Opinion of the Advocate General — ECLI:EU:C:2020:925
Date: 2020-11-12
Language of the case: Dutch
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
31 July 2020 
Referring court: 
Rechtbank Amsterdam (Netherlands) 
Date of the decision to refer: 
31 July 2020 
European arrest warrant issued against: 
L 
Other parties to the proceedings: 
Openbaar Ministerie 
  
Subject of the action in the main proceedings 
Application under Article 23(2) of the Overleveringswet (Law on the surrender of 
persons) concerning the treatment of a European arrest warrant (EAW) from a 
Polish court with a view to the arrest and surrender of L to the Republic of Poland.  
Subject and legal basis of the request for a preliminary ruling 
Referring, in particular, to the judgment of the Court of Justice of 25 July 2018, 
Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 
PPU, EU:C:2018586 [the ‘Minister for Justice and Equality (Deficiencies in the 
system of justice) judgment’], the Rechtbank Amsterdam (District Court, 
Amsterdam) questions what influence recent developments relating to the rule of 
law in Poland should have on the decision on the execution of a European arrest 
warrant issued by a Polish court, in particular what concrete effect those 
developments would have on the Rechtbank’s obligation to apply the assessment 
framework set out in that judgment. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-354/20 PPU 
 
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Questions referred 
1. Do Framework Decision 2002/584/JHA, the second paragraph of Article 19(1) 
TEU and/or the second paragraph of Article 47 of the Charter indeed preclude the 
executing judicial authority from executing an EAW issued by a court where the 
national legislation of the issuing Member State has been amended after that EAW 
was issued such that the court no longer meets the requirements of effective or 
actual judicial protection since that legislation no longer guarantees the 
independence of that court?  
2. Do Framework Decision 2002/584/JHA and the second paragraph of Article 47 
of the Charter indeed preclude the executing judicial authority from executing an 
EAW when it has established that there is a real risk in the issuing Member State 
of breach of the fundamental right to an independent tribunal for any suspected 
person — and thus also for the requested person — irrespective of which courts of 
that Member State have jurisdiction over the proceedings to which the requested 
person will be subject and irrespective of the requested person’s personal 
situation, the nature of the offence for which he is being prosecuted and the 
factual context that forms the basis of the EAW, where that real risk is connected 
with the fact that the courts of the issuing Member State are no longer independent 
on account of systemic and generalised deficiencies?  
3. Do Framework Decision 2002/584/JHA and the second paragraph of Article 47 
of the Charter indeed preclude the executing judicial authority from executing an 
EAW when it has established that: 
– there is a real risk in the issuing Member State of breach of the 
fundamental right to a fair trial for any suspected person, where that 
risk is connected with systemic and generalised deficiencies relating to 
the independence of that Member State’s judiciary, 
– those systemic and generalised deficiencies are therefore not only 
liable to have negative consequences, but actually do have such 
consequences for the courts of that Member State with jurisdiction 
over the proceedings to which the requested person will be subject, and 
– there are therefore serious and factual grounds to believe that the 
requested person runs a real risk of breach of his fundamental right to 
an independent tribunal and, therefore, of the essence of his 
fundamental right to a fair trial, 
even if, aside from those systemic and generalised deficiencies, the requested 
person has not expressed any specific concerns, and even if the requested person’s 
personal situation, the nature of the offences for which he is being prosecuted and 
the context that forms the basis of the EAW, aside from those systemic and 
generalised deficiencies, do not give rise to fears that the executive and/or 
legislature will exert concrete pressure on or influence his trial?  
OPENBAAR MINISTERIE 
 
