‘The two-step can’t be the quick step’: The CJEU reaffirms its case law on the European Arrest Warrant and the rule of law backsliding

Despite frustration with Polish legislation increasingly threatening the independence of the Polish judiciary and the political stalemate to act effectively upon it under Article 7 TEU, the CJEU in L and P (Joined Cases C-354/20 PPU and C-412/20 PPU) does not appear to cave in to any pressure. This time  pressure came from the Rechtbank Amsterdam (the ‘Amsterdam Court’) having referred new preliminary references on the tenability of the CJEU’s existing strand of case law (in particular its LM ruling) whereby national courts as executing authorities must perform a ‘two-step test’ before declining to execute a European Arrest Warrant (‘EAW’) issued from within another Member State where the rule of law (especially the independence of the judiciary as protected by Articles 47 Charter and 19 (1) TEU) is under threat.

The two-step test for non-execution of an EAW

This two-pronged test consists of first establishing that there are systematic and generalized deficiencies in the state of the issuing authority as regards the independence of the judicature (step 1) and that there are good grounds to believe that the specific person that is subject to the EAW will indeed suffer a breach of the right to a fair trial, i.e. trial by an independent court of law (step 2). If both steps are completed, the executing authority may exceptionally refuse to surrender the individual under Article 1(3) of Framework Decision 584/2002 on the European Arrest Warrant (‘EAW FD’). This two-step test was first developed in the context of (appalling!) detention circumstances in the case of Aranyosi and Căldăraru (the risk of inhuman or degrading treatment in detention facilities), to be later expanded to the right to a fair trial in cases like LM. This complex two-step approach finds its justification in the sacrosanct duty of mutual recognition, which is the cornerstone of mutual cooperation in judicial matters in the EU. Consequently, the exceptions in the EAW FD (Articles 3 to 5 EAW FD) are considered a closed system. Article 1(3) EAW FD (the human rights provision) is formally no part of these exceptions, unless the Article 7 Procedure against a Member State has been successfully completed (Recital 10 EAW FD). Only if both conditions of the two-step test are met, can the executing court also resort to Article 1(3) EAW FD as a ground for the non-execution of an EAW.

That the first step is easily taken in the case of Poland is beyond discussion. It requires ‘objective, reliable, specific and properly updated evidence’ (Aranyosi and Căldăraru, para. 104) for which executing courts like the Amsterdam Court can draw from the Commission’s reasoned proposal under Article 7(1) TEU (establishing a ‘real risk’ of the breach of a right to a fair trial). Yet, the European Council has not acted upon Article 7(2) TEU (establishing that there is a ‘serious and persistent breach’), let alone Article 7(3) TEU, i.e. the follow-up decision of the Council to suspend certain rights of the Member State under the EAW FD (here in particular the right to expect courts in other Member States to execute EAWs promptly and, in principle, unconditionally) (LM, para. 72). In the context of this stalemate, the second, individualized step remains necessary under the LM strand of case law.

Can the ‘two-step’ be converted into the ‘quick step’?

As this case law now seems to have been firmly established one may wonder why the Amsterdam Court decided to test it once again. The explanation is the worsening of the rule of law situation in Poland in the post LM era, with a further increase of influence of the Polish Executive over Polish Courts (see the and various new cases started after LM concerning the rule of law in Poland like C-791/19, Commission v Poland (pending), C-791/19 R, C-192/18 Commission v Poland and Joined Cases C-585/18, C-624/18 and C-625/18, A.K.). Although in the current proceedings the Amsterdam Court had first asked additional information (a right it has under Article 15 of the EAW FD), it deemed the responses from the Polish authorities unsatisfactory (particularly on the role of the Polish Supreme Court).

In short, the Amsterdam Court argues the second step of the LM case law regarding the specifics of the individual concerned, might be abandoned in the light of such further deterioration of the rule of law in Poland since LM. The main argument is that if the general, systemic deficiencies have gotten to a stage where it becomes safe to assume no one will in fact receive a fair trial this second step would be pointless. That would be so for an EAW for prosecution purposes (which was the case with ‘L’ in C-354/20 PPU) but also in certain cases for an EAW for detention purposes (as is the case with ‘P’ in C-412/20 PPU), the latter a fortiori when it concerns a sentence pronounced by a Polish Court after the worsening of the rule of law since LM.

The status of ‘issuing authority’ under the EAW FD

As could have been predicted (see inter alia the Opinion of AG Campos Sánchez-Bordona), the CJEU is not persuaded. The ‘two-step test’ is not to be converted into the ‘quick step’. Yet, how convincing are the counter arguments used by the Court?

First of all, the CJEU denies the Amsterdam Court’s point that the systemic deficiencies could reach a point where one can no longer regard the Polish courts as ‘issuing authorities’ in the light of Article 6 (1) EAW FD in the first place. The Amsterdam Court was smart to phrase the issue in such terms in view of the likely opposition to abandoning the two-step approach established in LM (para 33 and 34) Taking this angle diverts the attention from the contentious rule of law issue (the focus of the previous cases concerning the situation with the Polish Judiciary) under Article 1(3) EAW FD and presents the problem as a ‘labelling’ issue (are Polish courts still ‘issuing authorities’ that may issue EAWs under Article 6(1) EAW FD?). Notwithstanding such ‘repackaging’ of the issue, the effect would of course be the same: if the situation in Poland is so bad that Polish courts should be denied their status of ‘issuing authorities’ under Article 6(1) EAW FD, the execution of EAWs from Poland should be denied (without any necessity of performing the LM two-step test).

