ORDER OF THE COURT (Eighth Chamber)

12 July 2022 (*)

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Surrender procedure between Member States – Conditions for execution – Charter of Fundamental Rights of the European Union – Second paragraph of Article 47 – Fundamental right to a fair trial before an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies – Two-step examination – Criteria for application – Obligation of the executing judicial authority to determine, specifically and precisely, whether there are substantial grounds for believing that the person in respect of whom a European arrest warrant has been issued, if surrendered, runs a real risk of breach of his or her fundamental right to a fair trial before an independent and impartial tribunal previously established by law)

In Case C‑480/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court (Ireland), made by decision of 30 July 2021, received at the Court on 3 August 2021, in proceedings relating to the execution of European arrest warrants issued against

W O,

J L,

intervener:

The Minister for Justice and Equality,

THE COURT (Eighth Chamber),

composed of N. Jääskinen, President of the Chamber, K. Jürimäe (Rapporteur), President of the Third Chamber, and N. Piçarra, Judge,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        W O, by T. Horan, Barrister-at-Law, and P. McGrath, Senior Counsel,

–        J L, by M. Lynn, Senior Counsel, K. Spencer, Barrister-at-Law, and N. O’Connor, Solicitor,

–        the Minister for Justice and Equality, by M. Browne, A.‑L. Carey, J. Quaney and G. Lynch, acting as Agents, and by R. Farrell, Senior Counsel, G. Mullan and B. Storan, Barristers-at-Law,

–        the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,

–        the Polish Government, by B. Majczyna, acting as Agent,

–        the European Commission, by S. Grünheid, K. Herrmann, J. Tomkin and P.J.O. Van Nuffel, acting as Agents,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        This request for a preliminary ruling concerns the interpretation of the provisions of 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 Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’), and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2        The request has been made in connection with the execution in Ireland, first, of four European arrest warrants issued by the Sąd Okręgowy w Lublinie (Regional Court, Lublin, Poland) and the Sąd Okręgowy w Zamość (Regional Court, Zamość, Poland), and by another Polish regional court for the purposes of conducting a criminal prosecution against W O and the execution of a custodial sentence imposed on him and, second, a European arrest warrant issued by the Sąd Okręgowy w Rzeszów (Regional Court, Rzeszów, Poland) for the purposes of conducting a criminal prosecution against J L.

 Legal context

3        Article 1 of Framework Decision 2002/584, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘1.      The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2.      Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

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 [TEU].’

4        Article 15 of Framework Decision 2002/584, entitled ‘Surrender decision’, states:

‘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.

2.      If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

3.      The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

5        W O and J L are the subject of a number of European arrest warrants for their surrender to the Polish judicial authorities. W O is the subject of four European arrest warrants issued by the Sąd Okręgowy w Lublinie (Regional Court, Lublin) and the Sąd Okręgowy w Zamość (Regional Court, Zamość), and another Polish regional court, for the purposes of conducting a criminal prosecution and executing a custodial sentence imposed on him. J L is the subject of a European arrest warrant issued by the Sąd Okręgowy w Rzeszów (Regional Court, Rzeszów) for the purposes of conducting criminal proceedings.

6        The ordinary procedure for the execution of the European arrest warrants referred to in the preceding paragraph was applied to the applicants in the main proceedings. The Minister for Justice and Equality (Ireland) (‘the Minister’) brought an action before the High Court (Ireland) seeking the execution of those European arrest warrants. That court upheld the Minister’s application and ordered the surrender of the applicants in the main proceedings. They applied for and obtained leave to appeal to the Supreme Court (Ireland), which is the referring court in the present case.

7        That court indicates that the central argument of the applicants in the main proceedings is that the situation in Poland has changed since the pronouncement of the Supreme Court’s judgment delivered following the pronouncement of the judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586), as a result, in particular, of the adoption of the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law on the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws) of 20 December 2019 (Dz. U. of 2020, item 190), which entered into force on 14 February 2020 (‘the 2020 Law’). Since the adoption of the 2020 Law, there is a risk that the Polish courts which will examine their case will not be constituted in accordance with the requirements of independence, as laid down in the judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Remedy) (C‑824/18, EU:C:2021:153). In addition, the applicants argue that no mechanism in Poland enables them to challenge that illegality.

8        In their submission, the judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the judicial system) (C‑216/18 PPU, EU:C:2018:586), and of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033), are not relevant in the present case, since those judgments concerned only the issue of the independence of the Polish courts concerned, which is a separate question from whether those courts were previously established by law within the meaning of the second paragraph of Article 47 of the Charter.

