The AY Case – Construing EAW ne bis in idem within the Boundaries of the Preliminary Ruling Reference

• Date: 30 October 2020
• Year: 2020
• Author: Dr. Florentino-Gregorio Ruiz Yamuza
• Pages: 86
• DOI: https://doi.org/10.30709/eucrim-2020-025

“…it is, first and foremost, for the executing Member State to trust the actions of the issuing Member State. However, the issuing Member State must also trust the actions of the executing Member State when the latter relies on grounds of refusal of execution of an EAW.”

(Opinion of Advocate General Szpunar, Case C-268/17, AY, paragraph 32)

Context of the AY Case: Facts and Questions Referred

In 2011, the Croatian Office for Suppression of Corruption and Organised Crime (USKOK) requested Hungarian authorities to interview AY as a suspect in the context of a corruption-related investigation carried out in Croatia. Hungary declined the request on the grounds of national interest but opened an investigation on the same facts, interviewing AY as a witness. This investigation was closed by the Hungarian National Bureau of Investigation (HNBI) in 2012. The Croatian investigation was also suspended in December 2012. In 2013, the USKOK issued a European Arrest Warrant (EAW) against AY over the same facts. The Budapest High Court refused it, claiming that criminal proceedings had already been brought before the court in Hungary for the same acts and that these proceedings had been stopped. After said decision, AY moved to Germany and Austria, where authorities also refused to take action on the Interpol notice, as its execution could infringe the ne bis in idem principle − taking into account the Hungarian refusal of the EAW. In 2015, after an indictment against AY in Croatia, a new EAW was issued, this time by the Zagreb County Court. This EAW was not executed by Hungary either. In 2017, the EAW was reissued, stating that circumstances had changed and criminal that proceedings against AY had been brought before the court. After not having received any answer from the Hungarian authorities, the Zagreb court contacted the authorities via Eurojust in order to know their position; the Hungarian authorities replied that the case had already been decided and, therefore, they were not obliged to act on the EAW.

Essentially, the referring court asked whether Arts. 3(2) and 4(3) FD EAW must be interpreted as meaning that a decision by the public prosecutor’s office, terminating an investigation against an unknown person, in which the individual was merely interviewed as a witness, may be relied on to refuse to execute an EAW under either of these provisions (questions 1 to 4). Calling to mind, Art. 3(2) FD EAW includes among the mandatory grounds for refusal of EAWs the case in which a Member State has finally judged the requested person "in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State.” And Art. 4(3) lists as an optional ground for refusal the situation where “the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the EAW is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings.”

In addition, the referring court asked whether Art. 1(2) FD EAW – the obligation of Member States to execute any EAW on the basis of the principle mutual recognition – must be interpreted as requiring the executing authority to adopt a decision on any EAW forwarded to it, even when a ruling in that Member State had already been made on a previous EAW concerning the same person and the same acts, but the second EAW was issued by a different authority on account of the requested person’s indictment (question 5).

II. The Admissibility Question: Reference by the Issuing Authority? 1. The Advocate General’s Opinion

In his opinion of 16 May 2018, Advocate General (AG) Szpunar distinguishes two groups of questions for the preliminary ruling: (1) questions 1 to 4, which he considers outside of the CJEU’s jurisdiction and (2) question 5, which he considers the only admissible one.¹

Regarding questions 1 to 4, the AG underlines that the preliminary reference is somewhat unusual. The answer provided by the Court would only concern the executing authorities, who are generally responsible for seeking clarity to ascertain whether they may or may not execute an EAW. In this case, the reference was made by the issuing authority (i.e., the Zagreb County Court), and it seems that the Zagreb court’s subsequent action would depend on the decision of the ECJ: If the ECJ determines that grounds for refusal are sound, the EAW should be withdrawn. Concerning questions 1 to 4, the AG not only discards the admissibility of the request for a preliminary ruling but even denies the jurisdiction of the ECJ.² The AG’s analysis is primarily based on the lack of necessity of the Court’s reply on the procedure before the referring court, because there is no link between the EAW withdrawal and the existence of non-execution grounds. Should the ECJ hold that Hungarian authorities can rely on Arts. 3(2) or 4(3) FD EAW to refuse the EAW, the referring court could maintain or withdraw the EAW. Ultimately, questions 1 to 4 referred for preliminary ruling concern interpretation of Hungarian law in the light of the FD EAW, and only the Hungarian authorities, not the referring court, would be bound by the ECJ’s decision.³

