The CJEU Gets Brexit Done: New Judgment on Extradition from Ireland to the UK after Brexit

 

 

Professor Steve Peers, University of Essex

 

The CJEU this week delivered its first judgment on the impact of Brexit (as far as the EU side is concerned) since the UK has left the EU – swiftly following last week’s Advocate General’s opinion (which I discussed here; I’ve adapted some of that blog post in this one) in response to fast tracked questions referred from the Irish Supreme Court (on appeal from the Irish High Court’s judgment).

 

Background

The Court’s judgment concerns extradition from Ireland to the UK under both the withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The former treaty provides that the internal EU legal framework for simplified extradition – the European Arrest Warrant (EAW) law – still applied between the UK and EU during the transition period set out in that agreement, which lasted from 1 February 2020 to the end of that year. (As an exception, three Member States refused to hand over their own citizens, but Ireland was not one of them). 

After that point, the separation provisions of the withdrawal agreement applied: the EAW law still applies if a fugitive was arrested on the basis of that law before the end of the transition period. If the EAW was issued before that date, but the fugitive was not arrested in time on the basis of the EAW law, the subsequent TCA provides that its extradition rules – which are similar, but not identical, to the EAW law – apply. (The TCA rules also apply to extradition requests first sent after the transition period ended, and the judgment in this case is also relevant by analogy to those requests too).  

The case is about two fugitives arrested in Ireland on the basis of British EAWs, who challenged their extradition to the UK. Both EAWs were issued during the transition period, but one EAW led to an arrest before the end of that period, hence the separation provisions kicked in, and the EAW law applies fully to the case. In the other case, the arrest took place after the end of this period, and so the TCA rules apply. The fugitive in the former case was already convicted and sentenced to eight years in prison, whereas the fugitive in the latter case was subject to a pending prosecution for fourteen alleged criminal offences.

Both two fugitives argued that they could not be subject to these rules in the two treaties, because even though Ireland agreed to both treaties in the EU Council, that country did not exercise a formal opt in as set out in the Justice and Home Affairs protocol relating to Ireland (and previously also applying to the UK) attached to the EU Treaties. If they had been successful, their challenge would have complicated not only extradition but other forms of criminal law cooperation between Ireland and the UK set out in the withdrawal agreement and TCA, in both directions (ie Irish requests to the UK too). It could also have impacted on criminal law cooperation between the UK and Denmark, which has a similar (but not identical) opt in protocol. (Criminal law cooperation would not entirely have ended, however, because there are other international treaties that would have applied as a default, although they do not simplify cooperation as much as the treaties with the EU do).

Judgment of the Court

The judgment first examines the scope of Article 50 TEU, noting that it has the twin objectives of ‘first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion’ (referring to the Wightman judgment, discussed here). The Court continued:

50      It is in order to be able to attain that objective effectively that Article 50(2) TEU confers on the European Union alone competence to negotiate and conclude an agreement laying down the detailed rules for withdrawal, since that agreement is intended to regulate, in all the areas covered by the Treaties, all questions relating to the separation between the European Union and the State withdrawing from it.

51      It was therefore pursuant to that competence that the European Union was able to negotiate and conclude the Withdrawal Agreement, which provides, inter alia, in relations with the United Kingdom, for the continued application of a significant part of the EU acquis, in order to reduce uncertainty and, to the extent possible, minimise disruption caused by the fact that, on the date of withdrawal, the Treaties cease to apply to the departing State, as is apparent from point 4 of the guidelines adopted by the European Council at its special meeting of 29 April 2017 following the United Kingdom’s notification under Article 50 TEU.

The Court also noted that there may be a contradiction between the procedure for the EU Council to conclude an international treaty in other circumstances – which may entail a unanimous vote – and a withdrawal agreement, where Article 50 TEU provides for a qualified majority vote. In the Court’s view, it followed that:

54      Since the withdrawal agreement is intended to cover all of the fields and issues referred to in paragraph 50 above, and since it is not possible to add to Article 50(2) TEU legal bases laying down procedures which are incompatible with the procedure laid down in paragraphs 2 and 4 of that article (see, to that effect, judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C‑180/20, EU:C:2021:658, paragraph 34 and the case-law cited), it must be concluded that only Article 50 TEU, as an autonomous legal basis independent of any other legal basis set out in the treaties, can ensure that all of the fields falling within the scope of those treaties are treated consistently in the Withdrawal Agreement, thus enabling the withdrawal to take place in an orderly manner.

Furthermore, there would be ‘uncertainty’ because Ireland, having agreed to participate in the EAW system with the UK, ‘would be treated as if it had never participated in it’. This outcome ‘would be difficult to reconcile with the objective of reducing uncertainty and limiting disruption so as to enable an orderly withdrawal’.

As for the TCA, which was concluded on the basis of Article 217 TFEU (the power for the EU to conclude association agreements), the Court recalled its case law that Article 217 ‘empowers the European Union to guarantee commitments towards third countries in all the fields covered by the TFEU’. It followed that:

58      Agreements concluded on the basis of that provision may therefore contain rules concerning all the fields falling within the competence of the European Union. Given that, under Article 4(2)(j) TFEU, the European Union has shared competence as regards Title V of Part Three of the TFEU [ie EU competence as regards justice and home affairs], measures falling within that area of competence may be included in an association agreement based on Article 217 TFEU, such as the TCA.

Did the inclusion of extradition issues within the TCA require an additional legal basis relating to criminal law cooperation, besides that of an association agreement? While the case law states that the competence over association agreements can be used ‘only on condition that that measure relates to a specific area of EU competence and is also founded on the legal basis corresponding to that area’, that case law ‘concerned not the conclusion of an association agreement but the adoption of a decision on the position to be taken, on behalf of the European Union, within a body set up by such an agreement’; in such circumstances, where a decision could be adopted ‘by qualified majority without the participation of the European Parliament… the addition of a specific legal basis was necessary in order to ensure that any more stringent procedural requirements specific to the area concerned would not be circumvented’. This is distinct from an association agreement as such:

62      By contrast, since the conclusion of an agreement such as the TCA does not relate to a single specific area of action but, on the contrary, a wide range of areas of EU competence with a view to achieving an Association between the European Union and a third State, and the conclusion of such an agreement requires, in any event – in accordance with point (a)(i) of the second subparagraph of Article 218(6) TFEU and the first sentence of the second subparagraph of Article 218(8) TFEU – a unanimous vote and the consent of the European Parliament, there is no risk, as regards the conclusion of such an agreement, of more stringent procedural requirements being circumvented.

