The beginning of the end for Poland’s so-called “judicial reforms”? Some thoughts on the ECJ ruling in Commission v Poland (Independence of the Supreme Court case)

Laurent Pech, Professor of European Law, Middlesex University London

Sébastien Platon, Professor of Public Law, University of Bordeaux

Imagine a faraway land where a government and a parliament dominated by the same party decide to retroactively lower the retirement age of the judges working for the country’s supreme court. Imagine that this change is being presented as a “reform” (allegedly) needed to hold to account judges (allegedly) “shamefully involved” in the country’s previous communist regime which however ended about thirty years ago. Imagine that all of this done with authorities claiming “there is nothing going on in [the country] that contravenes the rule of law” as “judges should always be on the side of the state”.

Surely we cannot be talking about a country belonging to the EU. Sadly, you would be wrong to think so. Indeed, the retirement measure described above was at the heart of the infringement action initiated by the European Commission against Poland last July and which resulted, earlier this week, in the European Court of Justice’s first ruling on the compatibility with EU law of one of Poland’s so-called “judicial reforms”. 

This post will explain the extent to which the Court’s ruling may be considered a landmark one, and the Court’s main findings, before assessing the ruling’s immediate and potential impact.

1. A landmark ruling

For the very first time, the Court of Justice has found a national government to have failed to fulfil its obligations under the second paragraph of Article 19(1) TEU which provides that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” This is far however from the only “EU law first” one may “credit” to the current Polish authorities:

-          Poland was indeed the first ever EU Member State to be subject to the Commission’s Rule of Law Framework in January 2016;

-          The first EU Member State to be threatened with the payment a fine of at least €100,000 per day in November 2017 by the ECJ should it continue to ignore an interim order adopted by the same Court in July 2017;

-          The first EU Member State to be subject to Article 7(1) TEU proceedings in December 2017;

-          The first EU Member State to have seen its “judicial reforms” provisionally suspended by the ECJ via two interim orders adopted in October and December 2018.

It has now become the first EU Member State to have been found by the ECJ to have failed to fulfil its Treaty obligations by violating both the principles of the irremovability of judges and judicial independence.

As will be shown below, the Court has forcefully and compellingly rejected each one of claims made by the Polish government, including the most recurrent one whereby the Court of Justice would lack jurisdiction to review the multiple, never-ending changes made to the organisation of the Polish judiciary.

2. The Court’s findings

2.1 Organisation of the Polish national justice system as an allegedly exclusive competence immune to EU review

According to the Polish government, supported by the Hungarian government, the organisation of the national justice system constitutes a competence reserved exclusively to the Member States, which would imply that that EU institutions, including the Court of Justice, cannot examine Poland’s “judicial reforms” in light of EU law requirements.

The Court easily explains why this argument cannot survive any serious scrutiny and does so by initially and unusually reminding the Polish government that “as is apparent from Article 49 TEU, which provides the possibility for any European State to apply to become a member” of the EU, Poland “freely and voluntarily committed” itself to respecting and promoting “the common values referred to in Article 2 TEU”, including the rule of law (§ 42). Furthermore, while the Court agrees that “the organisation of justice in the Member States falls within the competence of those Member States”, this obviously cannot be construed as a carte blanche to violate its EU law obligations, not to mention the fact that requiring Poland to comply with its EU law obligations is not akin in any way to exercising “that competence itself” (§ 52). This is merely a reminder of the longstanding difference between the applicability of EU law and the competence of the EU, which explains why EU law can apply in situations where the EU has no competence to legislate.

With respect to the Polish government’s argument that the EU principle of judicial independence can be applicable only in situations governed under EU law, the Court merely reiterates what it previously held in the Portuguese judges ruling. National authorities must respect the principle of judicial independence even in situations where national “judicial reforms” do not implement EU law. Article 19(1) TEU indeed covers any national court which may rule “on questions concerning the application or interpretation of EU law”, in which case any national measure affecting the independence of the said court falls within the fields covered by EU law.

In the present case, it was obvious that Article 19(1) TEU was applicable as it was common ground that Poland’s Supreme Court “may be called upon to rule on questions concerning the application or interpretation of EU law and that, as a ‘court or tribunal’, within the meaning of EU law, it comes within the Polish judicial system in the ‘fields covered by Union law’ … so that that court must meet the requirements of effective judicial protection” (§ 52). It follows that Polish authorities cannot adopt measures which undermine its independence without activating the application of EU law.

2.2 The lowering of retirement age as allegedly required to bring the Supreme Court’s retirement regime in line with the general retirement regime

According the Polish government, it follows from the Court’s own case law, that “that the Member States retain the option to adapt the employment conditions applicable to judges and, thus, their retirement age, in particular in order, as in the present case, to bring that retirement age into line with that provided for in the general retirement scheme, while improving the age structure of officers of the court concerned” (§ 67).

Anyone familiar with the situation in Poland would have immediately found this defence rather surprising. Indeed, the ruling party “has long rallied against what it calls a self-serving “caste” of judges who distort justice for ordinary citizens”. Furthermore, the Polish government’s own “White Paper” of March 2018 indicates that “the reform of judicial retirement age is justified with historical experiences of communism, the failure to account for the past for many years, and pathological [sic] mechanisms of the functioning of courts that have been perpetuated for years” (para 99).

Not unsurprisingly, the ECJ easily came to the conclusion that the forced early retirement of Supreme Court judges is not compatible with the principle of irremovabilily, which is a guarantee of independence. While phrasing this delicately, the Court all but explicitly states that the Polish government has deliberately sought to mislead it when it refers to the information contained in the “explanatory memorandum to the draft New Law on the Supreme Court” and on the basis of which one may have “serious doubts as to whether the reform of the retirement age” was not in fact made “with the aim of side-lining a certain group of judges of that court” (§ 82).

The Court could have stopped there but if only to make it clearer to any future government which might be tempted to follow a similar path, the Court proceeds to perform a proportionality test. In a few words, the Court sees no reason why, for the sake of standardising retirement age, the judges of the Supreme Court should be forced into retirement when all other workers have a right to retire (or not) before holding that the lowering of retirement age with immediate effect, without any transitional measure, is in any event disproportionate.

2.3 Discretionary prerogative granted to the Polish President as (allegedly) required to protect the judiciary

While possibly difficult to believe, the Polish government claimed that “the authorisation conferred on the President of the Republic to decide as to whether to allow” Supreme Court judges “to continue to carry out their duties once they have reached retirement age” constitutes a “prerogative, the specific purpose of which is to protect the judiciary both from interference by the legislative authority and from that by the executive authority” (§ 103).

