Background to the Disputes
Poland has repeatedly been before the ECJ in recent years, mainly due to the highly controversial judicial reform initiated by the right-wing PiS government. This reform has been widely criticised for dismantling democratic structures and the rule of law. A centrepiece of this reform was the creation of a Judicial Disciplinary Board at the country’s Supreme Court to discipline judges. The ECJ already declared this system to be contrary to EU law in the summer of 2021, as the independence and impartiality of the judiciary were no longer guaranteed (judgment of 15.07.2021, C-791/19).
The reasoning for this view was that this disciplinary chamber can be used to reprimand judges for unpopular decisions. This power can result in considerable political pressure and influence, violating EU rules. Although Poland announced that it would abolish the disciplinary chamber in this form, it did not keep to this announcement. This failure resulted in the ECJ imposing a daily penalty payment of one million euros on Poland by interim order at the end of October 2021 (Order of 27 October 2021, C-204/21 R Commission v Poland).
However, it is not only this dispute between the EU and Poland that is worrying but also a ruling made in the meantime by Poland’s Constitutional Court. In this ruling, the Polish Constitutional Court took the view that Poland no longer had to comply with certain urgent decisions of the ECJ when it came to its own judicial system, as this was not part of the EU’s competencies. Consequently, the ECJ could not rule on it at all. This view is confirmed by the fact that Poland has not yet abolished the aforementioned disciplinary chamber or explicitly refuses to pay the penalty payment ordered in the summary proceedings.
Another judgment that exacerbates the tense situation between Poland and the EU and relates to Poland’s judicial system was published on 16 November 2021 (Case C-748/19). The ECJ ruled that another Polish regulation violates EU law and is therefore inadmissible. This ruling was given because, under Polish law, the Minister of Justice is currently also the Prosecutor General, who has the power to assign judges to higher courts at their own discretion. They can also remove them from there at any time without giving reasons. This power offers too great a possibility of political influence so that the necessary independence and impartiality of the courts is not safeguarded. Instead, it must be ensured that a government ministry role is never used as an instrument of political control of judicial decisions.
Current Legal Situation concerning the Validity of European Arrest Warrants from Poland
Concerning the question of the validity of European Arrest Warrants (EAWs) issued by Poland, the ECJ had last taken a position in December 2020. The reason for this was the submission of a Dutch court asking whether the execution of an EU arrest warrant from Poland may be refused if it was issued by a body whose independence is not guaranteed. If this independence is not guaranteed, then the right to a fair trial (§ 47(2) of the Charter of Fundamental Rights) is violated.
In principle, a European arrest warrant must be issued by the competent judicial authority of the Member State. However, for the issuing authority to be a “judicial authority” within the meaning of EU law and European Framework Decision 2002/584, it must be independent. This means that if such a right of refusal existed, another state would deny the Polish authority the status of “judicial authority”.
At the time, the Dutch court referred the question to the ECJ because it assumed general and systemic deficiencies in the Polish legal system that would pose a risk to the guarantee of the right to a fair trial.
The ECJ found clear words: such general and systemic deficiencies are not sufficient to justify a right of refusal by the requested state. It emphasised the fundamental importance of the principle of mutual trust and mutual recognition. These principles were expressed precisely in the fundamental obligation to enforce an EAW (Article 1(2) of the Framework Decision). A refusal of enforcement was only possible for the reasons exhaustively listed in the Framework Decision. Enforcement could also only be made subject to such conditions as are also exhaustively listed in Article 5 of the Framework Decision. Refusal of enforcement is the exception and must be interpreted narrowly.
Two-Stage Examination Procedure
According to the ECJ, a two-step examination procedure is therefore necessary:
In a first step, it must be examined whether such general and systemic deficiencies exist in the issuing state, i.e. Poland, which affect the right to a fair trial. If this is the case, it must then be examined in a second step whether these deficiencies also have an effect in the concrete individual case. This does not necessarily have to result so that a violation of the right cannot automatically be assumed. In particular, the personal situation of the person to be extradited must be examined, as well as the type of offence and the facts on which the EU arrest warrant is based. Only if this case-by-case examination shows that there is a real risk to the guarantee of a fair trial may the execution of the arrest warrant be refused.
Outlook: General [In]Validity of a Polish EAW in the Context of Previous Case Law
The currently pending decision on the general invalidity of Polish EU arrest warrants is inextricably linked to what to do next. This complication is because this question needs to be answered before there are clear guidelines regarding the concrete question of examination in the individual case (one-stage/two-stage).
