Amicus curiae opinion in the case C-216/18 PPU Minister for Justice and Equality (national court: High Court – Ireland)

Amicus curiae opinion

by the Foundation of Ordo Iuris Institute for Legal Culture

in the case

C-216/18 PPU Minister for Justice and Equality (national court: High Court – Ireland)

I. Facts of the case

1. Artur Celmer, the citizen of the Republic of Poland, has been wanted under the suspicion of committing offences defined in Article 258 § 1 of the Criminal Code Act[1]  of 6 June 1997 and Article 55 § 1 of the Act on Counteracting Drug Addictions[2] of 29 July 2005. Three European Arrest Warrants (hereinafter: EAW) have been issued against him, all of them stating that the Respondent was involved in an organized criminal group set up to commit offences which consisted in distributing large quantities of toxic and psychoactive substances, and that the Respondent himself transported narcotic drugs and psychoactive substances[3].
2. Over recent years Artur Celmer has resided in Ireland where he was apprehended.
3. In the course of the proceedings, Artur Celmer raised concerns regarding the fairness of the trial awaiting him in Poland. The Respondent’s defence counsels relied in their arguments on the alleged infringement of the rule of law in Poland, following the reform of the judiciary initiated in 2015. Based on the Reasoned Proposal of the Commission dated 20 December 2017[4], the Irish High Court refused to surrender Artur Celmer to Polish authorities and referred to the Court of Justice of the European Union (hereinafter: CJEU) a question of law under Article 267 of the Treaty on the Functioning of the European Union (hereinafter: TFUE)[5] on whether the state of the rule of law in a Member State of the European Union (hereinafter: UE) may be assessed by a judicial authority of another Member State.

