Minister for Justice and Equality (Tribunal établi par la loi dans l’État membre d’émission - II)

On 12 July 2022, the Eighth Chamber of the Court of Justice of the European Union (hereinafter ‘CJEU’ or ‘Court’) issued a reasoned Order pursuant to Article 99 of the Rules of Procedure of the Court of Justice, in a case concerning the interpretation of Council Framework Decision 2002/584/JHA (‘EAW FD’) and of Article 47 of the Charter of Fundamental Rights of the European Union (‘Charter’) in relation to the rule of law deficiencies affecting the Polish judicial system. The case arose before the Irish courts, in proceedings aimed at the execution of several EAWs issued by the Polish authorities against WO and JL. The two individuals essentially claimed before the Irish Supreme Court that, due to the 2020 Polish law on the organisation of ordinary courts, they would risk being tried by courts that could not qualify as a judge established by law, without having any legal remedy to challenge such illegality. In such circumstances, they contended that further individual examination, as required according to the Minister for Justice and Equality (Deficiencies in the judicial system) ruling (C216/18 PPU, ECLI:EU:C:2018:586), would no longer be necessary in order to refuse surrender. Therefore, the referring judge asked the court whether the two-step test established in that precedent and reiterated in the Openbaar Ministerie (Independence of the issuing judicial authority) judgement (C-354/20 PPU and C-412/20 PPU, ECLI:EU:C:2020:1033) still applies ‘where there is a real risk that the appellants will stand trial before courts which are not established by law’, and ‘where a person seeking to challenge a request under a [EAW] cannot meet that test by reason of the fact that it is not possible at that point in time to establish the composition of the courts before which they will be tried by reason of the manner in which cases are randomly allocated’. In addition, the referring judge sought to establish if, in cirumstances such as those at hand in this case, the lack of an effective remedy against the validity of the appointment of judges constitutes ‘a breach of the essence of the right to a fair trial’ imposing the refusal to execute the EAWs in question. By simply recalling its reasoning in Openbaar Ministerie (Independence of the issuing judicial authority), the Court reiterated the necessity to perform a two-step examination, encompassing an analysis of the individual circumstances, also where the right to be tried before a tribunal previously established by law is at stake.