Laure Baudrihaye-Gérard, Fair Trials 

The European Court of Justice (CJEU) has again clarified who can issue a European Arrest Warrant (EAW). This decision is significant for this key EU judicial cooperation tool, used countless times daily to extradite individuals between member states for investigations or to serve sentences.

Courts in Luxembourg and the Netherlands recently paused EAWs from prosecutors in Belgium, France, and Sweden to seek clarification from the CJEU. They questioned whether prosecutors met the definition of “judicial authorities” authorized to issue EAWs. This issue arose concerning EAWs for custodial sentences from Belgium (case C-627/19 PPU) and those for investigations from France (case C-625/19 PPU) and Sweden (joined cases C-566/19 and C-626/19 PPU).

These requests related to the CJEU’s May 27, 2019, judgments on German and Lithuanian prosecutors (cases C-508/18 and C-82/19 PPU), discussed further here. The CJEU had ruled that German prosecutors lacked sufficient independence from the executive to issue EAWs, unlike the Lithuanian Prosecutor General. This ruling meant only completely independent judicial authorities could issue EAWs. 

The CJEU confirmed the Belgian, French, and Swedish prosecutors were sufficiently independent from their respective executives to issue EAWs. They clarified the concept of an “issuing judicial authority” under the Framework Decision on EAWs and what constitutes effective legal protection for individuals subject to EAWs.

Issuing Judicial Authority: Two, Not Three, Conditions

While Member States can designate their “issuing judicial authorities” for EAWs based on the principle of procedural autonomy and Article 6 of the EAW Framework Decision, the CJEU stressed the need for a uniform and autonomous interpretation.

Public prosecutors qualify as an issuing judicial authority if they meet two conditions:

- First, they must administer or partake in administering justice. This includes those who prosecute suspected offenders in criminal proceedings.

- Second, they must operate independently, particularly from the executive branch. This independence must be enshrined in legal and organizational frameworks that prevent individual instructions from the executive (as was the case in Germany). This framework should also enable prosecutors to assess an EAW’s necessity and proportionality. Regarding the French prosecutor, the CJEU highlighted:

- While the Justice Minister can issue general criminal policy instructions to prosecutors, French law explicitly forbids individual instructions. General instructions are compatible with the EU’s “issuing judicial authority” definition as they cannot override a prosecutor’s assessment of an EAW’s proportionality.

- Prosecutors’ hierarchical structure (as in France) doesn’t negate their independence. The CJEU prioritizes shielding prosecutors from external (executive) influence, not internal instructions from superior prosecutors, which are necessary for the office’s functioning.

Importantly, the CJEU clarified that a procedure to challenge an EAW’s issuance isn’t a prerequisite for an authority to qualify as an “issuing judicial authority” under the EAW Framework Decision. Regarding Sweden and France, the CJEU stated that effective judicial protection is a separate matter related to the EAW issuance process, not a statutory or organizational rule governing prosecutors. The concept of “effective judicial protection” is further explored below.

The CJEU takes a formalistic approach to “independence” in these judgments. It assesses prosecutorial independence based on the national legal framework and deems it sufficient if laws and organizational rules formally prevent the government from issuing specific instructions to prosecutors. However, the CJEU does not delve into the practice or other potential avenues of executive influence over prosecutors. Furthermore, the assessment of prosecutorial independence is limited to EAW issuance decisions and not the broader exercise of prosecutorial powers, which falls outside EU law’s purview.

Notably, the CJEU’s reasoning in the French prosecutor case seems grounded in the inquisitorial tradition of criminal justice. This system presumes prosecutors are “impartial” and operate “objectively,” considering both incriminating and exculpatory evidence. This approach doesn’t reflect the systems in all EU Member States and contrasts with the trend towards greater defense lawyer involvement during investigations, a characteristic of accusatory systems. For instance, the European Investigation Order (EIO) Directive (Article 1(3)) allows the defense to request an EIO in cross-border investigations. The CJEU’s reliance on abstract concepts like “impartiality” and “objectivity” without addressing the evolution of inquisitorial systems and its impact on the prosecutor’s role makes the ruling somewhat artificial, requiring further refinement.

Effective Judicial Protection

The CJEU previously ruled (see judgments on German and Lithuanian prosecutors) that EAW subjects are entitled to two tiers of judicial protection for procedural safeguards and fundamental rights: (i) during the national arrest warrant issuance and (ii) concerning the EAW issuance, particularly its proportionality in each case.