9        According to the applicants in the main proceedings, if those courts were not established by law, there would be no need to determine whether they are independent or impartial. In those circumstances, the High Court is not required to examine the personal situation, the nature of the offence concerned or the factual context in which the European arrest warrants concerned were issued, since such questions are external to the preliminary question as to whether the Polish courts concerned are established by law.

10      For his part, the Minister submits that the applicants in the main proceedings request the referring court to exempt them from the second step of the examination established in the judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the System of Justice) (C‑216/18 PPU, EU:C:2018:586), which consists of determining whether there are specific and precise circumstances which give rise to a real risk of breach of a right protected by the Charter. However, the applicants in the main proceedings do not put forward any ground to support the conclusion that the right to an effective remedy should be treated differently from other rights, and which would justify departing from the case-law resulting from that judgment. In addition, there are grounds for maintaining the approach set out in that judgment. Furthermore, the distinction between the independence and legality of the establishment of a court is artificial, since they constitute two different aspects of the same right enshrined in Article 47 of the Charter, as the Court recognised in the judgment of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX‑II and C‑543/18 RX‑II, EU:C:2020:232).

11      The referring court states that, as part of the examination of the case in the main proceedings, it took into account evidence relating, inter alia, to Polish law and, in particular, to the 2020 Law from which it is apparent that it is not possible at this stage to determine the composition of the courts before which the applicants in the main proceedings will be tried because of an uncertain system for allocating cases. Furthermore, it states that additional information concerning W O was requested from the issuing judicial authority which confirmed that, under the 2020 Law, an action challenging the composition of a court will not be examined if it concerns the establishment of a court in accordance with the law, the assessment of the legality of the appointment of the judge concerned or the legitimacy of that judge to perform functions within the judicial system.

12      In that context, the referring court, which states that it is acutely aware of the systemic deficiencies in the rule of law in Poland since the delivery of the judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586), considers that the situation in Poland is even more troubling and serious than the situation which prevailed when the Court delivered that judgment.

13      It now appears that there are significant issues with regard to the validity of the system for appointing judges in Poland. It is impossible for the applicants in the main proceedings to identify the judges before whom they will be tried because of the manner in which cases are randomly allocated. Even if they were able to identify those judges and establish that they were not validly appointed and that they are therefore not sitting in a tribunal previously established by law, it would not be possible for the applicants in the main proceedings to challenge the validity of the composition of the court designated to try them by reason of the provisions of the 2020 Law. That said, the question arises as to whether the systemic deficiencies in the Polish system are such as to give rise, in themselves, to a breach of the essential content of the right to a fair trial, requiring the executing judicial authority to refuse surrender under the European arrest warrants concerned.

14      The judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596), given after the hearing was held before the referring court, reinforces that court’s concerns regarding respect for the rule of law in Poland and the resulting consequences for individuals brought before the courts of that Member State.

15      In those circumstances, the Supreme Court decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is it appropriate to apply the test set out in [the judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586] and affirmed in [the judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033] where there is a real risk that the appellants will stand trial before courts which are not established by law?

(2)      Is it appropriate to apply the test set out in [the judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586] and affirmed in [the judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033,] where a person seeking to challenge a request under a [European arrest warrant] cannot meet that test by reason of the fact that it is not possible at that point in time to establish the composition of the courts before which they will be tried by reason of the manner in which cases are randomly allocated?

(3)      Does the absence of an effective remedy to challenge the validity of the appointment of judges in Poland, in circumstances where it is apparent that the appellants cannot at this point in time establish that the courts before which they will be tried will be composed of judges not validly appointed, amount to a breach of the essence of the right to a fair trial requiring the executing state to refuse the surrender of the appellants?’

 The request for an expedited procedure and the procedure before the Court

16      In the first place, the Supreme Court requested that its reference be dealt with under an expedited procedure pursuant to Article 105 of the Rules of Procedure of the Court of Justice.

17      In support of that request, first, the Supreme Court indicates that, although they were not held in detention, the applicants in the main proceedings have been ordered to remain on continuing bail which is equivalent to a restriction of their liberty. Secondly, the answers to the questions raised are decisive for the purpose of deciding the possible surrender under the European arrest warrants concerned. The referring court cannot make a final decision in that regard until the Court rules on these questions. Thirdly, the Court’s answers could be decisive for assessing whether persons other than the applicants in the main proceedings must be surrendered to Poland pursuant to European arrest warrants. A reply to the effect that such European arrest warrants should not be executed could lead to a de facto suspension of the application of Framework Decision 2002/584 between Ireland and the Republic of Poland.

