Introduction
The principle of mutual trust is currently resonating across Europe. The sounds that emerge are composed of a range of voices from legal doctrine,Footnote 1 but also, increasingly, from the judiciary. The highly anticipated judgments in LM Footnote 2 and ML Footnote 3 gave the European Court of Justice the opportunity to add another voice to the chorus by deciding, once more, on the limits of mutual trust in the notorious context of a European Arrest Warrant.Footnote 4 While ML contains rather specific, though not unimportant, clarifications of the limits of transnational fundamental rights monitoring with a view to sincere cooperation, LM is a multifaceted, groundbreaking landmark case, the impact of which has been felt far beyond the field of judicial cooperation in criminal matters. The decision’s weight stems in equal parts from its legal innovations and from its political context, since the underlying preliminary reference by the Irish High CourtFootnote 5 was aimed at nothing less than the recent reforms of the Polish judiciary and, with that, at the heart of the government-led dismantling of the rule of law in Poland.Footnote 6
With LM, the Grand Chamber not only offered, albeit cautiously, new perspectives for responding to the rule of law crisis waging across Europe.Footnote 7 It simultaneously opened a new chapter on how to reconcile the principle of mutual trust with threats to EU fundamental rights at the national level. For the very first time, the Court of Justice ruled that transfers of individuals from one EU Member State to another are prohibited should a lack of judicial independence threaten the essence of the right to a fair trial. Hence, the European Court of Justice acknowledged that limits to the principle of mutual trust can also be set by fundamental rights that are not protected in absolute termsFootnote 8 to the extent there is a real risk to their essence. This novel legal approach entails consequences that could deeply affect the federal structure of the area of freedom, security and justice and thus resonate far beyond the individual case at hand.
Against this background, this contribution explores the interrelation between mutual trust, the essence of fundamental rights, and federalism in the area of freedom, security and justice. This article will first briefly revisit the specific legal meaning of mutual trust and the relevant case law on intra-European transfers, i.e. situations in which individuals should, under EU secondary law, be transferred from one Member State to another, but who object to being transferred for reasons of an anticipated fundamental rights violation in the state of destination. Until LM, such an objection was limited to a real risk of a violation of the absolute guarantee under Article 4 of the Charter of Fundamental Rights (CFR)Footnote 9 and has played a prominent role not only in cases involving European Arrest Warrants, but also relating to transfers under the Dublin systemFootnote 10 (see below under the heading ‘In a nutshell: mutual trust and intra-European transfers’).
Second, this contribution assesses the European Court of Justice’s new approach to deducing limits to the principle of mutual trust from the essence of fundamental rights such as the right to a fair trial as laid down in Article 47(2) CFR. It will be argued that the concept of ‘essence’ is, especially in the context of mutual trust, a challenging standard not only from the perspective of individuals but also because of its doctrinal obscurity, a fact that is moreover mirrored by judicial experiences at the national level. A concept like ‘essence’ should be handled with care. It is further argued that the European Court of Justice could have more aptly addressed the specific situation of a systemic rule of law crisis at the national level such as the one in Poland by relying predominantly on Article 19 TEU instead of Article 47(2) CFR. The Court of Justice would then have also avoided the pitfalls of an essence-based exception to mutual trust (see below under the heading ‘The essence of fundamental rights as a limit to mutual trust’).
Third, this article will address the federal impact of the Court’s new approach at the horizontal level, i.e. amongst the Member States.Footnote 11 Specific emphasis will be placed on the fact that acknowledging exceptions to mutual trust in the field of fundamental rights means preventively extending the responsibility to protect EU fundamental rights from the trouble-making Member State to its peers. Such a preventive extension should be handled with caution. Overstretching this approach might end up creating negative incentives and ultimately even weakening fundamental rights compliance across Europe. It will be further demonstrated that the criterion of ‘systemic deficiencies’, originally established by the European Court of Justice as a necessary condition for rebutting the horizontal presumption of fundamental rights compliance but increasingly at stake in recent Dublin case law, serves as an important federal safeguard to which the Court of Justice should continue to adhere (see below under the heading ‘Federalism I: the horizontal dimension’).