In other words, it is suggested that the Polish President, itself part of the executive, is the best placed to protect the judiciary from interference by both the executive and legislative branches by deciding alone and in the absence of any substantive conditions, procedural rules and access to judicial review, when to authorise a Supreme Court judge not to be forcibly retired. This is by the way the same office holder who has deliberately ignored court orders, repeatedly attacked Polish judges while also questioning the independence of the Polish ECJ judge and the authority of the ECJ. Even Kafka could not have imagined something more Kafkaesque.

For the Court, the inescapable conclusion is that “by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age”, Poland has violated Article 19(1) TEU (§ 124). While explaining why this is so, the Court makes noteworthy observations in relation to the new “National Council of the Judiciary” (NCJ), arguably established in breach of the Polish Constitution and since suspended from the European Networks of Councils for the Judiciary (ENCJ) due to its lack of independence. In a nutshell, the Court explains that the prior involvement of the NCJ cannot “save” the presidential extension regime organised by the Law on the Supreme Court as the NCJ has proved unable to deliver properly reasoned opinions based on objective and relevant criteria to the President for the purposes of authorising Supreme Court judges to continue to carry out their duties.

3. Immediate and potential impact

In a strong editorial, the Financial Times described the Court’s ruling as a landmark one which “will help buttress the rule of law in the EU against authoritarian leaders who have been chipping away at democratic checks and balances with impunity”.

We agree with this assessment.

While the ruling addresses only one of the multiple serious rule of law problems identified by the European Commission in its Article 7 proposal, it does not merely fully confirm the accuracy of the Commission’s diagnosis in the present infringement action but also indirectly its general diagnosis regarding the growing systemic threat to the rule of law in Poland. This legal win is also bound to considerably strengthen the weight of the Commission’s arguments within the framework of ongoing Article 7 proceedings.

The Court’s ruling also establishes a solid de facto precedent with respect to any future attempt in Poland or elsewhere to take control of a court via a retroactive lowering of the retirement age of judges under false pretences. The ruling will similarly add to the growing body of evidence which shows repeated violations by the Polish government of the principle of loyal cooperation in its dealings with the Commission, the Council and now the ECJ.

The Court does not explicitly tackle the question of the NCJ, which was established in 2018 in open violation of what the Commission recommended. The ruling however makes it apparent that the consultation of the NCJ cannot be viewed as an effective safeguard to protect judicial independence. The Court will get a chance to make this crystal clear in Joined Cases C-585/18, C-624/18 and C-625/18. One may expect the Court to follow AG Tanchev and find the new NCJ as lacking the required independence from the legislative and executive authorities. The ramifications of such a finding would be extremely significant as it would essentially mean that every single decision made by the ENCJ-suspended NCJ would be have been made by a compromised body acting in breach of its mandate to safeguard the independence of courts and judges. The potential impact could be extremely significant especially as regards the Polish courts which include the “judges” nominated by the tainted NCJ and appointed by the Polish President.

With respect to the new disciplinary system, the Court could not have more clearly indicated that it shares the Commission’s concerns when it stated that its case-law requires that the rules governing the disciplinary regime “must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions” (§ 77). This is virtually the same phrasing used by the Commission when it announced the launch of its latest infringement action regarding Poland’s “reforms” on 3 April 2019. We understand this as an implicit encouragement for the Commission to promptly continue with its action. This means inter alia that it is only a matter of time before the so-called “Disciplinary Chamber” is found to violate the requirements of judicial independence required by EU Law. Again, the ramifications of such a finding would be extremely significant as all of the Disciplinary Chamber’s decisions to date would then have been made by a body masquerading as a court.

Notwithstanding the above, the direct practical consequences of the Court’s ruling will remain modest. Indeed, a significant number of Supreme Court judges had previously refused to subject themselves to the plainly unlawful retirement regime both as a matter of Polish constitutional law and EU law, with all relevant Supreme Court judges requested to return to work following the first interim order by the Chief Justice (the President of the Supreme Administrative Court (SAC) did the same in relation to the SAC judges who were forcibly retired as well). Furthermore, Polish authorities essentially conceded defeat after the final interim order adopted by the ECJ last December (while doing so it however sought to discreetly neutralise some pending preliminary ruling requests in order to prevent the ECJ from examining the NCJ and the Supreme Court’s Disciplinary Chamber in light of the EU requirements of judicial independence).

Most importantly, this ruling does not directly engage with one of the decisive issues raised by the Commission: the decision of the Polish President to increase the number of posts within the Supreme Court, which will eventually enable the ruling party to capture it. However, considering the arguably unlawful nature of the procedure having been used by the Polish President to appoint individuals to the Supreme Court, this issue should eventually reach the ECJ as it was the subject of the most recent preliminary ruling request adopted by a not yet captured chamber of Poland’s Supreme Court on 12 June 2019.

While not addressed by the Court’s ruling, it is to be hoped that within the framework of the infringement action regarding the Polish law on ordinary courts, the ECJ will tackle the forced retirement/dismissal of 61 ordinary court judges. In the absence of any pending actions raising this issue, the ECJ is unlikely to be able to address the dismissal of over 70 court presidents (and 70 vice‑presidents) which took place in 2017-18 on the back of a six-month transitional regime “which gave the Minister of Justice the power to arbitrarily dismiss them without any specific criteria, without justification and without judicial review”. Similarly, to the best of our knowledge, there is no legal action which would enable the ECJ to look into the “the very high number of dismissals and demotions among the Polish prosecutors”.

Lastly, one fundamental issue which is yet to reach the ECJ is the lack of effective constitutional review in Poland ever since the Constitutional Tribunal was unlawfully captured in December 2016, and whose independence and credibility, as recently noted by the Council of Europe Commissioner for Human Rights, “have been seriously compromised by the persisting controversy surrounding the election and the status of its new President and several of its new judges”. This is a key issue which is however bound to arise sooner or later especially if, on the back of successful electoral results, the current ruling party is unable to resit the temptation to further instrumentalise the captured “Constitutional Tribunal”, for instance to justify non-compliance refuse to comply with ECJ rulings on specious constitutional grounds. 

4. Key lesson

The key lesson we draw from this ruling is that any “dialogue” with authorities engaged in rule of law backsliding should be systematically accompanied with the launch of as many infringement actions as possible and as soon as possible.

