Justice, respectively, did not constitute an issuing judicial authority within the meaning of Article 6(1) FD-EAW. The case of Özçelik was about the judicial decision on which the EAW is based and both Court and AG concluded that a judicial decision within the meaning of Article 8(1)(c) could include a NAW issued by the police and confirmed by a public prosecutor. 19
Emerging principles
A number of principles emerged from these cases in respect of which the Court and the AG were at idem and which are reprised in the subsequent judicial authority cases: - A judicial authority within the meaning of Article 6(1) FD-EAW is an autonomous concept of EU law.
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- The determination by Member States of the competent issuing judicial authority provided for in Article 6(1) is limited to the designation of such authority and ‘does not concern the definition of the term “judicial authority” in itself’.
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- The discrete tasks and area of discretion of the issuing judicial authority were established, being (a) to ensure that the conditions of issue as set out by the FD-EAW are fulfilled and (b) ‘following an assessment of the various interests at issue, including those of the person concerned, that such issue is proportionate’.
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- Linked to the above, the importance of the exercise of discretion as regards the proportionality of the decision to issue the EAW.
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- The fact that the EAW procedures are underpinned by fundamental rights guarantees as referred to in Article 1(3) of the Framework Decision so that ‘not only the decision on executing European arrest warrants, but also the decision on issuing such a warrant, must be taken by a judicial authority, such that the entire surrender procedure between Member States provided for by the Framework Decision is carried out under judicial supervision’.
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- Building on previous EAW judgments that a ‘public prosecutor’s office constitutes a Member State authority responsible for administering criminal justice’.
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- In accordance with the principle of the separation of powers, an organ of the executive – police in Poltorak and ministry in Kovalkovas – cannot be a judicial authority.
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- A ‘judicial decision’ within the meaning of Article 8(1)(c) – being the discrete national decision on which the EAW is based – can be issued/endorsed by a public prosecutor.
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Seeds of divergence
The seeds of the different approaches by AG Campos Sánchez-Bordona and the Court in subsequent cases are already evident in some differences of emphasis as follows: - The AG’s emphasis, ‘in a system of surrender characterised by judicialization’, on the deprivation of liberty that can accompany an EAW and his insistence on the importance of the proportionality assessment.
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- Linked to the above, the AG’s view that it is immaterial for the purpose of interpreting the term ‘judicial authority’ whether it is an EAW issued for the purposes of prosecution or for the purpose of enforcement of sentence.
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- The AG’s focus on the changes made by the Lisbon Treaty asserting ‘This change must be taken into account for interpreting the Framework Decision in accordance with the new spirit, which restricts even further this pattern of cooperation in criminal matters to the judicial sphere’.
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- The AG’s contention that ‘an absolute must for maintaining the level of judicial guarantees on which the EAW system is based’ is ‘if there were any doubts concerning the warrant, it would be the responsibility of the judicial authority to consult the Court of Justice concerning the interpretation to be given to the Framework Decision, in a request for a preliminary ruling’.
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- The AG’s assertion in Özçelik that persisting uncertainty surrounds the question of why the definitions of issuing and executing judicial authorities, which in the Commission proposal for the FD-EAW expressly included public prosecutors and judges, did not make it to the final text.
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Neither the Court nor the AG directly addressed questions as to the criteria required to be a judicial authority as it was not strictly necessary on the facts of these cases. However, presaging the references to come, the Court did state that the words judicial authority ‘are not limited to designating only the judges or courts of a Member State, but may extend, more broadly, to the authorities required to participate in administering justice in the legal system concerned’. 33
In Özçelik, the AG noted that while ‘it would be tempting to try to give at this point a general reply to the doubt concerning the capacity of the Public Prosecutor’s Offices of the Member States to issue EAWs’ this was not the appropriate occasion. 34 The occasion to broach this question was to present itself two and a half years later.
April–May 2019: OG & PI and PF
On 27 May 2019, the Court delivered judgments in three cases: joined cases OG & PI and PF. 35 These were preceded by Opinions of AG Campos Sánchez-Bordona on 30 April 2019. 36 They were references from Irish Courts asking whether an issuing judicial authority included a public prosecutor’s office that may be subject to instructions from the executive. Specifically, the questions asked whether two German Public Prosecutors’ Offices in Lübeck and Zwickau (OG & PI) and the Prosecutor General of Lithuania (PF) are judicial authorities within the meaning of Article 6(1) FD-EAW.
Judgments of the Court
The Court’s view was that in principle a public prosecutor can be a judicial authority within the meaning of Article 6(1). Its argument in that regard was somewhat circular. The starting point was its previous rulings that the autonomous concept of judicial authority ‘is capable of including authorities of a Member State which, although not necessarily judges or courts, participate in the administration of criminal justice in that Member State’. 37 The Court asserted that this is borne out by the legislative scheme of the FD-EAW, its legal basis in the Treaties, and its objective to facilitate free movement of judicial decisions in criminal matters at all stages, including prosecution stage. 38 On this basis, ‘those authorities which, under national law, are competent to adopt such decisions are capable of falling within the scope of the framework decision’ and a public prosecutor’s office ‘must be regarded as participating in the administration of justice of the relevant Member State’. 39
The second criterion applied by the Court for an authority that is not a court to be a judicial authority was sufficiency of independence from the executive. Rather than considering the issue of an EAW as a discrete activity, the Court approached the two levels of protection of procedural rights and fundamental rights for the requested person identified in Bob-Dogi as interconnected. 40 Referencing the right to liberty in Article 6 Charter of Fundamental Rights (CFR), the Court held that for the issue of an EAW, which can involve deprivation of liberty, ‘a decision meeting the requirements inherent in effective judicial protection should be adopted, at least, at one of the two levels of that protection’. 41 That this is the decision of a court seems to be implicit in the assertion that in cases where the EAW is issued by a body other than a court the issuing of the NAW by a court will allow the executing judicial authority to be satisfied that the EAW is based on a ‘national procedure that is subject to review by a court’ with attendant protections. 42
The need for a sufficiency of independence from the executive arises at the second level of protection of the rights of the person concerned, when the decision on the issue of the EAW is being taken. The authority taking that decision must review the legality and proportionality of the EAW. An authority that is not a judge or a court – such as a public prosecutor – must not be subject to any external instructions in the specific case when taking these decisions and this independence must be guaranteed in the statutory and institutional framework of the Member State. 43
The final requirement, where an EAW is issued by a body other than a court, is that the decision of that body must be amenable to review by a court. This was set out by the Court in paragraph 75 of the judgment as follows: ‘the decision to issue such an arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection’. 44 As we will see below, it is the clarification of this requirement of the possibility of judicial oversight of the decisions of a non-court issuing authority that will lead to the next ‘batch’ of judicial authority references.
