by Enrico Pelosato*
The basis of cooperation among EU Member States in criminal matters is the notion of “mutual trust”, which represents the precondition for the creation of a common European Area of Criminal Justice. The notion of mutual trust identifies a model of cooperative actions based on common norms, as highlighted by Article 4(3) Treaty on the European Union (TEU) concerning the principle of loyal cooperation, and it must be the result of “the political will of parties undertaking the joint initiative, and it must be also reflect a readiness to enhance cooperation stemming from faith in the reliable and responsible approach of all participants to the agreed objectives and targets”. In this regard, this principle involves State authorities and judicial authorities of other Countries and, concerning vertical relations, existing links between authorities and individuals. In this sense, the involved actors should have confidence not only in the laws the Member States concerned, but also in effects of the functioning of these systems, in the judgements and the decisions issued by foreign bodies.
Nevertheless, a limit to “trustability” in the emission of a European Arrest Warrant (EAW) is represented by the respect of fundamental rights and Rule of Law: in this regard, a relevant case is the LM case. LM is a Polish national who has been subject of three EAWs issued by Polish authorities for illicit production, smuggling, processing and trafficking of intoxicants, psychotropic substances, narcotic drugs and participation in an organized criminal group. The man has been arrested in Ireland in May 2017. Before the Irish Court that should decide on his case, the applicant claimed that he would run a real risk of not receiving a fair trial in Poland, due to the recent reforms of the judicial system in the Country. In this regard, it should be observed that, in December 2017, the European Commission delivered a reasoned proposal in accordance with Article 7(1) TEU, proposing to the Council to verify the existence of a veritable risk of a breach of the Rule of Law in Poland. However, no concrete action has yet been taken pursuant to this reasoned proposal, because the complex conditions enshrined in Article 7 TEU and the absence of proper tools to react to these events: by consequence, the European Union has until now been unable to deliver a collective and credible response to the Rule of Law Crisis in the Country.
The Irish High Court asked the European Court of Justice (ECJ) about the existence of an obligation to execute a EAW when the circumstances in the issuing Member State are not compatible with the right to a fair trial since the whole judicial system is no longer working under the Rule of Law. Opening a parenthesis in this debate, the ECJ has long been reluctant to allow national courts to verify the respect of fundamental rights in case of execution of an arrest warrant, nevertheless, in Aranyosi and Căldăraru, the Court affirmed that a EAW may be postponed, under very exceptional circumstances, in case of a veritable risk of inhuman or degrading treatments in the issuing Member States in case of surrender (the executing judicial authority is bound to verify such a risk through a two-stage approach. In other words, the referring court asked the ECJ whether the Aranyosi and Căldăraru dual-phase test could be applied also in this case.
Advocate General (AG) Tanchev opened his Opinion by differentiating the assessment to apply in case of violation of fundamental rights and the one that should be carried out by the Council under Article 7(1) TEU: in such a case, in his view, the Irish Court asked whether, in order to postpone the execution of a EAW, it is sufficient to verify that conditions in the issuing Member State are in breach of the right to a fair trial since the judicial system is no longer working under the Rule of Law. Therefore, since they are two divergent mechanisms, also their consequences differ: on the one hand, the finding of the existence of a real risk of inhuman or degrading treatment leads the executing judicial authority to postpone the execution of a EAW, while on the other hand the suspension of the whole EAW mechanism in a certain Member State may occur only if the Council, pursuant to Article 7(3) TEU, decides on the merits of a possible breach of EU values. Moreover, according to AG Tanchev, the Aranyosi and Căldăraru test can be applied also to the LM case: indeed, the fact that limitations on the principle of mutual trust hitherto have been accepted only in light of Article 4 Charter of Fundamental Rights of the European Union (Charter) does not precludes a similar conclusion also when other rights (as the right to a fair trial) are at stake. Nevertheless, regarding the possibility to postpone a EAW for a risk of breach of the right to a fair trial, the postponement may occur only when the essence of this right (not the mere right) is at stake: in other words, in the presence of a “flagrant denial of justice”. In this regard, AG Tanchev observed that “the lack of independence and impartiality of a tribunal can be regarded as amounting to a flagrant denial of justice only if it is so serious that it destroys the fairness of the trial”. In the assessment of the risk, the executing judicial authority must rely on objective, reliable, specific and properly updated information on circumstances demonstrating existing deficiencies affecting a national judicial system. Moreover, the executing judicial authority should also evaluate if the person concerned by a EAW will run such a risk and whether he/she is a political opponent, is part of a discriminated social or ethnic group or is prosecuted for a political offence. For all these reasons, according to AG Tanchev, the executing judicial authority should execute a warrant when it believes that the person concerned does not run a real risk to be subject to treatments amounting to a flagrant denial of justice in the issuing State, at the opposite, it must postpone its execution in case of existing evidence.