On the contrary, the AG finds the ECJ competent to deal with the fifth question, considering it pertinent to answer this question: It is necessary for the authorities of the executing Member State but also necessary for the referring court “to know whether it can legally expect a response from the executing judicial authority. This will enable the referring court to establish whether it should withdraw the second EAW or not. Question 5 is the only one which does not require any interpretation of Hungarian law by the referring court.”⁴

2. The Approach of the European Court of Justice

The ECJ does not address the matter of the admissibility of the reference from the perspective of jurisdiction but rather from that of the admissibility of the preliminary ruling.⁵ The inadmissibility of references on the basis of Art. 267 TFEU is an exception, the Court being obliged to rule if the questions raised refer to the interpretation of Union law.⁶ Such obligation only lapses in three situations:

• If it is evident that the interpretation of EU law being sought is unrelated to the facts of the main action or its object;

• If the problem is hypothetical;

• If the Court does not have before it the factual or legal material necessary to provide a useful answer to the questions submitted.

The Court underlines that the present case does not correspond to any of these situations. The Zagreb County Court is dealing with both a trial in absentia against AY and the EAW proceedings and maintains that the withdrawal of the EAW depends on the ECJ’s responses. Although the issues raised mainly refer to the obligations of the executing judicial authority, the issuance of the EAW may lead to the arrest of the requested person, affecting his freedom. The Court held, inter alia, in Piotrowski that the observance of fundamental rights in EAW proceedings primarily falls within the responsibility of the issuing Member State.⁷

3. The controversy between the AG and the ECJ

The ECJ’s judgment triggers an exciting debate, establishing a doctrine of Art. 267 TFEU that will likely expand our understanding of the boundaries of the preliminary ruling reference. For his part, the AG's reading of Art. 267 draws different conclusions despite being in line with the Court's recommendations about the initiation of preliminary ruling proceedings and with the binding effect that ECJ decisions in this field have.

The ECJ's rationale, which holds that the EAW affects the requested person's liberty is of undeniable general validity, but it should be carefully scrutinised in this case, since AY was free, and Hungary had already denied his surrender. In other words, as far as Hungary was concerned, there was no risk that the Croatian decision to maintain or withdraw the EAW would affect AY's liberty. We should also bear in mind that the request for surrender had been indirectly refused in Germany and Austria at the police level. As a consequence, the climate was unfavourable to AY's surrender, and there was little to no arrest risk for him in any of the States linked to this matter.

On the other hand, the AG's view, with which I basically agree, shows a divergent position that may appear as somehow inconsistent; his line of argument varies, without a clear explanation for such a different approach. Regarding questions 1 to 4 (interpretation of Arts. 3 (2) and 4 (3) FD EAW), he holds that the ECJ does not have jurisdiction to deal with them. By contrast, concerning the fifth question (interpretation of Art. 1 (2) FD EAW), he concedes that it can influence the EAW's withdrawal by the Croatian authorities. Therefore, he is in favour of an ECJ's decision on the merits of the case.

I do not aim to dive into the discussion between inadmissibility of the preliminary ruling reference and the ECJ's lack of jurisdiction, which the AG addresses. However, the wording of Art. 267 TFEU links the scope of application of the reference for a preliminary ruling with a situation in which a decision on the question is necessary to enable the referring Court to render judgment. Here, two questions arise: First, can we construe the decision to maintain or withdraw the EAW as equivalent to "judgment" in this context? Second, can we assume for this purpose that the case the referring authority is dealing with does not just involve the criminal proceedings but could also be the very EAW under consideration? In the present case, there was an ongoing criminal proceeding in absentia against AY in Croatia in addition to the EAW request for his surrender. Hence, it is questionable whether...