As far as federalism is concerned, the focus should not, however, be limited to the horizontal relationship between the Member States alone. Fourth and finally, this contribution will therefore address the vertical relationship between the Court of Justice and national courts – which is not something to be neglected in the context of mutual trust. It will be argued that the Court of Justice should, for reasons of constitutional and procedural law, assume greater responsibility in actually deciding on the existence of systemic deficiencies at the national level rather than delegating this politically delicate task back to the national courts (see below under the heading ‘Federalism II: the vertical dimension’).
The article will conclude with the observation that, while the European Court’s undoubtedly balanced and prudent case law strengthens the rule of law at the national level, it nonetheless leaves an ambivalent aftertaste. Considerable progress in addressing national rule of law crises with EU law has been diluted by the doctrinal imponderability of an essence-based exemption from the principle of mutual trust as well as by the rather fainthearted referrals of the Court back to the national courts which ultimately have to decide on the substance (see below under the heading ‘Conclusion’).
In a nutshell: mutual trust and intra-European transfers
Mutual trust as the obligation to presume compliance with fundamental rights
Although subject to much debate,Footnote 12 mutual trust remains an ambiguous and multifaceted concept. In what amounts to a blending of the normative and the factual, it is not only a legal concept but serves, at the same time, as a social-empirical premise for the functioning of law in general and of the area of freedom, security and justice in particular.Footnote 13 It should hence come as no surprise that, from a theoretical point of view, the notion of trust may be linked to rather divergent concepts and forms of behavioural expectation.Footnote 14 From a doctrinal point of view, however, in the area of freedom, security and justice, the concept of mutual trust, which originates from internal market law and is nowadays applied in manifold ways in EU law,Footnote 15 translates predominantlyFootnote 16 as a legal requirement for Member States to generally presume adherence to EU fundamental rights by their peers.Footnote 17 The principle of mutual trust hence establishes a horizontal presumption of Member State compliance with EU fundamental rights – a presumption which can only be rebutted in exceptional circumstances.Footnote 18
Intra-European transfers and mutual supervision: a complex setting
The fact that the presumption of EU fundamental rights compliance is rebuttable explains why the European Court of Justice has regularly been called upon to determine the conditions for that ‘point of rebuttal’. This has occurred most prominently in cases involving intra-European transfers. While Member State A is, in principle, obliged under EU secondary law to transfer an individual to Member State B, the individual concerned can try to object to the transfer for reasons of (alleged) future violations of fundamental rights by Member State B. In consequence, the European Court has repeatedly been called upon to decide, first, on the extent to which national judicial bodies may monitor their peers’ respect of EUFootnote 19 fundamental rights and, second, on the conditions that would require the monitoring Member State to put intra-European transfers (temporarily) on hold. Transforming the Member States into watchdogs of their peersFootnote 20 is a not entirely unproblematic endeavour. A German judge, for instance, should not be obliged to mutate into a general supervisory authority of his or her Hungarian counterparts, or vice versa.Footnote 21 Nor, however, should the Member States assist each other in committing violations of human rights.Footnote 22
The problem at hand is multidimensional and complex. It potentially adds an element of compromise and incompleteness to any judicial decision-making in this field. Cases involving intra-European transfers within the area of freedom, security and justice are by no means solely about determining fundamental rights standards in substance and applying them ex post to a given case. First, they involve a speculative element that relates to the way the person concerned might be treated by the state of destination in the future. Second, they imply a decision on the attribution and distribution of fundamental rights responsibility, i.e. an answer to the question ‘to whom’ and ‘where’ the responsibility for the protection of EU fundamental rights should