Nor did the prior case law on using multiple legal bases where a measure pursues multiple objectives apply, in the Court’s view. The Court recalled its case law taking a broad view of the scope of the EU’s development policy powers, and extended that approach to cover association agreements:

65      Those considerations also apply mutatis mutandis to association agreements whose objectives are designed in a broad manner, in the sense that the measures required in order to pursue those objectives concern a wide range of areas of EU competence.

66      That is precisely the case with regard to the TCA, since, as the Council submitted in its observations, in order to ensure an appropriate balance of rights and obligations between the parties to the agreement and to secure the unity of the 27 Member States, that agreement had to have a sufficiently wide scope.

67      Accordingly, in view of the wide scope of the TCA, the context of its adoption and the unequivocal declarations made by all the institutions and Member States involved throughout the negotiations on the withdrawal of the United Kingdom from the European Union, the inclusion in that agreement, alongside rules and measures falling within many other areas of EU law, of provisions falling within Title V of Part Three of the TFEU forms part of the general objective of that agreement, which is to establish the basis for a broad relationship between the Parties, within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties’ autonomy and sovereignty.

68      The surrender mechanism established by the TCA contributes to the pursuit of that objective, the Parties having indicated, in recital 23 thereof, that their cooperation relating to, inter alia, the investigation, detection and prosecution of criminal offences and the execution of criminal penalties would enable the security of the United Kingdom and the European Union to be strengthened. It follows that the TCA cannot be regarded as pursuing a number of objectives or as having several components, within the meaning of the case-law referred to in paragraph 63 above.

 

Comments

First of all, the Court’s approach to the scope of Article 50 is a logical application of its prior ruling that the purpose of Article 50 is partly to provide for an ‘orderly withdrawal’, as the Treaties cease to apply to the withdrawing State (note that the cessation of the Treaties to that country is not just an assertion in European Council guidelines, as the Court seems to imply, but is set out in Article 50 itself). This logically entails that the withdrawal agreement has a broad scope, covering ‘all the areas covered by the Treaties’ – because the withdrawal may raise issues as regards ending membership in any of those areas. The judgment implicitly confirms competence to conclude the transition period (‘the continued application of a significant part of the EU acquis’), also referring to ‘all questions relating to the separation’, in the context of ‘reduc[ing] uncertainty and, to the extent possible, minimis[ing] disruption’ (emphasis added). 

Although there is no reference to the potentially permanent system set up by the Northern Ireland protocol – which goes beyond purely transitional or ‘winding up’ rules – the Court’s judgment does point toward that direction, notably the reference to applying some EU law and to ‘all questions’ concerning withdrawal.

Secondly, as for association agreements such as the TCA, the judgment builds upon prior case law, and reflects the requirement for unanimity of Member States in the Council to conclude them – which is an even stronger guarantee for Member States than as regards development policy treaties (which can be concluded by a qualified majority in the Council). It appears, however, that the specific provisions in an association agreement should be linked to the objective of that particular agreement – although note that the Court’s description of the broad general objective of the TCA is not a frolic by the judges, but comes from the purpose of the treaty as agreed by the parties (see Article 1 of the TCA), which was quoted earlier in the judgment.

Finally, it is notable that while the Court confirms that the withdrawal agreement had to be concluded by the EU without participation of the Member States (para 50: ‘Article 50(2) TEU confers on the European Union alone competence to…’ – emphasis added), the Court does not comment on the fact that – unusually for association agreements – the TCA was also concluded by the EU without the Member States also becoming parties alongside it. However, the overall tenor of the judgment seems favourable to the EU only being a party to this agreement too (see the Council legal service opinion on this point). Given the Court’s explicit reference to the shared competence of the EU over justice and home affairs, it might reasonably be inferred from this judgment that, as the Council legal service argued, the EU alone may conclude association agreements when they include provisions on shared competence – or the Council may instead to conclude them alongside the Member States in such cases. 

Of course, the EU and the UK continue to argue about the interpretation, application and revision of the Northern Ireland protocol to the withdrawal agreement. Nevertheless, the Court’s firm conclusion that the EU had extensive powers to conclude the two key treaties relating to Brexit should address most or all complications that some had argued limited the powers of the EU to conclude those treaties. In that sense, at least as far as the EU is concerned, the Court of Justice has Got Brexit Done.

 

 

Barnard & Peers: chapter 26

JHA4: chapter II:2, chapter II:3

Photo credit: Jimmy Harris, via Wikimedia commons

Extradition from Ireland to the UK after Brexit: the scope of EU powers

 

Professor Steve Peers, University of Essex

What are the legal implications of Brexit? This is a huge issue, with many different elements, but for the first time, the CJEU will soon be ruling on it – at least as far as the EU side is concerned – subsequent to the UK leaving the EU.

A recent CJEU Advocate General’s opinion suggests answers to fast tracked questions referred from the Irish Supreme Court (on appeal from the Irish High Court’s judgment), concerning extradition from Ireland to the UK under both the withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The former treaty provides that the internal EU legal framework for simplified extradition – the European Arrest Warrant (EAW) law – still applied between the UK and EU during the transition period set out in that agreement, which lasted from 1 February 2020 to the end of that year. (As an exception, three Member States refused to hand over their own citizens, but Ireland was not one of them).

After that point, the separation provisions of that treaty applied: the EAW law still applies if a person was arrested on the basis of that law before the end of the transition period. If the EAW was issued before that date, but the fugitive was not arrested in time on the basis of the EAW law, the subsequent TCA provides that its extradition rules – which are similar, but not identical, to the EAW law – apply. (The TCA rules also apply to extradition requests first sent after the transition period ended, and the judgment in this case would also be relevant by analogy to those requests too).

