Thursday 20 June 2019

CJEU: European Arrest Warrants and independence of public prosecutors

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


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.


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
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