In the present case, one may not forget how seemingly difficult some within the Commission found it to accept the need for prompt legal action in the first place. To justify legal inaction, we often heard the argument that Article 7 TEU should be considered a lex specialis and therefore exclude the launch of Article 258 infringement actions on issues already highlighted as problematic under any ongoing Article 7 procedure. As observed by AG Tanchev, Article 7 TEU And Article 258 TFEU must however be considered as separate yet complementary procedures which can be invoked in parallel.

To maximise the effectiveness of infringement actions and “prevent the completion of constitutional capture before any eventual ECJ ruling”, accelerated infringement actions ought to be the default position when a Member State openly violates the rule of law. The Commission ought to also systematically request the ECJ to decide these actions under an expedited procedure while also simultaneously request relevant interim measures so as to prevent authorities from changing the facts on the ground before the ECJ is able to issue final rulings.

What the Commission has done and achieved in the present case should be commended. It should also be “considered the new template to follow” whenever judicial independence of national courts is under threat due to autocratically-minded authorities.

Barnard & Peers: chapter 9, chapter 10

Photo credit: France 24

More majority voting on EU social policy? Assessing the Commission proposal

Ane Aranguiz, PhD Candidate, University of Antwerp

On 16 April 2019 the Commission launched the discussion on how to render decision-making process at EU level more efficient in the social field by activating the passerelle clauses and moving from unanimity to qualified majority voting (QMV) and from special to ordinary legislative procedure without undergoing an unwieldly process of Treaty reforms – although a unanimous vote of Member States is still necessary to approve this change.

The passerelle clauses are part of a number of ‘flexibility mechanisms’ introduced by the Lisbon Treaty that allow to simplify the decision-making process thereby enabling a more efficient exercise of EU competences where special legislative procedure and unanimity are maintained. The Lisbon Treaty provides for a general passerelle clause enshrined in Article 48(7) TEU that is applicable to all policy areas -with the exception of military or defence-related decisions-, as well as specific passerelle clauses that apply only in certain policy areas, namely, Article 32(3) TEU on Common Foreign and Security Policy, Article 82(3) TFEU on judicial cooperation in civil matters, Article 153(2) TFEU on social policy,  Article 192(2) TFEU on environmental policy and Article 312(2) TFEU on the Multiannual Financial Framework.

Background

This Communication is the last of a series of four aiming at reviewing the passerelle clauses provided for the EU Treaties as envisioned by President Juncker in his 2018 State of the Union address. In September 2018, the Commission presented the first proposal on common foreign and security policy, followed by a communication in January 2019 on taxation. In April 2019, the Commission presented the last two proposals first on energy and climate and later on social policy. (None of these proposals has been followed up by the Member States yet).

In social policy, most areas where the EU has competence to act are already subject to QMV and ordinary legislative procedure, which has allowed for an expansion of the social acquis at the EU level over the years. Yet, a reduced but significant number of areas of social policy still require unanimity among EU Member States and a special legislative procedure. These areas include measures relating to the protection against dismissal, social representation and defence of workers’ and employer’s interests, conditions of employment for third-country legal residents, non-discrimination (based on gender, racial or ethnic origin, religion or belief, disability, age, and sexual orientation) and social security and social protection for workers outside cross-border situations.

The specific passerelle clause under Article 153(2) would allow for the transition of the first three areas, whereas the general passerelle could further be applied to the latter two. Differences remain between the general and specific passerelle clauses regarding the procedural requirements for their activation. In order to activate the general clause, the European Council has to take the initiative and indicate the precise envisaged change in the decision-making procedure and notify national parliaments, which have up to six months to object to the proposal. After that, the European Council may, by unanimity and once consent by the European Parliament has been obtained, adopt the decision authorising the Council to act by QMV or enabling the adoption of the corresponding measures by ordinary legislative procedure. This procedure allows also for the half-way activation of the clause where they move from unanimity to QMV while maintaining the special legislative procedure. The activation of the specific passerelle clause, differently, is ‘only’ subject to unanimous agreement in the Council on the basis of a proposal by the Commission and after consultation with the Parliament.

According to the Commission, other than the fact that these policy areas might have major implications on the financial equilibrium of the national welfare systems, a limitation specifically provided for in Article 153(4)TFEU, there is seemingly no logical reasons that explain why these fields remain subject to unanimity and special legislative procedure. Consequently, in December 2018 the Commission presented its roadmap for the proposal for more efficient law-making in social policy and opened the feedback period that collected 27 opinions from different stakeholders.

The Communication

The Communication opens the debate on the enhanced use of QMV and ordinary legislative procedure with the aim of rendering the decision-making process more timely, flexible and efficient.

The Communication emphasizes that while the activation of the passerelle clause would change the decision-making method, it would not alter the overall EU legal framework and earmarked that EU measures are still subject to the principles of subsidiarity and proportionality, the limitations under the social policy title Article 153 TFEU regarding, inter alia, defining fundamental principles of social security or the specifically excluded areas of the right to association, the right to strike and the right to impose lockouts.

Further in the Communication, the Commission discusses the possibility of activating the passerelle clause in the five areas where unanimity and special legislative procedure is still required. Yet, the Commission concludes that only in two out of the five areas the activation of the would passerelle clause have an added value. Firstly, the Commission argues in favour of the use of the passerelle clause in the field of non-discrimination to facilitate equal protection against discrimination that guarantees an effective redress mechanism for all. Particularly, the Commission states that while there is certain level of protection for gender and racial discrimination in employment, equal treatment on the grounds of belief, disability, age and sexual orientation remains protected only in employment and occupation. The Commission considers necessary to address the inconsistent and incoherent EU legal framework where some individuals are better protected than others. (Note that a Commission proposal in this field from 2008 has not yet been agreed).

The Commission also sees suitable to activate the general passerelle clause with regard to social security and social protection of workers for the adoption of recommendations in the near future. The Commission here recalls the recently politically agreed recommendation on access to social protection for workers and the self-employed which is still pending for final adoption, and considers that a more effective decision-making process is desired to support the process of modernisation and convergence of national social protection systems.

Nevertheless, as for the other three fields where unanimity and special legislative procedure is required, namely, protection against dismissals, employment conditions of third-country nationals and the representation and collective defence of the interests of workers and employers, the Commission does not see fit to activate the passerelle clause due to either the limitations envisioned in the Treaty, the sufficiency of the existing legislation or the strong links and diversity between national social protection systems.