The new case concerns two fugitives arrested in Ireland on the basis of British EAWs, who are challenging their extradition to the UK. Both EAWs were issued during the transition period, but one of them led to an arrest before the end of that period, hence the separation provisions kicked in, and the EAW law applies to the case. In the other case, the arrest took place after the end of this period, and so the TCA rules apply. The fugitive in the former case has already been convicted and sentenced to eight years in prison, whereas the fugitive in the latter case is subject to a pending prosecution for fourteen alleged criminal offences.

What's the legal issue? The two fugitives argue that they cannot be subject to these rules because even though Ireland agreed to both treaties in the EU Council, that country did not exercise a formal opt in as set out in the Justice and Home Affairs protocol relating to Ireland (and previously also applying to the UK) attached to the EU Treaties. If successful, their challenge could complicate not only extradition but other forms of criminal law cooperation between Ireland and the UK set out in the withdrawal agreement and TCA, in both directions (ie Irish requests to the UK too). It could also impact on criminal law cooperation between the UK and Denmark, which has a similar (but not identical) opt in protocol. (Criminal law cooperation would not entirely end, however, because there are other international treaties that would apply as a default, although they do not simplify cooperation as much as the treaties with the EU do).

The Advocate General’s opinion argues against the fugitives’ attempts to limit the scope of the treaties. First of all, she notes that prior CJEU case law on the competence to adopt EU laws (which extends equally to the competence to conclude international treaties) looks at the ‘predominant purpose’ of the act being adopted to determine what the competence to adopt it should be.

Applying that test to this case, in her view both the power to conclude the withdrawal agreement (Article 50 TEU) and the power to conclude association agreements (Article 217 TFEU, the legal basis to conclude the TCA on the EU side) are broad.

First, the Article 50 competence necessarily includes a wide scope of power to wrap up the legal relationship with the departing Member State, in particular as regards the separation provisions at issue in this case – although she also refers to broad powers over a transition period, during which these EAWs were issued (para 46):

To that end, as the Commission in particular explains, Article 50(2) TEU provides for the competence to conclude a single, comprehensive agreement, based on a single specific procedure, which encompasses all areas covered by the Treaties that are relevant to the withdrawal. Such an agreement covers the bringing to a conclusion of procedures conducted on the basis of EU law, which are ongoing at the time of withdrawal, as regards the withdrawing State. That requires detailed rules and arrangements in a vast number of different areas falling within the EU acquis. In order to ensure an orderly withdrawal in the interests of the European Union, its Member States and indeed the withdrawing State, those rules and arrangements may include transition periods during which, for limited periods after the withdrawal takes effect, EU law continues to apply to the withdrawing State.

While the rules in the withdrawal agreement ‘cover many different policies, including, in particular, the surrender regime in criminal cases’, and ‘[o]rdinarily, to conduct those policies the European Union would act under specific powers and would be required to respect restrictions on those powers, such as Protocol No 21’ (paras 49-50, footnote omitted):

However, in the light of the aim of the Withdrawal Agreement all of those specific policies are necessarily ancillary to the predominant overarching objective of providing a comprehensive regime for the transition from membership of the European Union to third-country status. This is an extremely broad objective in the sense that it must be possible for the measures required for its pursuit to concern a very wide variety of specific matters. Indeed, the agreement must be able to deal with the full range of matters covered by EU law.

This would have caused particular complications where the withdrawal agreement provided for powers exercised by unanimous voting, given that Article 50 foresees instead qualified majority voting in the Council to conclude such an agreement. In her view, this could not ‘be resolved by excluding from a withdrawal agreement matters requiring incompatible procedures because Article 50(2) TEU does not provide for any exceptions to the arrangements for a withdrawal’. More broadly, she justifies this interpretation by referring to ‘the exceptional situation of a withdrawal’: the UK example ‘has demonstrated’ that ‘such broad arrangements have to be made under intense political pressure and within a very short time frame’, and ‘[r]equiring unanimity in the Council or excluding certain matters from the general procedure would add complexity to that process and increase the risk that no agreement is reached’.

So the inclusion of specific rules on a subject cannot alter the characterisation of the agreement as a whole. Here the Advocate-General refers back by analogy to case law on development policy treaties (see discussion here), which has taken a similarly broad approach to the EU’s development policy powers, which can cover a wide range of issues that might be relevant to the development of non-EU countries. That case law has carved out an exception if the development policy treaties set out a specific obligation in a specific field which is distinct from development policy cooperation; but the opinion argues that even if that exception also applies to the Article 50 competence, these provisions of the withdrawal agreement do not go beyond the objective of securing an orderly withdrawal process. The attempted comparison with another Advocate-General’s opinion on the Istanbul Convention on violence against women (on which, see the discussion here) is wide of the mark, as the withdrawal agreement is obviously quite different from that treaty.

As for association agreements, relying on prior case law (for instance, Demirel), she argues that the power to conclude association agreements is also broad, encompassing special links between a non-EU country and the EU. Although the CJEU has pointed to specific legal competences applying within the framework of an association agreement, the Advocate-General correctly points out that this applies to measures implementing association agreements (referring to the judgment on social security and the association agreement with Turkey). As with Article 50 and development policy, she suggests that the power to conclude association agreements is a broad power encompassing many policy areas; and even if there is an exception relating to further concrete obligations in a specific field, it would again be irrelevant here because the TCA essentially continues the EAW system that previously applied between Ireland and the UK.

Comments

In principle it is too late now to prevent the conclusion of the withdrawal agreement or the TCA – unless time travel is possible. Perhaps people living in 2019 should be (should have been?) braced for an influx of (ex)Tory MPs hoping to prevent their past selves from voting for the same withdrawal agreement that now disgusts them: Owen Paterson driving up in a Randox-branded De Lorean, or a nudus Jacob Rees-Mogg telling a startled plebeian “I need your clothes, your boots and your penny farthing bicycle”.

But in a legal sense it is possible for a court to rule that the conclusion of a treaty (or the adoption of another legal act) was invalid from the outset, or at least (as in this case) that aspects of it have never applied – although it should be noted that the CJEU has in some cases limited the past effect of its judgments in such cases (cf Test-Achats). So even if the fugitives in this case were successful, the Court might take the view that the extradition provisions of the treaties still apply to Ireland on a provisional basis until the formalities of the opt in process are completed – which would seem likely in light of Ireland’s prior agreement to these agreements.