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Provisions of EU cited 
Treaty on European Union: Article 19(1) 
Charter of Fundamental Right of the European Union: Article 47, second 
paragraph 
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 Framework Decision 2009/299/JHA (OJ 2009 L 81, 
p. 24): Articles 1, 3 to 5 and 6 
Provisions of national law cited 
Wet van 29 april 2004 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 
of 29 April 2004 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 the surrender of 
persons): Article 23 
Brief summary of the facts and the procedure in the main proceedings 
1 The Rechtbank Amsterdam must decide on the execution of an EAW relating to 
L, a national of the Republic of Poland. That EAW was issued on 31 August 2015 
by a Polish court which is identified in the order for reference as the ‘Circuit 
Court in Poznań’, and seeks the arrest and surrender of L to Poland for the 
purpose of criminal prosecution.  
2 On 7 February 2020, the officier van justitie (public prosecutor) filed a claim with 
the Rechtbank Amsterdam under Article 23 of the Overleveringswet, in which he 
claims, among other things, that the Rechtbank should treat the EAW.  
3 In view of the Rechtank’s doubts regarding the recent developments on the rule of 
law in Poland, in particular the concrete impact of those developments on the 
steps which, according to the Minister for Justice and Equality (Deficiencies in 
the system of justice) judgment, must be taken in such a case when deciding 
whether to execute a European arrest warrant, it invited the public prosecutor, on 
12 June 2020 to address further questions to the issuing judicial authority.  
4 Those questions were answered on 25 June and 7 July 2020, with the exception of 
the questions regarding the Sąd Najwyższy (Supreme Court, Poland). A question 
was subsequently addressed to the Sąd Najwyższy itself through Eurojust, but no 
answer has been forthcoming.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-354/20 PPU 
 
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Main submissions of the parties to the main proceedings 
5 According to L’s statement of defence, the public prosecutor’s application for 
treatment of the EAW should be dismissed as inadmissible. After all, it is clear 
that there is a risk that L will not receive a fair trial in Poland. On the basis of the 
Minister for Justice and Equality (Deficiencies in the system of justice) judgment, 
the Rechtbank is obliged in such a case to request all necessary information from 
the issuing judicial authority, but this has not yielded the desired result: of the ten 
substantive questions raised by the Rechtbank in its interim judgment of 12 June 
2020, only two have been answered by the Polish judicial authorities. The 
dialogue referred to in the Minister for Justice and Equality (Deficiencies in the 
system of justice) judgment has thus not taken place. The Rechtbank therefore 
cannot properly assess the seriousness of the risk of breach of the fundamental 
right to a fair trial.  
6 The public prosecutor is of the view that that defence does not succeed. It is not 
clear from the Minister for Justice and Equality (Deficiencies in the system of 
justice) judgment what the consequence of the issuing judicial authority’s failure 
to engage (fully) in dialogue should be. Nor does this follow from the 
Overleveringswet.  
Brief summary of the reasons for the referral  
7 There is no reason to refuse surrender on the grounds referred to in Articles 3 to 5 
of Framework Decision 2002/584/JHA. Nevertheless, the Rechtbank is faced with 
the question whether it should execute the EAW, in view of the recent legislative 
developments in the Republic of Poland concerning the independence of the 
Polish judiciary.  
8 Following the Minister for Justice and Equality (Deficiencies in the system of 
justice) judgment, the Rechtbank assumes, in any case relating to an EAW issued 
by a court in the Republic of Poland for the purpose of conducting a prosecution, 
that there is in general a real risk in that Member State of the fundamental right to 
a fair trial, as guaranteed by the second paragraph of Article 47 of the Charter of 
Fundamental Rights of the European Union, being breached on account of 
systemic or generalised deficiencies regarding the independence of the judiciary 
of the issuing Member State. 1 Because of the general real risk identified, the 
Rechtbank has investigated ever since: 
- whether those systemic or generalised deficiencies are liable to have a 
negative impact at the level of the courts of that State with jurisdiction over those 
proceedings to which the requested person will be subject 2 and, if so,  
 
1 See judgment in Minister for Justice and Equality (Deficiencies in the system of justice), 
paragraph 61.  
2 Ibid., paragraph 74. 
OPENBAAR MINISTERIE 
 