Commentary

The proposal put forward by the Commission should be given a cautious welcome. From a positive standpoint, the fact that most of social policy fields where the EU has competence require QMV and unanimity is required only in few domains leads to an uneven a fragmented development of the social acquis. Moving from unanimity to QMV in those limited areas allows for a swiftly and effective policy response in all areas of EU law and prevents one single Member State from vetoing social initiatives while still requiring a high degree of consensus. Secondly, transitioning to an ordinary legislative procedure allows for highlighting the role of the European Parliaments as a co-decision making. While the special legislative procedure relegates the role of the European Parliament to the subordinated position of a mere consultant, in ordinary legislative procedures the European Parliament becomes an equal to the Council and allows for a more democratic decision-making process where the direct beneficiaries are being represented. The activation of passerelle clauses in the social field would therefore not only avoid blockage by a single Member State, but also give the European Parliament a real co-legislator role. Considering the obstacles faced in the adoption of social policy legal instruments due to the lack of consensus in the Council, an active involvement of the usually more socially progressive European Parliament, is likely to free the decision-making process in social matters to a certain extent.

Yet, there are a number of points of concern. To begin with, the activation of the passerelle clause is only envisioned for two out of the five social policy areas that still require unanimity and the special legislative procedure. Moreover, these are the exact same two that cannot rely on the special passerelle clause under Article 153(2) but must be based on the general provision under Article 48(7) which, in turn, requires a much stricter procedural formula. On top of this, one of the two fields, namely social security and social protection of workers, is only contemplated with regard to the adoption of recommendations, thus disregarding the possibility to adopt binding instruments. This is particularly striking when considering the challenges faced recently by the Commission in the formulation of a measure for access to social protection of workers and self-employed, where the Commission inclined for a proposal for a recommendation due to the lack of political support to adopt a binding instrument by Member States.

The activation of the passerelle clause is clearly a positive development, yet, the fact that this is such a limited activation is highly regrettable. Continued fragmentation on social policy may moreover lead to the use of enhanced cooperation, where Member States might separately agree on social policy instruments for higher protection of their citizens. Yet, this will unquestionably result in a two-speed Europe between those Members within and out the enhanced cooperation framework.

The dynamism of the Commission in the context of the European Pillar of Social Rights provides the perfect platform to keep adapting, updating and adopting new social legislation at the EU level thus aligning EU law with the social priorities identified by Juncker’s Commission. If, and this is a big if, the discussion opened by the Commission leads to activating the passerelle clause (even if only limitedly), it will in all likelihood lead to new proposals by the Commission tackling non-discrimination in a more comprehensive manner that could be adopted in a more efficient manner. However, this will fundamentally depend on whether or not the next Commission resumes the enthusiastic social activism of the Juncker delegation.

Yet, if the Pillar is indeed the last chance for social Europe that many have claimed, this initiative represents a missed opportunity to render effectiveness in the decision-making process in social policy by closing the door to facilitating measures tackling clear gaps on the current EU legislation, most clearly with regard to protection against dismissals. It is equally regrettable the choice to limit the use of the passerelle clause to adopt a binding unified response to the inadequacies of our current social protection systems. In times of increased Euroscepticism and rising non-standard forms of employment, providing a response to concrete needs of citizens remains an imperative for future-proving the EU, therefore, it is in the best interest of the same to remove any obstructions of the use of Union competences that allow to move closer to an actual social market economy. At the very least, this initiative embodies the intention to partially unclog the ‘way’ when there is certain degree of ‘will’.

Barnard & Peers: chapter 20

Photo credit: The Independent

EU General Court rules Adidas’ three-stripe trade mark invalid

Alexandros Antoniou, University of Essex, School of Law - a.antoniou@essex.ac.uk

On 19 June 2019, the EU General Court (GC) ruled that the three-stripe EU trade mark (EUTM) owned by Adidas was invalid. It upheld the earlier decision of the EU Intellectual Property Office’s (EUIPO) Second Board of Appeal, which had found that the trade mark at issue was ‘extremely simple’ and devoid of any distinctive character, both inherent and acquired through use.

Background

The trade mark in dispute was originally registered on 21 May 2014. It covered clothing, footwear and headgear (class 25 of the Nice Classification system) and was identified as a figurative mark, i.e. a trade mark where non-standard characters, stylisation or layout, or a graphic feature or a colour are used. It corresponded to the following description and is reproduced below: ‘The mark consists of three parallel equidistant stripes of equal width applied to the product in whichever direction’.

   

In December 2014, a Belgian company named Shoe Branding Europe BVBA filed an application for declaration of invalidity of this mark pursuant to what is now known as Article 59(1)(a) of EUTM Regulation 2017/1001 (absolute grounds for invalidity) in conjunction with Article 7(1)(b) of the same (absolute grounds for refusal). In June 2016, the Cancellation Division of the EUIPO granted the application on the grounds that the mark inherently lacked distinctive character.

Adidas challenged the decision in August of the same year, claiming that, although their EUTM was devoid of inherent distinctiveness, it had nevertheless acquired a distinctive character in relation to the goods for which it was registered in consequence of the use made of it throughout the EU after registration in accordance with Articles 7(3) and 59(2) of the Regulation. After the Second Board of Appeal confirmed the Cancellation Division’s assessment in March 2017, Adidas brought the matter before the GC.

In support of its action, the Germany-based company put forward a single plea in law, which consisted of two parts: first, that the Board of Appeal wrongly dismissed several items of evidence with the justification that they related to signs ‘other than the mark at issue’; and second, that the Board of Appeal erred in holding that it was not established that the mark had acquired distinctive character following its use within the EU.

Unjustified dismissal of some of the evidence

In relation to the first part of its plea, Adidas submitted that the Board had misinterpreted the mark in question and misapplied the ‘law of permissible variations’. Specifically, the applicant argued that the Board should not have assumed that the mark was only claimed in specific dimensions, i.e. that it was represented by three vertical, parallel black stripes of equal thickness against a white background with a ratio of approximately 5:1 between the total height and width of the mark. Instead, Adidas claimed, the Board should have treated the mark as a ‘surface pattern’ the proportions of which were not fixed, i.e. that the mark was constituted of three parallel equidistant stripes that could be extended in length or cut in different ways, including cut at a slanted angle, depending on the goods on which it was applied.