Is the analysis of the Advocate-General rejecting such arguments here convincing? On association agreements, the case law has indeed taken a broad view of their scope, with the guarantee for Member States in such cases consisting of the requirement for unanimity of Member States in the Council to conclude them. As for Article 50, the Wightman judgment of the CJEU has already interpreted that Article to provide for the ‘orderly withdrawal’ of a Member State – and the Advocate-General’s interpretation best reflects that interpretation.

While it does not necessarily follow from her analysis that the potentially permanent system set up by the Northern Ireland protocol is covered by the scope of Article 50 – as it goes beyond purely transitional or ‘winding up’ rules – her opinion points in that direction, referring to an ‘extremely broad’ power to address ‘the full range of matters covered by EU law’ via a ‘comprehensive regime’. If all that is needed is that a provision of the withdrawal agreement have a link with orderly withdrawal from the European Union, it is more easily arguable that the protocol satisfies that test.

Barnard & Peers: chapter 26

JHA4: chapter II:2, chapter II:3

Photo credit: diego_cue, via Wikimedia commons

Judicial Independence and the European Arrest Warrant. Systemic Challenges and Ways Forward

 

 

Dr Leandro Mancano, Senior Lecturer in EU Law, Edinburgh Law School

 

This blogpost is based on Leandro Mancano, ‘You’ll never work alone: A systemic assessment of the European Arrest Warrant and judicial independence’, in Common Market Law Review, Volume 58, Issue 3 (2021) pp. 683 – 718

 

Introduction

 

The European Arrest Warrant Framework Decision (EAW FD) has changed the landscape of inter-state cooperation in criminal matters within the EU (for its ‘external’ impact, see the Court of Justice’s judgments in Petruhhin – see discussion here – and IN).

 

The EAW implements the principle of mutual recognition in criminal matters. An arrest warrant issued by Member State ‘A’ (issuing state) and addressed to Member State ‘B’ (executing state) against person ‘X’ should be recognised and executed by the latter – with subsequent surrender of ‘X’ from ‘B’ to ‘A’ - without further formalities unless grounds for refusal apply. Automaticity in judicial cooperation rests on the principle of mutual trust: in this context, the rebuttable presumption that member states, save in exceptional circumstances, comply with fundamental rights. Unlike extradition, the EAW – and mutual recognition in criminal matters more broadly - place cooperation entirely in the hands of the judiciary.

 

Against that background, judicial independence represents a pre-condition for the healthy functioning of the mechanism. In a system operating on the basis that trust and surrender are the rule, the identification of the exceptions and their modus operandi is key to its proper understanding. The relentless undermining of judicial independence in Poland, perpetrated by the national government, has led – directly or indirectly – to the creation of a body of law on judicial independence in the framework of the EAW which has broad systemic implications. This blogpost explores the role and meaning of judicial independence in the EAW.

 

The Concept of Judicial Authority: Between Independence and Effective Protection

 

The multifaceted relevance of judicial independence in judicial cooperation begins – logically and chronologically – with issuance of the EAW. Firstly, there is the independent judicial supervision that must be guaranteed throughout the EAWs procedures – from issuing to execution - to ensure effective judicial protection. Secondly, there are the requirements that the issuing judicial authority must possess to issue a valid EAW.

 

Since an EAW must be based on a national arrest warrant (Article 8(1)(c) EAW FD), the effective judicial protection must be guaranteed during procedures related to both the (1) national, and (2) European, arrest warrants. The judicial authority competent to issue an EAW must review observance of the conditions necessary for the issuing of the warrant - including its proportionality. Such a level of protection must be ensured even where the EAW is based on a national decision delivered by a judge or a court. Where the EAW was issued by a judicial authority that is not itself a court or tribunal, that decision must be capable of being the subject to judicial review.

Public prosecutor can be considered judicial authorities – even though they are not courts or tribunals - as long as there are statutory rules and an institutional framework capable of guaranteeing their independence, and preventing their exposure to external directions. Even if the public prosecutor was exposed to the risk of instructions from the executive in the specific case at the basis of the EAW, the warrant could be validly issued in the presence of effective judicial supervision (see, by contrast, the approach taken in the case of the European Investigation Order). Such oversight, which could take the form of e.g. judicial review of the EAW decision, must be in place in the issuing State and activated before execution of the EAW.

 

The Exceptional Circumstances Doctrine: The Level of Probability Required by the Two-Step Test

 

The EAW FD mandates (Article 3) or allows (Article 4) the executing judicial authorities to refuse execution of the arrest warrant and surrender in certain cases. Most of these exceptions do relate to fundamental rights (e.g. ne bis in idem), but their wording clearly points to, for example, possible issues of coordination between different States’ laws. They are not concerned with a Member State’s systemic failure of fundamental rights protection. The suspension of the EAW vis-à-vis a Member State by the European Council is mentioned in recital 10 (non-legally binding) of the Framework Decision, and requires a finding of serious and persistent breach of the EU values. This reveals, perhaps, the EU legislature’s confidence in the Member States’ capacity for maintaining the rule of law standards required by EU membership. No specific or general clause is provided for in the text of the FD, allowing a national court to refuse surrender due to concerns related to the person’s fundamental rights in the issuing State.

 

Relying on Article 1(3) EAW FD, the Court has introduced a two-step test to challenge the presumption of mutual trust. The test was firstly devised in the context of inhuman and degrading treatments (see the judgment in Aranyosi and Căldăraru) and then applied to cases where the independence of the judicial authority issuing the EAW was in doubt. The Court found that, as a first step, the executing judge must verify the existence of systemic deficiencies, in the issuing State, of the right to an independent tribunal. Secondly, precise and specific elements must show that systemic deficiencies are liable to have an impact at the level of the State’s courts with jurisdiction over the proceedings, and substantial grounds must emerge for believing that the person will run a real risk, having regard to their personal situation, the nature of the offence involved and the factual context at the basis of the EAW (see judgment in LM, discussed here).

