Criminal proceedings against AZ.
Date: 2020-11-24
In accordance with the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 26 and the case-law cited).
It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU 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 (judgment of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 27 and the case-law cited).
Specifically, as is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. Thus, the preliminary ruling procedure is based on the premiss, inter alia, that a case is pending before the national courts, in which they are called upon to give a decision which is capable of taking account of the preliminary ruling (see, to that effect, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 45 and 46 and the case-law cited).
It should be recalled in the present case that, as is apparent in particular from Article 1(1) and (2) of Framework Decision 2002/584 and from recitals 5 and 7 thereof, the purpose of that decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions, the system of surrender being based on the principle of mutual recognition (see, to that effect, judgments of 17 July 2008, Kozłowski, C‑66/08, EU:C:2008:437, paragraph 31, and of 23 January 2018, Piotrowski, C‑367/16, EU:C:2018:27, paragraph 46).
The effectiveness and proper functioning of the simplified system for the surrender of persons convicted or suspected of having infringed criminal law are based on compliance with certain requirements laid down by that framework decision (see, to that effect, judgment of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors’ Offices, Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraph 46).  Those requirements include that relating to the judicial nature of the issuing and executing authorities called upon to cooperate in connection with a surrender procedure based on that framework decision.
As regards the ‘issuing judicial authority’ referred to in Article 6(1) of that framework decision, the Court has held that, although, in accordance with the principle of procedural autonomy, the Member States may designate, in their national law, the ‘judicial authority’ with competence to issue a European arrest warrant, the meaning and scope of that term cannot be left to the assessment of each Member State. That term requires, throughout the European Union, an autonomous and uniform interpretation, which must take into account the wording of Article 6(1) of that framework decision, its legislative scheme and its objective (judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau)  C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 48 and 49, and of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors’ Offices, Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraph 51).
So far as concerns the criteria which must be applied to determine the meaning of that concept, in the first place, the Court has previously held that the words ‘judicial authority’ in Article 6(1) of Framework Decision 2002/584 are not limited to designating only the judges or courts of a Member State, but must be construed as designating, more broadly, the authorities participating in the administration of criminal justice in that Member State, as distinct from, inter alia, ministries or police services which are part of the executive (judgments of 27 May 2019, OG and PI (Public Prosecutor’s Office in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 50, and of 27 May 2019, PF (Prosecutor General of Lithuania), C‑509/18, EU:C:2019:457, paragraph 29 and the case-law cited).
Public Prosecutors’ Offices participate in the administration of criminal justice in the Member State concerned (see, to that effect, inter alia, judgments of 27 May 2019, OG and PI (Public Prosecutor’s Office in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 63, and of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors’ Offices, Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraph 53).
In the second place, the Court has stated that the ‘issuing judicial authority’ referred to in Article 6(1) of Framework Decision 2002/584 must be capable of exercising its responsibilities objectively, taking into account all incriminatory and exculpatory evidence, without being exposed to the risk that its decision-making power be subject to external directions or instructions, in particular from the executive, such that it is beyond doubt that the decision to issue a European arrest warrant lies with that authority and not, ultimately, with the executive. Accordingly, the issuing judicial authority must be in a position to give assurances to the executing judicial authority that, as regards the guarantees provided by the legal order of the issuing Member State, it acts independently in the execution of those of its responsibilities which are inherent in the issuing of a European arrest warrant. That independence requires that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive (judgments of 27 May 2019, OG and PI (Public Prosecutor’s Office in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 73 and 74, and of 27 May 2019, PF (Prosecutor General of Lithuania), C‑509/18, EU:C:2019:457, paragraphs 51 and 52).
In addition, where the law of the issuing Member State confers the competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, the decision to issue such an arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection (judgments of 27 May 2019, OG and PI (Public Prosecutor’s Office in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 75, and of 27 May 2019, PF (Prosecutor General of Lithuania), C‑509/18, EU:C:2019:457, paragraph 53).