The GC however rejected this claim, concluding that the mark in question could not be regarded as a pattern mark and there were no indications that it should be intended as such. Adidas’ mark had been registered as a figurative mark. Neither its registered graphic representation nor its description made it clear that it consisted exclusively of a set of elements which were repeated regularly. Importantly, Adidas’ claim was not consistent with the graphic representation of their registered mark, characterised by a rectangular configuration which was created by three stripes being cut at a right angle and of a specific ratio of height to width. In addition, the description of the mark on the register did not state that the length of the stripes could be modified or cut in different ways. The Board of Appeal’s interpretation of the mark at issue as an ‘ordinary figurative mark’ was thus not erroneous. This conclusion could not be called into question by the ruling in Apple Inc v Deutsches Patent- und Markenamt [2014] EUECJ C-421/13, which established that a design may be registered as a trade mark without indicating the size and proportions of the object it represents. This cannot be taken to suggest, however, that a mark can be registered without defining the proportions of the sign itself.

Adidas was not justified in pleading an infringement of the ‘law of permissible variations’ either. This principle, which is rooted in Article 5C(2) of the Paris Convention for the Protection of Industrial Property, allows immaterial differences between the form of the mark as it was registered and the form in which it is used by the proprietor, so long as these differences do not affect the distinctive character of that mark. The applicant had produced evidence (mainly consisting of images from catalogues and promotional materials, showing goods bearing various of their marks) which, in their opinion, related to forms of use of their three-stripe mark that did not alter the distinctive character of that mark as registered.

Confirming the Cancellation Division’s assessment, the Board of Appeal had found that the ‘vast majority’ of the evidence produced related to signs other than the mark in dispute itself. The following examples of evidence, in particular, failed to show, according to the Board, genuine use of the mark:

The GC found that the Board was entitled to dismiss this evidence for several reasons: first, the ‘extremely simple character’ of the mark – which was not disputed by the applicant – meant that minor alterations to the mark could amount to significant changes. As such, its amended form may not be regarded as broadly equivalent to its registered one. The GC emphasised that ‘the simpler the mark, the less likely it is to have a distinctive character and the more likely it is for an alteration to that mark to affect one of its essential characteristics and the perception of that mark by the relevant public’.

Second, the evidence did not show the mark at issue, but ‘other signs’ consisting of three light stripes against a dark background. The act of reversing the colour scheme, namely showing white stripes against a black background, did not conform with the initial contrast between the three black stripes against the white background, including the white spaces separating those stripes. In light of the extreme simplicity of the mark in question, the failure to respect this specific contrast resulted in a significant variation of the registered form of the mark, despite the fact that the sharp contrast between the three stripes and the background was preserved.

Third, the first nine images produced by Adidas showed signs which had only two – not three – parallel black stripes contrasting with a white background. Even if these images could be taken to show signs consisting of three white (or light) stripes against a black (or dark) background, they nevertheless presented the mark in dispute in forms where the original colour scheme was inverted. As such, they had to be dismissed for the reasons presented in the previous paragraph.

Fourth, the use of sloping stripes on the clothing of the athlete in motion shown in the tenth image above was found to have affected the distinctive character of the mark. This was not only because of the reversed colour scheme, but also because it did not meet the dimensions of the mark as registered with its vertical and parallel stripes. The applicant’s argument that their direction depended on the athlete’s movement and the way the items were folded or displayed did not seem to persuade the Court.

As regards the remaining images produced in evidence, the photographs of footwear broadly suffered the same disadvantage in that the modification to the thickness and length of the stripes, as well as their cut at a slanted angle, noticeably affected several characteristics of the mark and as such related to forms of use that differed from the form in which the mark had been registered. Finally, Adidas acknowledged at the hearing the irrelevance of the last four images showing more complex signs. Overall, the GC, siding with the Board, concluded that the signs appearing in most of the images submitted by the applicant were rightly dismissed, as they ‘differed significantly’ from the registered form of the three-stripe mark. Consequently, there was no violation of the law of permissible variations.

Assessment concerning the acquisition of distinctive character through use

The second part of Adidas’ plea was that the Board erroneously found that the applicant had failed to show that the mark in question had acquired distinctive character in consequence of the use that had been made of it within the EU. The evidence adduced by Adidas included: images (discussed in the examination of the first part of the plea above); figures concerning its turnover as well as figures showing the amount invested in promoting the mark; and market surveys.

However, the relevance of these items was questioned by the GC. It followed from the assessment of the first part of the plea that the applicant could not rely on all the evidence demonstrating a mark consisting of three parallel equidistant stripes. The GC observed from the very start that:

the relevant evidence is only that which shows the mark at issue in its registered form or, failing that, in forms which are broadly equivalent, which excludes forms of use where the colour scheme is reversed, or which fail to respect the other essential characteristics of the mark at issue.

Before reviewing the evidence submitted by Adidas, the Court also recalled well-established principles regarding acquired distinctiveness. It follows from the unitary character of the EUTM (i.e. the EUTM extends to the territory in which the EU Treaties apply and has an equal effect throughout the EU, including uniform protection, invalidity, revocation and transfers of ownership), that in order to be accepted for registration, a sign must have distinctiveness (inherent or acquired through use) throughout the EU. It is not necessary that separate proof is submitted in respect of each and every Member State. It is sufficient that the evidence submitted is capable of establishing the acquisition of distinctive character throughout the Member States of the EU. Acquired distinctiveness may be extrapolated from evidence of use in one country to another in certain, yet limited circumstances, e.g. where there is a certain degree of geographical, cultural or linguistic degree of proximity.

In the present case, it was not disputed that the mark at issue was inherently devoid of distinctive character throughout the whole of the EU and as such the Board of Appeal had rightfully examined whether the mark had acquired distinctiveness for the relevant public throughout the territory of the EU. The only evidence which was material to some extent were five market surveys carried out from 2009 to 2011 in Estonia, France, Germany, Romania and Spain. These related to the use of the mark in its registered form and measured the perception of that mark by the relevant public but covered only part of the EU and their results were not representative of the entire EU territory.

As far as the images are concerned, the GC did not seem to be moved by the nearly 12,000 pages of evidence produced during the proceedings before the EUIPO. In the Court’s view, Adidas failed to identify images which could establish use of the mark in its registered form or in forms which could be deemed broadly the same. The first three images above showing the three-stripe mark affixed to sports bags were not considered relevant, because such items were not covered by the goods at issue (clothing, footwear and headgear). Moreover, other images that did correspond to the registered mark and were capable of establishing some use did not sufficiently indicate the scale and duration of that use or its impact on how the mark is perceived by the relevant public.

