Mutual trust and independence of the judiciary after the CJEU judgment in LM – new era or business as usual?

Dr hab Agnieszka Frąckowiak-Adamska, Faculty of Law, University of Wroclaw

In case C-216/18 PPU LM the CJEU was asked by an Irish court to address one of the most serious current legal challenges of the EU: the consequences of restrictions imposed upon judicial independence in one Member State for other Member States of the Union. The sequence of laws adopted in 2015-2018 in Poland has been assessed commonly by various external and internal institutions as “enable(ing) the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice and thereby pos(ing) a grave threat to the judicial independence as a key element of the rule of law” (quotation from the Venice Commission). Consequently, to protect the rule of law in Europe, the European Commission submitted for the first time in the history a reasoned proposal activating the Article 7 TEU mechanism. Two infringement procedures based on Article 258 TFEU against Poland are also ongoing (on the law on the ordinary courts organisation - C-192/18 and on the law on the Supreme Court). The Supreme Court itself has also asked the CJEU to rule on the latter issue (see discussion here).

Is the organisation of the judiciary in Member States the EU’s business?

The Polish reforms are problematic for the EU because national courts are to ensure “the full application of European Union law (…) and (…)  judicial protection of an individual’s rights under that law” (Opinion 1/09, § 68). If politicians can influence courts’ decisions, they can use this leverage to pursue sheer protectionism, instead of advancing the interests linked to the EU internal market and citizenship. In addition, deficiencies of judicial independence in one Member State entail problems for the courts in other Member States, as the latter are obliged by EU law to recognize and enforce judicial decisions coming from other EU Member States. Should the courts trust the judgments from the State in which the division of powers is blurred?

Many questions arise in this context. Member States and their legal orders differ as to the substance and procedures, ways and level of protection of fundamental rights, court organisation and the expediency of proceedings. These differences are treated as diversity and have not prevented the EU from establishing the European area of justice based on mutual trust and mutual recognition of judgments. How to find the limits of States’ freedom to organise their judiciary? How to differentiate between a “reorganisation” and a breach of the rule of law? Is the EU (and if yes, who exactly – Council, CJEU?) legitimized to make such a decision? And what consequences should be drawn if a breach of the rule of law is established?

These issues can be important for all 24 EU acts introducing mutual recognition of judgments (14 regulations on civil cases and 10 framework decisions and 2 directives on criminal cooperation). The LM case arose in the context of one of them – the European Arrest Warrant (EAW) Framework Decision.

The preliminary reference in the LM case

In the Irish case, in which the EAW was issued by a Polish judicial authority against a person prosecuted for a drug related crime, the defendant argued that, due to the reforms of the Polish judiciary, there is a risk of denial of justice if he is transferred to Poland. Consequently, the Irish court premised its preliminary question to the CJEU on the right to fair trial. As at this time Poland was already subject to the stage of a reasoned proposal by the Commission as referred to in Article 7(1) TEU (which would, if adopted by the Council, have established a risk of a threat to the rule of law in Poland), the Irish court asked whether in case of “cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law” it should “make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial”. Such a two-prong test (first - “systemic deficiencies in the state”, and second – “actual risk in an individual case”) was established by the CJEU in the Aranyosi judgment (discussed here), which also related to the protection of fundamental rights in the context of mutual recognition of judgments, in the context of detention conditions.

In the LM case the CJEU could answer the question in three different ways. First, it could refrain from assessing the impact of the restrictions of judicial independence on the EAW mechanism (following Poland’s argument that only the Council is empowered to do so, on the basis of Article 7 TEU). Second, it could follow the Aranyosi pattern, ie the two-step test. As the last alternative, it could allow to suspend the cooperation with a Member State which breaches the obligation to ensure the independence of its courts. This last possibility could seem all the more likely path towards deciding the LM case after the Court issued its recent decision in the case of Associação Sindical dos Juízes Portugueses (discussed here), in para 37 of which it stated that the obligation of judicial independence stems from the EU law.

Judgment in the LM case 

Maybe because of time constraints (as the due urgent procedure applied) or maybe due to an unwillingness of the CJEU to become dragged down into a political brawl, the Luxembourg institution took the safest path of applying to the case the already existing pattern (Aranyosi).

According to the judgment of 25 July 2018 in the LM case, national courts should apply both steps of the Aranyosi test when judicial independence in the issuing country is endangered. If the executing court possesses a strong evidence of systemic or generalised deficiencies in this respect, it should proceed to the second step – of individual case assessment. The CJEU indicated that suspending the mechanism of recognition is possible only if the decision on the basis of Art. 7 TEU is taken (§§ 71 -73 of LM).