18      Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may decide, after hearing the Judge-Rapporteur and the Advocate General, that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time.

19      It must be borne in mind, in that regard, that such an expedited procedure is a procedural instrument intended to address matters of exceptional urgency (judgment of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others, C‑748/19 to C‑754/19, EU:C:2021:931, paragraph 25 and the case-law cited).

20      In the present case, by decision of 8 September 2021, the President of the Court, after hearing the Judge-Rapporteur and the Advocate General, rejected the request that the Court deal with this case under an expedited procedure.

21      First, it is not apparent from the information provided by the referring court that the applicants in the main proceedings are in an emergency situation that would justify the initiation of the expedited procedure. The fact that they have been ordered to remain on continuing bail is not sufficient in that regard.

22      In addition, the fact that the request for a preliminary ruling concerns criminal proceedings and therefore requires a swift response in order to clarify the legal situation of the defendants in the main proceedings cannot be sufficient in itself to justify the application of the expedited procedure (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 117 and the case-law cited).

23      Secondly, with regard to the importance of the questions referred for the implementation of Framework Decision 2002/584, it is clear from the Court’s settled case-law that the large number of persons or legal situations which may be affected by the decision that a referring court must give after making a request to the Court for a preliminary ruling does not, as such, constitute an exceptional circumstance justifying the application of the expedited procedure. The same is true where a large number of cases may be stayed pending the preliminary ruling of the Court (judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders), C‑584/19, EU:C:2020:1002, paragraph 36 and the case-law cited).

24      That being so, in the light of the matters relied on by the referring court, it has been decided to give the present case priority, pursuant to Article 53(3) of the Rules of Procedure.

25      In the second place, by decision of the President of the Court of 22 February 2022, the Court Registry notified the referring court of the judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) (C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100), ‘the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State)’), in view of the close affinity between the present case and the one which gave rise to that judgment, asking it whether it wished to maintain its request for a preliminary ruling.

26      By letter of 14 March 2022, the referring court replied that it was withdrawing the first and second questions, but that it was maintaining the third question, without however indicating the reasons for maintaining it.

27      By decision of the President of the Court of 18 March 2022, the Court registry asked the referring court to set out the reasons why it considered it necessary to maintain the third question.

28      By letter of 22 March 2022, the referring court replied that, in the light of the particular circumstances of the case, the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State) did not make it possible to reply in full to that question.

29      Whilst noting that a similar question to the third question had been raised in the case which gave rise to that judgment, the referring court considers that, in the first place, the question raised in that case had a different context from the one in the present case from the point of view of the evidence produced. In the second place, the Court did not reply in the operative part of that judgment to the issue of the lack of an effective remedy. In that context, it is not clear to the referring court how the evidence before it may have an effect on its assessment where the absence of an effective remedy is at issue, and it would appear that the court before which the person is summonsed was not previously established by law.

30      According to the referring court, in the present case, the difficulty which it faces resides in the fact that the applicants in the main proceedings may not know the composition of the courts before which they will be tried and that the evidence in the case file indicates that, when that composition is known, it will not be possible for them to contest the validity of the composition of the designated court.

 Consideration of the question referred

31      Under Article 99 of its Rules of Procedure, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order, in particular where the reply to a question referred for a preliminary ruling may be clearly deduced from existing case-law or where it admits of no reasonable doubt.

32      That provision must be applied in the present case.

33      By its question the referring court asks, in essence, whether Article 1(2) and (3) of Framework Decision 2002/584 must be interpreted as meaning that, where the executing judicial authority called upon to decide on the surrender of a person in respect of whom a European arrest warrant has been issued has evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the issuing Member State, in particular as regards the procedure for the appointment of the members of the judiciary, that authority may refuse to surrender that person, by reason of the fact that, in the event of such surrender, there is a real risk of breach of that person’s fundamental right to a fair trial before a tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter, where:

–        in the context of a European arrest warrant issued for the purposes of executing a custodial sentence or detention order, no effective judicial remedy is available for any breach of that fundamental right during the procedure which led to that person’s conviction and

–        in the context of a European arrest warrant issued for the purposes of conducting a criminal prosecution, the person concerned cannot determine, at the time of that surrender, the composition of the panel of judges before which that person will be tried, by reason of the manner in which cases are randomly allocated among the courts concerned, and there is no effective remedy in the issuing Member State to challenge the validity of the judicial appointment.