‘Impressive figures’ concerning Adidas’ turnover, the amount of marketing and advertising costs and its sponsorship activities in relation to sporting events showed the ‘considerable investment’ made by the applicant in promoting its marks in an intensive and continuous manner within the EU. Nevertheless, these figures concerned the applicant’s ‘entire business […], all of the goods and all of the marks taken together’, including the promotion of irrelevant products such as sporting bags and goods bearing only signs other than the three-stripe mark in dispute. Due to the lack of a demonstrable link between the figures provided and the mark at issue as well as between the figures and the goods in question, the GC concluded that it could not be established that the mark had been used and had acquired distinctiveness as a result of the use made of it.

The GC concluded that under these circumstances:

[…] the various items of evidence adduced by the applicant, even taken as a whole: (i) do not prove use of the mark at issue throughout the territory of the European Union; and (ii) are not sufficient, in any event, to demonstrate that, by virtue of that use, the mark at issue has come, in the whole of that territory, to identify the goods for which it was registered, and thus to distinguish those goods from those of other undertakings.

On those grounds, the GC dismissed the action and ordered Adidas to pay its own costs as well as the costs incurred by the EUIPO.

Commentary

The following interesting points can be gleaned from the GC’s much-anticipated judgment. Trade mark owners must ensure that their EUTMs are properly recorded and need to use them in commerce in the form that was originally registered or in a form that can be deemed broadly equivalent to the essential characteristics of its registered form. The mark itself must be identified in a way that accurately determines the scope of the protection afforded to its proprietor. The EUIPO cannot consider characteristics of the mark applied for that are not clearly set out in the application for registration or the accompanying documents. It is also evident from this case that the GC is likely to strictly adhere to the specific dimensions, proportions and overall configuration of the submitted mark. As the Court highlighted, ‘it is for the trade mark applicant to file a graphic representation of the mark corresponding precisely to the subject matter of the protection [they] wish to secure. Once a trade mark is registered, the proprietor is not entitled to a broader protection than that afforded by that graphic representation’. The salience of filing marks correctly becomes even more pronounced in light of the acceptance of new types of marks (e.g. multimedia marks or hologram marks) by the EUIPO as and from 1 October 2017, following the key changes brought by the new EUTM Directive 2015/2436.

Care also needs to be taken with the quality and rigour of the evidence that may need to be preserved, gathered and submitted in order to establish that a mark has acquired the necessary level of distinctiveness across the entirety of the EU. In the present case, the GC challenged the multiple forms of the three-stripe mark which it found inconsistent with the mark’s essential characteristics, despite its comparatively high degree of recognition and regardless of whether its variations might be perceived by the relevant public to be corresponding to the proprietor’s goods or services.

Furthermore, the protection afforded by the law of permissible variations is not boundless and it is uncertain which forms of a mark do not alter the distinctive character of that mark as registered. A question may arise, for example, in cases where use in various colours has been made of a mark, the original representation of which is colourless on the register. Provided that the mark is still visible, it is not entirely clear when such use would affect the distinctive character of the mark in the form under which it was registered. So far as figurative marks are concerned, a different graphical representation is unlikely to diminish the protection granted to the mark, as long as it can reasonably be regarded as another form of the same subject-matter.

Finally, it cannot plausibly be maintained that the GC’s judgment sounds the death knell for all of Adidas’ marks featuring the three-stripe logo. The German corporation owns several other similar marks, like this and this, which remain valid. The impact of the present ruling is limited to the specific execution of the three-stripe mark shown earlier. It is nevertheless a disappointing for them outcome, which might be appealed to the Court of Justice of the EU.

Photo credit: Amazon.co.uk

Unfinished Business: The European Parliament in the negotiations for reform of the Common European Asylum System

Salvo Nicolosi (RENFORCE - Utrecht Centre for Regulation and Enforcement in Europe)

While a new European Union legislature is about to start on 2 July 2019, it is not certain to what extent the new European Parliament will inherit and continue the work of the previous one in one of the most delicate areas under reform, such as the Common European Asylum System (CEAS). The whole reform package has been put into “unfinished business,” according to rule 229 of the Rules of Procedures of the European Parliament. This means that at the end of the legislature all dossiers that have not been voted at the plenary shall be deemed to have lapsed. While arguing that, despite some points of concerns, the European Parliament made a significant contribution especially as regards the reform of the Dublin Regulation and that departing from such a position will be a misstep for the new European Parliament, the evolving role of the European Parliament in the past and current negotiations for the CEAS will be considered.

The State of Play of the Negotiations

In an attempt to tackle the structural shortcomings of the CEAS, the European Commission adopted two packages of proposals for the future CEAS regulatory framework (Nicolosi, 2019). A first package adopted on 4 May 2016 comprises the proposals to recast the Dublin Regulation (COM/2016/270), Eurodac Regulation (COM/2016/272) and a proposal aimed at establishing a EU Asylum Agency (EUAA) that will replace the current European Asylum Support Office (EASO) (COM /2016/271). A second package was adopted on 13 July 2016 and includes a proposal for a Regulation repealing the Qualification Directive (COM/2016/466), a proposal for a Regulation repealing the Procedure Directive (COM/2016/467), a proposal to recast the Reception Directive (COM/2016/465) and a proposal for a Regulation establishing a EU Resettlement Framework (COM/2016/468). Provisional compromises have been concluded between the Council’s Presidency and the European Parliament’s rapporteurs on five of the seven proposals but, at the end of the eighth legislature no progress was registered, and the reform is in a stalemate, especially owing to the difficulties to find an agreement on the reform of the Dublin Regulation. Nonetheless, while the Council has not yet managed to come up with a concerted approach, the European Parliament submitted “the boldest official proposal to amend the Dublin system to-date” (Maiani, 2017): the Wikström Report.

The European Parliament as a Forward-Looking Negotiator

Since the entry into force of the Lisbon treaty, the European Parliament has played a crucial role as a co-legislator in the area of asylum. Several authors have welcomed in general such an expansion of powers (Monar, 2011) for an institution that for many years during the European integration process has acted as a consultative body. While its contribution was rather limited to the adoption of the first generation of legislative measures in the field of asylum (1999-2005), which were adopted by unanimity by the Council on the basis of Article 63 of the Treaty on the European Community, the European Parliament distinguished itself as a strategic negotiator and forward-looking legislator during the reform that resulted in the second generation of EU asylum legislation (2008-2013).

