Dr. Agnieszka Frąckowiak-Adamska, Faculty of Law, University of Wroclaw
In the case of C-216/18 PPU LM, the Court of Justice of the European Union (CJEU) was asked by an Irish court to consider a significant legal issue facing the EU: how restrictions on judicial independence in one member state impact other EU member states. A series of laws enacted in Poland from 2015 to 2018 has been widely criticized by numerous institutions, both within and outside Poland, for enabling legislative and executive branches to significantly interfere with the judicial process. These criticisms assert that these laws jeopardize judicial independence, a cornerstone of the rule of law (as stated by the Venice Commission). To safeguard the rule of law in Europe, the European Commission took the unprecedented step of activating the Article 7 TEU mechanism through a reasoned proposal. Simultaneously, two infringement proceedings based on Article 258 TFEU are underway against Poland, focusing on laws concerning the organization of ordinary courts (C-192/18) and the Supreme Court. The Polish Supreme Court has also requested a CJEU ruling on the latter issue.
Is the EU Involved in How Member States Structure Their Judiciary?
The reforms in Poland pose a problem for the EU because national courts are responsible for upholding European Union law and ensuring individuals’ rights are protected under that law (Opinion 1/09, § 68). If political influence seeps into judicial decisions, it could be used for protectionist measures rather than serving the interests of the EU’s internal market and its citizens. Furthermore, compromised judicial independence in one member state creates challenges for courts in other member states. This is because EU law mandates that courts recognize and enforce legal judgments from other member states. The question arises: should courts place trust in rulings from a state where the separation of powers is compromised?
This situation raises multiple questions. Member states have varying legal systems, approaches to protecting fundamental rights, judicial structures, and legal proceedings. These differences, viewed as diversity, haven’t prevented the EU from creating a European judicial area based on mutual trust and recognition of judgments. So, how do we define the boundaries of a state’s freedom to structure its judicial system? What distinguishes “reorganization” from a violation of the rule of law? Does the EU (and if so, which entity—the Council or the CJEU?) have the authority to make such a determination? And what consequences should follow if a breach of the rule of law is established?
These concerns are relevant to all 24 EU regulations that implement the mutual recognition of judgments. This includes 14 regulations on civil matters, 10 framework decisions, and two directives on criminal law cooperation. The LM case arose within the context of one of these instruments – the European Arrest Warrant (EAW) Framework Decision.
The LM Case and the Preliminary Ruling Request
In this Irish case, a Polish judicial authority issued an EAW for an individual facing drug-related charges. The defendant argued that due to the restructuring of the Polish judiciary, there was a risk of being denied justice if extradited to Poland. Consequently, the Irish court presented a preliminary question to the CJEU concerning the right to a fair trial. Given that Poland was already subject to a reasoned proposal by the Commission under Article 7(1) TEU (which, if approved by the Council, would have indicated a risk to the rule of law in Poland), the Irish court asked whether, given “compelling evidence of conditions in the issuing Member State that are at odds with the fundamental right to a fair trial because the justice system itself in the issuing Member State is no longer operating within the bounds of the rule of law,” it should “undertake any further, detailed, and specific evaluation of the risk of an unfair trial faced by the individual in question.” A similar two-pronged test (evaluating first, systemic deficiencies in the state, and second, the actual risk in a specific case) was established by the CJEU in the Aranyosi judgment, which also dealt with safeguarding fundamental rights, specifically regarding detention conditions, in the context of the mutual recognition of judgments.
In the LM case, the CJEU had three potential avenues for response. It could abstain from evaluating the impact of limitations on judicial independence within the EAW framework (aligning with Poland’s stance that only the Council, under Article 7 TEU, is authorized to do so). Alternatively, it could adopt the Aranyosi approach, employing the two-step test. Lastly, it could allow for the suspension of cooperation with a member state found to be in violation of its obligation to ensure the independence of its judiciary. This final option seemed even more plausible after the Court’s decision in the Associação Sindical dos Juízes Portugueses case. In paragraph 37 of that ruling, the CJEU stated that the obligation of judicial independence stems from EU law.
The LM Case Judgment
Possibly due to time pressures (given the urgent nature of the procedure) or a reluctance to be drawn into a political debate, the CJEU opted for the most straightforward path: applying the established Aranyosi framework to the case.
According to the July 25, 2018, judgment in the LM case, national courts are to apply both stages of the Aranyosi test if judicial independence in the issuing state is in question. If the executing court finds strong evidence of systemic or widespread deficiencies in this regard, it must proceed to the second step - an individual case assessment. The CJEU indicated that suspending the recognition mechanism is only permissible if a decision based on Art. 7 TEU has been made (LM §§ 71-73).