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- whether, ‘in the light of the specific concerns expressed by the individual 
concerned and any information provided by him, … there are substantial grounds 
for believing that he will run a real risk of breach of his fundamental right to an 
independent tribunal and, therefore, of the essence of his fundamental right to a 
fair trial, having regard to his personal situation, as well as to the nature of the 
offence for which he is being prosecuted and the factual context that form the 
basis of the European arrest warrant’. 3  
9 To that end, the Rechtbank is holding a dialogue with the authority which issued 
the EAW. On 4 October 2018, in a case concerning another Polish EAW, the 
Rechtbank enquired which courts have jurisdiction over the criminal prosecution 
of the requested person and asked questions, in respect of those courts, on changes 
in staffing (II A), on allocation and handling of cases (II B), on disciplinary cases 
or other (disciplinary) measures (II C), on procedures to protect the right to an 
independent tribunal (II D) and on the ‘extraordinary appeal’ procedure (II E).  
10 In a judgment of 27 September 2019, the Rechtbank ruled that, in the light of the 
responses it had received in many cases since its judgment of 4 October 2018, it 
was, at that point, sufficiently informed as to the impact of the systemic defects 
identified at the level of those courts with jurisdiction over the proceedings to 
which the requested persons will be subject. That impact was in fact such that, in 
the opinion of the Rechtbank, the systemic defects referred to could have a 
negative impact on those courts in all cases. Questions II A, B, D and E therefore 
no longer needed to be asked unless there were new, relevant developments. 
However, the questions on disciplinary cases and other (disciplinary) measures (II 
C) did still need to be asked.  
11 In a judgment of 16 January 2020, the Rechtbank ruled inter alia that: 
- although the information available on the overall picture of disciplinary 
cases and other disciplinary or non-disciplinary measures against Polish 
judges was very worrying, and the most recent developments were 
unfavourable, that overall picture was not yet sufficient in principle to 
assume in concrete situations that the right to a fair trial of a requested 
person would be compromised; 
- information on disciplinary cases and other (disciplinary) measures 
continued to be important in answering the question of whether there are 
substantial grounds to believe that a requested person will run a real risk of 
breach of his fundamental right to an independent tribunal and, therefore, of 
the essence of his fundamental right to a fair trial, having regard to his 
personal situation, the nature of the offence for which he is being prosecuted 
and the factual context that forms the basis of the European arrest warrant, 
but that that information could not have led, as things stood at the time, to 
the surrender being refused without additional details about the requested 
 
3 Ibid., paragraph 75. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-354/20 PPU 
 
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person’s personal situation, which would further contribute to the fear that 
his right to a fair trial would be compromised;  
- since the requested person had not provided such information, there was no 
reason to wait any longer for the answers to the questions already raised 
concerning disciplinary cases and other (disciplinary) measures, with the 
Rechtbank taking the view that, if it considered it necessary in the light of 
new relevant developments, it would ask further questions.  
12 In the period before and after the Minister for Justice and Equality (Deficiencies 
in the system of justice) judgment, there have been developments giving rise to 
serious concerns about the independence of the judiciary in Poland. For example, 
between 2017 and 2018, the Minister for Justice replaced more than 100 
presidents and vice-presidents of courts. In addition, several Polish judges have 
been subject to disciplinary proceedings due to the content of their work or 
because they exercised the right to freedom of expression. Finally, there is a lack 
of independent and effective constitutional review in Poland.  
13 According to the Rechtbank, further developments shortly before and after the 
ruling of 16 January 2020 are indicative of such increased pressure on the 
independence of the judiciary in Poland that it may have an impact on its decision 
regarding the surrender and on the line taken in the judgment of 16 January 2020. 
The Rechtbank cites, inter alia, the new law on the judiciary of 20 December 
2019, which entered into force on 14 February 2020, and the fact that the board of 
the European Network of Councils for the Judiciary proposed in May 2020 to 
remove the Krajowa Rada Sądownictwa, the Polish National Council of the 
Judiciary, as a member. It also refers to the judgments of the Court of Justice of 
19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber 
of the Sąd Najwyższy), Joined Cases C-585/18, C-624/18 and C-625/18, 
EU:C:2019:982, and of 26 March 2020, Miasto Łowicz and Prokurator Generalny 
zastępowany przez Prokuraturę Krajową (Disciplinary regime for judges), Joined 
Cases C-558/18 and C-563/18, EU:C:2020:234, the Order of the Court of 8 April 
2020, European Commission v Republic of Poland, C-791/19 R, EU:C:2020:277, 
and the fourth infringement procedure the Commission launched against Poland 
on 29 April 2020 in respect of the new law on the judiciary of 20 December 2019 
referred to above.  
14 On the basis of those developments, the Rechtbank concluded that the Krajowa 
Rada Sądownictwa — which appoints the members of the Disciplinary Chamber 
of the Sąd Najwyższy — is not a body which is impartial and independent of the 
legislative and executive powers and that the Disciplinary Chamber — which 
adjudicates disciplinary cases against judges of the Sąd Najwyższy and the 
ordinary courts — is not a court or tribunal within the meaning of EU law. The 
independence of the Disciplinary Chamber of the Sąd Najwyższy is not 
guaranteed nor is that of the Sąd Najwyższy and the ordinary courts — including 
the authority that issued the EAW in the present case. Indeed, Polish judges are 
OPENBAAR MINISTERIE 
 