In particular, before the end of the sixth term, in May 2009 the Parliament strategically decided to finalise its first reading position at the plenary to leave its imprint on the follow-up during the next legislative term. As has been highlighted (van de Peer, 2016: 57), it was rather exceptional to adopt first reading positions without trying to negotiate a first reading agreement with the Council, as it has been doing during the current phase of reform, in which the LIBE Committee has been seeking to pre-agree a text with the Council before formally adopting its first reading position at the plenary. Moreover, as regards the Dublin Regulation, the European Parliament had already called for a new legislative proposal to put in place by the end of 2011 to replace the provisions on the suspension of transfers proposed by the Commission (COM/2008/820, Art. 31) when  a  Member  State  was  faced  “with  a  particularly  urgent  situation  which  places  an  exceptionally heavy burden on its reception capacities” and suggesting the adoption of “legally binding  instruments to ensure greater solidarity  between Member  States” (EP-PE_TC1-COD(2008)0243, Recital 27), including a relocation mechanism for the benefit of Member States in situations of emergency (Ibid, Art. 32 (2) 11 b).

…Campaigning for Horizontal, Vertical and Reciprocal Solidarity

This emphasis on solidarity is even more visible in the amendments to the current European Commission’s proposal to recast the Dublin Regulation. Departing from the Commission’s proposal (COM/2016/270), which has designed a model of solidarity based on emergency-driven relocations, the Wikström Report deserves the credit of adding another dimension of solidarity to the horizontal and inter-State one, which has been under consideration and abundantly discussed (inter alia Tsourdi, 2017).

Such a new dimension of solidarity, which can be considered vertical, aims to turn the Dublin system into a model which is not only fair to the Member States but also to the asylum seekers. In an attempt to redesign the allocation criteria under the Dublin mechanism, the Wikström Report proposes a relocation mechanism that is supposed to work permanently with a focus on asylum seekers’ genuine links. These include family ties but also previous legal residence or educational diplomas.

Accordingly, the Member State of first arrival has the duty to register the applicants, filter out those representing a risk for security or whose application is manifestly unfounded and determine the transfer of the other applicants in line with any relevant genuine link. On the contrary, if no relevant link is available, applicants will be relocated though the automatic allocation mechanism to one of the four Member States which have received the lowest number of applicants in relation to their fair share. The fair share is calculated on the basis of the GDP and the population to ensure that larger and wealthier countries will have a larger share. For the first time applicants will be given the option to choose among the four less burdened Member States. Also, another example of vertical solidarity refers to the possible group transfer of a maximum of 30 applicants travelling together. As has been emphasised, “the logic of these amendments is to encourage persons to apply in the first State of arrival by offering the prospect of being transferred to a desirable destination” (Maiani, 2017). All transfers are to be operationalised by the future EU Asylum Agency within two weeks from the final transfer decision and the costs should be borne on the general budget of the EU.

Ultimately, in order to ensure reciprocal solidarity, instead of a solidarity fee, as proposed by the Commission, the European Parliament proposed that, if a Member State does not fulfil its obligations of registration or participation in the allocation mechanism, it shall not be permitted to use EU funds to finance the return of third-country nationals to third countries.

A too Ambitious Reform for a still Weak Legislator?

The European Parliament has admittedly distinguished itself as being “revolutionary” in suggesting for the first time the redesign of the Dublin Regulation’s criteria. The amendments contained in the Wikström Report constitute a valuable stepping stone from which the future negotiations can resume. On the basis of Rule 229, the new Parliament’s Conference of Presidents decides on whether to resume or continue the consideration of unfinished legislative proposals. While the practice shows that the European Parliament usually resumes the pending dossiers, the question still remains how effective it is as a co-legislator. The former negotiations for the CEAS show the political unwillingness of the Member States to overhaul the Dublin system. During the adoption of the second phase legislation, Member States were very reluctant in approaching the European Parliament as a co-legislator, especially as regards the reform of Dublin. Still, the current reform lays in stalemate, because all proposals to depart from the current system of responsibility allocation lack the necessary support and politically cannot reach consensus within the Council. This is also reflected in the dramatic emphasis on externalization (EUCO, 2018).

Two general recommendations can be therefore sketched for the future European Parliament. First, the Wikström Report is a valuable stepping stone for the next round of negotiations, but improvements are necessary because, as has been stressed, it designs a system which is far from being practically feasible (Maiani, 2017). This is in particular due to the fact that the permanent relocation will determine a massive number of transfers with the risk that a misfunctioning in their smooth operationalisation can create undesirable deadlocks. It has been suggested renouncing this ambition of large-scale transfers and establishing responsibilities entirely on genuine links (Maiani, 2017). These are remarkable inputs, but perhaps, as a second recommendation, applicants’ choices can be better weighed with a more principled approach to the integration potential in the host society, especially in terms professional life and social inclusion. This means that transfers can be arranged based on the specific needs Member States might have in their labour market. All in all, what refugee law requires is empowerment: allowing refugees to start a new life in dignity.

Barnard & Peers: chapter 26

JHA4: chapter II:5

Photo credit: euractiv.com

CJEU: European Arrest Warrants and independence of public prosecutors

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

Introduction

The European Arrest Warrant, regularly presented as “the flagship” of EU criminal law, is in practice one of the most used mechanisms (if not the most used) of judicial cooperation in criminal matters. It consists of a simplified cross-border judicial surrender procedure for the purpose of prosecuting or executing a custodial sentence or detention order, thus replacing the traditional cooperation system involving political authorities from the Member States.

On 27 May 2019, the European Court of Justice (ECJ) provided further clarifications to the long-standing question regarding the definition of a « judicial authority » competent to issue an EAW, and ruled on the independence required to be regarded as such under EU law. It brought an answer to the doubt concerning the capacity of the Public Prosecutor’s Offices of the Member States to issue EAWs, a doubt raised notably by the opinion of Advocate General Campos Sánchez-Bordona in the Özçelik case in 2016 (C-453/16 PPU, para 45).

In two separate judgments, the Court distinguishes the German public prosecutor’s offices, which do not provide a sufficient guarantee of independence from the executive for the purpose of issuing a European Arrest Warrant (Joined Cases C-508/18 and C-82/19 PPU), from the Prosecutor General of Lithuania, which provides such a guarantee (Case C-509/18).

Legal question raised

The cases were brought before the ECJ by the Irish Courts after three defendants challenged the validity of the EAWs issued against them. They argued that the Public Prosecutor’s offices in Germany (in Lübeck and in Zwickau) and the Lithuanian Prosecutor General cannot be regarded as a ‘judicial authority’ within the meaning of Article 6(1) of the EAW Framework Decision, in so far as they do not enjoy sufficient independence from the executive power.

