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

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

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

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

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

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

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

The preliminary reference in the LM case

In the Irish case,
in which the EAW was issued by a Polish judicial authority against a person
prosecuted for a drug related crime, the defendant argued that, due to the
reforms of the Polish judiciary, there is a risk of denial of justice if he is
transferred to Poland. Consequently, the Irish court premised its preliminary
question to the CJEU on the right to fair trial. As at this time Poland was
already subject to the stage of a reasoned proposal by the Commission as
referred to in Article 7(1) TEU (which would, if adopted by the Council,
have established a risk of a threat to the rule of law in Poland), the Irish
court asked whether in case of “cogent evidence that conditions in the issuing
Member State are incompatible with the fundamental right to a fair trial
because the system of justice itself in the issuing Member State is no longer
operating under the rule of law” it should “make any further assessment,
specific and precise, as to the exposure of the individual concerned to the
risk of unfair trial”. Such a two-prong test (first – “systemic deficiencies in
the state”, and second – “actual risk in an individual case”) was established by
the CJEU in the Aranyosi
judgment (discussed here),
which also related to the protection of fundamental rights in the context of
mutual recognition of judgments, in the context of detention conditions.
In the LM case the CJEU could answer the
question in three different ways. First, it could refrain from assessing the
impact of the restrictions of judicial independence on the EAW mechanism (following
Poland’s argument that only the Council is empowered to do so, on the basis of
Article 7 TEU). Second, it could follow the Aranyosi
pattern, ie the two-step test. As the last alternative, it could allow to
suspend the cooperation with a Member State which breaches the obligation to
ensure the independence of its courts. This last possibility could seem all the
more likely path towards deciding the LM case after the Court issued its recent
decision in the case of
Associação Sindical dos Juízes Portugueses

(discussed here),
in para 37 of which it stated that the obligation of judicial independence stems
from the EU law.

Judgment in the LM

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

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

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

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

The reasoning of
the court unfolds in three parts.

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

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

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

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

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

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

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

Assessment of the LM

It is difficult to
assess the LM judgment in an unequivocal way (see the debate on Verfassungblog).
The Luxembourg court is praised by some for confirming its competence to tackle
the issue of the independence of judiciary and for its judicial prudence. It is
criticized by others for not setting systemic consequences of the breach of
independence but also for a definition of judicial independence which is too
detailed and disconnected from the ECHR’s.
Certainly, the LM judgment did not halt the Polish
“reforms”. Instead it allowed to rebut the presumption of mutual trust if a Member
State is subject to a reasoned proposal provided by Article 7(1) TEU. In
such a case the individual assessment is required in every case in which it is
pleaded. But it means that the executing authorities would have to make
embarrassing investigations about the substantial issues of the cases and of
the division of powers in Poland. In my opinion (developed here),
it can contravene the spirit of mutual trust between the courts and often will
be impossible in practice. Arguably the CJEU should have focussed not only on
the protection of individuals but also on the interests of other States and the
EU at large. In the LM case the CJEU acted
like the Court of Human Rights which is always very welcome. But it is not
enough to stand up against the destruction of the rule of law in Europe. Maybe in
next cases – either based on the Article 258 TFEU infringement procedure or following
the preliminary
reference from the Polish Supreme Court
it will show also its other face –
this of a constitutional court of the EU.

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

Other aspects to be
clarified in the future are what “refraining from giving effect to the EAW”
exactly means and whether the systemic deficiencies are a prerequisite to apply
the individual test. The Aranyosi and
LM cases are related to systemic
deficiencies, but their conclusion is that what is always required to be
performed is the individual risk test. The development of the case law on
another aspect of the Area of Freedom, Security and Justice – the common European
asylum system – shows that the transfer of an asylum seeker to another Member
State should be refused if there is a risk of the person concerned suffering
inhuman or degrading treatment even if there are no systemic deficiencies (case
, discussed here).
The open question is whether the same pattern will apply to the EAW and to
other fundamental rights.
My final point is
that the non-execution of EAWs based on an individual test is not capable to
resolve the essence of the problems with fundamental rights and judicial
independence. It often results in an impunity for the requested person, which
constitutes a severe consequence for others (victims) and for the public
interest. Moreover, it can save fundamental rights of individuals partly only. The
parallel judgment in Case C-220/18
confirms this conclusion,
as it limits the meaning of the Aranyosi
assessment of detention conditions in the issuing Member State to the first prisons
in which the person concerned will be held immediately after the surrender. The
CJEU admitted that “since a person who is the subject of a European arrest
warrant can, as a general rule, be detained in any prison in the territory of
that State. It is generally not possible at the stage of executing a European
arrest warrant to identify all the prisons in which such a person will actually
be detained” (§ 81 of ML). In reality,
therefore, the individual is not wholly protected against inhuman treatment. The
same limitation is seen already in LM
judgment according to which the executing authority should verify “to what
extent the systemic or generalised deficiencies (..) are liable to have an
impact at the level of that State’s courts with jurisdiction over the
proceedings to which the requested person will be subject.” (§ 74 of LM).

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

Barnard &
Peers: chapter 9, chapter 24

JHA4: chapter II:3

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