Applying these criteria to the facts at issue, the Court found that the German public prosecutors’ offices were not sufficiently independent as they could potentially (although rare and not in these cases) be subject to instructions from the executive in connection with the issue of an EAW. 45 This deficiency in terms of independence could not be remedied by the fact that, as asserted by the German Government, the decision to issue an EAW could after the fact be subject to an action by the person concerned before a German court. 46
The Prosecutor General of Lithuania, whose independence is enshrined in national law, did meet the criteria of sufficiency of independence from the executive but it was for the referring court to establish if its decision was capable of being reviewed by a court as required in OG & PI. 47
Opinions of the Advocate General
AG Campos Sánchez-Bordona concluded in both cases that the term ‘issuing judicial authority’ in Article 6(1) should be interpreted as not including the institution of the public prosecutor’s office. 48
The AG’s position was on the grounds of ‘principle, certainty and simplification of the procedure’ 49 and of the legislative history of the FD-EAW. In terms of the latter, acknowledging contrary views, he argued that the removal from the Commission proposal of the reference to public prosecutors as judicial authorities ‘must be interpreted as meaning that the legislature wished to exclude it’. As a much-debated issue, he argued it would have been explicitly retained if this was the legislature’s intention. 50
In terms of certainty and simplification of the procedure, he anticipated (correctly as we will see below) that given varying levels of autonomy of prosecutors in Member States, there would be lack of certainty about the status of the issuing authority and delays would arise from requests for information and challenges in individual cases. 51
However, the main position of the AG was one of principle, setting out the conceptual reasons why, in his view, the authority to issue an EAW must have the highest level of independence (judicial independence) and therefore can only be a court. He argued that ‘The level of independence required depends on the activity in question’. 52 He distinguished, in terms of the level of independence required by the issuing entity, between the issue of an EAW and other activities – such as the collection of evidence, requesting reviews of detention and the issue of an NAW where the resultant detention is limited in time and subject to prompt judicial scrutiny. 53 Focussing on the fact that the executing judicial authority (that may be imposing deprivation of liberty by reason of the EAW) is dependent on the judgment of the entity that issued the EAW, he argued that this possibility of deprivation of liberty ‘is sufficient to require of the entity responsible for the EAW such a high degree of independence that only courts stricto sensu can ensure it’. 54
For the AG, ‘Effective judicial protection is, in essence, the protection provided by a judge’. 55 It is only a court that can ensure the requisite degree of independence because, unlike a prosecutor, a court exercises jurisdiction and has no specific interest outside ensuring the integrity of the legal system. 56 ‘The ‘judicialisation’ of the Framework Decision procedure, in contrast to the political nature of the classic extradition procedure, entails precisely the exclusive attribution of that procedure — in principle — to the judicial branch, which means attributing it, by definition, to a (fundamentally) independent body’. 57 In support of his position, the AG refers to the then-recent judgments of the court in LM and ASJP on the centrality of judicial independence to ensuring effective judicial protection and in LM the importance of the independence of the authorities both executing and issuing EAWs. 58
Finally, for the AG, the issue of principle was not solved by the possibility of a challenge in the issuing state by the requested person given the practical difficulties in terms of mounting a challenge after arrest in the executing state without being present and the potential for delays and prolonged deprivation of liberty. 59
September–October 2019: NJ
On 9 October 2019, the Court delivered its judgment in NJ. 60 This followed the Opinion of AG Sharpston on 17 September 2019. 61 This case was a reference from a German court in relation to an EAW for the purposes of prosecution issued by the Public Prosecutor’s Office, Vienna. The system for the issue of EAWs in Austria is ‘atypical’ in that an EAW is issued by the public prosecutor’s office and is then subject to an endorsement procedure by a court, which includes an examination of the legality and proportionality of the EAW and this process can be further subject to judicial review. 62 It was common cause that the Austrian public prosecutor can be subject to instructions in a specific case and therefore did not satisfy the requirement of sufficiency of independence from the executive established in OG & PI. 63 Against this background the referring court asked if the Vienna Public Prosecutor’s Office could issue an EAW. 64
Judgment of the Court
In its characterisation of the question referred and in its approach in the judgment, the Court focused on the concept of an EAW as a ‘judicial decision’ within the meaning of Article 1(1) FD-EAW. 65 Setting out the elements of the judgment in OG & PI, the Court ruled that, despite the insufficiency of independence of the public prosecutor, the concept of an EAW in Article 1(1) includes an EAW issued under the Austrian system because a court ‘reviews independently and objectively, having access to the entire criminal file to which any directions or instructions in a specific case from the executive are added, the conditions of issue and the proportionality of those arrest warrants, thus adopting an autonomous decision which gives them their final form’. 66 The Court noted that, in its consideration of the proportionality of the issue of an EAW, the endorsing court is required to take into account the social and family relationships of a requested person resident in a state other than Austria. 67
The Court attached importance to both the time an EAW produces legal effects and to the time of execution. The Court pointed out that ‘the concept of ‘decision’ must be understood as referring to the act in the form which it takes when it is executed. Indeed, it is at that time and in that form that the decision to issue the European arrest warrant is likely to impinge on the right to freedom of the person requested’. 68 While not explicitly stated, it appears to be key in ‘offsetting’ the effect of the insufficiency of independence of the public prosecutor that the Austrian EAW issued by the public prosecutor’s office does not produce legal effects until the review by the court of the conditions of issue and its proportionality has happened. The Court distinguished this from the right to a remedy which ‘takes place only a posteriori and at the request of the person concerned’ and which, the Court noted, was found in OG & PI not to ‘cure’ the insufficiency of independence of the German public prosecutors. 69
Opinion of the Advocate General
In contrast to the other judicial authority cases, the Opinion in NJ was not given by AG Campos Sánchez-Bordona but by AG Sharpston. The Court essentially followed AG Sharpston’s identification of the systematic and thorough review by a court of the issue of the EAW by the public prosecutor before the EAW produces legal effects as central to the referring court’s consideration of whether the Austrian system met the requirements inherent in effective judicial protection. 70
AG Sharpston spent some time on which entity is the issuing judicial authority for the purposes of Article 6(1) FD-EAW. She concluded that it would be artificial to find the court is the issuing judicial authority rather than the public prosecutor. This was for a number of reasons. Firstly, a public prosecutor (unlike the police in Özcelik) is capable of being a judicial authority. Secondly, it is the public prosecutor that manages the procedure, signing and transmitting the EAW and having the option not to proceed with it. Finally, it was the public prosecutor that was notified to the Council as being the Austrian judicial authority for the purposes of Article 6(1). 71
Therefore, the AG found that, applying the requirements in OG & PI, it is the independence of the public prosecutor’s office that must be considered. 72 However, in fact the AG went on to consider the Austrian system and whether it can guarantee the effective judicial protection of the requested person. 73 The AG concluded that any potential unlawfulness of the decision to issue an EAW arising from the possibility of instructions to the public prosecutor by the executive is eliminated by the review by a court before the EAW decision produces legal effects. 74 She considered the risk of instructions from the executive after the court process when the EAW is being signed and transmitted by the public prosecutor to be very low and in any event not engaging the rights of the requested person if the instruction were to be not to proceed.
The shift in focus to the Member State’s system for issuing EAWs evident in NJ continues in the next ‘batch’ of judicial authority references.
November–December 2019: JR & YC, XD and ZB
On 12 December 2019, the Court delivered judgments in four cases: Joined cases JR & YC, XD and ZB. 75 These were preceded by Opinions of AG Campos Sánchez-Bordona on 26 November 2019. 76 The questions referred came from a court in the Netherlands in three of the cases (YC, XD and ZB) and from a court in Luxembourg in one case (JR). The cases concerned EAWs issued for the purposes of prosecution by French public prosecutors (JR & YC) and by the Swedish Prosecutors Office (XD), as well as an EAW issued for the enforcement of a sentence by a Belgian public prosecutor (ZB).
