Analysis: “The Court of Justice in MM: a valid EAW must be based on a coercive decision” by Anna Mosna
Five days ago, the Court of Justice (CJEU) handed down its judgment in the case MM (C-414/20 PPU). As already indicated in the News update published on EU Law Live on 13 January 2021, the CJEU delivered a preliminary ruling with regard to three preliminary questions raised by the Bulgarian Specialised Criminal Court concerning the interpretation of provisions included in the Framework Decision 2002/584/JHA on the European Arrest Warrant (FD EAW).
First, the Court confirmed the classification of Bulgarian public prosecutors as ‘issuing judicial authorities’ pursuant to Article 6(1) FD EAW in light of its previous jurisprudence and in particular of OG and PI (C-508/18 and C-82/19 PPU, paragraphs 51 and 74; see MM, paragraphs 43-44).
The core of the decision lies in the CJEU’s ruling on the second preliminary question on the validity of a European Arrest Warrant (EAW) that has been issued on the basis of a national decision to put a person under investigation. In this respect, the CJEU confirmed and further specified the principle laid down Bob-Dogi (C-241/15), according to which EAWs that are not based on a distinct and prior national judicial decision, as required under Article 8(1)(c) FD EAW, are not valid (Bob-Dogi, paragraph 67).
In MM, the Court clarified that the presence of a separate national decision is not enough. Decisions to put a person under investigation, the sole effect of which is to notify the person of the charges against her, are excluded from the concept of ‘arrest warrant or any other enforceable judicial decision having the same effect’ enshrined in Article 8(1)(c) FD EAW. In order for the national judicial decision to comply with Article 8(1)(c) FD EAW and for the EAW to be valid, national measures on which an EAW is based must entail coercive means and produce the legal effects of an order to search for and arrest the suspect or accused person (MM, paragraphs 53-57).
The relevance of this finding emerges in light of the necessity for the EAW system to grant a dual level of protection of the rights of the requested person (MM, paragraph 49). Judicial protection for a person subject to an EAW must include, at the first stage, procedural safeguards and fundamental rights as provided for under national law when coercive power is exercised through an order for arrest or detention, in compliance with the principle of legality (Opinion of AG Richard de la Tour, MM, paragraphs 66 and 78).
With regard to the second level of protection, the CJEU stated in the third part of the judgment that where the national legal framework does not provide for judicial remedies allowing the scrutiny of the conditions under which an EAW has been issued, a reading of FD EAW in light of the right to effective judicial protection under Article 47 of the Charter of Fundamental Rights of the European Union (the Charter), allows the court competent in the main proceedings to examine, incidentally, the conditions of the validity of such warrant when these are contested before it (MM, paragraph 72).
The CJEU finally denies that, where such a court finds that an already executed EAW is invalid, the FD EAW or Article 47 of the Charter impose the release of the transferred person. Under those circumstances, an EAW has exhausted its legal effects and in the absence of harmonisation of the conditions for pre-trial detention, it is for the national trial court in light of its national law to determine the effects of an invalid EAW on the provisional detention of the suspect or accused person (MM, paragraphs 77, 80-82).
In conclusion, a combined reading of Bob-Dogi and MM suggests that the coercive nature of the underlying national judicial decision must be considered by the executing judicial authority. If, on the basis of the information contained in the EAW itself and, if necessary, of the supplementary information requested pursuant to Article 15(2) FD EAW, the executing authority finds that such coercive nature does not exist, it must refuse to give effect to an EAW which does not satisfy the requirements of lawfulness laid down in Article 8(1) FD EAW. It is worth mentioning that the CJEU does not view such refusal as an implicit exception to the obligations deriving from the principle of mutual recognition. Rather, the refusal responds to the invalidity of an EAW that is, as such, incapable of triggering an obligation of mutual recognition (Bob-Dogi, paragraphs 63-66).
Anna Mosna is a post-doctoral researcher at the Institute of Criminal Law at KU Leuven. She holds a PhD from the University of Luxembourg, where she defended a doctoral thesis on ‘Art Laundering’, focusing on cultural property crime and laundering phenomena within the art market. In addition, she has authored and co-authored several publications on judicial cooperation in criminal matters.