If it is decided that a Polish European Arrest Warrant request is in principle valid, the previous legal situation remains. Courts must therefore carry out a two-stage examination in each individual case. Depending on the findings in this judgment on the rule of law conditions in Poland, it would at most be conceivable that the first stage of finding general and systemic deficiencies could be softened and that these could be accepted in principle. However, it can be assumed that the case-by-case duty of review (second step) will remain.
If, on the other hand, it is decided that an EAW issued by Poland is generally invalid, there would not only be a general right of refusal with the consequence that no other member state would have to execute such an arrest warrant but even a general duty of refusal. For otherwise, an obviously unlawful judicial action would be executed, indicating the unlawfulness of the subsequent measures based on it (extradition and detention in the target state) and further deepening the violation of rights. To avoid such a general prohibition of enforcement, at most, a renewed duty of review for the requested court could be considered, with which the previous principle would be reversed. Accordingly, it would be conceivable that, in principle, the general invalidity of the arrest warrant and, thus, the refusal of execution is to be assumed, but in individual cases, it remains to be examined whether, considering the concrete circumstances, compliance with the rights is not exceptionally guaranteed.
If the ECJ decides in this direction and assumes general invalidity, this will lead to numerous further questions and significant problems. The following three are likely to be of considerable importance.
Problem 1: The assumption of general invalidity would not only circumvent the general principles of mutual trust and mutual recognition or, in the case of the establishment of a possible duty to examine, would, in any case, be reversed. Instead, this would lead to a de facto suspension of the application of the European Framework Decision 2002/584. According to this Framework Decision, an automatic refusal of enforcement is only possible if there is a serious and persistent breach of the principles contained in Article 2 TEU, including the principle of the rule of law, and the European Council formally establishes these breaches in a decision. However, such a decision of the European Council does not exist (so far), so that the specifically established rules would be circumvented.
Problem 2: Furthermore, no Polish court could any longer be considered a “court” in the application of other EU law, in particular Article 267 TFEU. This is because – as explained at the beginning – the Polish court, as the issuing authority, would be denied the status of a “judicial authority” due to its lack of independence and impartiality, so that no judicial implementation and application of other EU law could take place either.
Problem 3: There would be an increased risk of impunity for perpetrators who attempt to evade justice by fleeing to another member state. This is because they would not have to fear enforcement and extradition in principle but could assume that states would not transfer them – regardless of whether a reverse obligation to examine would be established or not. For even in the latter case, it would require precisely this examination and justification of the exceptional execution of the arrest warrant, in which proof of the guarantee of rights would first have to be provided.
The Dilemma of the ECJ
Accordingly, it remains exciting to see how the European Court of Justice will rule.
Based on the rulings of recent years, in which various violations of EU law on the part of Poland have repeatedly been established, often in close connection with a lack of the rule of law, there is much to be said for assuming insufficient independence and impartiality of Polish courts. There would be a general invalidity of Polish EU arrest warrants if this is the case.
In particular, the recent judgement, which found that the Minister of Justice, who is also the Prosecutor General, has too broad powers that allow for political control and influence, speaks strongly in favour of this approach. In this respect, it must also be considered that the ECJ should avoid contradicting its own jurisdiction. This does not mean the two-stage examination that has been required so far – the same question may well be answered differently, considering developments and rulings in the meantime and leading to a change in case law. This is rare but not unusual. Instead, what is meant is the ECJ’s other case law regarding Poland’s development in terms of the judicial system and the rule of law.
If, on the one hand, the ECJ repeatedly assumes, as it has done, that Polish regulations are contrary to EU law and that some of them significantly endanger judicial impartiality and independence, it is contradictory to assume sufficient independence regarding the validity of the EU arrest warrant. It is questionable when this turning point will be reached.
On the other hand, there are also some arguments in favour of remaining with the previous case law, i.e. the general validity of the arrest warrant as well as the fundamental obligation to execute it. In this way, the specifically established regulations in the Framework Decision cannot be ignored. Admittedly, it can be justified that the elementary principles from Art. 2 TEU are not guaranteed due to the deficiencies mentioned above. However, a decision of the European Council is explicitly required for the automatic refusal of enforcement. This decision is not available.
Furthermore, the further consequences of such an assumption would be immense. Not only would the inter-state extradition procedure be impaired due to an EAW, but the entire application of other EU law would also logically have to be called into question. Suppose there are no longer any “courts” that could apply, interpret and implement EU law. In that case, this raises the further question of whether and how Poland should continue to be able to remain part of the European community of values. Considerable interstate conflicts are to be expected, which in turn are of political interest and relevance. However, it is precisely this relevance that is problematic – judicial decisions are supposed to be free of political interest. A vicious circle?