Judgments of the Court
The Court addressed the questions referred under two headings: the concept of issuing judicial authority in terms of the independence required (raised in relation to the French public prosecutors in JR & YC), and the scope of the effective judicial protection required (engaged in all the cases).
The Court found in JR & YC that, subject to the independence of a judicial authority being expressly guaranteed within the institutional framework, the following features of a public prosecution system such as that in France were compatible with the required sufficiency of independence from the executive to be a judicial authority: (a) subject to general instructions from the executive in matters of criminal policy (as distinct from instructions in a specific case) where such general instructions cannot affect the discretion to assess the proportionality of the issue of an EAW; (b) subject to internal instructions given by hierarchical superiors within the structure of the public prosecution system; and (c) entrusted with the public function of criminal prosecution. 77
The issue in relation to the scope of effective judicial protection was essentially a request for clarification of what would satisfy the requirement in OG & PI, that the decision – including its proportionality – to issue an EAW by a non-court body ‘must be capable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection’ and in particular in ZB if that can be approached differently where the EAW is for the enforcement of a sentence.
Specifically, the referring courts asked if the requirement for effective judicial protection is satisfied where the conditions for issuing an EAW, and particularly proportionality, are assessed by a judge prior to the issue of the EAW or, failing this, if it is adequate to have the possibility for the decision to issue the EAW to be reviewed by a court in the issuing state after the surrender.
In the cases in which EAWs were issued in France (JR & YC) and in Sweden (XD) for the purpose of prosecution, the Court (drawing on the Opinion of the AG 78 ) found that the requirement in OG & PI that the EAW be subject to judicial oversight can affect the validity of the EAW but is not relevant to the status of the entity issuing the EAW as a judicial authority. 79
Reprising the elements of its ruling in OG & PI, the Court ruled it is for Member States to ensure by way of their respective procedural rules that effective judicial protection is guaranteed. Provided the objectives of the FD-EAW are not frustrated, how this is done is a decision for each Member State – an appeal against the decision of a non-court issuing entity is just one possibility. 80
Applying this reasoning to the system for issuing EAWs in France (JR & YC), the Court noted that where a requested person is outside French territory, the court that issues a NAW requests the public prosecutor to issue an EAW and this court at this stage assesses the conditions for the issue of the EAW and its proportionality. In addition, for the duration of the criminal investigation, a party to a proceeding can take an action for a declaration of invalidity of an EAW. If a requested person is not yet a party to the proceedings the invalidity action is available after surrender. The Court held that this system met the requirements of effective judicial protection. 81
In relation to the system for issuing EAWs in Sweden (XD), the Court noted that the court that makes the national decision on provisional detention assesses the proportionality of that and other possible measures, including an EAW, where application is made to it by the public prosecutor for an arrest warrant for a person outside Swedish territory. In addition, the decision ordering pre-trial detention can be appealed at any stage in the proceedings, before and after surrender, and the annulment of this decision will automatically result in the invalidation of the EAW. The higher court hearing such appeal will also consider the proportionality of the EAW. The Court held that this system also met the requirements of effective judicial protection. 82 It did not address the concern of the referring court that, although in this case the NAW and EAW were issued on the same day, where the issue of the EAW by the public prosecutor happens later and new facts have arisen, the necessary protection against disproportionate surrender may not be ensured. 83
Finally, the Court pointed out in both judgments that the EAW forms part of a global system of EU measures that guarantee effective judicial protection. It identifies as particularly relevant the provision in Article 10 of Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, 84 according to which a requested person deprived of liberty in the executing Member State must be informed of their right to appoint a lawyer in the issuing Member State. 85
In ZB, the EAW was issued by a Belgian public prosecutor for the purpose of enforcement of a sentence and Belgian law did not provide for the possibility of an appeal against the decision to issue such a warrant. The Court found that the possibility of judicial oversight of the decisions of a non-court issuing authority required in OG & PI is satisfied by the fact that there have been national legal proceedings, with all attendant guarantees, which have led to the enforceable judgment. In addition, the proportionality of such a warrant is addressed in the provision in Article 2(1) FD-EAW that the penalty to be enforced must be at least 4 months. Therefore, the possibility of an appeal to a court against the decision of a non-court entity to issue an EAW is not required for EAWs for the enforcement of a sentence. 86
Opinions of the Advocate General
In his Opinions, AG Campos Sánchez-Bordona stated he would apply the Court’s rulings in OG & PI, PF and NJ, while also advising that his position in principle remained that set out in his Opinions in OG & PI and in PF that because the liberty of citizens can be restricted only by a court, a public prosecutor’s office could not be classified as an issuing judicial authority under Article 6(1) FD-EAW. 87
In relation to the issue of the sufficiency of independence in JR & YC, the AG, in contrast to the Court, was of the view that the following are not compatible with the independence required to be a judicial authority: (a) the fact that the French public prosecutors can be subject to general instructions from the Minister for Justice (though not instructions in specific cases) 88 and (b) the fact that French public prosecutors are required to comply with the orders of their hierarchical superiors. 89 The AG did come to the same conclusion as the Court that the fact that the public prosecutor is responsible for the prosecution in the case in which the EAW is issued can be compatible with an impartial approach, where the obligation of impartiality is set out in law, as in France. 90
In support of his view on general instructions and hierarchical subordination, the AG highlighted what he saw as an inconsistency between the Court’s position in OG & PI and its ‘entirely correct approach’ in LM that the authority issuing an EAW should take decisions wholly autonomously and without being subject to instructions from any source. 91 He suggested that the Court should ‘revert to the principle’ it set out in LM. 92
Having concluded in JR & YC that the French public prosecutors did not qualify as a judicial authority, the AG addressed the issue of judicial review of an EAW issued by a public prosecutor only in the alternative. The AG concluded that it follows from the Court’s ruling in OG & PI that the absence of a possibility of judicial oversight of the issue of an EAW by a non-court body does not affect the status of the issuing authority as a judicial authority but does affect the lawfulness of the process for issuing the EAW and therefore its validity. 93 (This reasoning was subsequently adopted by the Court. 94 )
For two reasons, the AG argued that the requirement of the possibility of judicial oversight of the decision of a non-court issuing authority in OG & PI is not met where the court issuing the NAW assesses the requirements for an EAW, including its proportionality, prior to the issue by the public prosecutor of the EAW. Firstly, unless an EAW is issued simultaneously with the court’s assessment as to proportionality, as time goes on this assessment risks becoming out of date. In this regard, the AG made reference to the judgment in NJ and the need to consider the social and family relationships of a requested person resident in a state other than the issuing state. 95 Secondly such a procedure of a court’s own motion and without the participation of the requested person cannot satisfy the form of judicial oversight which, the AG asserted, is envisaged in OG & PI, where it is at the request of the person concerned, who can participate in exercise of the right of defence. 96 The AG was also of the view that, given the potential deprivation of liberty inherent in an EAW, the option of bringing proceedings against the issue of the EAW only after the surrender is not sufficient to satisfy the requirements of effective judicial protection. 97
The AG therefore concluded in JR & YC and in XD – where he adopted his reasoning in JR & YC in full – that, absent jeopardy to the criminal proceedings, it must be possible for a requested person to challenge an EAW issued by a public prosecutor before a court in the issuing state as soon as it is issued without having to await surrender.
