OG (Parquet de Lübeck) and PI (Parquet de Zwickau)

On the 6th of August 2018, the Irish Supreme Court lodged a request for a preliminary ruling in the frame of the surrender procedure of O.G. (C-508/18). The Irish Court referred the following questions to the Court of Justice:

(1) Is the independence from the executive of a public prosecutor to be decided in accordance with his position under the relevant national legal system? If not what are the criteria according to which independence from the executive is to be decided?

(2) Is a public prosecutor who, in accordance with national law, is subject to a possible direction or instruction either directly or indirectly from a Ministry of Justice, sufficiently independent of the executive to be considered a judicial authority within the meaning of Article 6(1) of the [EAW] Framework Decision?

(3) If so, must the public prosecutor also be functionally independent of the executive and what are the criteria according to which functional independence is to be decided?

(4) If independent of the executive, is a public prosecutor who is confined to initiating and conducting investigations and assuring that such investigations are conducted objectively and lawfully, the issuing of indictments, executing judicial decisions and conducting the prosecution of criminal offences, and does not issue national warrants and may not perform judicial functions a “judicial authority” for the purposes of Article 6(1) of the [EAW] Framework Decision?

(5) Is the Public Prosecutor in Lübeck [who asked for the surrender of O.G.] a judicial authority within the meaning of Article 6(1) of the Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States?

The Irish Court referred the same questions in the frame of the surrender procedure of P.I. (C-82/19 PPU), with the only difference that the surrender had been asked by the Public Prosecutor in Zwickau.

On 30 April 2019, Advocate General Campo Sánchez-Bordona delivered his Opinion, where he concluded that Article 6(1) of the EAW Council Framework Decision should be interpreted as meaning that the term ‘issuing judicial authority’ does not include the institution of the Public Prosecutor’s Office. The same conclusion is to be found in his Opinion in Case C-509/18 (Minister for Justice and Equality v P.F.), which was delivered on the same day.

In its judgment of 27 May 2019, the Court of Justice agrees with the Advocate General and states that the concept of an ‘issuing judicial authority’, within the meaning of Article 6(1) of the EAW Council Framework Decision, must be interpreted as not including public prosecutors’ offices of a Member State which are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision to issue a European arrest warrant.