In that regard, the Court has stated that the existence of a judicial remedy against the decision taken by an authority other than a court to issue a European arrest warrant is not a condition for classification of that authority as an issuing judicial authority within the meaning of Article 6(1) of Framework Decision 2002/584. That requirement does not fall within the scope of the statutory rules and institutional framework of that authority, but concerns the procedure for issuing such a warrant, which must satisfy the requirement of effective judicial protection (see, to that effect, judgments of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors’ Offices, Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraphs 48 and 63, and of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor's Office), C‑625/19 PPU, EU:C:2019:1078, paragraphs 30 and 53).
In the first place, as recalled in paragraph 28 above, Framework Decision 2002/584 aims to introduce a simplified system of surrender directly between judicial authorities designed to replace a traditional system of cooperation between sovereign States – which involves the intervention and assessment of the executive – in order to ensure the free circulation of court decisions in criminal matters, within an area of freedom, security and justice (judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 65; of 27 May 2019, PF (Prosecutor General of Lithuania), C‑509/18, EU:C:2019:457, paragraph 43, and of 9 October 2019, NJ (Public Prosecutor’s Office in Vienna), C‑489/19 PPU, EU:C:2019:849, paragraph 32).
That framework decision is founded on the principle that decisions relating to European arrest warrants are attended by all the guarantees appropriate for decisions of such a kind, inter alia those resulting from the fundamental rights and fundamental legal principles referred to in Article 1(3) of the Framework Decision. This means that not only the decision on issuing a European arrest warrant, but also the decision on executing such a warrant, must be taken by a judicial authority that meets the requirements inherent in effective judicial protection, including the guarantee of independence, so that the entire surrender procedure between Member States provided for by that framework decision is carried out under judicial supervision (judgments of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 37, and  of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 56).
In the third place, as regards the procedure for issuing a European arrest warrant for the purposes of conducting such a prosecution, the European arrest warrant system guarantees a dual level of protection of procedural rights and fundamental rights which must be enjoyed by the requested person, which means, first, that a decision meeting the requirements inherent in effective judicial protection should be adopted, at least, at one of the two levels of that protection (see, to that effect, judgments of 27 May 2019, OG and PI (Public Prosecutor’s Office in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 68, and of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors’ Offices, Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraph 60) and, second, that ‘the issuing judicial authority’ referred to in Article 6(1) of Framework Decision 2002/584, namely the entity which, ultimately, takes the decision to issue the European arrest warrant, must be able to act objectively and independently in the exercise of those of its responsibilities which are inherent in the issuing of that European arrest warrant, even where that warrant is based on a national decision delivered by a judge or a court (see, to that effect, judgments of 27 May 2019, OG and PI (Public Prosecutor’s Office in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 71 to 74, and of 9 October 2019, NJ (Public Prosecutor’s Office in Vienna), C‑489/19 PPU, EU:C:2019:849, paragraphs 37 and 38).
It is for the Member States to ensure that their legal orders effectively safeguard the level of judicial protection required by Framework Decision 2002/584, as interpreted by the Court’s case-law, by means of the procedural rules which they implement and which may vary from one system to another (see, by analogy, judgment of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors’ Offices, Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077,  paragraph 64).
In view of the information provided for by that government, it does not appear that the existence of that remedy is such as, in itself, to shield the Public Prosecutor for the Amsterdam District against the risk that his or her decision on the consent referred to in Article 27(4) of Framework Decision 2002/584 will be subject to an instruction in a specific case from the Netherlands Ministry of Justice (see, by analogy, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Office in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 86).
It should be recalled in this connection that, according to settled case-law, the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may and must be applied by the courts to legal relationships arising and established before the delivery of the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (judgment of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 51 and the case-law cited).
It is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict the opportunity, open to any person concerned, of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed: those concerned must have acted in good faith and there must be a risk of serious difficulties (judgment of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 52 and the case-law cited).