34      In paragraphs 40 to 46 of the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), the Court, in essence, first of all recalled the principles of mutual trust and mutual recognition on which the European arrest warrant mechanism, established by Framework Decision 2002/584, is based. Next it described the two-step examination following which the executing judicial authority may refuse, on the basis of Article 1(3) of that framework decision, the surrender of a person in respect of whom a European arrest warrant has been issued on the ground that there is a real risk that that person, if surrendered to the issuing judicial authority, would suffer a breach of his or her fundamental right to a fair trial before a tribunal previously established by law.

35      In the context of that two-step examination, the executing judicial authority must, as a first step, determine whether there is objective, reliable, specific and duly updated material indicating that there is a real risk of breach, in the issuing Member State, of the fundamental right to a fair trial guaranteed by that provision, on account of systemic or generalised deficiencies so far as concerns the independence of that Member State’s judiciary (first step of the examination) (see, to that effect, judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), paragraph 52 and the case-law cited).

36      As a second step, the executing judicial authority must determine, specifically and precisely, to what extent the deficiencies identified in the first step are liable to have an impact at the level of the courts of that Member State, which have jurisdiction over the proceedings in respect of the person concerned and whether, having regard to that person’s personal situation, the nature of the offence for which he or she is prosecuted and the factual context in which that arrest warrant was issued, and having regard to any information provided by that Member State pursuant to Article 15(2) of Framework Decision 2002/584, there are substantial grounds for believing that that person will run such a risk if he or she is surrendered to the latter (second step of the examination) (judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), paragraph 53 and the case-law cited).

37      In paragraphs 55 to 65 of the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), the Court held that that two-step examination was applicable where, as in the dispute in the main proceedings, the guarantee of a tribunal previously established by law, inherent in the fundamental right to a fair trial, enshrined in the second paragraph of Article 47 of the Charter, is at issue.

38      With regard to the implementation of the first step of that examination, in so far as, in essence, it was the subject matter of the first and second questions which, as is apparent from paragraph 26 above, were withdrawn by the referring court, suffice it to recall that the Court indicated, in paragraph 81 of the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), that, where the executing judicial authority considers, following a global assessment and, in particular, on the basis of the factors referred to in paragraphs 78 to 80 of that judgment, that there is a real risk of breach of the fundamental right to a fair trial, connected in particular with a lack of judicial independence in the issuing Member State or a failure to comply with the requirement for a tribunal previously established by law, on account of systemic or generalised deficiencies in that Member State, it cannot refuse to execute a European arrest warrant without proceeding to the second step of the examination referred to in paragraph 36 above.

39      As regards the implementation of that second step, the Court has held that the executing judicial authority must assess whether the systemic or generalised deficiencies found in the first step are likely to materialise if the person concerned is surrendered to the issuing Member State and whether, in the particular circumstances of the case, that person thus runs a real risk of breach of his or her fundamental right to a fair trial before a tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter (judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), paragraph 82).

40      It is for the person in respect of whom a European arrest warrant has been issued to adduce specific evidence to suggest, in the case of a surrender procedure for the purposes of executing a custodial sentence or detention order, that systemic or generalised deficiencies in the judicial system of the issuing Member State had a tangible influence on the handling of his or her criminal case and, in the case of a surrender procedure for the purposes of conducting a criminal prosecution, that such deficiencies are liable to have such an influence. The production of such specific evidence relating to the influence, in his or her particular case, of the abovementioned systemic or generalised deficiencies is without prejudice to the possibility for that person to rely on any ad hoc factor, specific to the case in question, capable of establishing that the proceedings for the purposes of which his or her surrender is requested by the issuing judicial authority will tangibly undermine his or her fundamental right to a fair trial (judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), paragraph 83).

41      In the first place, with regard to the situation in which a European arrest warrant is issued with a view to surrender for the purposes of executing a custodial sentence or detention order, it is for the person whose surrender is sought to rely on specific factors on the basis of which he or she considers that the systemic or generalised deficiencies of the judicial system in the issuing Member State had a tangible influence on the criminal proceedings against him or her (see, to that effect, the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), paragraphs 86 to 89).

