Opinion of the Advocate General — ECLI:EU:C:2021:1019
Date: 2021-12-16
Language of the case: Dutch
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Preliminary reference - urgent procedure
Origin: Netherlands

Translation C-562/21 PPU – 1 
Case C-562/21 PPU 
Request for a preliminary ruling 
Date lodged:  
14 September 2021 
Referring court:  
Rechtbank Amsterdam (Netherlands) 
Date of the decision to refer:  
14 September 2021 
Applicant:  
Openbaar Ministerie 
Defendant:  
X 
  
C-562/21 PPU – 1 
RECHTBANK AMSTERDAM 
(AMSTERDAM DISTRICT COURT) 
INTERNATIONALE RECHTSHULPKAMER 
(CHAMBER FOR INTERNATIONAL COOPERATION IN LEGAL 
MATTERS) 
[…] Date of judgment: 14 September 2021 
INTERIM JUDGMENT 
on the claim under Article 23 of the Overleveringswet (the Dutch Law on 
Surrender; ‘the OLW’) lodged by the officier van justitie (public prosecutor) with 
this rechtbank (District Court). This claim is dated 19 May 2021 and concerns, 
inter alia, the examination of a European arrest warrant (‘EAW’). 
This EAW was issued on 6 April 2021 by the Regional Court [Sąd Okręgowy] in 
Lublin (Poland) and seeks the arrest and surrender of: 
EN NL
REQUEST FOR A PRELIMINARY RULING OF 14. 9. 2021 – CASE C-562/21 PPU 
 
2  
X 
[…] detained in the Penitentiaire Inrichting Zuid-Oost (South-East Prison) 
[…] 
‘the requested person’. 
1. Procedure 
[The course of the national proceedings] […] 
2.  Reference for a preliminary ruling 
2.1 Applicable law 
European Union law 
I. Charter of Fundamental Rights of the European Union (‘the Charter’) 
The first and second paragraphs of Article 47, Article 51(1) and 
Article 52(3) of the Charter of Fundamental Rights of the European Union 
(‘the Charter’) read as follows: 
Article 47 
Right to an effective remedy and to a fair trial 
Everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance 
with the conditions laid down in this article.  
Everyone is entitled to a fair and public hearing within a reasonable time by 
an independent and impartial tribunal previously established by law. 
Everyone shall have the possibility of being advised, defended and 
represented.  
Article 51 
Field of application 
1. The provisions of this Charter are addressed to the institutions, bodies, 
offices and agencies of the Union with due regard for the principle of 
subsidiarity and to the Member States only when they are implementing 
Union law. They shall therefore respect the rights, observe the principles and 
promote the application thereof in accordance with their respective powers 
OPENBAAR MINISTERIE 
 
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and respecting the limits of the powers of the Union as conferred on it in the 
Treaties.  
Article 52 
Scope and interpretation of rights and principles 
… 
3. In so far as this Charter contains rights which correspond to rights 
guaranteed by the Convention for the Protection of Human Rights and 
Fundamental Freedoms, the meaning and scope of those rights shall be the 
same as those laid down by the said Convention. This provision shall not 
prevent Union law providing more extensive protection.  
II. Council Framework Decision 2002/584/JHA of 13 June 2002 on the 
European arrest warrant and the surrender procedures between Member 
States (‘Framework Decision 2002/584/JHA’), OJ 2002 L 190, p. 1, as 
amended by Framework Decision 2009/299/JHA, OJ 2009 L 81, p. 24. 
Article 1(3) and Article 15(1) of Framework Decision 2002/584/JHA read as 
follows: 
Article 1 
Definition of the European arrest warrant and obligation to execute it 
… 
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 of the Treaty on European Union.  
Article 15 
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.  
Netherlands law 
III. Overleveringswet (Law on Surrender; ‘the OLW’) 
The OLW (wet van 29 april 2004 (Law of 29 April 2004), Stb. 2004, 195), 
as most recently amended by the wet van 17 maart 2021 (Law of 17 March 
2021) (Stb. 2021, 155), implements Framework Decision 2002/584/JHA. 
REQUEST FOR A PRELIMINARY RULING OF 14. 9. 2021 – CASE C-562/21 PPU 
 