be assigned within a (quasi-)federally structured union of states. This process of attribution and distribution must consider the fact that all Member States are not only bound by the CFR, at least according to the conditions of Article 51(1) CFR, but are furthermore contracting states to the European Convention on Human Rights and thus subject to external human rights review.Footnote 23 Third, the cases can affect not only the horizontal dimension but also the vertical relationship between the EU and its Member States.Footnote 24 Last but not least, these cases are regularly embedded in constitutionally sensitive contexts, as illustrated by the legal dispute surrounding the requested extradition of the Catalan separatist leader Carles Puigdemont from Germany to Spain,Footnote 25 and, generally, reflect overarching crises in Europe as a whole. This includes the worrying dismantling of the rule of law in Poland and elsewhere,Footnote 26 as well as the much-debated dysfunctionality of the Dublin-system.Footnote 27
Prohibitions on transfers: the different cases of European Arrest Warrants and Dublin
The European Court of Justice’s case law on mutual trust in the fields of the European Arrest Warrant and Dublin has evolved gradually over time.Footnote 28 Despite mutual cross-references, significant differences remain to this day. As far as the European Arrest Warrant is concerned, the Court’s decisions in LM and ML are but two in a now considerable body of case law. The Court of JusticeFootnote 29 and several national constitutional courtsFootnote 30 have repeatedly devoted themselves to this ‘classic’ of European constitutional law. Regarding extradition requests on the basis of European Arrest Warrants, the European Court developed a two-pronged test in its leading case Aranyosi and Căldăraru (hereinafter the Aranyosi test).Footnote 31 The test was established as a guideline for courts in the state executing the European Arrest Warrant (the executing state) when determining whether to temporarily refrain from transferring a person to the state issuing the warrant (the issuing state). In terms of fundamental rights, all cases prior to LM referred to an alleged future violation of Article 4 CFR. Following the Aranyosi test, the executing judicial authority must, as a first step, rely on ‘objective, reliable, specific and properly updated’ information that demonstrates that there are ‘systemic or generalised’ deficiencies in the issuing state.Footnote 32 According to the European Court of Justice, the finding that there is a real risk of inhuman or degrading treatment by virtue of systemic deficiencies – and particularly because of general conditions of detention – cannot, however, lead to a refusal to execute a European Arrest Warrant in and of itself. Instead, the executing judicial authority has to determine, in a second step, whether or not the systemic or generalised deficiencies in the issuing state also translate into a concrete risk for the individual person(s) concerned.Footnote 33 The wording and rationale behind the European Court’s reasoning – recently repeated in ML Footnote 34 and adopted by analogy in LM with regard to the issue of fair trialsFootnote 35 – have made it crystal clear that this individualised assessment is to be understood as a cumulative, not alternative, condition.Footnote 36
In contrast, in the field of asylum law, the ground-breaking case NS initially suggested that the existence of ‘systemic flaws in the asylum procedure and reception conditions for asylum applicants’ resulting in inhuman or degrading treatment would render a transfer of asylum seekers to the state of destination illegal in and of itself, without the need to carry out an additional individualised risk assessment.Footnote 37 While the European Court did not further clarify in NS whether prohibitions on transfers are also admissible below the threshold of systemic deficiencies, the Grand Chamber subsequently denied such a possibility in Abdullahi.Footnote 38 The EU legislator furthermore codified the threshold of systemic deficiencies in the Dublin-III-Regulation.Footnote 39 In recent case law, however, the European Court of Justice seems to gradually waive the condition of systemic deficiencies and to indicate, possibly against the backdrop of the case law of the European Court of Human Rights, that an individualised assessment might suffice.Footnote 40 However, the impact of this new line of case law is still limited, at least for nowFootnote 41 – an aspect this contribution will return to in greater detail when demonstrating why the condition of systemic deficiencies fulfils the role of a federal safeguard.