42      In that regard, the Court stipulates, in paragraphs 87 and 88 of the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), that information concerning the fact that one or more of the judges who participated in the proceedings that led to the conviction of the person whose surrender is sought were appointed on application of a body made up, for the most part, of members representing or chosen by the legislature or the executive is not sufficient to refuse that surrender. The person concerned should therefore provide, as regards the panel of judges who heard his or her criminal case, information relating to, inter alia, the procedure for the appointment of the judge or judges concerned and their possible secondment to that panel of judges, on the basis of which the executing judicial authority would be able to establish, in the circumstances of the case, that there are substantial grounds for considering that the composition of that panel of judges was such as to affect that person’s fundamental right to a fair trial before an independent and impartial tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter, in the criminal proceedings against that person.

43      In paragraph 90 of the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), the Court indicated, moreover, that, among the factors to be taken into consideration, is the possible exercise by the person concerned of the legal remedies available to him or her. In particular, account must be taken of the possibility that that person may request, in the issuing Member State, the recusal of one or more members of the panel of judges for breach of that person’s fundamental right to a fair trial, the possible exercise by that person of his or her right to request such recusal and the information obtained concerning the outcome of such a request in those proceedings or in any appeal proceedings.

44      In the present case, it is apparent from the information provided by the referring court that that court is uncertain whether, since the entry into force of the 2020 Law, it is no longer possible to challenge in an effective manner the validity of the appointment of a judge or the legality of the exercise of that judge’s judicial functions.

45      The referring court considers that it has evidence relating to the state of national law that enables it to conclude, contrary to what the Court held in paragraph 92 of the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), that the possibility for the person concerned to assert his or her rights has been called into question by the adoption of the 2020 Law alone.

46      In that regard, it should be recalled that the preliminary-ruling procedure established by Article 267 TFEU is a procedure for direct cooperation between the Court of Justice and the courts and tribunals of the Member States. Under that procedure, which is based on a clear separation of functions between national courts and the Court, any assessment of the facts of the case is a matter for the national court, which must 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, while the Court is empowered to give rulings on the interpretation or the validity of an EU provision only on the basis of the facts which the national court puts before it (see, to that effect, judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraph 28 and the case-law cited).

47      Secondly, it follows from the case-law recalled in paragraph 39 above that it is for the executing judicial authority alone to assess whether there are, in the specific case in question, substantial grounds for believing that the applicants in the main proceedings, once surrendered to the issuing Member State, will run a real risk of breach of their fundamental right to a fair trial before a tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter. If that is the case, the executing judicial authority must refrain, pursuant to Article 1(3) of that framework decision, from giving effect to the European arrest warrant concerned. Otherwise, it must execute that warrant, in accordance with the obligation of principle laid down in Article 1(2) of that framework decision (judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), paragraph 101).

48      Therefore, it is for the referring court, rather than the Court, to assess whether the evidence relied on in paragraph 45 above is capable of revealing a ground justifying a refusal to execute the European arrest warrants at issue in the main proceedings, but it must, however, be pointed out that, in accordance with the case-law of the Court, refusal to execute is intended to be an exception which must be interpreted strictly (judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), paragraph 44 and the case-law cited).

49      As regards, in the second place, the situation in which a European arrest warrant is issued for the purposes of conducting a criminal prosecution, the Court held in paragraph 93 of the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State) that the fact, which is the subject matter of the referring court’s questions, that the person whose surrender is sought cannot know, before his or her possible surrender, the identity of the judges who will be called upon to hear the criminal case to which that person may be subject after that surrender cannot in itself be sufficient for the purposes of refusing that surrender.

50      Nothing in the system created in Framework Decision 2002/584 permits the inference that the surrender of a person to the issuing Member State for the purposes of conducting a criminal prosecution is conditional on the assurance that such prosecution will result in criminal proceedings before a specific court, and even less so on the precise identification of the judges who will be called upon to hear that criminal case (judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), paragraph 94).

51      In paragraph 96 of the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), the Court nevertheless stipulated that the situation referred to in paragraph 49 above does not, however, exempt the executing judicial authority from carrying out an overall assessment of the circumstances of the case in order to determine, on the basis of the information provided by that person and supplemented, where appropriate, by the information provided by the issuing judicial authority, whether, in the event of surrender, there is a real risk of breach of that person’s fundamental right to a fair trial before a tribunal previously established by law.

52      It is in the context of that overall assessment, which is a matter for the executing judicial authority alone, that the latter must take into consideration all the information which it considers to be relevant in order to determine whether there are substantial grounds for believing that the person concerned, in the event of surrender, runs a real risk of breach of that fundamental right.

