NJ (Parquet de Vienne)

On 17 September 2019, the Second Chamber of the Court of Justice delivered its judgement in Case C-489/19 PPU, NJ (Parquet de Vienne). This represents a further episode of the saga opened with the case OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), where the Court argued that German public prosecutors do not enjoy a sufficient degree of independence to be considered ‘issuing authorities’ for the purposes of the European Arrest Warrant Framework Decision. In the case of NJ, who was subject to an EAW issued by Austrian authorities, the question concerns Austrian public prosecutors, with respect to whom a German court, in its capacity as executing authority, entertains doubts as to their independence. Espousing in essence the view of AG Sharpston, the Court argues that the Austrian system is compatible with the EAW Framework Decision.

According to Austrian legislation, public prosecutors are subject to directions or instructions from the executive (the Federal Minister of Justice). They are also responsible for issuing European Arrest Warrants. However, Austrian legislation provides that EAWs issued by public prosecutors shall be endorsed by a court. This ‘endorsement procedure’ includes an examination of the legality and proportionality of the EAW and is subject to judicial review. Without the endorsement, EAWs do not produce legal effects and cannot be transmitted.

After summarising the main findings of the OG and PI case, and especially those concerning the dual level of protection of procedural rights that the requested person should enjoy in surrender procedures, the Court first acknowledges that Austrian public prosecutors may not meet the criterion of objectivity and independence that the EAW Framework Decision requires from issuing authorities, as they are not entirely independent from the Federal Minister of Justice. The question therefore arises as to whether decisions on the issue of an EAW in Austria can be regarded as satisfying the minimum requirements on which their validity depends as regards the objectivity and independence of the review carried out when those decisions are adopted. As anticipated, the Court replies in the affirmative by first clarifying that ‘the concept of “decision” must be understood as referring to the act in the form which it takes when it is executed. Indeed, it is at that time and in that form that the decision to issue the European arrest warrant is likely to impinge on the right to freedom of the person requested’ (para. 42; emphasis added). It follows that the ‘decision’ to issue an EAW according to Austrian law is compatible with the EAW Framework Decision, at least for three reasons.

First, without the endorsement of the competent Austrian court, which unquestionably meets the needed requirements of objectivity and independence, Austrian EAWs do no produce legal effects and cannot be transmitted. Second, the endorsement procedure allows the competent Austrian court to review in-depth the decision by public prosecutors. In that procedure, indeed, the court evaluates the legality and proportionality of the arrest warrant, taking into account the particular circumstances of each specific case, including the effects of the surrender procedure and the transfer of the person concerned on that person’s social and family relationships. If the executive has given some instructions, they shall be included in the file to which the court has access. Third, the court is not bound by the results of the investigations carried out by public prosecutors and it could also order additional investigations or carry them out itself. Unlike the German system, where the decisions of public prosecutors to issue an EAW were subject to (potential) ex post judicial review which depended on the choice of the concerned person to appeal those decisions, the Austrian system provides for an objective and independent review by a court that takes place ex officio before the arrest warrant produces legal effects and can be transmitted.

Hence, EAWs issued by public prosecutors fall within the concept of ‘European Arrest Warrant’ for the purposes of the EAW Framework Decision ‘despite the fact that those public prosecutor’s offices are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case, from the executive […] in the context of the issue of those arrest warrants, provided that those arrest warrants are subject, in order to be transmitted by those public prosecutor’s offices, to endorsement by a court which reviews independently and objectively, having access to the entire criminal file to which any directions or instructions in a specific case from the executive are added, the conditions of issue and the proportionality of those arrest warrants, thus adopting an autonomous decision which gives them their final form’ (para. 49).