While, in the field of asylum law, it remains unclear whether the European Court of Justice will continue to adhere to the condition of systemic deficiencies in the future, it is clear, by contrast, that the Court has never before demanded a cumulative two-pronged test such as the one in Aranyosi in this field. Although the European Court’s conditions for determining prohibitions on transfers are not identical in the fields of judicial cooperation in criminal matters and EU asylum law, it is at least certain that a threshold preventing surrender could flow from Article 4 CFR. The European Court of Justice nominally justifies this on the basis of the ‘absolute’ character of this elementary guarantee, which precludes, a priori, any proportionality or balancing exercises.Footnote 42
The essence of fundamental rights as a limit to mutual trust
Prelude: the essence-based ‘fundamental right to an independent tribunal’
Recent case law has gone beyond Article 4 CFR by placing particular emphasis on the essence of fundamental rights as a limit to mutual trust. In LM, the European Court of Justice was not concerned about any impending violation of Article 4 CFR. This fundamentally differentiates that case from the preceding judicature as well as from ML, which, like Aranyosi and Căldăraru, relates to Article 4 CFR in light of the conditions of detention in Hungary.Footnote 43 In LM, the referring Irish High Court instead considered that the minimum requirements for a fair criminal trial could no longer be met due to the dismantling of judicial independence in Poland. More concretely, the referral was concerned with a request for extradition from Poland based on three European Arrest Warrants in respect of a drug dealer of Polish nationality detained in Ireland. The High Court attested to ‘what appears to be the deliberate, calculated and provocative legislative dismantling by Poland of the independence of the judiciary’ and consequently pleaded for a stay of execution of the arrest warrants.Footnote 44 This reference thus sent the message that such blatant disregard for the rule of law shakes the foundations of the European community of law as a whole – and with that, the presupposition of mutual trust it is based on. The risk of a violation of the fair trial principle derived from Article 47(2) CFR and Article 6 ECHR was considered possible grounds for non-execution of the European Arrest Warrant for the very first time.Footnote 45
The European Court of Justice accepts this human rights-based approach in principle, and recognises, for the very first time, an intra-European prohibition on transfers that goes beyond the fundamental guarantee enshrined in Article 4 CFR which is protected in absolute terms. However, the Court specifically makes a point of translating the referring court’s approach into the language of the Charter. In determining the point at which the presumption of fundamental rights compliance can be rebutted, the Court, much more articulately than the Advocate General,Footnote 46 assigns a central function to the essence of fundamental rights. EU fundamental rights doctrine, as this case demonstrates all too clearly, thus becomes more complex – and autonomous. The European Court has ruled that the executing judicial authority must refrain from giving effect to a European Arrest Warrant if it finds that, first, there is, in the issuing Member State, ‘a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary of that Member State, such as to compromise the independence of that State’s courts’ and, second, that there are substantial grounds for believing that the requested person will run into that risk in concreto.Footnote 47 Whether this was the case in Poland was a matter that the European Court of Justice left to the Irish High Court to decide.
The ground-breaking nature of LM lies in its explicit assignment of the guarantee of judicial independence to the essence of the basic right to a fair trial.Footnote 48 The European Court of Justice derives from Article 47(2) CFR a fundamental right to an independent tribunal and also designates it as such.Footnote 49 A breach of this fundamental right to an independent tribunal entails a breach of the essence of a person’s fundamental right to a fair trial.Footnote 50 Although the Court does not state this explicitly, one can assume that the fundamental right to an independent tribunal, being part of the essence of Article 47(2) CFR, is framed much more narrowly than Article 47(2) CFR in its entirety.
Intrinsic link between essence and values (Article 2 TEU)
A second remarkable novelty of this recent case law is that the Court of Justice connects essence with values. In one stroke, the Court not only highlights the fundamental importance of Article 47(2) CFR for the protection of individual rights flowing from EU law, but also for safeguarding the fundamental values laid down in Article 2 TEU.Footnote 51 In so doing, the Court – unlike the Advocate General who takes up the approach of the European Court of Human Rights by demanding a flagrant denial of justice Footnote 52 – establishes a direct link between the fundamental right under Article 47(2) CFR and the value of the rule of law enshrined in Article 2 TEU. One could wonder how much the two approaches actually differ, given that both are framed rather narrowly.Footnote 53 Denying a right would seem, at first sight, to be akin to touching upon a right’s essence. The specific link with values can, however, certainly be thought of as a concept specific to EU law rather than the European Convention on Human Rights, a specificity that underlines the constitutional significance of the common values referred to in Article 2 TEU. This could be of particular importance when judicially addressing a rule of law crisis at the national level by means other than the perennially politically deadlocked procedure under Article 7 TEU.