 

The test has been criticised because of its allegedly insurmountable nature, compounded by the Court’s recent ruling where it stated that systemic deficiencies alone do not constitute sufficient ground to refuse execution. The present author submits that, while not easily met, the standard of proof of the real risk must not be understood as near certainty. Semantic accuracy and the Court’s wording suggest that these two levels of probability not be conflated. Relatedly, the features that the evidence must possess (precision and specificity) must be understood together with the milder level of probability of the consequences attached to them (liable to impact the competent court). Furthermore, the areas from whence the substantial grounds must emerge (personal situation, nature of the offence, factual context) are indicative and not cumulative. The test is not as constrictive as it might seem, and the executing authorities have certainly leeway when assessing the real risk to the person’s right to an independent tribunal.

 

Conclusion

 

Judicial independence is the cornerstone of the rule of law and judicial cooperation in criminal matters, including the EAW. At the very least, independence must be guaranteed to the judicial authority which: supervises the issuing and executing EAWs procedures; has jurisdiction over the proceedings in the issuing State after surrender. On the one hand, the Court requires that independence of the issuing authority be protected by statutory rule and institutional frameworks, failing which an EAW cannot be validly issued. On the other, the ECJ distinguishes the latter scenario from lack of independence caused by systemic deficiencies in the issuing State, in which case the EAW is valid in principle and the executing court must carry out the two-step test to refuse surrender. The two situations might indeed be different and are to do with two different bodies (issuing v trying authority).

 

The Court’s approach is – if not justified – explained by systemic considerations. The tenability of the statutory rules/systemic deficiencies distinction might prove hard to uphold for much longer, however, and especially in a context where the undermining of judicial independence in Poland shows no signs of receding. A related issue, not yet brought to the fore but with the potential to shake things up, concerns the scenario where the supervising body in the issuing State is not adequately protected by statutory and institutional safeguards. These questions, jointly with the proper interpretation of the level of probability of the two-step test mentioned above, lie at the core of the EAW mechanisms and might be the protagonists of this existential saga on judicial independence and EU cooperation in criminal matters.

 

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: Jebulon, via Wikimedia Commons

Can Belgian, French and Swedish prosecutors issue European Arrest Warrants? The CJEU clarifies the requirement for independent public prosecutors

Laure Baudrihaye-Gérard, Fair Trials 

The question of who has the power to issue a European Arrest Warrant (“EAW”) has been addressed again by the Court of Justice of the EU (“CJEU”). The answer to this question has far-reaching consequences for the flagship EU measure of judicial cooperation, which is used by authorities across the continent thousands of times every month to obtain the surrender of persons found in another EU Member State either for the purposes of criminal investigations (e.g. interrogation) or to serve a custodial sentence.

Courts in Luxembourg and the Netherlands suspended the execution of EAWs issued by prosecutors in Belgium, France and Sweden, so that they could ask the CJEU, through the urgent preliminary reference procedure, whether they qualified as “judicial authorities” for the purposes of issuing EAWs. The questions were raised in relation to EAWs issued by the Belgian public prosecutor for the purposes of executing a custodial sentence (case C-627/19 PPU), and in relation to EAWs issued by French (case C-625/19 PPU) and Swedish prosecutors (joined cases C-566/19 and C-626/19 PPU) for the purposes of conducting a criminal investigation.

More specifically, the Dutch and Luxembourg courts sought clarification of the CJEU’s rulings of 27 May 2019 in relation to the German and Lithuanian prosecutors (cases C-508/18 and C-82/19 PPU), discussed further here. The CJEU had ruled that German public prosecutors do not provide a sufficient guarantee of independence from the executive when issuing an EAW, while the Prosecutor General of Lithuania does provide such a guarantee of independence. As a result of this ruling, only judicial authorities deemed completely independent from the executive will be able to issue EAWs. 

The CJEU confirmed that the Belgian, French and Swedish prosecutors were sufficiently independent from the executive to be able to issue EAWs. In its analysis, the CJEU clarified, first, the scope of the concept itself of an “issuing judicial authority” for the purposes of issuing an EAW under the Framework Decision on EAWs and second, the notion of effective judicial protection for individuals who are the subjects of EAWs.

Concept of issuing judicial authority: two, not three conditions to be met

The principle of procedural autonomy and Article 6 of the EAW Framework Decision leave it up to Member States to designate competent “issuing judicial authorities” for the purposes of the EAW, but the CJEU recognised that a uniform and autonomous interpretation is, nevertheless, necessary.

Public prosecutors will qualify as an issuing judicial authority where two conditions are met:

-          First, public prosecutors must administer or participate in the administration of justice. An authority, such as a public prosecutor’s office, which is competent, in criminal proceedings, to prosecute a person suspected of having committed a criminal offence so that that person may be brought before a court, must be regarded as participating in the administration of justice of the relevant Member State.

-          Second, public prosecutors must be in a position to act in an independent way, specifically with respect to the executive. The CJEU requires that the independence of public prosecutors be organised by a statutory framework and organisational rules that prevent the risk of prosecutors being subject to individual instructions by the executive (as was the case with the German prosecutor). Moreover, the framework must enable prosecutors to assess the necessity and proportionality of issuing an EAW. In the French prosecutor judgment, the CJEU specifically indicated that:

-          Even though the Minister of Justice can issue general instructions of criminal policy to prosecutors, French law expressly prohibits individual instructions. In so far as general instructions cannot prevent a prosecutor from exercising their own appreciation of the proportionality of a decision to issue an EAW, they are not incompatible with the EU notion of an “issuing judicial authority”.

-          Hierarchical subordination of prosecutors, as is the case in France, does not prevent independence. The CJEU is concerned about prosecutors being shielded from external instructions coming from the executive; not about internal instructions coming from other prosecutors, which are necessary for the organisation of the public prosecutor office.

Importantly, the CJEU made clear that the existence of a procedure to challenge the decision itself to issue an EAW does not constitute a condition for a national authority to qualify as an “issuing judicial authority” for the purposes of the EAW Framework Decision. In the Swedish and French cases, the CJEU specified that effective judicial protection is not a statutory or organisational rule that applies to prosecutors, but is a separate issue that relates to the issuing procedure of the EAW. The CJEU’s approach in respect of the concept of “effective judicial protection” is developed further below.