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Article 1(g), Article 11(1), Article 26(1) and Article 28(1) to (3) of the OLW 
read as follows in so far as is relevant here: 
Article 1 
For the purposes of the present law: 
… 
g. rechtbank (District Court): means the rechtbank Amsterdam (Amsterdam 
District Court); 
… 
Article 11 
1. A European arrest warrant shall not be executed in cases where, in the 
opinion of the District Court, there are substantial grounds to believe 
that, after surrender, the requested person will face a real risk that his 
fundamental rights, as guaranteed by the Charter of Fundamental 
Rights of the European Union, will be violated.  
Article 26 
1. The District Court shall examine … the possibility of surrender. … 
Article 28 
1. No later than fourteen days after the conclusion of the hearing, the 
District Court shall deliver its judgment on the surrender. The 
judgment shall state the reasons on which it is based.  
2. If the District Court finds … that the surrender cannot be authorised 
…, it must refuse that surrender in its judgment. 
3. In cases other than those provided for in paragraph 2, the District 
Court shall authorise the surrender in its judgment, unless it considers 
that the European arrest warrant should not be executed pursuant to 
Article 11(1). … 
2.2 Grounds 
1 The requested person is a Polish national. The Amsterdam District Court must 
decide on the execution of a European arrest warrant (‘EAW’) issued by a Polish 
judicial authority on 6 April 2021 for the purpose of executing a custodial 
sentence of two years. This sentence was imposed by final judgment on 30 June 
2020 for (1) coercing someone to do something by means of violence or threat of 
OPENBAAR MINISTERIE 
 
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violence and for (2) threat of violence. The person concerned has not consented to 
his surrender to Poland.  
2 The District Court sees no grounds that could prevent the surrender of the 
requested person, except for the issue raised in the question referred for a 
preliminary ruling.  
3 The District Court finds that since autumn 2017 there have been systemic or 
generalised deficiencies relating to the independence of the judiciary in the issuing 
Member State, deficiencies which therefore already existed at the time of the 
conviction to which this EAW relates. Those deficiencies have been further 
exacerbated since autumn 2017. Because of those deficiencies, there is, in general, 
a real risk in the issuing Member State of a breach of the essence of the 
fundamental right to a fair trial guaranteed in the second paragraph of Article 47 
of the Charter, namely, a real risk of a breach of the right to an independent 
tribunal.  
4 Those systemic or generalised deficiencies also affect (in part) the fundamental 
right to a tribunal previously established by law, guaranteed by the second 
paragraph of Article 47 of the Charter. Those deficiencies result from a law of 
8 December 2017 which entered into force on 17 January 2018 and which 
concerns the position of the Krajowa Rada Sądownictwa (the Polish National 
Council for the Judiciary; ‘the KRS’) and its role in the appointment of members 
of the Polish judiciary. 1 The Sąd Najwyższy (the Polish Supreme Court dealing 
with civil and criminal matters; ‘the SN’), in its Resolution of 23 January 2020 in 
Case No BSA I-4110-1/20, found that, under the legislation that entered into force 
in 2018, the KRS is not an independent body but a body subordinated directly to 
political authorities and that this lack of independence 2 results in deficiencies in 
the procedure for the appointment of judges. With regard to tribunals other than 
the SN, the Resolution concludes that a court’s formation is unduly appointed 
within the meaning of the Polish Code of Criminal Procedure where that 
formation includes a person appointed to the office of judge on application of the 
KRS in accordance with the legislation that entered into force in 2018, in so far as 
the deficiency in the appointment procedure leads, in the circumstances of the 
case, to a breach of the guarantees of independence and impartiality within the 
meaning of the Polish Constitution, Article 47 of the Charter and Article 6 ECHR. 
This conclusion does not apply to judgments delivered before the date of the 
 