If the European Court of Justice’s reasoning was universally applied, the concept of essence in the sense of Article 52(1) CFR could henceforth be determined with specific regard to the values laid down in Article 2 TEU. Taking the value of democracy as an example, the fundamental rights whose essence can be linked to Article 2 TEU might include the freedom of expression and information (Article 11 CFR), freedom of assembly and association (Article 12 CFR), the right to vote (Articles 39 and 40 CFR), etc. As recent case law demonstrates, it is not likely that the values in Article 2 TEU will remain the only points of reference in determining the essence of fundamental rights; other EU law considerations could play a role as well.Footnote 54 The case law of the European Court of Human Rights and the common constitutional traditions of the Member States could certainly be of importance.Footnote 55 The case law also suggests that the concept of essence has, until now, been handled with care. For instance, a ‘particularly serious interference’ with a right does not automatically affect its essence.Footnote 56 Until now, there are only two cases in which the European Court of Justice has actually found a violation of the essence of a fundamental right.Footnote 57
Hence, it follows from the recent case law that there is an intrinsic link between essence and values, notwithstanding other criteria or methods for determining the essence of fundamental rights. While the European Court of Justice is not the first to conceptually establish this link,Footnote 58 it is the first to make it judicially operational. The rule of law enshrined as a value in Article 2 TEU can now be enforced before the courts to the extent that it finds concrete expression in the essence of the right to a fair trial. This is particularly so for the requirement of judicial independence, one of the key concerns in the current rule of law crisis in Poland. Given that ‘the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial’Footnote 59 it is hence possible to address restrictions on judicial independence at the national level by relying on Article 47(2) CFR – restrictions which the cumbersome and political Article 7 procedureFootnote 60 has so far not been able to counter effectively.
From an individual rights perspective, LM thus complements the preceding Associação Sindical dos Juízes Portugueses (ASJP) decision, which expressly connected Article 19 TEU with the rule of law under Article 2 TEU and hence operationalised the latter to the extent that Article 19 TEU guarantees the effective judicial protection of individuals’ rights under EU law.Footnote 61 In LM, the European Court of Justice gave an extensive recapitulationFootnote 62 of the obligation of Member States under EU law, as specified in ASJP, to guarantee the independence of the national judiciary as a basic precondition for the proper functioning of the European legal community.Footnote 63 Although the Court refers several times to Article 19 TEU in LM, the Court leaves no doubt that exceptions to the principle of mutual trust in extradition cases such as LM are derived from the (essence of the) fundamental right under Article 47(2) CFR (and not Article 19 TEU).Footnote 64
The requirement of individual risk assessment: Article 47 (2) CFR v Article 19 TEU
Although the linking of essence and values testifies to an increased readiness of the European Court of Justice to address national rule of law crises, the Court, by establishing limits to mutual trust rooted in the concept of essence, makes it difficult for an individual to effectively challenge such a crisis at the national level. The fundamental-rights framing entails a path dependency that becomes quite noticeable when it comes to determining which concrete test national courts are to follow. In cases on intra-European transfers involving a European Arrest Warrant, the appropriate test is the aforementioned Aranyosi test. As demonstrated, this test not only requires the national judicial authority to identify, as a first step and based on verifiable information, systemic or general deficiencies in the state of destination but also to evaluate, as a second step, whether these deficiencies could individually affect the person concerned. In the LM case, this could not be readily determined, a fact openly admitted by the Irish High Court, which then suggested departing from Aranyosi to relieve the individual of the burden of proof in this regard.Footnote 65 The case was, in fact, the exact opposite of those highly controversial asylum law cases in which there are no systemic deficiencies at first sight yet a concrete individual risk cannot be excluded.Footnote 66
One could subscribe to the High Court’s approach by accepting that an (abstract) danger exists: ultimately, no criminal proceedings are safe from potential political pressure due to the Polish judicial reforms, and this could be considered to be enough to deny the transfer.Footnote 67 Unlike in classic extradition cases, such a danger could hardly be countered with guarantees extended by the issuing authorities; the deficiencies are inherent to that judicial system, after all.Footnote 68 Furthermore, it would be difficult to demonstrate with the required degree of certainty if and how a systemic undermining of judicial independence actually affects the procedure or outcome in a concrete criminal case. Political influence on judges depends on factors that can hardly be anticipated in a reliable fashion and that might evolve only after the transfer has taken place.