Prior to this ruling, even if a reasoned proposal was submitted for a member state under Article 7(1) TEU, the “executing judicial authority” could only refuse to execute the EAW if there were substantial reasons to believe that the individual would face a genuine risk of a violation of their fundamental right to a fair trial (§ 78 and 59). However, there’s a significant new element (from §§ 60 and 68 of LM) – the initiation of the Article 7 TEU procedure refutes the presumption of mutual trust. This necessitates an individual assessment whenever the subject of an EAW raises this issue.
In essence, the Court affirmed its jurisdiction to address judicial independence, but solely from the viewpoint of individual protection. It refrained from defining any systemic repercussions of undermining judicial independence on judicial cooperation. Judicial independence was thus framed as an element of the right to a fair trial as safeguarded by Article 47 of the Charter. The judgment was grounded in the interpretation of Article 1(3) of the EAW framework decision, which asserts that the decision doesn’t alter “the obligation to respect fundamental rights and legal principles as enshrined in Article 6” [TEU]. It’s noteworthy that the CJEU perceived a reference to Article 2 TEU (§ 45 of LM), outlining EU values enforced by the Article 7 process, in this provision despite Article 1(3) only referencing Article 6 TEU, which deals with mechanisms for protecting human rights within the EU legal framework.
The Court’s reasoning unfolds in three sections.
First (§§ 33-46), the CJEU reiterates the fundamental values and principles relevant to the case: Article 2 TEU, mutual trust, and the principles of mutual recognition. It reaffirms that executing an EAW is the norm, and refusal is only justified when specific grounds for refusal, as exhaustively outlined in the Framework Decision, are met. Furthermore, the executing judicial authority has the power to halt the surrender procedure under “exceptional circumstances” where limitations are imposed on the principles of mutual recognition and mutual trust.
The second section (§§ 47-59) sees the CJEU examining whether a potential violation of the fundamental right to an independent court justifies limiting mutual trust and allows the executing judicial authority to refuse to enforce an EAW. This underscores the significance of judicial independence as a component of the right to a fair trial and the rule of law. The Court reiterates its statements from Associação Sindical dos Juízes Portugueses, emphasizing that member states are obligated to ensure their courts, “within their judicial systems in areas covered by EU law,” fulfill the criteria for effective legal protection. Only if there’s a real risk of an individual’s fundamental right to an independent tribunal being violated, and consequently the essence of the right to a fair trial, can the executing judicial authority, as an exception, refuse to execute the EAW (§ 59).
For national courts and individuals, the most critical aspects of the judgment reside in paragraphs 60-78. These paragraphs offer guidance on the procedure to follow if a person targeted by an EAW argues that systemic or widespread deficiencies exist within the issuing state’s judicial independence. This procedure is not left to the discretion of the executing authority. In such situations, the executing authority is mandated to conduct a risk assessment for the specific case (§ 60). This assessment comprises two stages – a systemic assessment (§ 61-68) and a specific assessment (§ 69-78).
The executing authority conducts the first step (systemic assessment) using “objective, reliable, specific and current” information, adhering to the CJEU’s criteria for judicial independence, as detailed in §§ 62-67 of the LM case. If this assessment suggests a genuine risk of systemic or widespread deficiencies in judicial independence, the court is obligated to move on to the specific assessment. The executing authority does not need to conduct its assessment if the issuing state is subject to a reasoned proposal as per Article 7(1) TEU, and “the executing judicial authority believes, based on information such as the proposal, that there is evidence of systemic deficiencies, in light of those values, within the judiciary of that Member State” (§ 68). In this scenario, the executing authority should also proceed to the second step.
The second step, a specific assessment, aims to ascertain whether, under the specific circumstances of the case, there are solid grounds to believe that extraditing the requested individual to the issuing member state would expose them to a real risk of a violation of their fundamental right to a fair trial (§ 69-78). Initially, the court must determine “to what extent the systemic or generalized deficiencies are likely to impact the courts in that State responsible for the proceedings against the requested person” (§ 74). If the answer is affirmative, the court then evaluates whether a genuine risk exists of a breach of the individual’s right to an independent tribunal, factoring in their personal situation, the nature of the alleged offense, and the context surrounding the EAW.
This assessment can be conducted using the following (§§ 75-78): 1) specific concerns and information provided by the individual subject to the EAW; 2) any additional information obtained from the issuing judicial authority in response to a (mandatory) request from the executing authority; and 3) (optional) assistance from the central authority, or authorities, of the issuing Member State.
If the information gathered through these means does not alleviate the executing judicial authority’s concerns about the existence of a real risk for the individual, the executing judicial authority must refrain from enforcing the European Arrest Warrant (§ 78).