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now at risk of disciplinary proceedings which could result in a case being brought 
before a body the independence of which is not guaranteed.  
First question 
15 In the light of those developments, the first question that arises is whether an 
executing judicial authority should execute an EAW issued by a court the 
independence of which is no longer guaranteed as a result of developments 
subsequent to the issuing of the EAW.  
16 Indeed, according to the Court of Justice, Framework Decision 2002/584 is 
founded on the principle that decisions relating to EAWs are attended by all the 
guarantees appropriate for judicial decisions, inter alia those resulting from 
fundamental rights and fundamental legal principles. That means that the decision 
on issuing an EAW must also be taken by a judicial authority which meets the 
requirements inherent in effective judicial protection, including the guarantee of 
independence. 4 The Rechtbank infers from the judgments of the Court of Justice 
of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, 
EU:C:2018:117, and of 24 June 2019, Commission v Poland (Independence of the 
Sąd Najwyższy), C-619/18, EU:C:2019:531, on the requirement of independence 
under Framework Decision 2002/584/JHA, Article 19(1), second subparagraph, 
TEU and Article 47, second paragraph, of the Charter, that a court which issues an 
EAW must meet the requirements of effective or actual judicial protection. Rules 
that provide protection against external pressure or influence that could 
compromise independence of judgment in the cases submitted to that court are 
therefore necessary.  
17 A court that has issued an EAW should, in the view of the Rechtbank, continue to 
meet those requirements even after the EAW has been issued. The responsibilities 
of such a court at that stage are, in the view of the Rechtbank, ‘responsibilities 
which are inherent’ 5 in the issuing of that EAW in the execution of which the 
issuing judicial authority must act independently. Furthermore, such tasks fall 
within the scope of EU law, 6 with the result that the exercise of those 
responsibilities must comply with the requirements of effective judicial protection 
and thus the requirement of independence.  
18 In the light of the conclusions set out in paragraph 14 above, the Rechtbank finds 
that, as a result of the amendment to national legislation after the issue of the 
EAW, the court which issued the EAW no longer meets the requirements of 
 
4 Ibid., paragraph 56. 
5 Judgment of 27 May 2019, OG and PI (The Public Prosecutor’s Office in Lübeck and in 
Zwickau), C-508/18 and C-82/19 PPU, EU:C:2019:456, paragraph 74. 
6 See judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, 
EU:C:2018:117, paragraph 34. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-354/20 PPU 
 