In ZB, dealing with the issue of an EAW by the Belgian public prosecutor for the purpose of enforcement of a sentence, the AG, professedly interpreting the judgments in OG & PI and NJ, argued that, as with EAWs for the purposes of prosecution, judicial oversight at the time of a NAW is not sufficient to meet the requirement of the possibility of judicial oversight of the decision of a non-court issuing authority in OG & PI. 98 There cannot be an automaticity to issuing an EAW for the purpose of sentence, because the fact of a conviction is not the only condition precedent to the issue of an EAW. Proportionality must be assessed and where the EAW is issued by a public prosecutor, this should be done by a court either by way of a procedure for endorsement of the prosecutor’s decision (as in NJ) or in the context of an appeal brought by the person concerned. 99
The AG acknowledged that the FD-EAW incorporates some appreciation of proportionality by having a minimum 4-month sentence for an EAW for the purpose of enforcement of a sentence, but pointed out that the duration of the sentence is not the only consideration in relation to the proportionality of issuing an EAW. Another important consideration is the possible duration of deprivation of liberty in the executing state and, citing the judgment in NJ, the effect of same on the requested person’s ‘social and family relationships’. 100 The AG pointed out that, although the period of deprivation of liberty in an executing state is deductible from the sentence after surrender, the judge issuing a NAW on conviction may not anticipate that this will lead to an EAW and to deprivation of liberty in an executing state. This could be the position in a case where, dealt with domestically and depending on the circumstances, the prison sentence may not ultimately be served or be suspended. 101
Even where the proportionality of an EAW is considered by a court at the time of a conviction decision, this does not address the fact that, with the passage of time, this assessment risks being obsolete. 102 The AG also referred to the need to consider the possibility of the requested person, serving the sentence in the executing state pursuant to the Framework Decision on mutual recognition of judgments pronouncing sentences, having, at the time of issue of the EAW, established a sufficient link with that state. 103 For these reasons, the AG concluded that for an EAW issued for the enforcement of a sentence, there should be the same access to a judicial remedy as with an EAW for the purpose of prosecution. 104
Summary of the current requirements of the Court
Applying the criteria identified in the judgments, the Court has found that the following systems where EAWs are issued by public prosecutors have met the requirements of effective judicial protection (this aspect in relation to Lithuania in PF was not broached by the Court but was left to the referring court – see footnote 47). - In respect of an EAW for the purposes of prosecution: o Procedural rules whereby an EAW issued by a public prosecutor’s office that can be subject to instructions from the executive in a specific case is subject to an endorsement procedure by a court, which includes an examination of the legality and proportionality of the EAW and this process can be further subject to judicial review. (Austria – NJ) o A combined procedure whereby the issue of an EAW is subject to prior judicial review – including a proportionality assessment – by way of being almost concomitant with the issue of the national arrest warrant by a court and the availability of judicial review proceedings to challenge the validity of the EAW after its issue whether before or after surrender. (France – YR & JC) o Procedural rules whereby the issue of an EAW for the purposes of prosecution is subject to prior judicial review by way of being concomitant with the decision on pre-trial detention and other possible measures by a court – in respect of which proportionality is considered – and the requested person has the right to appeal against the decision on pre-trial detention at any time in the process and a successful appeal will also invalidate the EAW. (Sweden – XD) - In respect of an EAW for the purposes of sentence: o Where there is no possibility to appeal against the decision to issue an EAW, effective judicial protection is satisfied by the fact that there have been national legal proceedings, with all attendant guarantees, which have led to the enforceable judgment and that the proportionality of such a warrant is addressed in the provision in Article 2(1) FD-EAW that the penalty to be enforced must be at least four months. (Belgium ZB)
Consequences of the judgments for member states
The effects of the case law on all the Member States and on the UK and Norway was captured in a questionnaire issued by Eurojust following the judgments in OG & PI and PF and revised in April 2020 to reflect the JR & YC, XD and ZB judgments. 105 The responses indicate that at the time of the questionnaire, the entity that ultimately takes the decision to issue the EAW was the court in 15 States 106 and the prosecutor in 8 States. 107 In the remaining 6 States, it was either the court or the prosecutor depending on the type of EAW or the stage of the proceedings. 108 Therefore, in 14 States an EAW could be issued by a prosecutor. In 2 of these 14 States this was only possible for EAWs for the execution of a sentence. 109
Legal changes were made or were in train in 5 States as a consequence of the judgments: in 3 States to provide that EAWs are to be issued by a court 110 and in 2 States to provide for the independence of the prosecutor from the executive (arguably the more intrusive approach). 111 The judgment in OG & PI ‘where the CJEU rendered 5.600 pending EAWs issued by German public prosecutors invalid’ 112 required immediate action from the German authorities where the issuing role was given to courts. 113 The judgment re-ignited a debate in Germany about political influence on the public prosecutor’s office and led to proposed legislative changes to remove the power to give binding instructions in individual cases. 114
Reflecting its relevance to the ongoing wider rule of law debate within the EU, the judicial authority case law has also been referenced in the Commission’s 2018, 2019 and 2020 EU Justice Scoreboards. The 2020 Scoreboard includes a comparative graph on authorities than can give instructions to prosecutors in individual cases and safeguards that are in place if such instructions are given. 115
Analysis
The conclusion of the AG that the issuing of EAWs should be confined to courts is persuasive on a number of levels (although the AG’s assertion that this was the intention of the legislator has been disputed 116 ). Its legal basis is supported by a combined reading of a number of primary and secondary sources of EU law 117 and by the recent jurisprudence of the Court on inter alia effective judicial protection. 118 It would have the effect of, in principle (absent issues in individual Member States), ensuring independence from the executive and the parties and encompassing the judicial oversight required by Article 47 CFR. Mutual trust is thereby reinforced. On a practical level, the in-depth inquiries, with attendant delays, by executing judicial authorities as to (a) whether the non-court issuing body is a judicial authority and (b) if adequate judicial oversight exists would not be required.
However, the referrals on issuing judicial authority happened against the background of a long-established EAW system adopted on a ‘third pillar’ legal basis and where EAWs could be issued by prosecutors in 14 states. It has been argued that the Court’s ‘broad interpretation is supported by the rationale of the EAW which aims to facilitate free movement of judicial decisions, including those prior to judgment, in respect of the conduct of criminal proceedings’. 119 The Court was also dealing with a wider context for the concept of judicial authority in mutual recognition measures. 120
In the 2016 trilogy of cases, the position arrived at by both the Court and the AG that a judicial authority cannot include police or a government ministry was the logical conclusion of the judicialisation (de-politicisation) central to the EAW system. However, between the 2016 cases and the three ‘batches’ of cases in 2019, were the Court’s significant rulings, against the backdrop of rule of law backsliding in some Member States, on effective judicial protection of individual rights, and the centrality to same of judicial independence. 121 The 2019 judicial authority cases deal with the consequences of the Court’s ‘rule of law’ judgments for the EAW system as implemented in Member States without systemic rule of law issues. The Court now had to reconcile the inclusion in principle of public prosecutors in the autonomous concept of issuing judicial authority with the centrality of judicial protection which ‘re-orientates the entire EU judicial architecture towards protecting individual rights grounded in EU law’. 122
Navigating this territory arguably led the Court to open a Pandora’s Box in OG & PI and PF and try to close it again in JR & YC, XD and ZB. The Court addressed the need for effective judicial protection in OG & PI and PF by excluding public prosecutors as judicial authorities where there is any risk of instructions from the executive in specific cases. In an implicit acknowledgement that this organisational independence was not adequate, the Court also required that the decision to issue an EAW by a non-court authority must be amenable to review by a court.