II. Legal analysis

4. The EAW is issued based on the provisions of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (hereinafter: Framework Decision)[6]. According to the preamble to the Framework Decision: “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) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof”.
5. Considering the evolution of the EU primary law, it should be noted that the preamble to the Framework Decision, and namely its recital 10 refer in fact to the current provisions of Article 2 and Article 7(2) and (3) of the Treaty on European Union (hereinafter: TEU)[7].
6. Pursuant to Article 2 of the TEU: “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. Furthermore, pursuant to Article 7(2) of the TEU: “the European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations”. Meanwhile, Article 7(3) of the TEU reads as follows: „where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the MemberState in question under the Treaties shall in any case continue to be binding on that State”.
7. It should be highlighted here that according to the provisions of the Framework Decision, the surrender of the individual covered by the EAW may be refused solely in the circumstances listed in its Articles 3, 4 and 4a. This assumption is borne out by the case-law of the CJEU, which in its judgment given in the case Leymann and Pustarov found that: “the principle of mutual recognition, which underpins the Framework Decision, also means that, in accordance with Article 1(2) of the Framework Decision, the Member States are in principle obliged to act upon a European arrest warrant. They must or may refuse to execute a warrant only in the cases listed in Articles 3 and 4.” (paragraph 51)[8]. Furthemore, in Mantellow case the Court stipulated that: “the Member States may refuse to execute such a warrant only in the cases of mandatory non-execution laid down in Article 3 of the Framework Decision or in the cases listed in Article 4 thereof (…)” (paragraph 37)[9].
8. The CJEU upheld its position, as discussed above, in its judgment rendered in the case Aranyosi and Căldăraru: “both the principle of mutual trust between the Member States and the principle of mutual recognition are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognized by EU law (see, to that effect, Opinion 2/13, EU:C:2014:2454, paragraph 191). In the area governed by the Framework Decision, the principle of mutual recognition, which constitutes, as is stated notably in recital (6) of that Framework Decision, the ‘cornerstone’ of judicial cooperation in criminal matters, is given effect in Article 1(2) of the Framework Decision, pursuant to which Member States are in principle obliged to give effect to a European arrest warrant (see, to that effect, judgment in Lanigan, C‑237/15 PPU, EU:C:2015:474, paragraph 36 and the case-law cited). It follows that the executing judicial authority may refuse to execute such a warrant only in the cases, exhaustively listed, of obligatory non-execution, laid down in Article 3 of the Framework Decision, or of optional non-execution, laid down in Articles 4 and 4a of the Framework Decision. Moreover, the execution of the European arrest warrant may be made subject only to one of the conditions exhaustively laid down in Article 5 of that Framework Decision (see, to that effect, judgment in Lanigan, C‑237/15 PPU, EU:C:2015:474, paragraph 36 and the case-law cited)” (paragraphs 78-80)[10].
9. Drawing upon the the case Aranyosi and Căldăraru, the CJEU held that in extremely exceptional situations the obligation to execute the EAW may be waived: “limitations of the principles of mutual recognition and mutual trust between Member States can be made ‘in exceptional circumstances’” (paragraph 82 of the judgment in the case Aranyosi and Căldăraru). However, it needs to be stressed that Aranyosi and Căldăraru case concerned a possible violation of the prohibition of torture or inhumane or degrading treatment or punishment, laid down Article 4 of the Charter of Fundamental Rights of the European Union (hereinafter: ChFR)[11] which states that “no one shall be subjected to torture or to inhumane or degrading treatment or punishment”. Hence, the Court admitted that the courts of the Member States can examine whether in a given, specific case, fundamental rights are violated but are not entitled to make a general assessment of the state of the rule of law in another MemberState. 
10. In the aforementioned judgment, the Court defines the requirements to be met in case of a decision not to execute the EAW on grounds other than those listed in Articles 3, 4 and 4a of the Framework Decision: “to that end, the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalized, or which may affect certain groups of people, or which may affect certain places of detention (paragraph 89). Moreover, as further induced by the Court, findings regarding legal or factual situation in a given Member State, should next be analysed in a light of more specific circumstances (directly related to possible violations of the rights of the individual covered by the EAW): “nonetheless, a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing Member State cannot lead, in itself, to the refusal to execute a European arrest warrant. Whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing MemberState. The mere existence of evidence that there are deficiencies, which may be systemic or generalized, or which may affect certain groups of people, or which may affect certain places of detention, with respect to detention conditions in the issuing Member State does not necessarily imply that, in a specific case, the individual concerned will be subject to inhuman or degrading treatment in the event that he is surrendered to the authorities of that Member State (paragraphs 91-93).