However, the European Court of Justice made it crystal clear that no deviation would be tolerated from the requirement of an individual risk assessment as the second step of the Aranyosi test.Footnote 69 This is a consistent viewpoint considering that the European Court could hardly impose less demanding requirements on prohibitions of transfers based on fundamental rights principally subject to proportionality (Article 47(2) CFR) than on those rooted in absolute rights (Article 4 CFR). To put it differently, due to the path dependency of the fundamental-rights framing, it was impossible for the European Court of Justice to dispense with the requirement of an individualised risk assessment without risking inconsistency with its prior Article 4 CFR case law. The European Court of Human Rights, whose narrow approach to flagrant denial of justice Footnote 70 has not been adopted by the European Court of Justice,Footnote 71 equally requires an individual assessment in all cases.Footnote 72 Ultimately, this would seem to be part of the very logic of a fundamental rights approach.
For the European Court of Justice, there is another compelling reason to adhere to the requirement of an individual risk assessment when it comes to essence-based limits to mutual trust in the area of freedom, security and justice. Dropping this requirement would mean that transfers to Poland would grind to a halt, as happened with Greece following NS, a judgment that involved Dublin transfers. This is apparently something the European Court of Justice would like to avoid, which perhaps explains its eagerness to keep the exceptions to mutual trust as narrow as possible. The European Court of Justice’s approach could also be motivated by the aim of preventing other Member States from becoming a safe haven for criminals prosecuted by Poland.Footnote 73
Furthermore, dropping the requirement of an individual risk assessment would provide those individuals with an instrument to challenge a national rule of law crisis in its systemic dimension within the framework of a preliminary reference procedure. The Court has made it unequivocally clear, however, that, in the absence of a European Council decision under Article 7(2) TEU (determining the existence of a serious and persistent breach by a Member State of the values referred to in Article 2 TEU), judicial cooperation is to be upheld to the greatest extent possible and should only be suspended in exceptional individual cases.Footnote 74 The Court thus widely pre-empts a bottom-up approach, i.e. the possibility for individuals to challenge rule of law violations at the national level.Footnote 75
The European Court of Justice’s hesitance to address the systemic dimension of a rule of law crisis in the context of a European Arrest Warrant within the framework of a preliminary reference procedure is also demonstrated by the fact that Luxembourg does not predominantly rely on Article 19(1) subparagraph 2 TEU. The utility of the provision becomes particularly apparent in the aforementioned ASJP jurisprudence, in which the European Court extracted from Article 19(1) subparagraph 2 TEU a ‘principle of the effective judicial protection of individuals’ rights under EU law’.Footnote 76 Every EU Member State is obliged to guarantee this by establishing an adequate system of legal remedies and procedures.Footnote 77 This includes, in particular, the judicial independence of national courts as a functional requirement of the European legal community. Of course, the result of the ASJP judgment came across as somewhat unspectacular. With convincing reasoning, the European Court of Justice refrained from recognising a violation of Article 19 TEU by the Portuguese austerity programme at issue.Footnote 78 The true novelty of ASJP, however, was that it created the possibility for the European Court of Justice to actually assess, by relying on Article 19(1) subparagraph 2 TEU, whether a Member State was abiding by its obligation to ensure judicial independence at the national level.
It is important to note the differences between Article 19(1) subparagraph 2 TEU on the one hand and the essence of Article 47(2) CFR on the other. There is certainly a degree of systematic connection between the two.Footnote 79 However, Article 19(1) subparagraph 2 TEU is first and foremost applicable in the fields covered by EU law, irrespective of whether the Member States concerned are in the process of implementing EU law in the meaning of Article 51(1) CFR at the time.Footnote 80 More importantly, Article 19(1) subparagraph 2 TEU could very well serve to open the door to broader judicial review since it does not, according to this reading at least, require an individual risk assessment.Footnote 81 The ‘principle of the effective judicial protection of individuals’ rights under EU law’ is based on the premise that the functioning of the national judiciary is conditio sine qua non for the functioning of a Union based on the rule of law as a whole. Understood in this sense, this principle provides the Court of Justice with a proper standard for reviewing whether a certain Member State is living up to its obligation to ensure, within the scope of EU law, the necessary degree of judicial independence.