123
To apply this approach to the facts of JR & YC, XD and ZB and to maintain the possibility for the issue of EAWs by public prosecutors required the Court to adopt some conclusions that appear to tolerate gaps in effective judicial protection and reveal a lack of coherence in the Court’s wider EAW jurisprudence. The following examples illustrate the points: - It is difficult to rationalise the distinction, in terms of the adequacy of independence from the executive to be a judicial authority, made by the Court between instructions from the executive in a specific case and general instructions in matters of criminal policy. In contrast, the AG argued convincingly that a decision involving potential deprivation of liberty must be taken ‘from a position of absolute independence and is subject only to the law, not to the guidance or instructions, whether particular or general, of the executive’.
124
It has been observed that the Court has taken a formalistic approach towards the concept of independence
125
that ‘neglects the risk that the power to issue general instructions might also be prone to abuse’.
126
- The Court’s focus only on the external aspects of independence is exceedingly narrow. While perhaps explained by the focus on the French system in JR & YC, there is a ‘certain artificiality’ in the conclusion that the independence required of a judicial authority can be assured by a party to the case.
127
(Surprisingly, on this issue the AG concurred with the Court.
128
) This is particularly hard to reconcile with the emphasis of both the Court and the AG in all the judicial authority cases on the centrality of the proportionality assessment to be carried out by the issuing judicial authority. - In order to meet the requirement of the possibility of judicial oversight of the decision of a non-court issuing authority it had set out in OG & PI, the Court in JR & YC, XD & ZB conflated the processes for the issue of NAWs and EAWs. It sanctioned (a) the proportionality assessment being made at the stage of the issue of the NAW and (b) the adequacy of the availability of challenges to the validity of the underlying NAW. In doing so, the Court relied on the NAW and EAW being issued quasi-concomitantly in every case and did not address the concerns of the referring court in XD, and those of the AG, that protection against disproportionate surrender may not be ensured where the EAW is issued later by the public prosecutor and new facts have arisen.
129
- This applies equally to EAWs for the enforcement of a sentence. However, in ZB there seems to be almost complete conflation of the two steps in the Court’s conclusion that the national legal proceedings leading to the enforceable judgment satisfy the judicial oversight required by OG & PI, and that the proportionality of such an EAW is addressed in the provision in Article 2(1) FD-EAW that the penalty to be enforced must be at least 4 months.
130
Arguably, as the requested person’s right to liberty in Article 6 CFR is engaged at both the domestic and transnational stages of the EAW issuing process, effective judicial protection should be assured at both times. The approach of the Court effectively undermines the dual level of protection for procedural and fundamental rights stemming from the requirement for the NAW and the EAW to be separate, identified in Bob-Dogi and ostensibly endorsed by the Court in OG & PI and in JR & YC.
131
- In addition, allowing safeguards such as the proportionality check to happen as part of the NAW decision does not appear to be consistent with the Court’s position in NJ that:
‘the review of proportionality carried out by that court relates, in the context of the endorsement of a national arrest warrant, to the effects of the deprivation of liberty alone caused by it and, in the context of the endorsement of a European arrest warrant, to the impinging on the rights of the person concerned which goes beyond the infringements of his right to freedom already examined. The court responsible for the endorsement of a European arrest warrant is required to take into account, in particular, the effects of the surrender procedure and the transfer of the person concerned residing in a Member State other than the Republic of Austria on that person’s social and family relationships’.
132
The Court in NJ attached considerable importance to the fact that in Austria an EAW issued by a public prosecutor only produced legal effects when review by a court of the conditions of issue and its proportionality has happened.
133
- Finally, as argued by Böse, although LM (like ASJP) was about the independence of courts (and was applying the standards applicable to courts and tribunals in Article 19 TEU, Article 267 TFEU and Article 47 CFR) it logically follows from the Court’s own reasoning in LM that an issuing judicial authority must be a court.
134
This is because the criteria laid down in LM, citing Kovalkovas, for the issue of an EAW can only be met by a Judge.
135
This was also the position of the AG.
136
The Court, while preserving the inclusion of the public prosecutor in the autonomous concept of judicial authority, set adequacy of independence criteria (not requiring actual interference in a particular case) in OG & PI for public prosecutors to qualify. It then set a bar for the attendant systems where EAWs are issued by prosecutors to meet the requirements of effective judicial protection. That bar appears to have been lowered in the subsequent cases, even allowing for the margin of appreciation accorded to Member States in terms of their procedural autonomy. This is particularly the case for EAWs issued for the enforcement of a sentence where the Court’s reasoning is not convincing or consistent and appears to leave no space for consideration of proportionality at the stage of issuing the EAW.
In JR & YC, XD and ZB, the Court was carrying out the balancing exercise it has applied in many EAW cases between promoting the effectiveness of EU law based on the principle of mutual recognition, respecting Member States’ procedural autonomy, and the protection of a particular fundamental right (with a re-balancing towards the latter in recent years). However, this familiar balancing exercise may not be appropriate where effective judicial protection is at issue. It has been argued that the Court ‘has essentially made the principle of effective judicial protection (including the principle of judicial independence) a federal standard of review’ 137 and that it has become a ‘meta-norm’ or ‘institution of EU law’. 138 It overrides all conflicting principles including the procedural autonomy of the Member States or their mutual trust 139 and requires Member States to take positive action to fill any gaps in their procedure. 140 ‘The normativity of judicial protection then lies in securing access to a court in order to take other rights seriously’. 141 This nascent centrality of the protection of individual rights in the EU legal order appears to inform the Opinions of the AG. However, in relation to the issuing judicial authority in the context of the EAW, the Court may not yet have caught up with its own case law in other areas.
Public prosecutors and preliminary references pursuant to article 267 TFEU
The AG was arguably applying standards of independence for ‘courts and tribunals’ laid down in ASJP and LM to public prosecutors. This approach was defensible not because the same level of independence is necessarily essential for public prosecutors but because some Member States gave public prosecutors a function in the EAW system that perhaps should have been reserved to courts as inherently independent entities. Independence is one of the criteria applied by the Court to determine if an entity is a court or tribunal within the meaning of Article 267 TFEU and can refer a question on the interpretation of EU law to the Court. 142 The preliminary reference procedure in Article 267 is the ‘keystone’ of the composite judicial system at EU and Member State level that ensures judicial protection of an individual’s rights. 143 This prompts the question as to how the Court (which did not reference the Article 267 criteria in the issuing judicial authority judgments 144 ) might deal with the admissibility of a preliminary reference arising in relation to the issuing of an EAW from a public prosecutor designated as a judicial authority.