The executing authority must verify that EAWs undergo prior judicial scrutiny, meaning a court or judge assessed the EAW’s proportionality and fulfillment of issuance conditions. Essentially, a non-judge prosecutor’s decision to issue an EAW must be subject to judicial proceedings that fully meet “effective judicial protection” requirements in the issuing Member State.

However, the CJEU allows Member States to determine how to provide such protection, which may vary based on their legal traditions. One option is an appeal procedure against EAW issuance. Still, the CJEU deemed the Belgian, French, and Swedish systems adequate:

- In Sweden, a court must order pre-trial detention before an EAW is issued. The CJEU considered this pre-detention hearing, where the EAW’s conditions and proportionality are reviewed, as sufficient judicial oversight. It also noted that challenging and successfully overturning the pre-trial detention order automatically invalidates the EAW, satisfying the “effective judicial protection” requirement even without a separate appeal against the prosecutor’s EAW issuance.

- In France, EAWs for investigations are only issued after a judge (usually an investigative judge) issues a national arrest warrant. Here, the CJEU observed that the judge issuing the national arrest warrant also requested the prosecutor to issue an EAW concurrently, thereby assessing the EAW’s proportionality and fulfillment of issuance conditions. This process, in the CJEU’s view, demonstrates that the EAW’s proportionality is assessed before or during its issuance, satisfying the “effective judicial protection” requirement. Additionally, the EAW can be challenged later for annulment.

- For EAWs for serving sentences, like in the Belgian case, the CJEU considered the court sentencing as inherently fulfilling the “effective judicial protection” requirement. They argued that the sentence itself overturns the presumption of innocence applicable during criminal proceedings. Therefore, the executing authority can presume that a sentence implies adherence to procedural rights in the issuing state, and the EAW’s proportionality is inherent in the Framework Decision’s requirement of a minimum four-month sentence for EAW eligibility.

The CJEU missed an opportunity to establish concrete standards for “effective judicial protection,” especially regarding how executing judicial authorities should oversee EAW proportionality. This approach disregards the extreme difficulty faced by individuals arrested and detained under an EAW in obtaining legal help to challenge the EAW in the issuing state before being extradited. Fair Trials has documented ongoing issues with the EAW system significantly impacting individuals’ lives and rights.

In the Swedish and French cases, the CJEU argued that other EU instruments further guarantee effective judicial protection, particularly the Access to a Lawyer Directive (2013/48/EU). This directive obligates the executing Member State to inform the arrested person about their right to counsel in the issuing Member State. While this is indeed an EU law requirement, the CJEU overlooks its ineffective implementation across the EU, undermining this “effective judicial protection.” New EU laws on suspects’ rights, though positive for national-level fair trial standards, haven’t been sufficient. The EAW’s problems extend beyond these rights, and implementation remains a challenge.

Fair Trials, through its Legal and Experts Advisory Panel (LEAP), observes the persistent lack of access to a lawyer in the issuing state for those arrested under EAWs. The European Commission, in its implementation report on the Access to a Lawyer Directive (September 26, 2019), acknowledges, “[t]he legislation in four Member States does not at all reflect the right of requested persons to appoint a lawyer in the issuing Member State. Some five Member States do not clearly ensure that requested persons receive information about this right without undue delay (Article 10(4) of the Directive). Moreover, the cooperation mechanism set out in Article 10(5) of the Directive is often not subject to specific rules. In seven Member States, the legislation lacks the requirement that the competent authority in the executing Member State promptly informs the competent authority in the issuing Member State in cases where requested persons who do not already have a lawyer in the issuing Member State wish to appoint one. Furthermore, the legislation in 10 Member States does not transpose the requirement for the competent authority of the issuing Member State to provide without undue delay the requested persons with information to help them appoint a lawyer there.”

While we appreciate the CJEU acknowledging the role of EU procedural rights directives (including the Access to a Lawyer Directive) in ensuring effective judicial protection for individuals subject to EAWs, the case law hasn’t adequately addressed the EAW’s shortcomings. The CJEU needs to actively champion the effective implementation of EU-mandated procedural safeguards for suspects and accused individuals. For further information on our efforts to promote and support the effective implementation of EU law, please refer to our materials available here: https://www.fairtrials.org/publication/eu-law-materials.

JHA4: chapter II:3

Barnard & Peers: chapter 25

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