1 Ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz 
niektórych innych ustaw. 
2 Cf. the judgment of the Court of Justice of 15 July 2021, C-791/19, ECLI:EU:C:2021:596 
(Commission v Poland (Disciplinary regime applicable to judges)), paragraph 108 (‘It must be 
held that the factors highlighted in paragraphs 104 to 107 of the present judgment are such as to 
give rise to legitimate doubts as to the independence of the KRS and its role in an appointment 
process such as that resulting in the appointment of the members of the Disciplinary Chamber’) 
and paragraph 110 (‘Those factors, taken in the context of an overall analysis including the 
important role played by the KRS – a body whose independence from the political authorities is 
questionable, as is apparent from paragraph 108 of the present judgment – (,)’). 
REQUEST FOR A PRELIMINARY RULING OF 14. 9. 2021 – CASE C-562/21 PPU 
 
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Resolution or to judgments due to be delivered in proceedings that were already 
pending before a court formation at the date of the Resolution. 3 From another 
EAW case, the District Court is ex officio aware of a list dated 25 January 2020 
containing the names of 384 judges appointed on application of the KRS under the 
legislation that entered into force in 2018. 4 It is likely that, with the passage of 
time, this number of appointments has only increased.  
There is therefore a real risk that the trial of a requested person surrendered to 
Poland for the purpose of executing a custodial sentence or detention order may 
have involved one or more judges appointed on the application of the KRS under 
the legislation which entered into force in 2018.  
5 Unlike the case of a requested person whose surrender to Poland is sought for the 
purpose of conducting a criminal prosecution, in the case of a requested person 
whose surrender to Poland is sought for the purpose of executing a custodial 
sentence or detention order, it is actually possible to specify which judges in the 
issuing Member State were involved in his or her trial. As in the case of a 
requested person whose surrender to Poland is sought for the purpose of 
conducting a criminal prosecution, a requested person whose surrender to Poland 
is sought for the purpose of executing a custodial sentence or detention order 
cannot – as of 14 February 2020 – effectively challenge the validity of the 
appointment of a judge or the lawfulness of the performance of his or her judicial 
functions. Under legislation which entered into force on 14 February 2020, 5 
Polish courts may not consider such a defence. 6 
6 The District Court cannot, from what it has considered under grounds 4 and 5, 
necessarily draw the conclusion that, in the event of surrender to the issuing 
Member State, there is a real risk (whether general or individual) of a surrendered 
person being subjected to a definitive breach of the right to a tribunal previously 
established by law, if only because it is unclear what test it must apply in 
assessing whether that right has already been breached. In that regard, it is also 
relevant that the European Court of Human Rights (‘the ECtHR’) considers that, 
although the right to a tribunal established by law, as guaranteed by Article 6 of 
the ECHR, is a ‘stand-alone’ right, there is nevertheless a very close 
interrelationship between that right and the guarantees of independence and 
impartiality. In assessing whether irregularities in a judicial appointment entail a 
 
3 An English translation of the Resolution is available on the website of the SN: 
http://www.sn.pl/aktualnosci/SiteAssets/Lists/Wvdarzenia/AllItems/BSA%20I-4110-1 20 
English.pdf. 
4 Source: https://oko.press/lista-dla-obvwateli-384-sedziow-zarekomendowanvch-przez-neo-krs/. 
5 Amendments to the laws on the judiciary, including the Act on the organisation of the common 
courts, the Act on the supreme court and the Act on the National Council of the Judiciary. 
6 Article 26(3). 
OPENBAAR MINISTERIE 
 