Evaluating the LM Judgment
It’s challenging to provide a definitive assessment of the LM judgment (see the discussion on Verfassungblog). Some commend the Luxembourg court for reaffirming its authority to address judicial independence and for its judicial carefulness. Conversely, others criticize it for not outlining systemic consequences for breaches of independence and for its definition of judicial independence, which some view as excessively detailed and detached from the ECHR’s interpretation.
It is evident that the LM judgment did not stop the Polish “reforms.” Rather, it provided grounds to challenge the presumption of mutual trust if a reasoned proposal is submitted for a Member State under Article 7(1) TEU. In such cases, an individual assessment becomes necessary whenever it’s invoked. However, this implies that executing authorities would need to undertake potentially sensitive investigations into the core issues of cases and the separation of powers in Poland. There is an argument to be made that this could contradict the principle of mutual trust among courts and might often prove practically impossible (a perspective explored in-depth here). It could be argued that the CJEU should have broadened its focus beyond individual protection to include the interests of other member states and the EU as a whole. In the LM case, the CJEU acted akin to the European Court of Human Rights, which is generally welcomed. However, this is not sufficient to effectively counter the erosion of the rule of law within Europe. Future cases, whether arising from the Article 258 TFEU infringement procedure or the preliminary ruling request from the Polish Supreme Court, might provide an opportunity for the CJEU to demonstrate its authority as a constitutional court for the EU.
Alternatively, the LM judgment can be interpreted as a significant advancement in case law concerning the safeguarding of fundamental rights within the framework of mutual recognition. The ruling addressed at least some questions arising from the Aranyosi decision. It is now established that a violation of not only Article 4 of the Charter (pertaining to freedom from torture and inhuman or degrading treatment, in the context of detention) but also the essence of Article 47 (which is always relevant when judicial independence is curtailed) can justify non-enforcement of an EAW. However, it remains unclear whether an EAW should also be refused in cases where there’s a risk of other fundamental rights being infringed upon, such as the right to private and family life. The comprehensive analysis of whether the right to a fair trial can restrict the execution of an EAW (§§ 47-59) suggests that it’s uncertain whether every right protected under the Charter carries this weight.
Additional aspects requiring clarification in the future include the precise meaning of “refraining from giving effect to the EAW” and whether systemic deficiencies are a prerequisite for applying the individual assessment. Both Aranyosi and LM cases deal with systemic deficiencies, yet they conclude that the individual risk test is always necessary. Developments in case law concerning another aspect of the Area of Freedom, Security and Justice – the common European asylum system – demonstrate that transferring an asylum seeker to another Member State should be refused if there’s a risk of inhuman or degrading treatment, even in the absence of systemic deficiencies (case C-578/16 PPU, C.K., discussed here). The question remains whether this principle will be applied to EAWs and other fundamental rights.
The final point is that refusing to execute EAWs solely based on individual assessments cannot solve the fundamental issues surrounding fundamental rights and judicial independence. This frequently leads to impunity for the requested individual, carrying significant consequences for others (such as victims) and the public interest. Additionally, this approach only partially protects individual fundamental rights. The concurrent judgment in Case C-220/18 PPU ML underscores this conclusion by limiting the scope of the Aranyosi assessment of detention conditions in the issuing member state to only the initial prisons where the individual would be held immediately after being surrendered. The CJEU acknowledged that, as individuals subject to an EAW can generally be detained in any prison within the issuing state’s territory, it’s usually impossible during the EAW execution stage to determine all potential detention facilities (§ 81 of ML). This realistically means that the individual is not fully safeguarded against inhuman treatment. This limitation is already apparent in the LM judgment, where the executing authority is instructed to ascertain the extent to which systemic or generalized deficiencies might impact the courts handling the requested person’s case (§ 74 of LM).
Non-execution of EAWs should be viewed as a red flag, signaling serious underlying issues that the EU must address. Here, a clear distinction exists between prison conditions and judicial independence. In instances of fundamental rights breaches (Aranyosi), the root cause was often a structural inability of some member states to provide adequate detention conditions in prisons. Improving these conditions is a protracted, expensive, and complex endeavor, one that the EU can only encourage and support. However, in the context of judicial independence in Poland, the heart of the matter lies in the governing party’s intent. Resolving this could be relatively swift and straightforward: withdraw the judicial reforms as recommended by the Venice Commission and the European Commission. Therefore, the EU’s (and it should) course of action is to establish unambiguous boundaries regarding the rule of law and the consequences of violating it. Had the EU taken a more decisive stance with Hungary, it is conceivable that the Polish government would have been deterred from pursuing a similar path.
Barnard & Peers: chapter 9, chapter 24
JHA4: chapter II:3
Photo credit: CNBC.com