Who is Afraid of the European Council? The Court of Justice's Cautious Approach to the Independence

The LM case offered first proof of the expected disruptions to judicial cooperation between EU Member States and Poland due to its controversial judicial reforms. It concerned a European Arrest Warrant issued by a Polish court. In the judgment, the Court of Justice confirmed that the risk of an unfair trial in a Member State issuing a European Arrest Warrant may result in a non-surrender of the person sought. The Court did not however autonomously assess the state of judicial independence in Poland. Instead, it delegated this task to domestic courts executing Polish judicial decisions. Moreover, the Court held that cogent evidence of systemic breaches to judicial independence in a Member State issuing an European Arrest Warrant does not provide sufficient grounds to refuse its execution. The executing court must also carry out a concrete assessment of the individual situation of the person sought by the European Arrest Warrant. The executing court must determine whether that person runs the risk of undergoing an unfair trial in the issuing Member State due to personal circumstances. This commentary focuses on the potential impact of EU law and EU institutions on domestic judicial independence in the aftermath of the LM judgment. Firstly, it analyses the considerable difficulties entailed by the ‘abstract’ prong of the test prescribed by the Court. Domestic courts may have difficulty assessing foreign laws that affect the functioning of their counterparts in other Member States, which rather spoke in favour of a centralised review of domestic judicial independence by the Court of Justice. Secondly, the commentary argues that when courts are asked to rule on the execution of Polish judicial decisions, they should focus, within the abstract prong, on those elements of the Polish reforms that have an impact on rank-and-file judges, i.e. the new legal regime of disciplinary proceedings. Thirdly, the commentary argues that the Court’s approach in LM to its own powers and responsibility contrasts with that in Associação Sindical dos Juízes Portugueses. In the latter case, settled a few months earlier, the Court had firmly asserted its mandate stemming from Article 19(1), para. 2, TEU to autonomously scrutinise domestic measures affecting judicial independence. In LM, on the contrary, the Court delegated the assessment of the Polish system entirely to domestic courts executing European Arrest Warrants. Moreover, ignoring the suggestion of the referring court, the Court upheld the second, ‘concrete’ prong of the double test transplanted from Aranyosi and Căldăraru, which may render excessively difficult the review of the risk of unfair trials in issuing Member States. The Court’s reasoning suggests that it sought to avoid an automatic ban on surrenders to Poland so as not to pre-empt a decision by the European Council under Article 7(2) TEU. The latter depends, however, on political factors and may actually never be reached. As a consequence, domestic judicial independence may not receive a level of protection under EU law as strong as one might have expected in the aftermath of Associação Sindical dos Juízes Portugueses