Recently, and for the first time, a reference to the Court in EAW proceedings was made by an issuing authority – in this instance a court – in AY. 145 On the admissibility of the reference, the Court, in a July 2018 judgment, referred to the fact that the issue of an EAW could affect the liberty of the requested person. The Court held that to ensure that in EAW proceedings fundamental rights are observed, responsibility for which falls primarily to the issuing Member State, it must be possible for an issuing judicial authority to refer questions to the Court. 146
As referenced by the AG in his discussion of the impartiality and hierarchical subordination of prosecutors in JR & YC, 147 the question of whether a public prosecutor can make a preliminary reference was considered by the Court in December 1996 in Criminal proceedings against X . 148 In this case, the Court held references could only be made by ‘a body required to give a ruling in complete independence in proceedings which are intended to result in a judicial decision’ 149 and found that the Italian public prosecutor did not meet the criteria as its role ‘is not to rule on an issue in complete independence but, acting as prosecutor in the proceedings, to submit that issue, if appropriate, for consideration by the competent judicial body’. 150 The AG also referred to the February 2017 judgment of the Court in Panicello, where the Court found that a Registrar that inter alia was required to comply with instructions from his hierarchical superiors lacked the independence required of a court or tribunal within the meaning of Article 267 and could not make a preliminary reference. 151
The conclusions in the cases referred to by the AG suggest that the institutional independence that, in the judicial authority cases, sufficed for the Court for the purposes of Article 6(1) FD-EAW may not be adequate to meet the level of ‘complete independence’ required to be a court or tribunal in Article 267. While it is not proposed in this article to examine in detail the criteria for a court or tribunal under Article 267, 152 it has been advanced that both external (institutional) and internal (impartiality) independence will be required to meet the Article 267 requirements. 153
If it is the case that a public prosecutor who is implementing EU law when issuing an EAW – where individual rights are engaged – is not a court or tribunal within the meaning of Article 267 TFEU and cannot access the interpretative jurisdiction of the Court, there may be a gap in effective judicial protection – ‘Judicial protection does not tolerate enclaves of non-justiciability’. 154 It has also been maintained, in the context of the Court ‘using Article 19 TEU to create the notion of a ‘European judiciary’ consisting of national judiciaries and the Court of Justice’, that Member States have an obligation not to disempower their national judges (in this instance by designating non-court entities as a judicial authority). 155 As Koen Lenaerts has observed: ‘The dialogue between the Court of Justice and national courts is only open to courts that are independent. This is because political considerations cannot take part in a dialogue that is based on the law, and on nothing but the law. In addition, judicial independence and effective judicial protection of EU rights go hand in hand, as only independent courts may provide effective remedies’. 156
In the absence of legislative intervention at EU level or changes in Member States’ systems for the issuing of EAWs, this is an issue it is likely the Court will have to address in the future. Possible outcomes are a case by case assessment of each public prosecutor against the Article 267 criteria; a conclusion that ‘court or tribunal’ includes public prosecutors; or, in a narrower approach, the inclusion in the definition of ‘court or tribunal’ any authority that a Member State has designated under Article 6(1) FD-EAW. Here the Court will have to balance protecting the rights of individuals to an independent tribunal with broadening access to the preliminary reference procedure. 157 However, reflecting the dilemma that has faced the Court in the judicial authority cases, the approach the Court takes could be relevant not just to the EAW (which the AG has argued is different 158 ) but to all EU instruments where public prosecutors, as judicial authorities, apply EU law in the context of EU transnational cooperation in criminal matters.
Conclusion
The context for EU criminal justice cooperation has changed greatly since the adoption of the FD-EAW in 2002; in particular the ‘twofold constitutionalisation’ of effective judicial protection in the Lisbon Treaty in the addition of paragraph 2 to Article 19(1) and the Treaty status of the CFR, including Article 47. 159 Effective judicial protection and the project of EU cooperation in criminal matters would now be better served by the designation in all Member States of a court as the issuing judicial authority for the FD-EAW. This conclusion emerges from an examination of the Opinions and judgments of the Court of Justice on the issuing judicial authority in Article 6(1) FD-EAW, the wider context in which the controversy has arisen, and the reactions and consequences of the judgments. This however is not essentially a rule of law controversy but rather an exposé of the breadth of different institutional arrangements for public prosecutors in EU Member States and the fact that, in contrast to more recent instruments, 160 little consideration appears to have been given to the effect of this when the FD-EAW was negotiated.
The necessary role of courts in the FD-EAW is apparent whether approached from a rule of law perspective, drawing on Articles 2 and 19(1) TEU in terms of adequacy of independence; a fundamental rights perspective in Article 47 CFR in terms of remedies; or the Article 267 TFEU perspective of access to the composite EU legal order. The question of how this can be achieved remains. The Court, perhaps mindful of other instruments, and the important role of the public prosecutor in criminal proceedings, has not interpreted the autonomous concept of judicial authority as a court. Arguably the effects of such an interpretation could be confined to the particular context of the FD-EAW, which is not an investigatory tool and uniquely among mutual recognition instruments has deprivation of liberty for the purposes of surrender as its potential outcome. The Court was however trying to navigate an issue that may in fact require legislative intervention at EU level, by amending the FD-EAW to clarify that only a court can issue an EAW. 161 Finally it is open to the Member States to agree 162 (thereby obviating the need to change the place of the public prosecutor in their respective judicial systems) that it is their courts, that are also sitting as EU courts, that should take the decisions envisaged in their most successful but most coercive judicial cooperation instrument – the FD-EAW.
Footnotes
Acknowledgements
This article is based on research that was undertaken for a dissertation for the MA in EU Law, at the Centre of European Law, King’s College London. The author would like to acknowledge the assistance of the dissertation supervisor, Professor Alexander Turk, Kings College London.
Author’s note
The opinions expressed in this article are those of the author and are not, in any way, binding for the author’s employer – the Office of the Director of Public Prosecutions, Ireland.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
1.
[2002] OJ L190/1.
2.
The issue was raised in national courts. See Assange v The Swedish Prosecution Authority [2012] UKSC 22; Bucnys v Ministry of Justice, Lithuania [2013] UKSC 71 and Minister for Justice and Equality v McArdle and Brunnell [2015] IESC 56.
3.
Since the Treaty of Lisbon, this policy area came under the full jurisdiction of the Court and with Treaty status for the Charter of Fundamental Rights, provisions including Article 47 on the right to an effective remedy and to a fair trial have binding force.
4.
Adam Lazowski ‘The Sky Is Not the Limit: Mutual Trust and Mutual Recognition après Aranyosi and Căldăraru’ (2018) 14(1) Croatian Yearbook of European Law and Policy 29.
5.
See Ermioni Xanthopoulou, Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice: A Role for Proportionality? (Hart Publishing, 2020) 149–184 and Fenella M. W. Billing ‘Limiting mutual trust on fundamental rights grounds under the European arrest warrant and lessons learned from transfers under Dublin III’ (2020) 11(2) New Journal of European Criminal Law 184. Billing points out that, while mutual trust underpins both systems, their differing goals (solidarity and burden-sharing for the asylum system and promotion of security for the EAW) does mean some divergence in the Court’s approach to fundamental rights in each context.
6.
Xanthopoulou (n 5), 115–120.
7.
See Commission Handbook on how to issue and execute an EAW [2017] OJ C335/1 14
8.
See most recently, Joined Cases C-354/20 PPU L and C-412/20 PPU P ECLI:EU:C:2020:1033
9.
Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru ECLI:EU:C:2016:198. Firstly, identification of systemic deficiencies and secondly, assessing the ‘real risk to the requested person in the specific case.
10.
Case C-216/18 PPU LM ECLI:EU:C:2018:586.
11.
In particular, in the Commission’s reasoned proposal of 20 December 2017 in accordance with Article 7(1) TEU regarding the rule of law in Poland (COM(2017) 835 final).
