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

Libel law, EU law and the ECHR: A Comment on Arlewin v. Sweden

Athanassios Takis: PhD, Special Adviser to General Secretariat of Greek government

The judgment of the European Court of Human Rights of 1 March 2016 in the case of Arlewin v. Sweden concerns the (mis)application of EU Regulation 44/2001 (which determines which Member State’s courts have jurisdiction over civil and commercial cases) on behalf of the Swedish courts and illuminates the limits of the ‘acte clair’ doctrine (the principle that final national courts do not always have to send questions about EU law to the CJEU).

The Arlewin judgment

The facts of the Arlewin case, which gave the ECHR the chance to decide on an issue concerning the application of EU law have as follows: The applicant, Raja Arlewin, is a Swedish national, a self-employed businessman, who attempted to bring private prosecution proceedings and a claim for damages for gross defamation against X. X is a Swedish national, the Chief Executive Officer of a television company and anchor-man of a popular show in which Mr. Arlewin was accused of, among other things, involvement in organised crime in the media and advertising sectors. The television programme had been produced in Sweden, in the Swedish language and was sponsored by Swedish advertisers. The programme was sent from Sweden via satellite to a London-based company (Viasat Broadcasting UK Ltd), which broadcast and transmitted it to viewers in Sweden.

In a preliminary ruling the Stockholm District Court declined jurisdiction over Mr. Arlewin’s claims because the programme had not originated from Sweden. The court applied the relevant Swedish law, mainly the Constitutional law on freedom of expression, and followed the case law of the Swedish Supreme Court. The Court of Appeal upheld this decision, finding that Mr. Arlewin had not established that the decisions concerning the content of the programme had been taken in Sweden, a fact which was a prerequisite for the jurisdiction of Swedish courts. It contested that the defamation claim should be decided by the courts of the United Kingdom where the seat of the company transmitting the programme is.

Mr. Arlewin appealed, alleging that the Swedish courts’ position ran counter to EU law and specifically to the Brussels I Regulation (44/2001), as interpreted by the Court of Justice of the European Union (CJEU). The Regulation establishes the principle that in cases relating to liability for wrongful acts, jurisdiction is to be exercised by the courts of the place where the harmful event had occurred and, according to Mr. Arlewin, in his case the harmful effects of his defamation had occurred in Sweden. He also requested that a question concerning the interpretation of the Brussels I Regulation be referred by the national court to the CJEU for a preliminary ruling. The Swedish Supreme Court rejected Mr. Arlewin’s referral request, finding no reason to request a preliminary ruling from the CJEU, and rejected the case.

Since Mr. Arlewin was not satisfied with this, he brought an application against the Kingdom of Sweden before the ECtHR claiming that he had been deprived of effective access to court and that the State had failed to provide him with sufficient protection against allegations that violated his right to privacy. In its judgment of 1 March 2016 the ECtHR notes that the core issue in this case is whether the Swedish State violated the applicant’s rights through the courts’ decisions to dismiss the defamation suit on grounds of admissibility. The Court examined the relevance to Mr Arlewin’s case of two instruments adopted within the framework of the European Union, namely the EU Audiovisual Media Services Directive (2010/13) and the Brussels I Regulation.

The Court rejected the Government’s argument that the Audiovisual Media Services Directive determined the country of jurisdiction when an individual initiated a defamation claim. In particular the Directive. More precisely Article 28, which addresses the situation where a person’s reputation and good name have been damaged in a programme, sets out only the right of reply; it does not deal with defamation proceedings or a related claim for damages. The Court therefore considered that the Audiovisual Media Services Directive did not regulate the matter of jurisdiction when it came to defamation proceedings arising out of the content of a transborder programme service.