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effective or actual judicial protection, because that legislation no longer 
guarantees its independence vis-à-vis the legislative and/or executive powers. The 
Rechtbank questions whether EU law precludes it, as the executing judicial 
authority, from executing an EAW issued by such a court in such circumstances.  
Second question 
19 This question is raised in case Question 1 is answered in the negative. In that case, 
the Rechtbank considers as follows. 
20 In paragraph 14 above it was concluded that, following recent developments in 
Poland, the independence of the courts is no longer guaranteed. It follows, 
according to the Rechtbank, that there are such systemic and generalised 
deficiencies with regard to the independence of the Polish judiciary that the right 
to an independent tribunal is no longer guaranteed for any suspected person 
brought to trial in the Republic of Poland, irrespective of his personal 
circumstances, the nature of the offence of which he is suspected and the factual 
context that forms the basis of the EAW. In other words: it follows from that 
conclusion that there is a real risk in the Republic of Poland of breach of the 
fundamental right to a fair trial for any suspected person — and thus also for the 
requested person. That real risk relates to the fact that all those courts are no 
longer independent on account of systemic or generalised deficiencies. 7  
21 That raises the question of whether that finding is sufficient — without (further) 
dialogue with the issuing judicial authority and without (the need for) further 
examination of whether the systemic deficiencies have a negative impact on the 
courts that will actually try the requested person and whether that person, given 
his personal circumstances, faces a real risk that the essence of his fundamental 
right to a fair trial will be compromised (see the assessment framework in 
paragraph 8 above) — to justify declining to execute the EAW.  
22 According to the Rechtbank, that question must be answered in the affirmative. 
The Rechtbank is of the view that the Minister for Justice and Equality 
(Deficiencies in the system of justice) judgment can be read in such a way as not 
to apply to cases in which the systemic or generalised deficiencies relating to the 
independence of the judiciary are such that the legislation in the issuing Member 
State no longer fundamentally guarantees the independence of the courts, such 
that the negative impact of the deficiencies in individual cases must be regarded as 
a given even without further assessment.  
 
7 See judgment in Minister for Justice and Equality (Deficiencies in the system of justice), 
paragraph 61. 
 
OPENBAAR MINISTERIE 
 
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Third question 
23 This question is raised should Question 1 be answered in the negative. In that 
case, the Rechtbank considers the following. 
24 In the present case, the Rechtbank has addressed questions to the issuing judicial 
authority in the context of the dialogue provided for in the Minister for Justice and 
Equality (Deficiencies in the system of justice) judgment (paragraphs 75 to 77). 
That authority has not replied to those questions in full, even after a second 
request. The replies that have been received merely confirm the conclusion that 
the independence of the Polish judiciary is no longer guaranteed due to systemic 
and generalised deficiencies.  
25 This raises the question of whether that finding is sufficient to conclude that those 
systemic and generalised deficiencies are liable to have negative consequences for 
the courts having jurisdiction in the present case and that the requested person 
runs a real risk of breach of his fundamental right to an independent tribunal and, 
therefore, of the essence of the right to a fair trial, irrespective of his personal 
situation, the nature of the offences for which he is being prosecuted and the 
factual context that forms the basis of the European arrest warrant.  
26 According to the Rechtbank, that question must be answered in the affirmative. 
The systemic and generalised deficiencies relating to the independence of the 
judiciary have negative consequences not only for the Sąd Najwyższy, but also for 
the ordinary courts, the category to which the issuing judicial authority belongs. 
Moreover, it follows from the conclusion in paragraph 14 above that there is a real 
risk for any suspected person — and thus also for the requested person — of 
breach of his fundamental right to an independent tribunal and, therefore, of the 
essence of the right to a fair trial. That real risk stems from the fact that Polish law 
no longer guarantees the independence of those courts.  
Request for the application of the urgent procedure 
27 The Rechtbank requests the Court of Justice to treat this reference for a 
preliminary ruling under the urgent procedure laid down in Article 107 of the 
Rules of Procedure. The reference for a preliminary ruling relates to an area as 
referred to in Title V of Part Three of the TFEU and the requested person is in 
detention pending the decision of the Rechtbank on the surrender request. The 
Rechtbank cannot take that decision until the Court of Justice has answered the 
questions referred for a preliminary ruling. A prompt answer to the questions 
referred for a preliminary ruling therefore has a direct and decisive impact on the 
duration of the detention of the requested person pending surrender.