12.
Case C-64/16 Associação Sindical dos Juízes Portugueses ECLI:EU:C:2018:117.
13.
14.
Article 19(1) second paragraph provides: ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.
15.
ASJP (n 12), para 37 and paras 41–44.
16.
Case C-452/16 PPU Poltorak ECLI:EU:C:2016:858; Case C-453/16 PPU Özcelik ECLI:EU:C:2016:860; Case C-477/16 PPU Kovalkovas ECLI:EU:C:2016:861.
17.
Opinions in Case C-452/16 PPU Poltorak ECLI:EU:C:2016:782; Case C-453/16 PPU Özcelik ECLI:EU:C:2016:783; Case C-477/16 PPU Kovalkovas ECLI:EU:C:2016:784.
18.
Case C-241/15 Bob-Dogi ECLI:EU:C:2016:385, para 56. See references in Judgment Poltorak (n 16), para 16; Judgment Kovalkovas (n 16), para 15; Opinion Özcelik (n 17), para 23.
19.
Illustrative of the fact that the judicial authority controversy (concerning steps that arise wholly from the FD-EAW) is one of EU law is that the only references to European Court of Human Rights (ECtHR) judgments in the judicial authority case law is in the Opinion in Özcelik (n 17), paras 54–55 & 63. This is because the issue in Özcelik was the NAW and national procedures preceding the EAW.
20.
Judgment Poltorak (n 16), para 32.
21.
Ibid, para 30.
22.
Ibid, para 50 and Judgment Kovalkovas (n 16), para 47.
23.
Judgment Kovalkovas (n 16), para 47.
24.
Ibid, para 37, referring to Case C-168/13 PPU F EU:C:2013:358.
25.
Judgment Özcelik (n 16), para 34, referring to Joined Cases C-187/01 and C-385/01 Gözütok and Brügge ECLI:EU:C:2003:87 and Case C-486/14 Kossowski ECLI:EU:C:2016:483.
26.
Ibid, para 36 and Judgment Poltorak (n 16), para 35.
27.
Judgment Özcelik (n 16). para 37. In Özcelik, the issuing judicial authority had advised the referring court that the Hungarian Public Prosecutor was independent from the executive (para 13). This is not mentioned in the judgment, but the Court does refer to a public prosecutor ‘such as that at issue in the main proceedings’ (para 37).
28.
Ibid, para 38.
29.
Opinion Poltorak (n 17), para 37.
30.
Ibid, para 52.
31.
Opinion Poltorak (n 17), para 60; Opinion Kovalkovas (n 17), para 36.
32.
Opinion Özçelik (n 17), paras 39–42 referring to COM (2001) 522 final.
33.
Judgment Poltorak (n 16), para 33; Judgment Kovalkovas (n 16), para 34.
34.
Opinion Özçelik (n 17), para 45.
35.
Joined Cases C-508/18 OG and C-82/19 PPU PI ECLI:EU:C:2019:456 and Case 209/18 PF ECLI:EU:C:2019:457.
36.
Opinions in Joined Cases C-508/18 OG and C-82/19 PPU PI ECLI:EU:C:2019:337 and in Case 209/18 PF ECLI:EU:C:2019:338.
37.
Judgment OG & PI (n 35). para 51.
38.
Ibid, paras 52–56.
39.
Ibid, paras 59–60.
40.
Bob-Dogi (n 18).
41.
Judgment OG & PI (n 35), para 68.
42.
Ibid, paras 69–70.
43.
Ibid, paras 71–74.
44.
Ibid, para 75.
45.
Ibid, paras 88–90.
46.
Ibid, paras 85–87.
47.
Judgment PF (n 35). para 56. Ultimately the Irish High Court, judgment 5 March 2020, accepted (after a number of requests for clarification and noting that the facts set out by the Lithuanian authorities were disputed by the requested person) that there was a right of appeal against the issue of the EAW and that the system in Lithuania met the requirements of effective judicial protection. See Minster for Justice and Equality and Tomas Lisauskas [2020] IEHC 121.
48.
Opinion OG & PI (n 36). para 100; Opinion PF (n 36), para 47
49.
Opinion PF (n 36), para 46.
50.
Ibid (n 36), para 43.
51.
Ibid (n 36), paras 33–35; Opinion OG & PI (n 36), para 99.
52.
Opinion OG & PI (n 36), para 82.
53.
Ibid, paras 38–39, 54–55, 82 and 91.
54.
Ibid, paras 61–63.
55.
Ibid, para 66.
56.
Ibid, paras 66–67 and fn 51; Also Opinion PF (n 36), para 24–30.
57.
Ibid, para 94.
58.
Ibid, paras 85–88.
59.
Ibid, paras 72–75.
60.
Case C-489/19 PPU NJ ECLI:EU:C:2019:849.
61.
Opinion in Case C-489/19 PPU NJ ECLI:EU:C:2019:747.
62.
Ibid, para 71
63.
Judgment NJ (n 60), para 40.
64.
Ibid, para 20.
65.
Ibid, para 26.
66.
Ibid. para 49.
67.
Ibid, para 44.
68.
Ibid, para 42.
69.
Ibid, para 46.
70.
Opinion NJ (n 61), para 98.
71.
Ibid. paras 54–66.
72.
Ibid, para 66.
73.
Ibid, para 68.
74.
Ibid, para 73.
75.
Joined Cases C-566/19 PPU JR and C-626/19 PPU YC ECLI:EU:C:2019:1077; Case C-625/19 PPU XD ECLI:EU:C:2019:1078; Case C-627/19 PPU ZB ECLI:EU:C:2019:107.
76.
Opinions in Joined Cases C-566/19 PPU JR and C-626/19 PPU YC ECLI:EU:C:2019:1012; Case C-625/19 PPU XD ECLI:EU:C:2019:1013; Case C-627/19 PPU ZB ECLI:EU:C:2019:1014.
77.
Judgment JR & YC (n 75), paras 54–58.
78.
Opinion JR & YC (n 76), paras 70–75.
79.
Judgment JR & YC (n 75), paras 48–49; Judgment XD (n 75), paras 30–31.
80.
Ibid, paras 63–66; Ibid, paras 43–45.
81.
Ibid, paras 67–71.
82.
Judgment XD (n 75), paras 46–53.
83.
Ibid, para 24.
84.
[2013] OJ L294/1
85.
Judgment JR & YC (n 75), paras 72–73; Judgment XD (n 75), paras 54–55.
86.
Judgment ZB (n 75), paras 33–38.
87.
Opinion JR & YC (n 76), paras 4 and 23.
88.
Ibid, paras 38–41. Repeating that only absolute independence suffices in cases involving deprivation of liberty, the AG distinguishes between being subject to the law (the position of both judges and public prosecutors) and subject to ministerial criminal justice policy instructions (the position for public prosecutors in some Member States).
89.
Ibid, paras 43–48.
90.
Ibid, paras 49–56.
91.
Ibid, para 37.
92.
Ibid, para 42.
93.
Ibid, paras 70–73.
94.
Judgment JR & YC (n 75), paras 48–49; Judgment XD (n 75), paras 30–31.
95.
Opinion JR & YC (n 76), paras 80–81.
96.
Ibid. paras 82–85.
97.
Ibid, paras 87–91.
98.
Opinion ZB (n 76), para 19.
99.
Ibid, paras 23–24.