This new angle finds its origin in another recent judgment, OG and PI, where the CJEU did in fact accept that German Public Prosecutor’s Offices were not deemed to be ‘issuing authorities’ under the EAW FD as they might (albeit very incidentally) receive instructions from the German executive. Thus, although the Member States are the ones allocating the status of ‘issuing authority’ (‘Each Member State shall inform the General secretariat of the Council of the Competent judicial Authority under its law’; Article 6(3) EAW FD), such status is nevertheless not an absolute prerogative of Member States but still under European scrutiny (OG and PI, para. 75). The consequence was that an EAW emanating from a German Public Prosecutor’s Office could not be executed in another Member State.

The Court, however, does not want to go down this path. It draws a line between systemic deficiencies regarding the rule of law and the ‘institutional framework adopted by that Member State by virtue of its procedural autonomy’ (L and P, para. 48). Although one can indeed see the difference between the Polish and the German situation, it is best to not overstress the principle of autonomy in this regard as being the distinguishing point (as that principle arguably also underlies the Polish judicial organization) but rather the fact that in Germany an EAW from a court (and not a Public Prosecutor’s Office) would still be executed as, in that case, independence is beyond question, contrary to EAWs from Polish courts. The practical result is that a two-step approach is today not necessary to deny executing an EAW from a German Public Prosecutor’s Office, whereas that remains required when a Polish Court is the ‘issuing authority’.

Connected to this is the highly interesting point made by the CJEU that abandoning the second, individualized step of LM may, as a consequence, result in denying Polish courts the status of ‘court’ in preliminary reference proceedings under Article 267 TFEU (P and L, para. 44). Indeed, independence of ‘courts’ is also a requirement under the so-called Dorsch Consult case law (inter alia C-54/96 The issue raised by the CJEU is a fair one as indeed this ultimate consequence may result in punishing Polish judges twice: their independence at home is jeopardized and thereby they might also loose any external support under the preliminary reference mechanism. This issue requires further thought on whether one might separate the issue of being an ‘issuing authority’ under Article 6(1) EAW FD from the general notion of being a ‘court’ under Article 267 TFEU and consequently still have the preliminary reference at its disposal. If indeed such a separation of judicial functions and contexts is impossible (which it arguably is), one cannot but agree to the CJEU’s argument.

The political process under Article 7 TEU cannot be circumvented…

Having decided the relevant provision is Article 1(3) EAW FD (and not Article 6(1)), the main point is whether the systemic deficiencies may reach a low point allowing the executing court to dispense with the second step of the LM case law. The thought is that this would justify a presumption that the person concerned will not face a fair trial anyway (or had not faced one, in case of an EAW for sentencing purposes). The CJEU however equates such presumption with the ‘de facto suspension’ of the EAW FD (L and P, para. 59) bypassing the political process prescribed by the procedure in Article 7 TEU.

Although certainly in line with the design of the EAW FD, this reasoning might stir up some skepticism. After all, such presumption of fundamental rights being under threat also plays in other contexts. It was not an issue in N. S. where in the context of the Dublin Regulation the presumption was allowed (in fact, it was even mandatory) to regard the situation in Greece as being so bad that people seeking international protection should not be brought under Greek jurisdiction even though under the ‘Dublin system’ it was the designated authority. No prior action by the EU political institutions needed here to lift the duty of mutual trust and subsequent mutual recognition (of other Member States’ asylum systems). That international protection seekers are in a different category altogether is thus clear once more. Categorically not transferring refugees to a specific Member State under ‘Dublin’ does not lead to the risk of impunity as would be the case with categorically not surrendering (suspected) criminals (L. and P., para. 64) to Poland under the EAW FD. Of course, these two contexts are different and indeed so are the sensitivities involved from the perspective of the Member States in default (Poland or Greece). Yet, if one looks at this contrast from the perspective of the individuals concerned, the more cynical conclusion may be that in EU criminal law crime fighting takes precedence over fundamental rights concerns, whereas in EU asylum law that balance plays out quite differently.

The timeline of the state of the rule of law in the issuing Member State

Lastly, the Court’s ruling also clarifies the different relevant points in time for assessing the state of the rule of law in a Member State. We learn that a distinction needs to be made between several situations: (1) With respect to EAWs for prosecution purposes, an appraisal of the situation is required up to the point of (not?) executing the EAW. (2) The same is true for an EAW for sentencing purposes if new court proceedings will ensue in the issuing state after surrender took place (on the execution of the sentence or if the person involved appeals the original sentence). (3) As regards EAWs for sentencing purposes, the point of reference to appraise the rule of law may also be earlier on the timeline, namely the moment where the judgment imposing the original sentence was rendered. In the last situation later improvements of the rule of law may thus be overshadowed by the earlier, worse, situation.

This further elaboration by the CJEU of the relevance of the different points in time of the state of the rule of law in an EU Member State is helpful in EAW cases like L and P. Yet at the same time it also shows that the, now firmly confirmed, two-step approach is even more complex than one might have thought.