The ongoing stand-off between the European Union and its Member State Poland on the rule of law has just taken another twist.
Last Friday, the Irish Supreme Court announced that it was seeking clarification from the European Court of Justice (CJEU) in Luxembourg, on honouring European Arrest Warrants (EAW) issued by Polish courts, expressing grave concern about the rule of law in Poland, in particular the “validity of the appointment process for judges”.
In two cases, Polish defendants currently in Ireland had argued that because of the new judicial selection procedure in Poland, they were not guaranteed a fair trial back home. Initially, an Irish court rejected their cases but they appealed.
The High Court, where the Irish Minister for Justice was the respondent to the appeal, decided once again against the appellants, arguing that they were not able to prove a direct link to their individual cases of unlawful judge selection.
The High Court applied a test for deciding whether an EAW can be refused, the CJEU’s so-called “Celmer Test”, named after a case of a Polish man in Ireland issued with an EAW in 2018, which is used to determine whether a defendant is guaranteed a fair trial in the country issuing the EAW.
The Irish Supreme Court, having agreed to hear the renewed appeal, has now taken a drastically different stance, seemingly taking into account widespread criticism of the “Celmer Test” among EU law experts who see it as having too narrow a scope and being too difficult to apply, in particular with regard to the Polish judiciary.
The Supreme Court argues that “the changes that have occurred in Poland concerning the rule of law are even more troubling and grave than they were at the time when LM [i.e. the Celmer Test] was decided by the CJEU”.
“The question must arise as to whether the systemic deficiencies in the Polish system are such that they, by themselves, amount to a sufficient breach of the essence of the right to a fair trial, requiring the executing authority, in this case, Ireland, to refuse surrender” Irish Supreme Court ruling
The court goes on to state that it is now “impossible for the appellants in this case to identify the judges before whom they are to be tried because of the manner in which cases are randomly allocated”, and adding that “even if they could identify the judges and establish that the judges were not validly appointed and thus not part of a Court established by law”, there would be no remedy in Polish law for this.
Hence, “the question must arise as to whether the systemic deficiencies in the Polish system are such that they, by themselves, amount to a sufficient breach of the essence of the right to a fair trial, requiring the executing authority, in this case, Ireland, to refuse surrender”, adding that this question, is not one a court of a single EU Member State can answer.
A practical issue with a complete refusal to honour EAWs is that it would create a tremendous burden on the judicial system of the ‘host country’, as it were, of fugitives, and also on the fugitives themselves. As Steven Peers, Professor of Law at the University of Essex, and an expert in EU law explained to The Parliament Magazine:
“Polish courts might turn around and say ‘our alleged criminals are now your problem’ and it might become difficult then to get the evidence from Poland needed for a trial, so the fugitives might end up in limbo, waiting a long time for their trial - something the EWA was introduced to avoid. There are clearly lots of conflicting principles here and you have to reconcile them one way or another.”
In September last year, a Dutch court announced a temporary stop to all extraditions of people who are suspected or convicted of a crime to Poland because of concerns about the independence of the Polish judiciary, and asked the CJEU for advice about Polish EAWs. The answer from Luxembourg, coming three months later, had been to uphold them.
As Jakub Jaraczewski, research coordinator for rule of law issues at Berlin based NGO Democracy Reporting International, also explained:
“The CJEU is very careful with these cases and is kind of skirting around the issue of whether the judiciary in Poland is really independent or not. This is partly because it is keenly aware of what would happen if they did declare the Polish judiciary to not be independent.”
“The CJEU is very careful with these cases and is kind of skirting around the issue of whether the judiciary in Poland is really independent or not. This is partly because it is keenly aware of what would happen if they did declare the Polish judiciary to not be independent” Jakub Jaraczewski, research coordinator for rule of law issues at Berlin based NGO Democracy Reporting International
“It would pretty much blow up a large part of EU legal order, because courts in other Member States could legitimately question what Polish courts are doing.”
However, in light of recent rulings by both the CJEU and the European Court of Human Rights against Poland, its position might change, at least on the specific application of the Celmer Test in Poland.
Only two weeks ago, the CJEU had ruled that a central part of Poland's judicial reforms, the creation of a 'disciplinary chamber' of the Polish Supreme Court tasked with carrying out disciplinary proceedings against judges was "not compatible" with EU law.
The Polish Constitutional Tribunal, the other top body of Polish judiciary tasked with judicial review of laws, retaliated declaring the interim measures issued by the ECJ with regards to the Disciplinary Chamber as unconstitutional, setting the country on the path to a possible EU exit.
By contrast, and equally this month, Poland was happy to rely on the ECJ to rule in its favour on a case around the issue of energy and the OPAL pipeline, which connects the controversial Nordstream 2 pipeline from Russia with the European energy grid.
There, the CJEU rejected Germany’s appeal to its 2019 decision and confirmed that the principle of solidarity contained in the Treaty on the Functioning of the European Union is legally binding.
Much will depend on developments over the next few months and whether the dispute between Brussels and Warsaw will escalate or not. A crucial date will be the 31 August, when the Polish Constitutional Tribunal is scheduled to rule upon Prime Minister Mateusz Morawiecki’s request on the primacy of EU law.
If the tribunal were to question this principle openly, Poland would hypothetically be on the road to “Polexit”, and the ECJ might say, as Jakub Jaraczewski put it to this website, “ok, we’ve had enough of this” and change its mind on the EAW.