On 29 October 2020, Dutch Member of the European Parliament (MEP) Jeroen Lenaers of the Group of the European People’s Party (Christian Democrats) posed a written parliamentary question to the European Commission:
“The Polish national public prosecutor (NPP) has sent an order to Polish prosecutors to block European arrest warrants (EAWs) issued by the Netherlands. In its explanation, a clear reference is made to a Dutch court’s decision to suspend the execution of EAWs from Poland following its referral of a case to the Court of Justice of the European Union (CJEU) for a preliminary ruling.
The EAW was the first practical measure that implemented the principle of mutual recognition in criminal matters. Recital 10 of Council Framework Decision 2002/584/JHA sets out that the EAW mechanism is based on a high level of confidence between the Member States, which can be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) and 7(1) of the Treaty on European Union (TEU). As the Commission has triggered the procedure under Article 7(1) TEU, the Dutch court’s fear seems legally justified.
1. Does the Commission acknowledge that the decision by the Polish NPP is lacking any legal grounds and can therefore only be interpreted as a political and retaliatory measure?
2. Is it worried about the national and EU-wide damage the increasing politicisation of the judiciary in Poland in causing?
3. What will it do to revert this worrisome course of action?”
On 20 January 2021, Justice Commissioner Didier Reynders responded on behalf of the European Commission stating: “The European Arrest Warrant (EAW) procedure is an entirely judicial procedure based on the particular circumstances of each individual case. Therefore, neither the Commission nor Member States’ governments can interfere or have any influence in relation to individual surrender proceedings between judicial authorities.
The Court of Justice held in the LM judgment that mutual recognition and mutual trust should be the rule in EAW proceedings. Execution of a EAW may therefore be refused only on the grounds for non-execution exhaustively listed by the framework decision and may be made subject only to one of the conditions exhaustively laid down in the framework decision.
Nonetheless, limitations may be placed on the principles of mutual recognition and mutual trust where the person is in danger of an infringement of his fundamental right to an independent tribunal, but only in exceptional cases and following a strict two-pronged assessment.
The Court of Justice maintained the requirement of the two-step examination in a recent judgment. Moreover, the Court of Justice held that a general suspension of the EAW mechanism with regard to a Member State, which would make it permissible to refrain from
carrying out such an assessment and to automatically refuse to execute EAWs issued by that Member State, is possible only if the European Council declares that the Member State has failed to respect the principles on which the Union is based (Article 7(2) Treaty on European Union — TEU), with the consequences set out in Article 7(3) TEU.
The Commission will continue to monitor the situation in Poland in order to ensure that the case law of the Court of Justice is correctly implemented and to defend the rule of law.”
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