Rather, jurisdiction under EU law was regulated solely by the Brussels I Regulation. Under Articles 2 and 5 of that Regulation, it appears prima facie that both the United Kingdom and Sweden had jurisdiction over the subject matter of Mr. Arlewin’s case. On the one hand, X is domiciled in Sweden, and, on the other, Viasat Broadcasting UK Ltd is registered, and thus domiciled, in the United Kingdom (Article 2 gives jurisdiction to the country of domicile of the defendant). Furthermore, Article 5 gives jurisdiction to the place where the harmful event occurred, and it could be argued that the harmful event had occurred in both countries, as the television programme had been broadcast from the United Kingdom and the alleged injury to Mr. Arlewin’s reputation and privacy had manifested itself in Sweden. The programme had been produced in Sweden in the Swedish language, was backed by Swedish advertisers, was to be shown live to an exclusively Swedish audience, while the alleged harm to Mr. Arlewin’s reputation had occurred in Sweden. With the exception of the technical detail of satellite reception transmission, the facts of the case were entirely Swedish in nature.

Therefore, the Court noted that the content, production and broadcasting of the television programme as well as its implications had very strong connections to Sweden and very little to the United Kingdom. Under those circumstances the Swedish State had an obligation under Article 6 of the Convention to provide Mr. Arlewin with an effective right of access to court. The Swedish courts’ interpretation of both the Swedish and the EU law had led to a situation where the alleged victim of the defamation could not hold anyone responsible under Swedish law and could only find his way to a court in the UK. Requiring Mr. Arlewin to take proceedings before the UK courts could not be said to have been an equally viable and reasonable alternative, as far as the practical and economic obstacles to initiate proceedings abroad would render the remedy inefficient. The Swedish courts, by dismissing Mr. Arlewin’s action without examination of the merits and by referring to the alternative of initiating proceedings in another country, had impaired the very essence of his right of access to court and consequently breached Article 6 of the ECHR.

Comment

This is an ECHR judgment which directly examines the application of the EU acquis by the Member States’ courts and indirectly touches upon the issue of these courts’ obligation to apply for a preliminary ruling by the CJEU. As far as the first matter is concerned, the ECtHR clarifies the scope ratione materiae of the EU's Audio-visual Media Services Directive as not regulating every issue of substance and jurisdiction that may arise in relation to the broadcast of a television programme. The Directive only regulates a person’s right to reply to claims concerning him or her and not his or her right to initiate civil or criminal proceedings before national courts for his or her defamation.

The Court further addresses the issue of the provisions of the Brussels I Regulation and their impact on the right to a fair trial. In underlining the importance of the systematization of solutions ensured by the Regulation and the criterion of ‘strong connections’ of a dispute to a country as a jurisdictional basis (article 5 paragraph 3 of the Regulation), the judgment affirms that in general the Regulation observes the right to a fair trial and draws a fair balance between diverging interests. The special jurisdiction in matters relating to tort establishes the jurisdiction of the courts of the place where the harmful event occurred or may occur (locus damni) and constitutes a comprehensive derogation from the main rule set in Article 2. 

The ratio of this provision rests on the indissoluble ties between the component parts of liability with the evidence and of the conduct of the proceedings and the causal connection between the damage and the event from which that damage originates. That is why litigation before an alternate forum abroad would be too burdensome for the applicant and a violation of his right to enjoy practical and effective access to a court. The Court of Strasbourg relies upon the findings of the Luxembourg Court and reaffirms the existence of a direct dialogue between the two jurisdictions, with the first affirming the findings of the second in a noteworthy manifestation of its endeavour to choose -whenever possible- an interpretation of the ECHR that facilitates the proper application of EU law by national authorities.

As for the second issue at hand, namely the obligation to address a question to the CJEU, the Court doesn’t explicitly address this issue. However, it seems rather apparent that had the Swedish courts applied for a preliminary ruling, the CJEU would have affirmed that the referring courts were competent to examine the defamation claims of Mr. Arlewin by virtue of Article 5 paragraph 3 of the Brussels I Regulation. This is clearly the outcome of the CJEU judgments cited and of the paragraphs 36-39 of the ECtHR judgment concluding that ‘Brussels I Regulation requires EU Member States to make their courts available if jurisdiction is confirmed, [as] the ECJ noted in Kongress AgenturHagen GmbH v. Zeehaghe BV that the Regulation does not govern matters of procedure. This means that a court can reject a case for reasons relating to domestic procedural rules as long as the national procedural law does not impair the effectiveness of the Brussels I Regulation’.