Until this moment even if a Member State is subject to a reasoned proposal, as referred to in Article 7(1) TEU, “the executing judicial authority must refrain from giving effect to the European arrest warrant” only if there are substantial grounds for believing that that person will run a real risk of a breach of the fundamental right to a fair trial (§ 78 and 59). However, there is one important novelty (stemming from §§ 60 and 68 of LM) - the fact of starting the Article 7 TEU procedure rebuts the presumption of mutual trust as the individual assessment is required in every case in which the person subject to EAW pleads it.

By the same token, the Court found itself competent to tackle the issue of judicial independence, but only from the perspective of the protection of an individual. It did not determine any systemic consequences of limiting the judicial independence for judicial cooperation. The issue of judicial independence was thus treated as a part of a right to a fair trial protected by Article 47 of the Charter. The answer was based on the interpretation of Article 1 (3) of the EAW framework decision, which states that this act shall not modify “the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6” [TEU] (nota bene interesting from the Freudian perspective is that the CJEU did see in this provision also the reference to Article 2 TEU (§ 45 of LM), which sets out the values of the EU enforced by the Article 7 process, even though Article 1(3) mentions only Article 6 TEU, which refers to the mechanisms for the protection of human rights within the EU legal system).

The reasoning of the court unfolds in three parts.

Firstly (§§ 33-46) the CJEU reminds of the fundamental values and principles which are at stake in the case – Article 2 TEU, mutual trust, and mutual recognition principles. Then it confirms that the execution of the EAW constitutes a rule and can be refused only when one of the grounds of refusal exhaustively listed by the Framework Decision materialises. Additionally, the executing judicial authority has the power to bring the surrender procedure to an end ‘in exceptional circumstances’, when limitations are placed on the principles of mutual recognition and mutual trust.

In the second part (§§ 47-59) the CJEU verifies whether a risk of a breach of the fundamental right to an independent court can justify a limitation of the mutual trust and permit the executing judicial authority to refrain from giving effect to an EAW. This highlights the importance of judicial independence as a part of a right to fair trial and the rule of law. It repeats the statements made by the Court in Associação Sindical dos Juízes Portugueses i.a. that it is an obligation of Member States to ensure that their courts which “come within its judicial system in the fields covered by EU law” meet the requirements of effective judicial protection. Only if there is a real risk that the person will suffer a breach of his fundamental right to an independent tribunal and, therefore of the essence of the right to a fair trial, can the executing judicial authority to refrain, by way of an exception, from giving effect to the EAW (§ 59).

For national courts and individuals the most important part of the judgment are paras 60-78, which instruct the former on how to proceed if the person in respect of whom an EAW has been issued pleads that there are systemic or generalized deficiencies in the independence of courts in the issuing state. The procedure is not left to the discretion of the executing authority. In such a case the executing authority is required to make an assessment of the risk in the individual case (§ 60). The assessment consists of two steps – a systemic assessment (§ 61-68) and a specific one (§ 69-78).

The first step (a systemic assessment) should be done by the executing authority on the basis of “objective, reliable, specific and properly updated” information and according to the criteria of judicial independence set out by the CJEU in §§ 62-67 of the LM case. If this assessment implies the conclusion that there is a real risk of systemic or generalised deficiencies of judicial independence there, the court is obliged to pass to a specific assessment. The executing authority does not have to make its own assessment if the issuing state is subject to reasoned proposal as referred to in Article 7(1) TEU, and “the executing judicial authority considers that it possesses, on the basis, in particular, of such a proposal, material showing that there are systemic deficiencies, in the light of those values, at the level of that Member State’s judiciary” (§ 68). In such a case also the executing authority should pass to the second step.

The second step (specific assessment) aims to verify whether in the particular circumstances of the case there are substantial grounds for believing that, following the surrender to the issuing Member State, the requested person will run a real risk of a breach of the fundamental right to a fair trial (§ 69-78). The court should verify firstly “to what extent the systemic or generalised deficiencies are liable to have an impact at the level of that State’s courts with jurisdiction over the proceedings to which the requested person will be subject” (§ 74). In case of a positive answer, it should assess whether there is a real risk of a breach of his fundamental right to an independent tribunal, having regard to his or her personal situation, the nature of the offence for which he or she is prosecuted and the factual context that forms the basis of the European Arrest Warrant.

It can perform this assessment on the basis of (§§ 75-78): 1) specific concerns expressed by the individual concerned and any information provided by him or her; 2) any supplementary information obtained from the issuing judicial authority in the answer to the (mandatory) request made by the executing authority’; and 3) (optional) assistance from the central authority or one of the central authorities of the issuing Member State.

If the information obtained in such a way by the executing judicial authority “does not lead the latter to discount the existence of a real risk (…) (for the individual concerned) “the executing judicial authority must refrain from giving effect to the European arrest warrant” (§ 78).