100.
Ibid, paras 25–26.
101.
Ibid, paras 27–29.
102.
Ibid, para 31.
103.
Ibid, para 32. OJ 2008, L 327/27
104.
Ibid, para 34.
105.
Questionnaire on the CJEU’s judgments in relation to the independence of issuing judicial authorities and effective judicial protection, Council Document 7182/1/20 REV 1, 6 April 2020.
106.
AT, CY, CZ, DK, DE, ES, HU, IE, MT, NL, PL, RO, SI, SK, UK.
107.
EL, FI, FR, HR, LT, LV, SE, NO.
108.
BE, BG, EE, IT, LU, PT.
109.
IT, LU.
110.
DK, DE, NL.
111.
LU, NO.
112.
Tanja Niedernhuber, ‘How Much Independence is Necessary to Issue a European Arrest Warrant’ 2020 (10) European Criminal Law Review 6.
113.
Ibid 7.
114.
Ibid 18–23.
115.
EU Justice Scoreboard
116.
Martin Böse, ‘The European arrest warrant and the Independence of Public Prosecutors: OG & PI, PF, JR & YC’ (2020) 57 Common Market Law Review 1269.
117.
Articles 2, 6 and 19(1) TEU, Articles 6 and 47 CFR, Article 267 TFEU and (at the nub of the issue in these cases) arguably by Article 6(1) FD-EAW on judicial authority read in conjunction with Article 1(3) FD-EAW on the obligation to respect fundamental rights and fundamental legal principles in Article 6 TEU.
118.
ASJP (n 12); LM (n 10); Case C-619/18 Commission v Poland ECLI:EU:C:2019:531; Case C-192/18 Commission v Poland ECLI:EU:C:2019:924
119.
120.
See Böse (n 116) 1275. Also, in November 2020, in Case C-510/19 Openbaar Ministerie (Faux en écritures) ECLI:EU:C:2020:953, the Court held that public prosecutors in the Netherlands cannot be regarded as ‘executing judicial authorities’ within the meaning of the FD-EAW, because they may be subject to instructions from the Minister for Justice relating to the exercise of their functions and powers.
121.
See (n 118).
122.
Volker Roeben ‘Judicial Protection as the Meta-norm in the EU Judicial Architecture’ (2020) 12 Hague Journal on the Rule of Law 29.
123.
Böse (n 116) 1279.
124.
Opinion JR & YC (n 76), para 41.
125.
126.
Böse (n 116) 1278.
127.
Baudrihaye-Gérard (n 125), who also posits that the Court’s reasoning appears to be founded on the inquisitorial tradition of the criminal justice system.
128.
Opinion JR & YC (n 76), paras 49–54.
129.
Judgment XD (n 75), para 24.
130.
Judgment ZB (n 75), paras 33–38.
131.
Bob-Dogi (n 18), para 56. See Judgment OG & PI (n 35), para 67 and Judgment JR & YC (n 75), para 59.
132.
Judgment NJ (n 60), para 44.
133.
Ibid, para 43.
134.
Böse (n 116) 1275.
135.
LM (n 10), paras 55–56, citing Judgment Kovalkovas (n 16), para 37. It is notable that the only references by the Court to its judgment in LM in the judicial authority judgments are to paragraphs 36 and 41 of LM setting out the importance of the principle of mutual recognition and the exceptionalism of refusal – See Judgments OG & PI (n 35), paras 43–45; PF (n 35), paras 22–24; JR & YC (n 75), para 42; XD (n 75), para 33; ZB (n 75), para 21.
136.
Opinion OG & PI (n 36), paras 85–88.
137.
Pech and Platon (n 13).
138.
Roeben (n 122) 30–31.
139.
Ibid 61.
140.
Ibid 43.
141.
Ibid 59.
142.
See Paul Craig and Gráinne de Búrca EU Law: Text Cases and Materials (6th Edition OUP, 2015) 466–467 for the full list of relevant factors: whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law, and whether it is independent. The authors observe that ‘The application of these criteria has not always been straightforward’.
143.
Opinion 2/13, ECLI:EU:C:2014:2454, paras 174–176.
144.
Subsequently, in December 2020, in Joined Cases C-354/20 PPU L and C-412/20 PPU P ECLI:EU:C:2020:1033, 44 one of the Court’s arguments in support of its conclusion that the status of ‘issuing judicial authority’ cannot be denied to all courts in Member States where there are alleged to be deficiencies concerning the independence of the judiciary was that this would mean such courts could ‘no longer be regarded as a ‘court or tribunal’ for the purposes of the application of other provisions of EU law, in particular Article 267 TFEU’.
145.
Case 268/17 AY ECLI:EU:C:2018:602
146.
Ibid, paras 28–29.
147.
Opinion JR & YC (n 76), para 51, fns 25 & 26.
148.
Joined Cases C-74/95 and C-129/95, Criminal proceedings against X ECLI:EU:C:1996:491.
149.
Ibid, para 18.
150.
Ibid, para 19. The Court had however in Case 14/86 Pretore di Salò ECLI:EU:C:1987:275 accepted a preliminary reference from an Italian pretore, which is a judge carrying out functions of both a public prosecutor and an examining magistrate (see Rafał Mańko, ‘Preliminary Reference Procedure’ (EPRS Briefing, July 2017).
151.
Case C-503/15 Panicello ECLI:EU:C:2017:126.
152.
There is extensive commentary on this topic including Nils Wahl and Luca Prete ‘The Gatekeepers of Article 267 TFEU: On Jurisdiction and Admissibility of References for Preliminary Rulings’ (2018) 55 Common Market Law Review.
153.
Ibid 526–528.
154.
Roeben (n 122) 44.
155.
See Matteo Bonelli and Monica Claes ‘Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary – ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses’ (2018) 14 European Constitutional Law Review 642–643. The authors reference the Court’s belief that Member States should not disempower national courts as underpinning its ruling in Case C-284/16 Achmea ECLI:EU:C:2018:158. In Achmea, the Court held that the possibility of submitting disputes to an arbitral tribunal that was not established in either of the Member States where the parties to the dispute were based was not compatible with Article 267 TFEU.
156.
Koen Lenaerts ‘The Court of Justice of the European Union as the guardian of the authority of EU law: A networking exercise’ in W. Heusel, J.-P. Rageade (eds.), The Authority of EU Law (Springer, 2019).
157.
See Bonelli and Claes (n 155) 638.
158.
In terms of the level of independence required by the issuing entity, the AG distinguished, between the issuing EAWs and other activities – such as collecting evidence and requesting reviews of detention. See Opinion OG & PI (n 36), paras 38–39.
159.
See Marek Safjan and Dominik Düsterhaus ‘A Union of Effective Judicial Protection: Addressing a Multi-Level Challenge through the Lens of Article 47 CFREU’ (2014) 33(1) Yearbook of European Law 4.
160.
See Article 2(c) Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ 2014, L 130/1 (EIO) and Judgment in Case C-584/19 Staatsanwaltschaft Wien ECLI:EU:C:2020:1002, where the Court concluded, following the Opinion of AG Campos Sánchez Bordona, that the criteria for the independence of the issuing judicial authority in the context of an EAW cannot be transferred to the EIO.
161.
See Böse (n 116) 1281.
162.
As Member States have outside the legislative framework in relation to the application of a proportionality assessment by the issuing judicial authority.