X and Y v Openbaar Ministerie.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:100
• Date: 22 February 2022
• Docket Number: C-562/21,C-563/21
• Celex Number: 62021CJ0562
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

22 February 2022 (*)

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Surrender procedures between Member States – Conditions for execution – Charter of Fundamental Rights of the European Union – Second paragraph of Article 47 – Fundamental right to a fair trial before an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies – Two-step examination – Criteria for application – Obligation of the executing judicial authority to determine, specifically and precisely, whether there are substantial grounds for believing that the person in respect of whom a European arrest warrant has been issued, if surrendered, runs a real risk of breach of his or her fundamental right to a fair trial before an independent and impartial tribunal previously established by law)

In Joined Cases C‑562/21 PPU and C‑563/21 PPU,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands), made by decisions of 14 September 2021, received at the Court on 14 September 2021, in proceedings relating to the execution of European arrest warrants issued against

X (C‑562/21 PPU)

Y (C‑563/21 PPU)

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, A. Prechal, C. Lycourgos, S. Rodin, I. Jarukaitis, N. Jääskinen (Rapporteur), I. Ziemele, J. Passer, Presidents of Chambers, M. Ilešič, J.‑C. Bonichot, L.S. Rossi, A. Kumin and N. Wahl, Judges,

Advocate General: A. Rantos,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 16 November 2021,

after considering the observations submitted on behalf of:

– X, by N.M. Delsing and W.R. Jonk, advocaten,

– Openbaar Ministerie, by C.L.E. McGivern and K. van der Schaft,

– the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,

– Ireland, by J. Quaney, acting as Agent, and R. Kennedy, Senior Counsel,

– the Polish Government, by S. Żyrek, J. Sawicka and B. Majczyna, acting as Agents,

– the European Commission, by S. Grünheid, K. Herrmann, P. Van Nuffel and J. Tomkin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 December 2021,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 1(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’) as well as Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The requests have been made in proceedings in the Netherlands concerning the execution of two European arrest warrants issued respectively, in Case C‑562/21 PPU, on 6 April 2021 by the Sąd Okręgowy w Lublinie (District Court, Lublin, Poland) for the purposes of executing a custodial sentence imposed on X and, in Case C‑563/21 PPU, on 7 April 2021 by the Sąd Okręgowy w Zielonej Górze (District Court, Zielona Góra, Poland) for the purposes of conducting a criminal prosecution of Y.

Legal context

European Union law

3 Recitals 5, 6 and 10 of Framework Decision 2002/584 read as follows:

‘(5) The objective set for the [European] Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.

(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.

…

(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [TEU], determined by the Council [of the European Union] pursuant to Article 7(1) [TEU] with the consequences set out in Article 7(2) thereof.’

4 Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU].’

5 Articles 3, 4 and 4a of that framework decision set out the grounds for mandatory or optional non-execution of a European arrest warrant.

6 Article 8 of the framework decision specifies the content and form of the European arrest warrant.

7 Under Article 15 of Framework Decision 2002/584, entitled ‘Surrender decision’:

‘1. The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’

Netherlands law

8 Framework Decision 2002/584 was transposed into Netherlands law by the Wet tot implementatie van het kaderbesluit van de Raad van de Europese Unie betreffende het Europees aanhoudingsbevel en de procedures van overlevering tussen de lidstaten van de Europese Unie (Overleveringswet) (Law implementing the Framework Decision of the Council of the European Union on the European arrest warrant and the surrender procedures between the Member States of the European Union (Law on Surrender)) of 29 April 2004 (Stb. 2004, No 195), as amended by the Law of 17 March 2021 (Stb. 2021, No 155).

The disputes in the main proceedings and the questions referred for a preliminary ruling

Case C‑562/21 PPU

9 The referring court, the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) received a request to execute a European arrest warrant issued on 6 April 2021 by the Sąd Okręgowy w Lublinie (District Court, Lublin). That European arrest warrant is for the arrest and surrender of a Polish national, for the purposes of executing a two-year custodial sentence imposed on the person concerned by a final judgment of 30 June 2020 for extortion and threats of violence.

10 The person concerned has not consented to his surrender to the Republic of Poland. He is currently in custody in the Netherlands, pending the referring court’s ruling on that surrender.

11 The referring court states that it identified no grounds that could prevent that surrender, except for that raised in the question referred to the Court for a preliminary ruling.

12 The referring court finds that since 2017 there have been systemic or generalised deficiencies relating to the independence of the judiciary in the issuing Member State. Those deficiencies, which already existed at the time the European arrest warrant referred to in paragraph 9 above was issued, have been further exacerbated. According to the referring court, there is consequently a real risk that, in the event of surrender to the issuing Member State, the person concerned would suffer a breach of his fundamental right to a fair trial guaranteed in the second paragraph of Article 47 of the Charter.

13 According to that court, those deficiencies affect, in particular, the fundamental right to a tribunal previously established by law, guaranteed by that provision.

14 That court finds that the deficiencies at issue result, inter alia, from the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017 (Dz. U. of 2018, item 3) (‘the Law of 8 December 2017’), which entered into force on 17 January 2018 and, in particular, from the role of the Krajowa Rada Sądownictwa (the Polish National Council of the Judiciary; ‘the KRS’) in the appointment of members of the Polish judiciary.

15 In that regard, the referring court refers to the resolution adopted by the Sąd Najwyższy (Supreme Court, Poland) on 23 January 2020, in which the latter court found that the KRS, because it is subordinated directly to...