53      As is apparent from paragraphs 97 and 98 of the judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), that information may, in particular, relate to statements made by public authorities which could have an effect on the specific case in question. The executing judicial authority may also rely on any other information which it considers relevant, such as information relating to the personal situation of the person concerned, the nature of the offence for which that person is prosecuted and the factual context in which the European arrest warrant concerned is issued, but also, where appropriate, on any other information available to it concerning the judges – in particular, matters relating to their appointment – who make up the panels likely to have jurisdiction to hear the proceedings in respect of that person after his or her surrender to the issuing Member State.

54      Secondly, as is apparent from paragraph 99 of that judgment, it can also take into consideration, as part of its assessment, any relevant factor concerning the possibility of seeking the recusal of one or more members of the panel of judges who will be called upon to hear the criminal case of the person concerned and any legal remedies available under the law of the issuing Member State.

55      In that regard, the Court has held that the fact that such recusal may, where appropriate, be requested, in the context of a European arrest warrant issued for the purposes of conducting a criminal prosecution, only after the surrender of the person concerned and once that person has become aware of the composition of the panel of judges called upon to rule on the prosecution against that person is irrelevant in the context of the assessment of whether there is a real risk that that person would suffer, if surrendered, a breach of that fundamental right (judgment in Openbaar Ministerie (Tribunal established by law in the issuing Member State), paragraph 100).

56      Nevertheless, in view of the questions raised by the referring court, it should be pointed out that, for the purposes of evaluating the existence of a real risk of breach, any evidence available to the executing judicial authority enabling it to conclude, as part of its sovereign discretion, that the recusal procedure or the legal remedies referred to in paragraph 53 above are ineffective, will be relevant.

57      As is apparent from paragraph 47 above, the executing judicial authority must execute the European arrest warrant at issue unless it finds, following its overall assessment of all the relevant factors, that there is, in the specific case in question, a real risk of breach of the fundamental right to a fair trial before a tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter.

58      In the light of all of the foregoing, the answer to the question referred is that Article 1(2) and (3) of Framework Decision 2002/584 must be interpreted as meaning that, where the executing judicial authority called upon to decide on the surrender of a person in respect of whom a European arrest warrant has been issued has evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the issuing Member State, in particular as regards the procedure for the appointment of the members of the judiciary, that authority may refuse to surrender that person:

–        in the context of a European arrest warrant issued for the purposes of executing a custodial sentence or detention order, only if that authority finds that, in the particular circumstances of the case, there are substantial grounds for believing that, having regard inter alia to the information provided by that person relating to the composition of the panel of judges who heard his or her criminal case or to any other circumstance relevant to the assessment of the independence and impartiality of that panel, there has been a breach of that person’s fundamental right to a fair trial before an independent and impartial tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter, and

–        in the context of a European arrest warrant issued for the purposes of conducting a criminal prosecution, only if that authority finds that, in the particular circumstances of the case, there are substantial grounds for believing that, having regard inter alia to the information provided by the person concerned relating to his or her personal situation, the nature of the offence for which that person is prosecuted, the factual context surrounding that European arrest warrant or any other circumstance relevant to the assessment of the independence and impartiality of the panel of judges likely to be called upon to hear the proceedings in respect of that person, the latter, if surrendered, runs a real risk of breach of that fundamental right.

 Costs

59      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, the Court (Eighth Chamber) hereby rules:

Article 1(2) and (3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where the executing judicial authority called upon to decide on the surrender of a person in respect of whom a European arrest warrant has been issued has evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the issuing Member State, in particular as regards the procedure for the appointment of the members of the judiciary, that authority may refuse to surrender that person:

–        in the context of a European arrest warrant issued for the purposes of executing a custodial sentence or detention order, only if that authority finds that, in the particular circumstances of the case, there are substantial grounds for believing that, having regard inter alia to the information provided by that person relating to the composition of the panel of judges who heard his or her criminal case or to any other circumstance relevant to the assessment of the independence and impartiality of that panel, there has been a breach of that person’s fundamental right to a fair trial before an independent and impartial tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, and

–        in the context of a European arrest warrant issued for the purposes of conducting a criminal prosecution, only if that authority finds that, in the particular circumstances of the case, there are substantial grounds for believing that, having regard inter alia to the information provided by the person concerned relating to his or her personal situation, the nature of the offence for which that person is prosecuted, the factual context surrounding that European arrest warrant or any other circumstance relevant to the assessment of the independence and impartiality of the panel of judges likely to be called upon to hear the proceedings in respect of that person, the latter, if surrendered, runs a real risk of breach of that fundamental right.

Luxembourg, 12 July 2022.

*      Language of the case: English.