Judgement in Case C 216/18 PPU Minister for Justice and Equality v LM

This much awaited judgement by the Grand Chamber in the Celmer case has not brought what many Rule of law defenders had hoped – that given the deadlock in the Article 7 procedure where a decision by the Council is out of sight, the Court would declare the respect for the Rule of law in Poland to be so insufficient that it does no longer provide the necessary basis for mutual trust as to allow the execution of European arrest warrants issued by Polish courts. Instead, following AG Tanchev’s conclusions the Court has decided to apply the two-stage formula developed in the Aranyosi and Căldăraru judgement also in this case: the executing court is first called to check whether there is evidence showing systemic or generalised deficiencies concerning the independence of the judiciary in the issuing Member State which would imply a real risk of breach of the fundamental right to a fair trial; and second, the executing court has to establish, “specifically and precisely,” having regard to the personal situation of the person to be surrendered and after liaising with the issuing court (Art. 15 (2) EAW FD), that there are “substantial grounds for believing” that the person will run such risk when surrendered. While the Court recognises that the Commission’s reasoned proposal pursuant to Article 7 (1) TEU may be a starting point for assessing the first question, it clearly says that the executing court must carry out a “specific and precise assessment” of the situation, as according to Recital 10 of the EAW Framework Decision the executing court may only suspend the EAW if there is a Council decision as provided for in Art. 7 (2) TEU.

So the Court has not done the job of the Council. Its interpretation of the concept of mutual trust as determined in Recital 10 of the EAW Framework Decision gives precedence to the effectivity of judicial cooperation over serious concerns regarding judicial independence and the rule of law undermining mutual trust even if an Art¨7 TEU Council decision is unavailable for mere political reasons. This understanding may be deplored as rather formalistic; it seems to ignore that different from Aranyosi and Căldăraru in an Article 7 situation the breach of the rule of law is deliberate, not negligent. However it should be acknowledged that the Court has gone beyond a literal interpretation of Recital 10 by deciding that an executing court may (or even must) refrain from giving effect to the EAW if the Aranyosi and Căldăraru conditions are met.

The decision will be further discussed at ERA’s 14 September 2018 conference at the Cour de Cassation in Paris, click here for more information.