Julia Burchett, PhD candidate at the Université libre de Bruxelles and the University of Grenoble

Introduction

Widely recognized as a cornerstone of EU criminal law, the European Arrest Warrant (EAW) stands out as one of the most, if not the most, utilized tools for judicial cooperation in criminal matters among EU member states. This streamlined cross-border surrender procedure, designed for prosecution or execution of custodial sentences and detention orders, has replaced traditional systems relying on political involvement from individual member states.

On May 27, 2019, the European Court of Justice (ECJ) provided significant clarification on a longstanding question: the definition of a “judicial authority” authorized to issue an EAW. Ruling on the level of independence required to qualify under EU law, the court addressed doubts surrounding the legitimacy of EAWs issued by Member State Public Prosecutor’s Offices. These concerns arose notably from Advocate General Campos Sánchez-Bordona’s opinion in the 2016 Özçelik case.

Through two separate judgments, the court differentiated between the German public prosecutor’s offices, which lack sufficient independence from executive influence to issue EAWs (Joined Cases C-508/18 and C-82/19 PPU), and the Prosecutor General of Lithuania, who maintains the necessary autonomy (Case C-509/18).

Legal Question Raised

The ECJ cases originated from challenges brought by three defendants before the Irish Courts contesting the legality of EAWs issued against them. They argued that the Public Prosecutor’s Offices in Lübeck and Zwickau, Germany, along with the Lithuanian Prosecutor General, did not satisfy the criteria of “judicial authority” as outlined in Article 6(1) of the EAW Framework Decision. This was based on their assertion that these entities lacked sufficient independence from executive power.

Following a discussion of the central issues addressed in the court’s judgments, this piece will briefly examine the implications, particularly for Germany and the EU’s framework for criminal justice.

Summary of the Court’s Reasoning

The court’s judgment commences by underscoring the vital role of mutual recognition, the principle underpinning the EAW, within the EU’s Area of Freedom, Security and Justice (AFSJ). Mutual recognition, in turn, relies on mutual trust, assuming all Member States adhere to EU law, especially fundamental rights. Emphasizing the critical nature of these principles within the EAW’s execution, the court posits that “the principle of mutual recognition proceeds from the assumption that only European arrest warrants, within the meaning of Article 1(1) of Framework Decision 2002/584 must be executed in accordance with the provisions of that decision.” This implies that only valid EAWs, issued by legitimate judicial authorities, should be enforced.

The court then establishes a two-step process to determine whether the authorities in question qualify as “judicial authorities” empowered to issue EAWs.

A Broad Interpretation of the Notion of “Judicial Authority”

The first step clarifies the definition of “judicial authority.” Building on a 2016 trilogy of cases, the court reiterates that issuing Member States lack absolute discretion, and the term demands a consistent and independent interpretation across the European Union.

Citing the 2016 Poltorak (C-452/16 PPU, para 33) and Kovalkovas (C-477/16 PPU, para 34) judgments, the ECJ emphasizes that “judicial authority” should not be narrowly interpreted as solely judges or courts but broadly encompass “the authorities participating in the administration of criminal justice in that Member State.” This includes entities such as Hungarian prosecutors (Özçelik Case C-453/16 PPU). This broad interpretation aligns with the EAW’s objective of facilitating seamless movement of judicial decisions, even pre-judgment, within criminal proceedings.

Given the functions performed by the prosecutors in these three cases, the court deems this criterion readily fulfilled, as the authorities involved play a fundamental role in conducting criminal proceedings in their respective Member States.

A Strict Interpretation of the Requirement of Independence

The second, more contentious requirement mandates that the issuing judicial authority operates independently from the executive branch when issuing an EAW. Rooted in the principle of separation of powers, this fundamental requirement safeguards the rule of law and effectively protects the rights of the requested individual, free from political considerations. The ECJ, in the 2018 LM case (C-216/18 PPU), underscored the importance of judicial independence within the EAW framework, particularly as it can lead to deprivation of liberty.

The court, invoking applicable EU protection standards, assesses whether the authorities in question can provide a sufficient level of judicial protection when issuing an EAW.

In this context, the court reiterates the EAW mechanism’s two-tiered protection of procedural and fundamental rights, referencing the 2016 Bob-Dogi (C-241/15, para 56) judgment distinguishing national arrest warrants from EAWs. This framework necessitates effective judicial protection of the concerned person’s rights during both national arrest warrant issuance and EAW issuance. While the “issuing judicial authority” bears the responsibility for this second layer of protection, the court demands its ability to execute duties objectively and independently. “That independence requires that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive”. Consequently, an organ of the executive branch cannot be designated as an issuing judicial authority (Kovalkovas C-477/16 PPU, para 48).

The court then applies these criteria to the German and Lithuanian public prosecutors’ offices. Here, the two judgments diverge. In the German EAW cases (C-508/18 and C-82/19 PPU), German public prosecutors’ offices fail to demonstrate the requisite independence from the executive. This stems from the hierarchical structure of German prosecution, where the Justice Minister retains the authority to issue instructions to prosecuting authorities, potentially directly influencing EAW decisions. Despite the German government’s arguments that German law limits this power, the ECJ deems such safeguards insufficient. This strict interpretation prevents German public prosecutors from issuing EAWs until reforms are implemented.

Conversely, the Lithuanian EAW case concludes that the Lithuanian Prosecutor General exhibits adequate independence from executive influence when fulfilling EAW issuance duties.

Commentary

These judgments represent a significant step in the ECJ’s evolving jurisprudence on the EAW’s operation within the Area of Criminal Justice, emphasizing that mutual trust should not equate to “blind” trust. Recent cases like LM (C-216/18 PPU) and Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru, further clarified by the 2018 ML judgment, suggest a more balanced approach by the court, weighing the fundamental rights of the individual facing surrender against the EU’s objective of ensuring seamless movement of judicial decisions.

Beyond impacting individuals subject to EAWs, these decisions significantly clarify the concept of “judicial authority,” shaping its autonomous EU definition. First, aligning with previous rulings, it confirms that this notion extends beyond courts to encompass Public Prosecutor’s Offices, contradicting Advocate General Campos Sánchez-Bordona’s opinion in the joined OG (C-508/18) and PI (C-82/19 PPU) cases. Second, concerning EU fundamental rights protection, it outlines the guarantees inherent in the role of an “issuing judicial authority,” particularly the independence requirement.

This constitutes a notable advancement in effective judicial protection, yet it presents new challenges for competent authorities in Member States. Executing authorities receiving EAWs must now verify, based on ECJ case law, whether issuing authorities qualify as independent judicial authorities before deciding on surrender requests. The European Judicial Network (EJN) website provides information based on responses from several EU Member States (Austria, Denmark, Germany, Italy, Sweden) in this regard.

A note issued by the German delegation, addressing the ECJ judgment’s ramifications, states that “Germany will adjust the proceedings to issue a European Arrest Warrant. From now on, European Arrest Warrants will only be issued by the courts. This can be achieved without changing the existing laws.” While the implications of prosecutorial independence remain to be seen, the German delegation proposed that other Member States consider “whether an existing European Arrest Warrant that has been issued and signed by a German prosecutor could be accepted as grounds for keeping a person in detention according to Article 12 of Council Framework Decision 2002/584/JHA.” In such instances, the responsible German court would need to promptly assess whether EAW issuance requirements are met. Other Member States have subsequently issued their own series of notes.

Therefore, these judgments will have significant repercussions beyond Germany, impacting the EU’s criminal justice landscape as a whole. This necessitates evaluating and potentially reforming criminal justice systems in certain Member States.

Barnard & Peers: chapter 26

JHA4: chapter II:3

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