11. In the present case, the Irish High Court makes allegations that the Republic of Poland has been violating the rule of law due to the pending reforms of its judiciary. In the first place, it should be determined whether a court in one MemberState has powers to assess the state of the rule of law in another MemberState. Beyond doubt this question must be analysed in the light of the provisions of Articles 2 and 7 of the TEU, and the provisions of Vienna Convention on the law of treaties made in Vienna on 23 May 1969 (hereinafter: Vienna Convention)[12]. Pursuant to Article 5 of Vienna Convention: „the present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization”. The aforesaid provisions of the TEU should in particular be interpreted in consideration of the provisions of Article 31(1) of Vienna Convention: “a Treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose”.
12. It must be noted, above all, that it stems from the provisions of Article 7(2) of the TEU that the European Council holds an exclusive power to determine a serious and persistent breach by one of the Member States of values referred to in Article 2 of the TEU. The breach is determined according to pre-defined rules, as the procedure for the determination of a clear risk of a serious breach by a MemberState of values referred to in Article 2 of the TEU needs to be exhausted first. The procedure laid down in Article 7(1) of the TEU may be initiated solely by a narrow and exhaustively listed group of entities: a group of one third of the MemberStates, the European Parliament or the European Commission. No other entity has the power to submit the proposal and to trigger the procedure in question. The Council, acting by a majority of four fifths of its members, after obtaining the consent of the European Parliament, remains the only body empowered to determine the existence of a clear risk of a serious violation by a MemberState of values referred to in Article 2 of the TEU. Therefore, a close cooperation of those designated bodies is needed to thoroughly examine whether there actually exists a clear risk of a serious breach of values which became the foundations of the European Union. The specific “security mechanism” established in Article 7(1) of the TEU is intended to ensure the protection against any discretionary decisions regarding the question of vital importance for the Community as a whole.
13. Even more stringent requirements have been established in Article 7(2) of the TEU. In order to determine a serious and persistent breach by a MemberState of values enshrined in Article 2 of the TEU, the body entitled to do so needs to make a relevant proposal. The proposal may be made by a group of one third of the MemberStates or the European Commission. Hence, the measure laid down therein may be qualified as a “complaint procedure”, yet the proposal referred to in Article 7(2) may not, in any event, be considered as actio popularis as it may only emanate from a clearly defined group of entities. Once the proposal has been recognized by the European Council, the MemberState concerned must be invited to present its observations. Only upon the completion of this stage, the European Council, acting by unanimity and with the consent of the European Parliament may determine the existence of a serious and persistent breach by such MemberState of values referred to in Article 2 of the TEU.
14. Therefore, it should be assumed that the refusal to execute the EAW based on recitals to the Framework Decision (and namely its recital (10)) would be allowed only if the procedure laid down in Article 7(1) and (2) of the TEU has been exhausted. The omission of the said procedure would distort the meaning of recital 10 of the preamble which guided the Council in the adoption of the Framework Decision. The literal wording of recital (10) to the Framework Decision merely provides for the option to suspend the execution of the EAW; as a result, the Irish High Court has the power to possibly suspend the execution of the EAW if the procedure set forth in Article 7(2) of the TEU has been completed, which confirms our line of argument detailed so far. By contrast, it cannot be, as a rule, concluded that competent bodies are presumed to be in power to submit the proposal referred to in Article 7(2) of the TEU even if the proposal referred to in paragraph 1 of the same Article has already been made, and all the more to determine the violation by a Member State of values referred to in Article 2 of the TEU.
15. It should be added that in the light of Article 269 TFUE, the jurisdiction of the CJEU in cases concerning the assessment of the legality of an act issued based on Article 7 of the TEU has been clearly defined. First of all, the proceedings may only be initiated by the MemberState concerned by the determination of the breach of values enshrined in Article 2 of the TEU. Second of all, this jurisdiction is limited to procedural issues and does not cover the substantive grounds of the appraisal made by the Council or the European Council. It follows that the CJEU has no jurisdiction to assess the state of the rule of law in the Member State concerned by the procedure laid down in Article 7 of the TEU, and that the courts of the Member States have absolutely no power to trigger the procedure referred to in 269 TFUE. Moreover, the courts of the Member States have no competence to determine the violation of values enshrined in Article 2 of the TEU by other Member States.