After discussing the main issues raised in the Court’s judgments, this contribution will address briefly their consequences, in particular for the German State, and the EU area of Criminal Justice.

Summary of the Court’s reasoning

The Court starts its judgment by preliminary remarks emphasizing the crucial function of the principle of mutual recognition, on which is based the EAW. Considered as a ‘cornerstone’ of the Area of Freedom, Security and Justice (AFSJ), the principle of mutual recognition is itself grounded on mutual trust, which lies on the assumption that all the Member States comply with EU law, in particular with fundamental rights recognized by EU law. While stressing the fundamental importance of these two principles and their implications within the context of the execution of an EAW, the Court states 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”. In other words, since an EAW is a judicial decision, only EAWs validly issued by a judicial authority should be executed.

The Court then proceeds in two steps to determine whether the authorities at stake may be regarded as a ‘judicial authorities’ for the purpose of issuing an EAW.

A broad interpretation of the notion of ‘judicial authority’

The first step consists of clarifying the scope of the notion of ‘judicial authority’. In this respect, the Court has already ruled in a trilogy of cases in 2016 (discussed here) that issuing Member States do not have absolute discretion, as the term requires an autonomous and uniform interpretation throughout the European Union.

As the ECJ has already stated in the 2016 judgments in Poltorak (C-452/16 PPU, para 33) and Kovalkovas (C-477/16 PPU, para 34), the words “judicial authority” must not be interpreted strictly as referring only to the judges or courts of a Member State, but as encompassing more broadly “the authorities participating in the administration of criminal justice in that Member State”, such as Hungarian prosecutors (Özçelik Case C-453/16 PPU). This broad interpretation is supported by the rationale of the EAW which aims to facilitate free movement of judicial decisions, including those prior to judgment, in respect of the conduct of criminal proceedings.

In view of the functions performed by the prosecutors in these three cases, the Court considers that this criterion is easily fulfilled, as the authorities in question play an essential role in the conduct of criminal proceedings in their respective Member State.

A strict interpretation of the requirement of independence

What is more controversial is the second requirement that the issuing judicial authority must act independently from the executive power when issuing an EAW. Pursuant to the principle of separation of powers, this fundamental requirement aims to ensure that the rule of law prevails and that the fundamental rights of the person requested are protected effectively, in the absence of any political considerations. In the 2018 LM case (C-216/18 PPU), discussed here, the ECJ has already highlighted the importance of judicial independence within the context of EAW, this is particularly important insofar as such mechanism allows for deprivation of liberty of the person concerned.

Thus, the Court, relying on EU applicable protection standards, examines whether the authorities at issue are capable to afford a sufficient level of judicial protection in issuing a EAW.

In this respect, the Court recalls that the EAW mechanism is based on a dual level of protection of procedural rights and fundamental rights, referring to another 2016 judgment about the distinction between national arrest warrants and EAWs (Bob-Dogi C-241/15, para 56). It requires effective judicial protection of the right of the person concerned to be granted at the moment a national arrest warrant is made and at the stage when an EAW is issued. While it is the responsibility of the ‘issuing judicial authority’ to guarantee that second level of protection, the Court requires it to be able to exercise its responsibilities 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”. It logically follows that an organ from the executive cannot be designated as an issuing judicial authority (Kovalkovas C-477/16 PPU, para 48).

The Court proceeds to test those requirements against the situation of the German and Lithuanian public prosecutors’ offices. This stage marks the distinction between the two judgments. In the case of the two German EAWs (C-508/18 and C-82/19 PPU), German public prosecutors’ offices do not meet the requirement to act independently from the executive in issuing an EAW. This is part of the German prosecution hierarchical structure in which the Minister for Justice has an external power to issue instructions to the prosecuting authorities in question, which may have a direct bearing on a decision to issue an EAW. Despite the arguments put forward by the German government that such power of instruction is circumscribed by German law, these guarantees are considered insufficient by the Luxembourg Court. As a result of this strict interpretation, German public prosecutors will no longer be allowed to issue EAWs until a reform is made. In contrast, concerning the Lithuanian EAW case, the General Prosecutor of Lithuania is considered to offer sufficient guarantees of independence from the executive in carrying out his duties of issuing an EAW.

Commentary

With these judgments, the CJEU further develops its jurisprudence regarding the functioning of the EAW in an Area of Criminal Justice, in which mutual trust must not be confused with “blind” trust. As evidence by recent cases (LM C-216/18 PPU ; Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru, also discussed here and clarified by the 2018 judgment in ML), a more balanced approach between the fundamental rights of the person to be surrendered and the EU’s goal to guarantee free movement of judicial decisions seems to be taken by the Court, an orientation that appears to be confirmed by these cases.

Beyond the impact upon the individuals concerned by EAWs, the Court’s decisions are contributing significantly to clarifying the notion of “judicial authority” and to giving it an autonomous EU definition. Firstly, in line with its previous rulings, it confirms that this notion may extend beyond courts to include Public Prosecutor’s Offices, thus taking an opposite view from that expressed by the opinion of Advocate General Campos Sánchez-Bordona (joined cases OG C-508/18 and PI C-82/19 PPU, para 51). Secondly, in relation to EU fundamental rights protection standards, it clarifies the guarantees arising from the role of an “issuing judicial authority”, namely the requirement of independence.

Although this is a notable step towards effective judicial protection, it involves new issues to consider for the competent authorities of the Member States. It implies that executing authorities receiving EAWs will have to verify whether the issuing authorities qualify as independent judicial authorities, within the meaning of the ECJ case-law, prior deciding on the surrender of the requested person. The European Judicial Network (EJN) website has already made information available for this purpose based on answers provided by some EU Member States (Austria, Denmark, Germany, Italy, Sweden). As stated in a note issued by the German delegation concerning the consequences of the ECJ’s judgment, “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 consequences to be given to the lack of independence of prosecutors remain to be seen, the German delegation asked and suggested that the other Member States “decide, 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 cases, the German court responsible for issuing a European Arrest Warrant would be required to assess within a very short-time frame whether the requirements for issuing a warrant are fulfilled”. A first and second series of notes from other Member States have followed.

Thus, these judgments will have a crucial impact, not only in Germany, but also beyond, affecting the EU area of criminal justice as a whole.  It implies a need to evaluate and eventually reform the organization of the criminal justice system in certain Member States.

Barnard & Peers : chapter 26

JHA4 : chapter II :3

Photo credit : Qantara.de