Sonnevend, Pál

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1/4A Clever Compromise or a Tectonic Shift? The LMJugment of the CJEUverfassungsblog.de/a-clever-compromise-or-a-tectonic-shift-the-lm-jugment-of-the-cjeu/Pál Sonnevend27 July 2018It would have been difficult to overstate the stakes of the LM case. Faced with thequestion whether ultimately a polish citizen charged with drug trafficking can besurrendered from Ireland to Poland on the basis of a European arrest warrant, the CJEUseemed to be confronted with a nearly impossible choice. Deciding that the Irishexecuting judicial authority must disregard the ongoing crisis surrounding theindependence of the judiciary in Poland and surrender the person for the purposes ofcriminal prosecution would have ridiculed the fundamental values enshrined in Art. 2TEU, or, even worse – as von Bogdandy and his co-authors rightly point out – it wouldhave contributed to transforming the understanding of these values within the EU toinclude illiberal tendencies and solutions (see the contribution of von Bodgandy et al inthis debate).In contrast, allowing the Irish High Court to refuse to surrender the person concernedbecause of the systemic concerns relating to the independence of the Polish judiciarycould have effectively questioned the participation of Poland in the European Union. If forsystemic reasons Polish courts are not independent enough to guarantee a fair trial in acriminal case, are they better suited to handle any case based on EU law? And if not, howcould the effective enforcement of EU law and the effective protection of the rights of EUcitizens be provided for? These are questions the answer to which would probably foregothe conclusions of an eventual Article 7 procedure against Poland.The CJEU was thus navigating highly dangerous waters. How difficult the dilemma was isaptly demonstrated by the opinion of AG Tanchev in the case (or an analyses of theopinion see Petra Bárd, Wouter van Ballegooij). Lead by the obvious desire to do as littleharm to the business as usual operation of EU law as possible while maintaining respectfor the values in Art. 2 TEU, the opinion sought to utilise the case law of the EuropeanCourt of Human Rights on the extraterritorial effect of Art. 6 (1) ECHR in extraditioncases. The applicable standard as suggested by AG Tanchev was accordingly high: only thepossibility of a flagrant denial of justice in the individual case should have been sufficientto refuse the execution of the EAW. Not only would have this solution ignored thefundamental difference between a solely intra EU situation and an extradition to a non-ECHR member state. It would also have eliminated the underlying idea of mutualrecognition and mutual trust, namely a sufficiently coherent level of respect for the rule oflaw and human rights in all EU member states.Against this background one has to commend the CJEU for its wisdom in finding a farmore elegant compromise between the interests of the everyday operation of the EU andrespect for its basic values. This wisdom is demonstrated by insisting on judicial2/4independence as the essence of the right to a fair trial and linking it to the values in Art. 2TEU, while, at the same time, requiring a specific assessment of the individual risks theperson concerned would be exposed to in case of his surrender to Poland.The repeated references to the requirement that courts be independent which forms partof the essence of the right to a fair trial (see paragraphs 63, 68, 73 of the judgment)suggest that the CJEU is not ready to compromise on the independence of the judiciaryand regards it essential for the rule of law and the operation of EU law as such. This mayhave consequences for the infringement procedure pending against Poland before theCJEU in relation to the retirement scheme in the Law on Ordinary Courts, as well as theinfringement procedure launched by a letter of formal notice by the Commission on 2 Julyto protect the independence of the Polish Supreme Court.The judgment also provides specific aspects which need be considered while assessing theindependence of the judiciary: Paragraphs 66-67 of the Judgment list the composition ofthe body and the appointment, length of service and grounds for abstention, rejection anddismissal of its members, the requirement that dismissals of its members should bedetermined by express legislative provisions as well as the requirement that disciplinaryregime governing those who have the task of adjudicating in a dispute must display thenecessary guarantees in order to prevent any risk of its being used as a system of politicalcontrol of the content of judicial decisions. This is to be welcomed even if the Court doesdot get very specific and invites the Irish High Court to consider essentially non-judicialdocuments like the European Commission’s Reasoned Proposal for a Council Decisionunder Art. 7 TEU.In spite of