‘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.