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On 17 December 2020, the Grand Chamber of the CJEU delivered its judgment in Joined Cases C-354/20 PPU and C‑412/20 PPU. The opinion concerns the interpretation of Article 6(1) and Article 1(3) of Framework Decision 2002/584 on the European Arrest Warrant (EAW Framework Decision) and the possibility to refuse the execution of an EAW in case of generalised deficiencies of the issuing Member State’s legal system. The case at hand follows up on Minister for Justice and Equality (Case C-327/18 PPU), which stated that the execution of an EAW may also be exceptionally suspended where there is evidence showing a concrete risk that the fundamental right to a fair trial will be breached. However, this refusal to execute an EAW must be preceded by a check on whether in the issuing State there are systemic and generalised deficiencies affecting the independence of the judiciary and that there are substantial grounds to believe that the requested person, if surrendered, will suffer a breach of Article 47 of the Charter.

The preliminary ruling request was sent by the Amsterdam District Court and concerned two EAWs, one issued for the purposes of conducting a criminal prosecution for drug trafficking-related offences, the other aiming at executing a custodial sentence. The referring court asks whether, considering the worsening of the generalized deficiencies in the Polish justice system, it is allowed to refuse the surrender without having to ascertain in detail the specific circumstances pertaining to the EAW. In the context of the urgent preliminary ruling procedure (PPU), the Court, sitting as the Grand Chamber, answers in the negative, thus confirming its case-law established in Minister for Justice and Equality.

In the first place, the Court observes that the deficiencies concerning the independence of the Polish justice system do not affect necessarily every decision of all Polish courts. Denying the status of “issuing judicial authority”, as defined in Article 6(3) of the EAW Framework Decision, to all courts whenever a Member State presents such deficiencies would lead to the disapplication of the principles of mutual trust and mutual recognition with regard to EAWs issued by national authorities. This would also have the consequence, inter alia, to exclude the courts of that Member State from submitting references to the Court for preliminary rulings. Moreover, the Court specifies that its recent case-law on the concept of “issuing judicial authority” and the subordination of the prosecution service to the executive (Lübeck and Zwickau Public Prosecutor's Offices, C‑508/18 and C‑82/19 PPU) does not apply to the case at hand as they did not concern generalized deficiencies of the justice system.

In the second place, the Court states that even an increase in the systemic or generalized deficiencies regarding the independence of courts in a certain Member State does not allow to presume that the person requested through an EAW in that Member State will suffer a breach of his or her right to a fair trial. The Court thus reiterates the requirement of the two-step examination referred to in Minister for Justice and Equality, which obliges the executing judicial authority to also assess the risk in question in the specific case. This assessment must take into account the situation of the requested person, the nature of the offence, and the factual context of the EAW, such as any statements by public authorities that might interfere with the handling of the case. The Court points out that an automatic refusal to execute EAWs issued by a Member State is possible only if the European Council formally declares that that Member State has failed to respect the principles on which the Union is based.

Furthermore, the Court adds that the judicial authority executing an EAW issued with the aim to conduct criminal proceedings must take into account systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary that may have arisen before or after the issue of the EAW. On the contrary, where an EAW is issued with a view to a surrender for the execution of a custodial sentence, the executing judicial authority must only examine whether the deficiencies existed in the issuing Member State at the time of issue and whether they have affected the independence of the court that imposed the specific custodial sentence.

The Court, therefore, rules that Articles 6(1) and 1(3) of the EAW Framework Decision must be interpreted as meaning that, where there is evidence of systemic or generalised deficiencies concerning the independence of the judiciary in a Member State issuing an EAW, the executing judicial authority must carry out a specific and precise verification of the risks of breach of the fundamental right to a fair trial of the requested person, if surrendered. This assessment takes account of, inter alia, his or her personal situation, the nature of the offence in question, and the factual context in which that warrant was issued, such as statements by public authorities liable to interfere with the handling of the individual case.