However, the Swedish courts applied the Brussels I Regulation in a manner inconsistent with EU law and in considering the jurisdictional provisions to be an acte clair, rejected the request of the applicant. According to Article 267 of the TFEU, when questions on the interpretation or validity of EU law are raised in a case pending before a court of a Member State against whose decisions there is no judicial remedy under national law, that court is required to bring the matter before the Court of Justice of the European Union and apply for a preliminary ruling. The CJEU in the Cilfit and Others case has established three limited exceptions to this rule. Under the third of these exceptions, a national court against whose decisions there is no judicial remedy doesn’t have to apply to CJEU for a preliminary ruling when it is convinced that no doubt arises as the meaning or the validity of the law to be applied is clear and unequivocal (acte clair) and therefore, immediately comprehensible.

A court or tribunal adjudicating at last instance may take the view that, although the lower courts have interpreted a provision of EU law in a particular way, the interpretation that it proposes to give of that provision, which is different from the interpretation espoused by the lower courts, is so obvious that there is no reasonable doubt as to its meaning. The Court has also made clear that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the European Union (see judgments in Intermodal Transports, para 33, and in João Filipe Ferreira da Silva e Brito and Others, para 39, and discussion here and here). 

However, the Court in the latter judgment found that, in cases where a question of EU law has given rise to a great deal of uncertainty on the part of many national courts, the courts of last instance should deem themselves obliged to make a reference to the Court of Justice. A persistent uncertainty strongly indicates not only that there are difficulties of interpretation, but also that there is a real risk of divergences in judicial decisions within the European Union. Should a failure on behalf of the national court to observe this duty imposed by Article 267 TFEU cause damages to individuals (see Köbler), the Member States should either set aside the court’s decision or, where this is impossible due to the principle of res judicata, compensate the individual for infringement enacted by the court of last instance of its EU law obligation (João Filipe Ferreira, para 60).

The relationship between the refusal to request a preliminary ruling and the violation of the right to a fair trial has been the subject of two other important judgments delivered by the ECtHR. At the same time, a third application is still pending (Repcevirág Szövetkezet v. Hungary, Application no. 70750/14 vii Application no. 17120/09). In the case of Dhahbi v. Italy the Court said that refusing a request for a preliminary ruling, while providing no reasoning at all for the refusal, constitutes a breach of Article 6 ECHR. In the more recent judgment of 21 July 2015 in the case of Schipani and others v. Italy (discussed here), the Italian Cour de cassation did not make any reference whatsoever to whether the issue at hand was an acte clair and therefore, justified an exemption from the rule that renders the preliminary reference obligatory for the last instance courts. According to the ECtHR ‘it is therefore not clear from the reasoning of the impugned judgment whether that question was considered not to be relevant or to relate to a provision which was clear or had already been interpreted by the CJEU, or whether it was simply ignored’. The Court of Strasbourg again reached the conclusion that the applicants’ right to a fair trial had been breached.

Examining the cases of Dhahbi, Schipani and Arlewin of the ECtHR and João Filipe Ferreira of the CJEU together, indicates that the Courts of Luxembourg and Strasbourg have restricted the criteria of the application of the doctrine of acte clair. The national courts have to accurately reason their decisions not to apply for a preliminary ruling based on their unequivocal understanding of the EU law. The combination of the Arlewin and João Filipe Ferreira judgments shows that a breach of EU law resulting from the misapplication by the highest national courts of Article 267 TFEU may entail the responsibility of the Member State to compensate the individuals at the same time for both their material damages (a EU law consequence in line with the Francovich and Köbler rulings) and their non-pecuniary damages (a ECtHR consequence in line with the Arlewin judgment).

Barnard & Peers: chapter 9, chapter 10

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