Summaries of judgments: L.G. (Continued holding of a judicial office) | GN (Ground for refusal based on the best interests of the child)

Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

Judgment of the Court (Grand Chamber) of 21 December 2023, L.G. (Continued holding of a judicial office), Case C‑718/21 ,EU:C:2023:1015

Reference for a preliminary ruling – Article 267 TFEU – Concept of ‘court or tribunal’ – Criteria – Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs) of the Sąd Najwyższy (Supreme Court, Poland) – Reference for a preliminary ruling from a panel of judges without the status of an independent and impartial tribunal previously established by law – Inadmissibility

Facts

In Poland, judges who wish to continue to perform their duties after reaching the age of retirement are required to declare their wish to do so to the Krajowej Radzie Sądownictwa (National Council of the Judiciary, the ‘KRS’).

In 2020, L.G., a judge within the Sąd Okręgowy w K. (Regional Court, K., Poland), notified the KRS of his wish to continue to perform his duties beyond the date of his 65^th birthday. The KRS declared that there was no need to rule on the application, after finding that it had been lodged after the expiry of the time limit imposed by law. Hearing an appeal brought by L.G., the Sąd Najwyższy (Izba Kontroli Nadzwyczajnej i Spraw Publicznych) (Chamber of Extraordinary Review and Public Affairs of the Supreme Court, Poland), turned to the CJEU to request clarification regarding the principles of the irremovability of judges and judicial independence as enshrined in EU law.

The Commission raised doubts as to whether the referring body meets the requirements which must be met by a referring body in order for it to be a ‘court or tribunal’ within the meaning of Article 267 TFEU. These doubts were related to the fact that the appointment, by the President of the Republic of Poland, of the three members concerned of the referring body was made on the basis of proposals set out in a resolution adopted by the KRS, a body whose independence has been called into question on numerous occasions, including in several recent judgments of the CJEU .

Findings of the CJEU

The CJEU recalls that the Sąd Najwyższy (Supreme Court), as such, meets the requirements which must be met by a referring body in order for it to be a ‘court or tribunal’, within the meaning of Article 267 TFEU. Therefore, it must be presumed that it satisfies those requirements, irrespective of its actual composition.

The CJEU also recalls, however, that this presumption may be rebutted where a final judicial decision handed down by a court or tribunal of a Member State or an international court or tribunal leads to the conclusion that the judge constituting the referring court is not an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 CFREU.

In this context, the CJEU takes into account that, in its judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland (CE:ECHR:2021:1108JUD004986819), the European Court of Human Rights held that there was a violation of Article 6(1) ECHR, as the appointments of the members of the Chamber of Extraordinary Review and Public Affairs in question were made in manifest breach of fundamental national rules governing the procedure for the appointment of judges, in particular on the basis of the above mentioned resolution of the KRS, even though the enforceability of this resolution had been suspended by the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) in 2018.

Furthermore, the CJEU notes that, in a judgment of 21 September 2021, delivered following the judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153), the Naczelny Sąd Administracyjny annulled that same resolution of the KRS, including the part thereof which proposed the appointment of the six judges making up the judicial formations at issue in the cases which gave rise to the judgment in Dolińska-Ficek and Ozimek v. Poland, one of whom sits in the panel which made the request for a preliminary ruling to the CJEU.

In the light of its own case-law on the interpretation of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 CFREU, the findings and assessments made by the European Court of Human Rights in the judgment in Dolińska-Ficek and Ozimek v. Poland and by the Naczelny Sąd Administracyjny in its judgment of 21 September 2021, the CJEU concludes that, because of the manner in which its constituent judges were appointed, the panel of judges which made the request for a preliminary ruling does not have the status of an independent and impartial tribunal previously established by law, for the purposes of those provisions of EU law, with the result that that panel of judges does not constitute a ‘court or tribunal’ within the meaning of Article 267 TFEU.

Therefore, the CJEU rules that the request for a preliminary ruling is inadmissible.

Judgment of the Court (Grand Chamber) of 21 December 2023, GN (Ground for refusal based on the best interests of the child), Case C‑261/22, EU:C:2023:1017

Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Article 15(2) – Surrender procedure between Member States – Grounds for non-execution – Charter of Fundamental Rights of the European Union – Article 7 – Respect for private and family life – Article 24(2) and (3) – Taking into consideration the best interests of the child – Right of every child to maintain on a regular basis a personal relationship and direct contact with both parents – Mother of young children living with her

Facts

In 2020, the Belgian judicial authorities issued a European arrest warrant (EAW) in respect of GN for the purpose of enforcing a custodial sentence of five years, handed down in absentia in Belgium, for the offences of trafficking in human beings and facilitating illegal immigration. At the time of her arrest, in Bologna (Italy) in 2021, G.N. was with her three years old son and pregnant with a second child. 

