State of the Union

The Court of Justice of the European Union (CJEU) is becoming ever more deeply embroiled in political and constitutional upheavals in the member states.

 I have written before how, sooner or later, the CJEU will pronounce on Brexit. Indeed, there is much talk now about a no-deal Brexit, but no one has begun to consider the consequences of a Brexit deal which is agreed by the parties and then unpicked, maybe only partly, as a result of a case before the CJEU.

This has happened before in different contexts involving the EU and an outside jurisdiction. Each of the following cases has its own facts quite separate from Brexit, and needs its own article for proper explanation, but, for instance:

  • the CJEU ruled that the agreement by the EU to accede to the European Convention of Human Rights was not compatible with EU law, and so could not proceed in its then form 
  • it ruled that the free trade agreement entered into with Singapore could not be concluded by the EU alone without the member states, and
  • ruled that a long-standing fisheries agreement between Morocco and the EU did not apply to the waters off the coast of Western Sahara 

Leaving aside the UK, the CJEU is being dragged deeper into the constitutional crisis in Poland. I mentioned briefly last week that the court had ruled in Case C-216/18 PPU that a member state court must not surrender an individual under a European Arrest Warrant (EAW) if it considers that there is a real risk that the individual concerned would suffer a breach of the fundamental right to an independent tribunal and, therefore, to a fair trial, because of deficiencies in independence of the judiciary in the issuing member state.

This was in response to a preliminary reference from an Irish court in a case where a Polish national opposed surrender to Poland on the grounds of the changes to the judiciary in Poland. 

But it is the least of Poland’s problems with the CJEU that its citizens might no longer be extradited back home because of its government’s tampering with judicial independence. The judges in the Polish Supreme Court have now referred a case to the CJEU asking for a ruling on whether the controversial new law on the judiciary is in line with EU law. The Polish law in question empowers the Polish president to determine how the Supreme Court is constituted, and led to almost 40% of the Supreme Court’s sitting judges being dismissed as a result of the retirement age being lowered from 70 to 65, including the chief justice, Malgorzata Gersdorf.

Ms Gersdorf has refused to go – nor has she taken the law’s other option, which was to petition the minister of justice to delay retirement after providing a statement and a doctor’s note. She said that she does not consider herself dismissed, and has stayed on in the post, because the constitution guarantees her a six-year term. There are other sub-plots and developments, but the main event is that just a few days ago the Supreme Court suspended the application of the new law and asked the CJEU to rule on its compliance with EU rules.

Hungary is the other country whose record on rule of law issues bothers many in the EU. It is significant that, in the dozen judgments which the CJEU published in its clear-up before the summer holiday, three (or 25%) were related to the EAW. One concerned Poland, as described above. But the other two affected Hungary.

In one of the judgments, Case C-268/17, the CJEU ruled that Hungarian courts could no longer refuse to implement an EAW against a Hungarian businessman wanted in Croatia on corruption charges. The grounds given by the Hungarian courts was that the businessman had already been interviewed, and the case had been closed. But the CJEU said that he had been interviewed only as a witness, and not as a suspect, and so this could not be used as a ground for refusal.

 In the second case, Case C-220/18 PPU, a German court was not certain about returning a Hungarian national to serve out a prison sentence in Hungary because of the dire state of some of its prisons. The state of the prison to which the surrendered person will return can be used as a ground for refusal to execute an EAW. The CJEU held that the assessment of detention conditions in the issuing member state must be limited to the prisons in which it is actually intended that the person concerned will be held.

The role of the CJEU, particularly in Poland and maybe in the future in regard to Brexit, will test its reputation and the EU’s founding tenets to the limit.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council