The ECJ decided to deal with this case via un urgent preliminary procedure (Article 107 Rules of Procedure), given that LM was deprived of his liberty and the question as whether he may continue to be held in custody depended on the result of dispute in the main proceedings. In its judgement, the Court recalled the importance of the principles of mutual trust and mutual recognition: nevertheless, there are some limitations to these principles “in exceptional circumstances”. Indeed, Article 1(3) of EAW Framework Decision states that this latter does not have the effect to modify the obligation to respect fundamental rights and principles (Articles 2 and 6 TEU, Article 4 Charter) and, in the case in question, LM opposed his surrender to Polish authorities affirming that the surrender would expose him to a risk of flagrant denial of justice due to the lack of independence of Polish courts. By consequence, the Court observed that Article 19 TEU recognizes the relevance of the Rule of Law (value enshrined in Article 2 TEU) and national courts, tribunals and the ECJ should ensure the full application of EU Law in all Member States, guaranteeing the protection of fundamental rights. Moreover, the existence of a real judicial review aims to ensure the compliance with the value of the Rule of Law. In other terms, the Court endorsed the interpretation of AG Tanchev, affirming that, according to Aranyosi and Căldăraru, when the executing judicial authority is called upon to decide on the surrender of a person to the issuing Member State authorities, it must assess whether there exists a risk for individual to suffer breaches of a fundamental right. Firstly, the executing judge must verify (on grounds of objective, reliable, specific and properly updated information on, in this case, the Polish judicial system) whether there are real risks due to the lack of independence of national courts and, secondly, to assess if judicial authorities are impartial. Moreover, the ECJ has recognized that this assessment procedure is necessary also, as in this case, when the issuing Member States has been subject of a reasoned proposal adopted by the Commission pursuant to Article 7(1) TEU demanding to the Council a course of action regarding possible breaches by a Member State of Article 2 TEU. Therefore, in line with Article 15(2) EAW Framework Decision, the executing judicial authority must require all necessary information in order to assess the existence of a potential risk to be subject to an unfair trial.
Concluding, the current Rule of Law Crisis represents a relevant political issue, which needs to be dealt by political bodies and EU institutions such as the Council pursuant to Article 7(1) TEU. Moreover, the ECJ has was called to state on the respect of EU law (in particular the Charter of Fundamental Rights) and fundamental rights, in particular the right to a fair trial. The principle of mutual trust, being a fundamental principle in the creation of an European Area of Criminal Justice, shall not justify violations of fundamental rights which do not respect the conditions laid down in Article 52 Charter.
* Enrico Pelosato: Enrico was born in Verona in 1994, he obtained a Bachelor’s Degree in Political Sciences, International Studies, Public Administration at the University of Padua. He recently graduated with honors in International Relations and European Studies at the University of Florence, after spending a semester at the University of Luxembourg and three months at the Tuscany Region Brussels Liaison Office thanks to the Erasmus+ programme. His main interests are Public International Law, European Union Law and European Affairs as a whole.
 A. SULIMA, The normativity of the principle of mutual trust between EU Member States within the emerging European Criminal Area, Wroclaw Review of Law, Administration & Economics, Vol. 3 No. 1 (2013), p. 75. In this regard, see also: L. MARIN, ‘Only you’: The emergence of a temperate mutual trust in the Area of Freedom, Security and Justice and its underpinning in the European Composite Constitutional Order, European Papers, Vol. 2 No. 1 (2017), pp. 151-157.
 Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA, 13 June 2002).
 ECJ, judgement of 25 July 2018, case C-216/18, Minister for Justice and Equality.
 European Commission, Rule of Law: European Commission acts to defend judicial independence in Poland (press release, 20/12/2017). For a general overview, see also: N. LAZZERINI, Le recenti iniziative delle istituzioni europee nel contesto della crisi di diritto in Polonia: prove di potenziamento degli “anticorpi” dei Trattati?, Osservatorio sulle Fonti, n. 1/2018, pp. 1-21 (https://www.osservatoriosullefonti.it/mobile-note-e-commenti/note-e-commenti-n-1-2018/1181-le-recenti-iniziative-delle-istituzioni-europee-nel-contesto-della-crisi-dello-stato-di-diritto-in-polonia-prove-di-potenziamento-degli-anticorpi-dei-trattati/file); G. DELLEDONNE, “Un evidente rischio di violazione grave” dello Stato di diritto: qualche osservazione sulle più recenti iniziative della Commissione Europea nei confronti della Polonia, Diritti Comparati (http://www.diritticomparati.it/un-evidente-rischio-di-violazione-grave-dello-stato-di-diritto-qualche-osservazione-sulle-piu-recenti-iniziative-della-commissione-europea-nei-confronti-della-polonia/, 15/01/2019).
 C. RIZCALLAH, ‘Dear Collegue, Are You Independent Enough?’ The Fate of the Principle of Mutual Trust in Case of Systemic Deficiencies in a Member State’s System of Justice (http://eulawanalysis.blogspot.com/2018/07/dear-colleague-are-you-independent.html, 04/07/2018).
 ECJ, judgement of 05 April 2016, joined cases C-404/15 and C-659/15, Aranyosi and Căldăraru.
 Opinion of the Advocate General Tanchev of 28 June 2018, case C-216/18 PPU, Minister for Justice and Equality, paras. 38-40.
 Ibid, para. 58.
 Ibid, para. 93.
 ECJ, judgement of 25 July 2018, case C-216/18, Minister for Justice and Equality, paras. 41-42; ECJ, Aranyosi and Căldăraru, para. 82.
 Ibid, para. 50; ECJ, judgement of 27 February 2018, case C-64/16, Associação Sindical dos Juizes, paras. 31-37; ECJ, judgement of 06 March 2018, case C-284/16, Achmea, para. 36.
 On possible evolutions in Poland, see: A. SIKORA, The CJEU and the rule of law in Poland. Note on the Polish Supreme Court preliminary ruling request of 02 August 2018 (http://eulawanalysis.blogspot.com/2018/08/the-cjeu-and-rule-of-law-in-poland-note.html, 04/08/2018).