The application of mutual trust-based mechanisms such as the European Arrest Warrant (EAW) raises challenges as to the protection of fundamental rights. For several years, the CJEU has been regularly called upon to provide guidance on the circumstances under which a national judicial authority may refuse to execute an EAW because the surrender of the person concerned could lead to a violation of fundamental rights. This issue was raised again in cases X and Y v Openbaar Ministerie (joined cases C‑562/21 PPU and C‑563/21 PPU).
The cases at hand concern two EAWs issued by Polish courts in April 2021 against two Polish nationals for the purposes of, respectively, executing a custodial sentence and conducting a criminal prosecution. The District Court of Amsterdam, which received the request to execute the EAWs, doubted whether the individuals concerned could be surrendered to the Polish authorities under the EAW Framework Decision given that the surrender could lead to a breach of the right to a fair trial (article 47 of the Charter of Fundamental Rights of the EU). The Dutch court pointed out that a number of large-scale reforms concerning, in particular, the system of appointment of judges have considerably undermined the independence of the Polish judiciary and had led to “systemic or generalised deficiencies affecting the right to a fair trial”. It was in fact not possible to exclude that the Polish judges appointed under the “new” procedure (on the application of “Krajowa Rada Sądownictwa” (“KRS)”, a body found not to be independent – see eg. Commission v PolandC-791/19) might have participated to the criminal proceedings leading to the conviction of one the requested persons. Similarly, there was a risk that the same judges adjudicate in the case of the second person following his or her surrender. It was thus legitimate to ask whether the surrender of those persons would not result in the violation of their right to be judged by a tribunal established by law, which is an inherent element of a fair trial. To recall, by application of the “two-step examination” established in the seminal LM case (C-216/18 PPU), the executing judicial authority should first determine whether there is a real risk of breach, in the issuing Member State, of the fundamental right to a fair trial, on account of “systemic or generalised deficiencies so far as concerns the independence of that Member State’s judiciary”. Secondly, the authority must conduct a specific examination of the personal situation of the concerned person to assess whether such a risk exists in the concrete case. The Amsterdam Court decided to ask the CJEU whether the two-step test should also be applied as regards a possible breach of the “right to a tribunal previously established by law”.
The CJEU considered that the two-step examination should be indeed applied in the main proceedings. The Court reminded clearly that, given the existence of mutual trust among the Member States, the execution of EAWs constitutes a rule and therefore exceptions allowing refusal to execute them should be interpreted narrowly. It then stated that “the procedure for the appointment of judges necessarily constitutes an inherent element of the concept of a ‘tribunal established by law’” (para. 57 of the judgement).
As regards the first step of the test established in the LM, the CJEU underlined that the executing authority should take into account, inter alia, the information contained in a reasoned proposal addressed by the European Commission to the Council on the basis of Article 7 TEU, its relevant case-law on the independence of Polish judiciary, the case-law of the European Court of Human Rights as well as “constitutional case-law of the issuing Member State, which challenges the primacy of EU law”.
Moving to the second step of the test, the Court recalled that it is for the person in respect of whom an EAW has been issued to adduce specific evidence to suggest, that the identified deficiencies in the judicial system had or are liable to have an influence on conducting criminal procedures (para. 83 of the judgement). Such evidence may be, if necessary, supplemented by the information delivered by the issuing authority. The CJEU provided the referring court with a non-exhaustive list of elements that should be considered within the assessment of the independence and impartiality of the panel who heard or would be called to hear the criminal case. Importantly, the fact that one or more judges appointed by the KRS had decided upon or could potentially hear the case of the person concerned is not itself sufficient to refuse the surrender.
The X and Y ruling confirms that even in presence of flagrant deficiencies in the functioning of the judicial system, the execution of the EAW may be refused only in highly exceptional circumstances. By extending the scope of application of the controversial two-step approach and carefully circumscribing the possibility for national judges to refuse the execution of the EAW, the Court may be found favouring the constitutional principle of mutual trust to the detriment of the protection of fundamental rights. Yet, as the two-step assessment remains the only tool allowing national judges to suspend the execution of an EAW in presence of a potential breach of fundamental rights, the detailed clarifications on its practical use can be seen as a welcome development.
Alicja Słowik, Criteria to refuse execution of European Arrest Warrant and protection of fundamental rights, actualité du CEJE n°8/2022, 31 mars 2022, disponible sur www.ceje.ch
 A clear allusion to the infamous ruling of the Polish Constitutional Tribunal of 7th October 2021.
 For an insightful comment see e.g. van Ballegooij, Wouter; Bárd, Petra: The CJEU in the Celmer case: One Step Forward, Two Steps Back for Upholding the Rule of Law Within the EU, VerfBlog, 2018/7/29, https://verfassungsblog.de/the-cjeu-in-the-celmer-case-one-step-forward-two-steps-back-for-upholding-the-rule-of-law-within-the-eu.