16. Arguments detailed so far will not change if confronted with the judgment of the CJEU in the case Associação Sindical dos Juízes Portugueses v Tribunal de Contas[13]. As a matter of fact, the said case concerned the appraisal of the legality of solutions adopted in the framework of EU regulations: “In the present case, it should be noted that, as is apparent from the information provided by the referring court, the salary-reduction measures at issue in the main proceedings were adopted because of mandatory requirements linked to eliminating the Portuguese State’s excessive budget deficit and in the context of an EU programme of financial assistance to Portugal” (paragraph 46 of the judgment in the case Associação Sindical dos Juízes Portugueses v Tribunal de Contas). The same was stressed by the referring authority: “according to the referring court, the measures for the temporary reduction in the amount of public sector remuneration are based on mandatory requirements for reducing the PortugueseState’s excessive budget deficit during the year 2011. It considers that those measures were adopted in the framework of EU law or, at least, are European in origin, on the ground that those requirements were imposed on the Portuguese Government by EU decisions granting, in particular, financial assistance to that Member State” (paragraph 14 of the judgment in the case Associação Sindical dos Juízes Portugueses v Tribunal de Contas).
17. Moreover, it should be noted that in its judgment in the case Associação Sindical dos Juízes Portugueses v Tribunal de Contas the CJEU did not discuss the procedures set forth in Article 7 of the TEU, while the Framework Decision allows for the execution of the EAW to be suspended when, following the application of the procedure laid down in Article 7(2) of the TEU, it is concluded that the Member State concerned has committed a serious and persistent breach of values referred to in Article 2 of the TEU. This stems from a difference in factual situations at issue in the present case and in Associação Sindical dos Juízes Portugueses v Tribunal de Contas case. Therefore, no substantive grounds exist to apply the criteria determined in the judgment handed down in the case Associação Sindical dos Juízes Portugueses v Tribunal de Contas to assess whether the EAW execution is sound.
18. To conclude this part of our argument, it should be stated that an assessment, if any, of whether the execution of the EAW may possibly be rejected in circumstances which have not been listed in Articles 3, 4 and 4a of the Framework Decision constitutes an absolutely exceptional situation which considerably departs from the initial assumptions put forward for its adoption. It should be recalled that according to a legal principle commonly accepted as an interpretative directive, any exceptions should be understood narrowly and should not be subject to extended interpretation (exceptiones non sunt extendendae). Hence, it should be assumed that the courts of the Member States have no competence to assess the state of the rule of law in another MemberState. The same applies to the CJEU, as within the EU as the organization structure, this is the exclusive power of the European Council.
19. As a far-reaching precaution, and save for the analysis of the legal situation detailed above, it has to be said that should it be admissible for a court of a Member State to assess the state of the rule of law in another Member State, such assessment would need to fulfil the criteria defined in the judgment of the CJEU granted in the case Aranyosi and Căldăraru (“Aranyosi and Căldăraru test”), and thus rely on the diversity of evidence that would allow for a comprehensive examination of the factual situation. Furthermore, considering the aforesaid recital (10) from the preamble to the Framework Decision, the MemberState against which allegations of violations of values enshrined in Article 2 of the TEU are made should be given the opportunity to respond in a manner corresponding with the contents of Article 7(2) of the TEU. It must be mentioned that possibly no government has sufficient organizational and expertise capabilities to be able to address doubts formulated in this respect by courts from across the EU territory. 
20. As it stems from the judgment of the CJEU given in the case Aranyosi and Căldăraru the “Aranyosi and Căldăraru test” is a two-stage process: first, a general assessment is made regarding the respect of fundamental rights in a given State. Depending on its outcomes, the stage two may be opened to assess real pending risks for the respect of fundament rights of the individual covered by the EAW (for a detailed discussion, see section 10 hereof).
21. Therefore, it is important to highlight that in any event it is not acceptable to derogate from the analysis of circumstances of the specific factual situation. Otherwise the assessment made by the court would become abstract and may even evolve into “court publicism”, bearing a resemblance to a political statement. Such practice has been unknown in international legal affairs so far.
22. When applying these considerations to the merits of the case in question, it should be noted that the referral made by the Irish High Court is not backed by any substantive analysis of the factual and legal situation which, in the view of the referring court, could substantiate its doubts which gave rise to the referral. The Irish High Court has failed to make in this respect any own findings or to designate legal provisions or cases of their application to prove that Poland has committed a serious and persistent breach of principles referred to in Article 2 of the TEU.
23. Meanwhile, the reasoning to the preliminary referral quotes a number of rather fuzzy expressions, with no reference to specific legislative provisions, and namely:
    1. “the accumulation of too much powers for one person”, without indicating the scope of such power or the criterion to be used to determine the cases of “too much” power and those of “adequate” or “too little” power;
    2. “direct negative consequences for the independence of the prosecutorial system”, without indicating any legal provisions that could entail such consequences, or any specific consequence;
    3. “[changes] come with a concerted legislative package to politicize the judiciary and to take away its independence”, without providing specific examples of changes challenged by the court or the method used to establish the existence of a “legislative package”, or, even more, the reasons for attributing the lawmaker the intents for actions which are unlawful;
