CJEU continues to clarify ruling on European Arrest Warrants: German solution to issue through judges reinforced?

The decision of the European Court of Justice (CJEU) denying German public prosecutors offices the competency to issue European Arrest Warrants (EAW) has led to German authorities shifting the issuance of these warrants onto judges. A recent CJEU ruling declaring Austrian EAWs valid due to judicial approval may endorse that response, for now at least.

The recent CJEU rulings: German PPOs not sufficiently independent but Austrian and French EAWs valid

On 27 May 2019, the CJEU ruled that German public prosecutors offices (PPOs) are not competent to issue European Arrest Warrants (EAWs) because they lack sufficient independence from political interference. The European Court of Justice (CJEU) decided that Germany’s PPOs do not meet the definition of a “judicial authority” within the EU’s framework for EAWs. The court said that the PPOs "appear to be subordinate to the authority and to the instructions of the executive” and are, therefore, not independent from the executive.

Since then the CJEU has had the opportunity to clarify its ruling. On 9 October 2019, it further defined its position and held that EAWs issued by Austrian PPOs, which are also subject to executive supervision, are valid because EAWs issued by Austrian PPOs require judicial approval, which ensures objectivity and independence. In addition, on 12 December 2019, the CJEU decided that French PPOs are sufficiently independent since they are only subject to general executive instructions (as opposed to case-by-case instructions, as is possible in Germany).

The responses to the May ruling

In Germany, the ruling in May triggered two main responses:

• Voices from judicial associations recommended reforming the relevant laws, abolishing the minister of justice’s right to give instructions to PPOs. The chairman of the German Association of Judges said: “It should be part of Germany’s self-conception to adhere to European standards of justice”. In the same vein, the FDP party proposed legislation which envisaged the abolition of external binding instructions by the minister of justice.
• However, the federal government appears not to agree such an approach is necessary. Instead, they have considered it sufficient if judges take on the responsibility of issuing EAWs. Immediately after the ruling, the federal ministry of justice ordered that judges should now issue EAWs.

The May ruling, which was called “monumental”, effectively invalidated all approximately 5,600 EAWs previously issued by German PPOs. According to EAW coordinator Attorney General of Celle, it left the German criminal justice system potentially facing significant delays. Despite – or specifically because of – the uncertainty resulting from the CJEU ruling, pragmatic adjustments in line with the latter response were implemented quickly: judges now sign German EAWs.

German pragmatic approach reinforced by October and December rulings?

The need for and appropriateness of the German authority’s response can be regarded as reinforced by the October and December rulings. The invalidity of German EAWs issued solely through the German PPOs was underlined by the CJEU’s December ruling, in which it confirmed its interpretation of a “judicial authority”. The need for a response was clear.

Furthermore, that the response chosen was to let judges sign EAWs might itself be reinforced by the October ruling, which confirmed that judicial approval leads to valid EAWs. Since German judges’ independence is constitutionally secured, they should, in principal, be appropriate authorities to validly issue future EAWs. After the October ruling, and based on German court decisions which regard judges as competent authorities, it currently seems more likely that a shift of authority from German PPOs to judges will be the long-term solution, rather than a mere “quick emergency solution”. This is even though German politicians may not feel an urgency to change the law, particularly in view of the long tradition of the hierarchical ranking of German PPOs.

Although judges are independent and should, therefore, meet the CJEU’s requirements in this regard, commentators have criticised the lack of a legal basis for judges to issue EAWs. Despite the majority of German court decisions accepting the competence of judges, there are also some judgments that share this concern. While for now, therefore, the pragmatic German response appears to be reinforced, it remains to be seen how German case law and legislation will develop.