The Corte d’appello di Bologna (Court of Appeal, Bologna, Italy) refused to surrender GN to the Belgian judicial authorities and ordered her immediate release. According to that court, in the absence of any response from the Belgian judicial authorities to its questions, it was uncertain that the legal order of the issuing Member State provides for custodial arrangements comparable to those of the executing Member State, which protect the mother’s right not to be deprived of her relationship with her children and her right to care for them, and which ensure that children receive the necessary assistance, as guaranteed by the Italian Constitution and by Article 24 CFREU.

The Procuratore generale presso la Corte d’appello di Bologna (Prosecutor General at the Court of Appeal, Bologna, Italy) and GN each brought an appeal before the Corte suprema di cassazione (Supreme Court of Cassation, Italy). The Corte suprema di cassazione asked the CJEU whether Framework Decision 2002/584 prohibits the executing judicial authority from refusing to execute the EAW in respect of a mother of young children where her surrender is incompatible with her right to respect for private and family life as well as with the best interests of her children, as enshrined in Articles 7 and 24 CFREU.

Findings of the CJEU

The CJEU recalls that the executing judicial authorities may refuse to execute a EAW only on grounds stemming from Framework Decision 2002/584, as interpreted by the CJEU, and that, while execution of the EAW constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly. In this regard, the CJEU clarifies that Framework Decision 2002/584 “does not provide that the executing judicial authority may refuse to execute a European arrest warrant on the sole ground that the person who is the subject of that arrest warrant is the mother of young children living with her. Having regard to the principle of mutual trust which underlies the area of freedom, security and justice, there is a presumption that the conditions of detention of the mother of young children and of the care of those children in the issuing Member State are appropriate to such a situation, whether in prison accommodation or in the context of alternative arrangements ensuring that that mother remains available to that Member State’s judicial authorities or that those children are placed outside the prison accommodation”.

However, it follows from Article 1(3) of Framework Decision 2002/584 that that framework decision is not to have the effect of modifying the obligation to respect the fundamental rights guaranteed by the CFREU. Therefore, “the existence of a real risk that the person in respect of whom a European arrest warrant has been issued and/or his or her children would, if that person is surrendered to the issuing judicial authority, suffer a breach of those fundamental rights is nevertheless capable of permitting the executing judicial authority to refrain, exceptionally, from giving effect to that European arrest warrant on the basis of Article 1(3) of Framework Decision 2002/584”. The CJEU emphasizes that the assessment of such a risk “must be carried out by the executing judicial authority having regard to the standard of protection of fundamental rights guaranteed by EU law” and that “a lack of certainty on the part of that authority as regards the existence, in the issuing Member State, of conditions comparable to those existing in the executing Member State concerning the detention of mothers of young children and the care of those children cannot permit the inference that that risk has been established”.

Thus, the executing judicial authority called upon to decide on the surrender of a person in respect of whom a EAW has been issued must assess whether there is a real risk of breach of the fundamental rights enshrined in Articles 7 and 24 CFREU in the context of a “two-step examination involving an analysis on the basis of different criteria, with the result that those steps cannot overlap with one another and must be carried out successively.” The executing judicial authority must, first, determine whether there is objective, reliable, specific and properly updated information to demonstrate that there is a real risk of breach, in the issuing Member State, of those fundamental rights on account of either systemic or generalised deficiencies in the conditions of detention of mothers of young children or of the care of those children in the issuing Member State, or deficiencies in those conditions affecting more specifically an objectively identifiable group of persons, such as children with disabilities. Then, that authority must ascertain, specifically and precisely, whether there are substantial grounds for believing that the persons concerned will run that risk on account of those conditions.

To that end, if the executing judicial authority considers that all the information necessary for the adoption of a decision on the surrender of the person concerned is not available, it must, pursuant to Article 15(2) of Framework Decision 2002/584, request the issuing judicial authority to furnish, as a matter of urgency, all the supplementary information it considers necessary on the conditions under which it is intended, in that Member State, that that person will be detained and the care of that person’s children will be organised. The issuing judicial authority is, pursuant the principle of sincere cooperation, required to provide such information.

It is only where the executing judicial authority considers, having regard to all the information available, including the possible absence of assurances provided by the issuing judicial authority, that there are deficiencies such as those referred above in the issuing Member State and substantial grounds for believing that the person concerned and/or his or her children will run a real risk of breach of the fundamental rights enshrined in Articles 7 and 24 CFRE, that the executing judicial authority must refrain, on the basis of Article 1(3) of Framework Decision 2002/584, from giving effect to a EAW. Otherwise, it must execute that warrant, in accordance with the obligation laid down in Article 1(2) of that framework decision.