Assessment of the LM judgment

It is difficult to assess the LM judgment in an unequivocal way (see the debate on Verfassungblog). The Luxembourg court is praised by some for confirming its competence to tackle the issue of the independence of judiciary and for its judicial prudence. It is criticized by others for not setting systemic consequences of the breach of independence but also for a definition of judicial independence which is too detailed and disconnected from the ECHR’s.

Certainly, the LM judgment did not halt the Polish “reforms”. Instead it allowed to rebut the presumption of mutual trust if a Member State is subject to a reasoned proposal provided by Article 7(1) TEU. In such a case the individual assessment is required in every case in which it is pleaded. But it means that the executing authorities would have to make embarrassing investigations about the substantial issues of the cases and of the division of powers in Poland. In my opinion (developed here), it can contravene the spirit of mutual trust between the courts and often will be impossible in practice. Arguably the CJEU should have focussed not only on the protection of individuals but also on the interests of other States and the EU at large. In the LM case the CJEU acted like the Court of Human Rights which is always very welcome. But it is not enough to stand up against the destruction of the rule of law in Europe. Maybe in next cases – either based on the Article 258 TFEU infringement procedure or following the preliminary reference from the Polish Supreme Court it will show also its other face – this of a constitutional court of the EU.

But the LM judgment can also be seen as an important development of the case law related to the protection of fundamental rights in the context of mutual recognition. At least some questions arising after the Aranyosi decision have been answered. It is now clear that not only an infringement of Article 4 of the Charter (on freedom from torture or other inhuman or degrading treatment, in the context of detention conditions) but also of the essence of Article 47 (which is always at stake when the judicial independence is limited) can justify refraining from the execution of the EAW. However, it is to clarify whether the EAW should not be executed also in case of the risk of the breach of further fundamental rights e.g. a right to a private and family life. The detailed analysis on the issue whether the right to the fair trial is capable of limiting the execution of EAW (§§ 47-59) suggests that it is not certain that every right protected by the Charter can have this effect.

Other aspects to be clarified in the future are what “refraining from giving effect to the EAW” exactly means and whether the systemic deficiencies are a prerequisite to apply the individual test. The Aranyosi and LM cases are related to systemic deficiencies, but their conclusion is that what is always required to be performed is the individual risk test. The development of the case law on another aspect of the Area of Freedom, Security and Justice – the common European asylum system – shows that the transfer of an asylum seeker to another Member State should be refused if there is a risk of the person concerned suffering inhuman or degrading treatment even if there are no systemic deficiencies (case C-578/16 PPU, C.K., discussed here). The open question is whether the same pattern will apply to the EAW and to other fundamental rights.

My final point is that the non-execution of EAWs based on an individual test is not capable to resolve the essence of the problems with fundamental rights and judicial independence. It often results in an impunity for the requested person, which constitutes a severe consequence for others (victims) and for the public interest. Moreover, it can save fundamental rights of individuals partly only. The parallel judgment in Case C-220/18 PPU ML confirms this conclusion, as it limits the meaning of the Aranyosi assessment of detention conditions in the issuing Member State to the first prisons in which the person concerned will be held immediately after the surrender. The CJEU admitted that “since a person who is the subject of a European arrest warrant can, as a general rule, be detained in any prison in the territory of that State. It is generally not possible at the stage of executing a European arrest warrant to identify all the prisons in which such a person will actually be detained” (§ 81 of ML). In reality, therefore, the individual is not wholly protected against inhuman treatment. The same limitation is seen already in LM judgment according to which the executing authority should verify “to what extent the systemic or generalised deficiencies (..) are liable to have an impact at the level of that State’s courts with jurisdiction over the proceedings to which the requested person will be subject.” (§ 74 of LM).

The non-execution of EAWs should be treated as a signal of serious problems and the EU should reflect how to solve their sources. Here there is a clear difference between prison conditions and the independence of the judiciary. In the case of a breach of fundamental rights (Aranyosi) the reason laying at the heart of the breach was a serious structural incapacity of some Member States to ensure the proper standard of detention conditions in prisons. Improving this capacity is a long, costly and complicated process, which the EU could only stimulate and support. In the case of independence of judges in Poland the source of the problem is the will of the governing party. The problem could be very easily and quickly resolved by withdrawing the reforms related to courts, according to the recommendations of the Venice Commission/European Commission. The only thing that the EU can (and should) do is to set clear limits as to the rule of law and the consequences of trespassing them. If the EU had done it earlier addressing Hungary, the Polish government would not have dared to follow the Hungarian path.

Barnard & Peers: chapter 9, chapter 24

JHA4: chapter II:3

Photo credit: CNBC.com