    4. “the rule of law in Poland has been systematically damaged by the cumulative impact of all (underlined by O.I.) the legislative changes that have taken place over the last two years” – the formulation which, in itself, shows that the author has not based its findings on the reliable determination of facts and, instead, has referred collectively to “all the legislative changes (…) over the last two years”.
24. These formulations could be somewhat acceptable as a piece of journalism or a political statement, but cannot be used as a basis for the court ruling. In fact, every court needs to proceed to its own, independent fact-finding exercise and to rely in its decisions on a comprehensive and reliable examination of evidence gathered in the case. In the present case, the referring court not only has failed to do so but also relied directly on statements coming from other sources. Thereby, instead of relying on the provisions of law, the court based its ruling on the discussions on these provisions emanating from other bodies which are not judicial authorities.
25. Additionally, special attention should be paid to section 122 of the reasoning provided by the Irish court where, on the one hand it says that the veracity of the statements on legislative changes included in the Reasoned Proposal of the European Commission of 20 December 2017 and in the Opinions of the Venice Commission was not in question in the proceedings, and, on the other hand, that the sole issue was the effect of those changes on the situation of the person concerned by the European Arrest Warrant. 
26. All in all, it is very hard to constructively challenge the statements made by the referring court: because the court has failed to check whether the factual situation is true, it was not entitled to draw any conclusions regarding the consequences for the Respondent based on such unconfirmed facts. Here, a parallel can be drawn with a situation where a court decides to skip the analysis of evidence, concludes that it will “take for it” the word of one party to the proceedings and hands down a judgment based on the statements of this party. 
27. There is one more reason for the CJEU not being in a position to provide a reliable answer due to the missing references to any specific legal provision. The aforementioned statement claiming that the court’s reasoning is based on “all the legislative changes that have taken place [in Poland] over the last two years” disregards the fact that the process of changes to the legislation on court proceedings is still under way: on the date of the preliminary referral some pieces of legislation had already become binding, some other had been adopted by the Parliament but were awaiting the entry into force, and for some the legislative procedure was still pending. Bearing this in mind, it becomes even harder to reconstruct the reasoning behind the judgment of the Irish court; as a matter of fact, it still remains unknown which of these legislative provisions could jeopardize the Respondent’s rights (and even more what is the nature of a possible threat) and whether legislative changes awaiting the entry into force or those still subject to the parliamentary debate may have had an impact on the substantiation of the Irish court, and if so, of what kind.
28. If the Irish court had supported its preliminary referral with a specific substantiation, i.e. it had pointed to a specific risk of infringement of the Respondent’s rights, posed, in its belief, by specific legal norms (or at least by the proven record of their application), the CJEU could examine whether in fact such risk truly exists. If so (subject to comments included in sections 4-18 above) the CJEU could provide the Irish court with a substantive and reliable response.
29. Because the Irish High Court has made allegations which are general, quasi-journalistic and bear no relation to the reality of the factual situation, no such answer can be provided; in fact, the referral in question needs to be considered as imprecise and purely hypothetical. Yet, as the CJEU stated in the case van der Weerd, it may refuse to rule on a question referred by a national court where “it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it” (paragraph 22)[14].
30. It should be added that the protection of threatened or infringed subjective rights is best ensured through the institution of asylum. It should also be recalled that the Respondent in the case has been accused of committing serious criminal offences bearing no relationship with social, cultural or political activities. Arguments raised by the defense counsels of Artur Celmer are but one of the procedural tactics employed for the purpose of the proceedings and as such are not worthy of mention. The refusal to execute the EAW in the present case would become a dangerous precedent. Moreover, it could lead to the actual paralysis of the Polish justice system and its law enforcement agencies, given the fact that the European Union is based on the free movement of persons and any offender who has committed a crime in Poland could evade the confrontation with the justice just by leaving the territory of the Republic of Poland. The invocation of a political situation in criminal cases which are entirely unrelated to any public activity should be considered as very worrying.

III. Conclusions

31. In the light of arguments detailed above, the Foundation of Ordo Iuris Institute for Legal Culture hereby expresses the following opinion in the case in question:

a) considering that the assessment of the state of the rule of law in the MemberState whose authorities have requested for an EAW is not admissible, there exist no grounds for the Irish High Court to refuse the execution of the EAW;

b) the Court should refuse to provide an answer to the reference for a preliminary ruling considering its purely hypothetical nature.