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breach of that right, the ECtHR applies a three-step test. 7 It is unclear whether 
this test should also be applied in the transnational context of a decision on 
surrender for the purpose of the execution of a custodial sentence or detention 
order.  
7 By decision of 30 July 2021, the Supreme Court of Ireland referred certain 
questions for a preliminary ruling. That reference for a preliminary ruling, which 
was received by the Court of Justice of the European Union (‘the Court of 
Justice’) on 3 August 2021, has been registered by the Court of Justice as Case 
C-480/21 (Minister for Justice and Equality). The wording of the questions 
referred for a preliminary ruling by the Supreme Court indicates that they relate to 
an EAW that was issued for the purpose of conducting a criminal prosecution, 
although one of the EAWs pending before the Irish courts relates to the execution 
of a custodial sentence. The present EAW also relates to the execution of a 
custodial sentence. The final conviction on which that EAW is based is dated after 
14 February 2020. Although, in such a case, the requested person is able to 
identify the judges who have dealt with his or her criminal case and although such 
a case therefore differs in that respect from a case involving a prosecution, even in 
a case involving the execution of a sentence in which the final sentence was 
pronounced after 14 February 2020, there is no effective remedy in Poland against 
a possible breach of the right to a tribunal previously established by law. This 
raises the question of the test to be applied by an executing judicial authority 
adjudicating on the execution of an EAW entailing the execution of a custodial 
sentence or detention order when examining whether the right to a court 
previously established by law has been breached in the issuing Member State.  
8 The answer to this question is not ‘[acte] clair’ and does not follow automatically 
from the previous case-law of the Court of Justice.  
9 The District Court will therefore refer the following question to the Court of 
Justice for a preliminary ruling.  
[See paragraph 4 below] […] 
2.3 Request for the application of the urgent procedure 
10 The District Court considers a prompt reply to the question to be desirable. In the 
Netherlands, EAWs issued by Polish judicial authorities account for a large part of 
the total workload of the executing judicial authority. 8 
 
7 See ECtHR (Grand Chamber) 1 December 2020, ECLI:CE:ECHR:2020:1201JUD002637418 
(Guðmundur Andri Ástráðsson v Iceland), § 243-252 and ECtHR 22 July 2021, 
ECLI:CE:ECHR:2021:0722JUD004344719 (Reczkowicz v Poland), § 221-224. 
8 According to the most recent available statistics, the data for 2019, the Netherlands received 
1077 EAWs in that year. Of those EAWs, 379 were from Poland. Source: Openbaar Ministerie, 
REQUEST FOR A PRELIMINARY RULING OF 14. 9. 2021 – CASE C-562/21 PPU 
 
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11 The District Court requests the Court of Justice to deal with this reference for a 
preliminary ruling under the urgent procedure referred to in the fourth paragraph 
of Article 267 of the Treaty on the Functioning of the European Union (‘the 
TFEU’) and Article 107 of the Rules of Procedure.  
12 The question referred for a preliminary ruling concerns an area referred to in Title 
V of Part 3 of the TFEU. The requested person is in detention in the Netherlands 
pending extradition. The District Court cannot make the decision on surrender 
until the Court of Justice has answered the question referred for a preliminary 
ruling. The prompt reply of the Court of Justice to the question referred for a 
preliminary ruling will therefore have a direct and decisive influence on the 
duration of the requested person’s detention pending extradition.  
3. Conclusion 
The hearing must be reopened in order to refer the question to the Court of Justice 
of the European Union for a preliminary ruling. 
4. Decision 
REQUESTS the Court of Justice of the European Union to answer the following 
question: 
What test should an executing judicial authority apply when deciding 
whether to execute an EAW for the purpose of executing a final custodial 
sentence or detention order when examining whether, in the issuing Member 
State, the trial resulting in the conviction was conducted in breach of the 
right to a tribunal previously established by law, where no effective remedy 
was available in that Member State for any breach of that right? 
[Closing formula and signatures] […] 
      
Internationaal Rechtshulpcentrum Amsterdam, Jaarrapportage Europees aanhoudingsbevel 
2019, p. 9.