The CJEU adopts, in these judgments, a formalistic approach towards the concept of independence. The Court focuses on the national legal framework to assess prosecutorial independence, and is satisfied where statutory and organisational rules formally prevent the government from issuing individual instructions to the prosecuting authority. However, the CJEU does not seek to enquire into the practice or other potential forms of influence of the executive over prosecutors. The scope of the CJEU’s assessment of the independence of prosecutors is moreover limited to decisions to issue EAWs, and not to the exercise of prosecutorial powers more broadly, which is beyond the scope of EU law.

It is notable that, in the decision relating to the French prosecutor, the reasoning of the CJEU appears to be founded on the inquisitorial tradition of the criminal justice system, built on the concept that prosecutors are “impartial” and exercise their powers in an “objective manner”, taking into account all exculpatory and inculpatory elements. This approach does not reflect the system in several EU Member States and stands at odds with the current evolution of European criminal justice systems, where we see a trend towards an increasing role of defence lawyers during the investigative phase, typical of accusatory systems. For instance, the Directive on the European Investigation Order (“EIO”) foresees, in Article 1(3), that the defence may initiate a request for an EIO in the context of a cross-border investigation. The CJEU’s reliance on abstract concepts of “impartiality” and “objectivity”, without addressing the evolution of inquisitorial systems and the way in which this may have impacted the prosecutor’s role, gives the ruling a certain artificiality which requires further refinement.

Effective judicial protection

The CJEU had already ruled (see its judgment in relation to the German and Lithuanian prosecutors) that persons subject to an EAW must benefit from a two-tier system of judicial protection of procedural safeguards and fundamental rights: (i) in the context of the adoption of the national arrest warrant; and (ii) in relation to the decision to issue an EAW, in particular, whether, in the light of the particular circumstances of each case, it is proportionate to issue that warrant.

The executing authority must verify that the decisions to issue EAWs have been subject to prior judicial protection, i.e. that a court or judge assessed the proportionality of the EAW and that the conditions for issuing the EAW have been met. In other words, the decision of a prosecutor, who is not a judge, to issue an EAW, must be capable of being the subject, in the Member State, of judicial proceedings which meet in full the requirements inherent in effective judicial protection.

But the CJEU leaves it up to Member States to organise such effective judicial protection, which, by virtue of the principle of procedural autonomy, may vary from one national system to another. One possibility is for Member States to provide for an appeal procedure against the decision to issue an EAW. But this is only one possibility, and the CJEU considered that each of the examined national systems in Belgium, France and Sweden also met the requirement for effective judicial protection:

-          In the Swedish case, national law requires that the decision to issue an EAW be preceded by a court decision to order pre-trial detention. The CJEU confirmed that effective judicial protection is ensured when the court verifies the conditions and the proportionality of the EAW before it is issued by the prosecutor, i.e. during the hearing in relation to pre-trial detention. The Court also noted that the pre-trial detention order can be challenged after it is issued, and where the challenge is successful, the EAW is automatically invalidated. For the CJEU, this system satisfies the requirement for effective judicial protection, even in the absence of a stand-alone appeal procedure against the decision to issue an EAW by the prosecutor.

-          In the French case, the CJEU considered that in French law, EAWs for the purposes of criminal investigations may only be issued after a judge, typically an investigative judge (juge d’instruction), issues a national arrest warrant. In this case, the CJEU noted that the judge who issued the national arrest warrant also requested that the public prosecutor issue an EAW at the same time. It is at this point in the procedure that the judge assessed that the conditions for issuing the EAW were met, including its proportionality. In the CJEU’s view, this procedure demonstrates that the proportionality of the EAW may be assessed at the time the national arrest warrant is issued, which happens prior or at the same time as the issuing of the EAW, and noted that, further, the decision to issue an EAW may also subsequently be subject to an annulment challenge. Therefore, the French system satisfies the requirement for effective judicial protection.

-          Where the EAW is issued for the purposes of serving a custodial sentence, as in the Belgian case, the EAW stems from the court decision sentencing the person to a custodial sentence. The sentence, in the CJEU’s view, reverses the presumption of innocence that the person benefits from during the criminal proceedings. The existence of judicial proceedings leading to the finding of the person’s culpability enables the executing authority to presume that the decision to issue an EAW stems from a national procedure in which the rights of the person were upheld; and the proportionality of the EAW results from the requirement in the EAW Framework Decision that an EAW may only be issued in relation to sentences of at least 4 months’ imprisonment. In such circumstances, the requirement for effective judicial protection is satisfied by the decision to sentence the person.

The CJEU failed to take this opportunity to set meaningful standards around the concept of “effective judicial protection”, and in particular how executing judicial authorities must exercise their oversight over the proportionality of EAWs. This approach fails to recognise that it is extremely difficult for persons arrested and detained under an EAW to obtain legal assistance in order to challenge the decision to issue the EAW in the issuing state, prior to being surrendered. Fair Trials has documented the problems with the EAW system that continue to this day, with considerable impact on the lives and rights of ordinary people.

In the Swedish and French cases, the CJEU argued that effective judicial protection is further guaranteed by other instruments of EU law, most notably the Access to a Lawyer Directive (2013/48/EU), which requires the Member State who is asked to execute the EAW to inform the person that they have a right to appoint a lawyer in the country that has issued the EAW. This is, indeed, a requirement of EU law, however, the CJEU fails to take into consideration the lack of effective implementation of this requirement across the EU – which seriously undermines the reality of such an “effective judicial protection”. The new laws enacted by the EU guaranteeing suspects’ rights, while extremely beneficial to improving fair trials at the national level, have not been sufficient. The problems with the EAW go beyond the rights guaranteed in those laws, and the laws themselves still need better implementation.

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

We welcome the CJEU’s recognition that the EU procedural rights directives, including the Access to a Lawyer Directive, participate in ensuring effective judicial protection for people who are subject to EAWs. But to date, the case law of the EU’s Court of Justice has not been sufficient to resolve the EAW’s flaws. The CJEU needs actively to support the effective implementation of the procedural safeguards for suspects and accused persons enshrined in EU law. For more on our work to promote and support the effective implementation of EU law, please refer to our materials available here: https://www.fairtrials.org/publication/eu-law-materials.

JHA4: chapter II:3

Barnard & Peers: chapter 25

Photo credit: Wikicommons

Should the EU sanction its Member States for breaches of rule of law and human rights? Part 2: The Application of Ordinary EU law

Professor Steve Peers, University of Essex

Should the EU sanction its Member States for systematic breaches of human rights and the rule of law – and if the answer is yes, how should it do so?