this clear stance on judicial independence, the judgment effectively ensuresthat systemic deficiencies in the judiciary of a member state do not question theparticipation of this very member state in the EU. This magic is performed by stickingwith both parts of the Aranyosi et al test (see the contribution of Wendel in this debate)and requiring an individual assessment of the risks the person concerned would face incase of his surrender.First, the list of circumstances to be considered in this individual assessment – thepersonal situation of the person concerned, the nature of the offence for which he is beingprosecuted and the factual context that form the basis of the European arrest warrant – isunduly limited. Is it possible to argue that absent specific circumstances of the individualsuggesting a certain bias by the court a fair trial is guaranteed even if there are legislativemeasures in place which challenge the independence of the judiciary as a whole? To takean extreme example, imagine military commissions comparable to the US were to decideon criminal charges. This would clearly be an institutional deficiency and not anindividual risk. Would this fit the test suggested by the CJEU?Second, the circumstances to be considered by the executing judicial authority areextremely difficult to prove in practice. What would be the evidence the person concernedneeds to submit in order to convince the Irish judge in our case that he faces an individualrisk on account of the specific circumstances of his case? Is it enough for a suspected drugdealer to argue that the Polish government is determined to fight drug trafficking? If so,3/4would political statements of Government officials suffice to support this allegation?These evidentiary difficulties raise the probability of the actual surrender of the personconcerned. The difficulties will not be alleviated by the procedure suggested by thejudgment whereby the executing judicial authority shall seek further information from theissuing authority. Not only would this procedure put the issuing authority in asubordinated position in relation to the executing authority. If the courts in the countryissuing the EAW are not independent, how would they confirm this information which isso uncomfortable for their government?Third, most importantly, by requiring an individual assessment of the case the CJEUimplies that a fair trial is possible even if the independence of the judiciary is systemicallyflawed, or, at least, the systemic flaws of the Polish judicial system are not so serious thatthey would automatically exclude the possibility of a fair trial. This assumption clearlyapplies also outside of the context of EAW. Even if this assumption is reasonable, it raisesthe question of why we have to insist on systemic institutional guarantees of judicialindependence. Nevertheless, this underlying assumption is indispensable for keeping amember state with a flawed judiciary within the EU. Without this assumption, the onlypossible conclusion could be that the respective member state can no longer ensurerespect for EU law domestically.That being said, the LM judgment is certainly not the end, rather the beginning of adevelopment. The Court is ready to take seriously judicial independence as an essentialpart of the rule of law. What is more, the CJEU is ready to offer its contribution tomaintaining the values of Art. 2 TEU and does not regard this as the sole domain ofpolitical processes. In the coming infringement procedures, the CJEU will be forced topronounce on the concerns relating to the independence of the judiciary in Poland andwill certainly follow up on the standards outlined in this present case. The teaching of LMis not that systemic deficiencies of the judiciary do not matter. Rather, such deficienciesshall be addressed systemically, either in infringement procedures or within theframework of an Article 7 TEU procedure. Such systemic solutions may force therespective member state to adjust without making its participation in the EU abruptlyimpossible. Viewed from this angle, the LM judgment certainly does not constitute atectonic shift, but it carries the possibility of changes of that magnitude.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Sonnevend, Pál: A Clever Compromise or a Tectonic Shift? TheLM Jugment of the CJEU, VerfBlog, 2018/7/27, https://verfassungsblog.de/a-clever-compromise-or-a-tectonic-shift-the-lm-jugment-of-the-cjeu/, DOI: 10.17176/20180727-105046-1.Other posts about this region:Polen4/4Pál Sonnevend Pál Sonnevend is a Professor of International Law at the Eötvös LórantUniversity ELTE in Budapest.Other posts about this region: PolenNo Comments Join the discussionLICENSED UNDER CC BY NC ND

A Clever Compromise or a Tectonic Shift?

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A Clever Compromise or a Tectonic Shift?

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