This is the second of three blog posts discussing this issue. The first post examined the formal process set up to sanction Member States to this end: Article 7 TEU. As I discussed there, this process – which could lead to suspension of some aspects of EU membership for a Member State – is highly political, with a very limited role for the EU courts, and is very difficult to apply. However, in the last year or so, ‘ordinary’ EU law has been used to challenge Member States for such breaches instead. This blog post is an overview and discussion of how this alternative process works. A third blog post will discuss the broader constitutional dynamics and historical context of sanctioning Member States.

The EU court process

Before looking more at the details of how ordinary EU law is being used to address general concerns about human rights and the rule of law, it’s necessary to summarise the key features of the relevant parts of the CJEU’s jurisdiction.

First, the infringement procedure allows the Commission (or a Member State) to take a Member State to the CJEU to argue that it is infringing EU law as such. The Court’s ruling in such a case is binding on the Member State concerned, but does not strike down a national law as such. If requested, the Court can order interim measures against a Member State while such a case is pending.

 

Secondly, the ‘preliminary ruling’ process (Article 267 TFEU) provides that any national court can ask the CJEU about the interpretation of EU law, if necessary to decide a case pending before it. These latter cases often concern an individual arguing that a Member State has not applied EU law correctly. The CJEU’s answers to the questions are binding on the national court, which resumes its proceedings after the CJEU’s judgment and decides on what remedy to apply – which could involve disapplying national law. 

Compared to Article 7, these are not just different processes (judicial, rather than essentially political) with a different remedy, but have in principle a much narrower subject-matter: the application of EU law as such, not the values of the European Union (as discussed in the first blog post). It’s literally the difference between building a bypass without doing an environmental impact assessment, and locking up the leader of the opposition. (Of course it’s always possible, as an homage to Douglas Adams, that an unauthorised bypass construction turns out to be an ironically clunky foreshadowing of more drastic developments to come).

Having said that, as I noted in the first blog post, there are times when an issue falls within the scope of both ordinary EU law and general human rights breaches. First of all, in some cases there are very specific links between the Article 7 process and ordinary EU law issues. Secondly, there are cases concerning the general protection of human rights and the rule of law where the Article 7 process and the ordinary EU law process can and do run in parallel, as the CJEU implicitly confirmed in June in its first ruling on Polish judicial independence (discussed further here). (See also the Advocate-General’s opinion in a further pending case against Poland, para 73). I’ll examine these two categories of cases in parallel.

Specific links: Asylum and the European Arrest Warrant

The two areas where specific links already exist between the Article 7 process and ‘ordinary’ EU law are asylum and the European Arrest Warrant.

Asylum

As regards asylum, the explicit link is not with EU asylum legislation, which concerns asylum applications by non-EU citizens – although systematic human rights breaches can have an impact there (see below), but to the protocol to the EU Treaties, which in principle rules out asylum claims by EU citizens.  

According to this protocol, since human rights are well-protected in the EU, ‘Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters’. Therefore, asylum applications by EU citizens ought to be rejected automatically in other Member States except where: (a) a Member State derogates from the ECHR on an emergency basis pursuant to Article 15 ECHR; (b) ‘if the procedure referred to Article 7(1) of the Treaty on European Union has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national’; (c) ‘if the Council has adopted a decision in accordance with Article 7(1) of the Treaty on European Union in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the Member State of which the applicant is a national’; or (d) if a Member State decides to consider an asylum application unilaterally in an individual case, subject to certain limits.

Of these four cases, the second and third explicitly link to the Article 7 process. In short, asylum applications by EU citizens are admissible either if a ‘yellow card’ sanction process is pending, or if the EU institutions have issued either a yellow card or a red card to a Member State. As discussed in the first blog post in this series, while no yellow cards or red cards have ever been issued, a yellow card process is pending against both Poland and Hungary. It follows that Polish and Hungarian citizens can already apply for asylum in other Member States – a surprisingly underappreciated point.

One reason that this possibility has been overlooked is because of the parallel existence of free movement of persons. There’s no Iron Curtain across the EU, far from it: Poles and Hungarians who are annoyed with their governments can simply move to another Member State if they meet the fairly liberal criteria to move under free movement law, and doubtless some disgruntled Polish and Hungarian citizens have moved within the EU (or to non-EU countries, on the basis of those countries’ immigration laws) for such reasons.  

The relevance of the possibility to make asylum claims would only apply in limited circumstances: where the person concerned moved beforehand (see a CJEU judgment from last year on a Croatian citizen with refugee status, discussed here); where the citizen does not qualify under free movement law because of lack of a job or support; where a transitional restriction on free movement after accession to the EU applies; or where the EU citizen is resisting a European Arrest Warrant (which was indeed the reason why the asylum protocol was originally added to the Treaties in the 1990s in the first place: to override asylum claims which were being made in order to defeat extradition requests).   

In the event of a crisis involving many thousands of EU citizens fleeing a Member State (cf Hungary 1956), the Protocol would come into its own, as many of those concerned would lack jobs or support. Odd as it might sound, EU asylum law would not apply to such a case, since it only applies to non-EU citizens; there would perhaps be some ad hoc arrangements quickly agreed to determine responsibility and eligibility, possibly applying EU asylum law by analogy.

European Arrest Warrant

So far, the CJEU has not been asked about the asylum protocol. However, it has been asked many times about the European Arrest Warrant (EAW) and human rights. Some of these cases concern detention conditions (see the line of cases discussed here), or independent prosecutors (see discussion here), but one judgment, the LM ruling of 2018 (discussed here), specifically addresses the application of the EAW where there are broader concerns about the rule of law in the State issuing warrants (in this case, Poland).  

According to the CJEU in that case, the preamble to the EAW law, which states that this law can only be suspended if an Article 7 ‘red card’ is issued, meant that the courts had to defer to the absence of a decision by the EU’s political institutions, and could not suspend the law as a whole by themselves. However, the courts could still consider whether there was a breach of the rule of law in individual cases, taking account of the arguments about a systemic problem with the rule of law in the issuing State which had been put before the EU institutions in a pending ‘yellow card’ proceeding (which was already underway against Poland).

Systematic human rights problems and ordinary EU law

The most important group of cases on this point relate to the independence of the judiciary, and consist largely (but not entirely) of cases concerning Poland. In its June judgment on the first of these cases, an infringement action concerning early retirement ages for the Supreme Court (discussed here), the Court of Justice confirmed that the requirement of respect for judicial independence is inherent in Article 19 TEU, which describes the EU judicial system, including the role of national courts. In doing so it clarified its earlier judgment on the Portuguese courts (discussed here), in which concern about judicial independence arose in the context of salary cuts which were the consequence of austerity linked to EU law.

Crucially, in this first judgment about Poland, the Court confirmed that no specific link to a particular EU law is necessary in order to argue that a Member State has infringed the principle of judicial independence. In effect, Article 19 TEU is a free-standing rule of EU law: arguments about judicial independence are inherently linked to specific EU laws, because EU law depends upon an independent national judiciary for its enforcement. However, the Court did not clarify whether Article 19 TEU only applies where there is a systematic problem with judicial independence (as the Advocate-General’s opinion argued), or could also be invoked in disputes about a specific incident.

A second infringement case against Poland, concerning early retirement ages for the ordinary courts, is also pending. An Advocate-General’s opinion in this case argues that the Commission’s claims are mostly well-founded, along similar lines to the first judgment (update: the Court’s judgment in this case, ruling against Poland, was released on November 5). A third batch of cases, referred from the national courts, concerns judicial disciplinary proceedings. In this case, an Advocate-General’s opinion argues that the case is linked to specific EU law, rather than Article 19 TEU as a free-standing rule, but that in any event Poland is again breaching EU law. The remedy is for the national courts to disapply the offending national law if necessary (judgment is due November 19). A fourth batch of cases might be inadmissible, in the opinion of an Advocate-General. A third infringement case, with a request for expedited proceedings, was brought in October. Furthermore, a number of other cases referred from Polish courts are pending, as summarised here.

A number of cases concerning specific EU law points have been brought against Hungary. In particular, the Commission has brought infringement actions concerning: the independence of the central bank (withdrawn), age limits for judicial retirement (successful; linked to age discrimination law, not Article 19 TEU as such), independence of the data protection authority (successful; discussed here); the removal of the Central European University (pending; an Advocate-General’s opinion is due in November); NGO funding (pending); systematic problems with the asylum system (pending); and withdrawal of food from irregular migrants (at the ‘reasoned opinion’ stage). These cases don’t explicitly raise systemic arguments about Hungarian protection of the rule of law – but their sheer volume, and the broader political context, notably as regards the independence of regulators, reflects some of the broader concerns that led the European Parliament to trigger the Article 7 process against Hungary.  

As regards Romania, a series of recent cases sent to the CJEU query whether the post-accession process of checking Romanian compliance with its obligations related to civil and criminal judicial cooperation has some legal effect, in order to address concerns about the rule of law in that country.

Moving away from specific countries, issues arise regarding EU funding. Should Member States with a questionable record in protecting the rule of law be hit in the pocketbook? That’s what the Commission suggested in a proposal relating to the next multi-annual EU budget, which would sanction Member States financially if a systemic deficiency in the rule of law ‘affects or risks affecting the principles of sound financial management or the protection of the financial interests of the Union’.

The EU Council legal service has concerns about the EU’s legal power to adopt this proposal, which have been rebutted by Professors Kelemen, Lane Scheppel, and Pech. The legal service’s view is that the proposal would breach the exclusivity of the Article 7 process. In my view, while I have legal doubts about the notion that the EU has general power to sanction Member States financially for breaches of the rule of law outside that process, this proposal is more tightly drawn than that: it only applies where there is a link between the rule of law deficiencies and the EU’s financial interests. To put it bluntly, it’s possible that corrupt officials or politicians might be shielded by biased judges. In that light, and taking account of the subsequent CJEU judgment finding that a lack of judicial independence is intrinsically linked to the application of EU law, it should follow by analogy that the EU has the power to adopt this proposal. However, it remains to be seen whether it is de facto blocked as part of a broader quid pro quo when agreeing the EU’s next multi-annual budget.  

Comments

As I noted in the first blog post, the use of ‘ordinary’ EU law means to address rule of law concerns, instead of the Article 7 process, could be a means of addressing those concerns by conventional means, given that some perceive Article 7 as a kind of ‘nuclear button’. Certainly it has its advantages compared to the Article 7 process, as it avoids the obvious reluctance of Member States to condemn each other in that context. Its use as a route to ensure the rule of law is strengthened by the CJEU’s willingness to assert jurisdiction over concerns about judicial independence more broadly. However, outside specific links with EU law and the issue of judicial independence, it might prove hard to use the ordinary EU legal system to deal with a number of concerns about the political system in a Member State besides those issues.

There’s also a risk that once national courts are ‘packed’, it’s too late to expect them to send questions to the Court of Justice. The Commission can still bring infringement actions, but these have less direct impact on the national legal process. And the Commission could in turn be ‘captured’ by those deferential to governments. At present, there are robust challenges to Member States as regards the rule of law via both national courts and the Commission – but it took awhile for the Commission to get going, and its willingness to be active in this field cannot be taken for granted.

If both national courts and the Commission are ‘captured’, there might still be some pressure from the courts of other Member States. But, for instance, placing indirect pressure via EAW cases has its limits: the CJEU has ruled out a general suspension of the EAW system except where Article 7 has been invoked, and anyway 'we won’t send you these fugitives' may not be too much of a threat; the issuing Member State might just think 'Fine, you’re welcome to them'. It might be legally difficult (for instance, due to lack of jurisdiction) or expensive for the requested State to try the fugitives instead, and in any event if the issuing State has problems with the rule of law, how could one trust a sentence handed down there, or evidence supplied by its legal system for the purpose of a trial in the requested State instead?  

So addressing the rule of law by conventional means has its strengths, but also its limits. And either Article 7 or the use of ordinary EU law raises more fundamental questions about the nature of the EU and its relations with Member States – to which I will return in the final blog post in this series.

Barnard & Peers: chapter 9

Photo credit: Steve Peers