Based on Article 19(1) subparagraph 2 TEU, a national rule of law crisis could thus be challenged in broader terms under EU law as far as the effective judicial protection of individuals’ rights under EU law is endangered. Would that not be the case in Poland? Certainly, the referring Irish High Court did not explicitly ask for an interpretation of Article 19 TEU. However, the European Court of Justice does have jurisdiction to provide national courts with all manner of guidance on the interpretation of EU law for deciding cases at hand. It could also have relied on Article 19(1) subparagraph 2 TEU more extensively in LM – despite the procedural differences with ASJP. Footnote 82 What can now be concluded from LM, however, is that Article 19(1) subparagraph 2 TEU is, in any event, not an adequate standard for establishing the limits to mutual trust in such cases.Footnote 83 Certainly, the Court of Justice was right to point out that the principle of mutual trust may be circumscribed only in ‘exceptional circumstances’.Footnote 84 The question remains, however, whether the rule of law crisis in Poland might not constitute such an exceptional circumstance, even if not every individual criminal case is affected by it.
Essence-based limits to mutual trust: opening Pandora’s box?
While, for the aforementioned reasons, the essence of fundamental rights is a narrow threshold that makes it rather difficult for individuals to challenge a national rule of law crisis within the framework of a preliminary reference procedure, the question nevertheless arises of whether the European Court of Justice had not, in other respects, opened a Pandora’s box by introducing the notion of essence-based limits to mutual trust. Only its future case law will show if and how far the Court of Justice is willing to extend its reasoning on the essence of Article 47(2) CFR to other fundamental rights. It cannot be excluded that the European Court of Justice might take a more cautious approach with regard to other fundamental rights, insofar as it would not consider them, as opposed to Article 47(2) CFR, to be of ‘cardinal importance’ as a functional ‘guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU […] will be safeguarded’.Footnote 85 If one takes the – inevitably fuzzy – concept of the essence of fundamental rightsFootnote 86 seriously, however, such a procedural functionality cannot be a decisive factor. Furthermore, the fact that the European Court of Justice relies on an abstract and horizontal concept like the essence of fundamental rights in the sense of Article 52(1) CFR seems to strongly indicate that it will apply its reasoning to other fundamental rights in the future. Such a move would be accompanied by a general acknowledgement of prohibition on transfers upon the condition that there is a real risk to their essence in the Member State of destination. Even if the Court of Justice’s approach cannot be characterised as a fully-fledged ‘reverse Solange’,Footnote 87 every threat to the essence of a fundamental right would become a limit to mutual trust under the conditions established in LM.
Such an approach, in principle applicable to every EU fundamental right, could combine the potential to trigger judicial activism with the methodological problem of judicially defining the ‘core contents’ of fundamental rights. The judicial experience at the national level pleads for caution in this regard. For instance, with regard to Article 19(2) of the German Basic Law,Footnote 88 which provided an important textual basis for the framing of Article 52(1) CFR,Footnote 89 there is an intense debate on whether the concept of essence could and should fulfil an independent function that is not already performed by the proportionality test.Footnote 90 Scepticism is justified – particularly when concepts like ‘essence’ are relied on to construe, by means of judicial law-making, absolute core elements (or red lines) that are not subject to a proportionality test. The process of identifying such an absolute essence always carries the risk of producing results that cannot sufficiently be substantiated or justified – particularly in light of other colliding fundamental rights that might claim their own absolute essence, or, when it comes to ‘all-or-nothing’ fundamental rights like the right to life, an absolute core that is logically impossible to identify unless the fundamental right is construed, in its entirety, as an absolute guarantee.Footnote 91
The challenge posed by the notion of absolute essence is also mirrored by the second European Arrest Warrant decision of the German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) in which the BVerfG relied on a specific approach linked to constitutional identityFootnote 92 when unilaterally establishing the boundaries of transnational cooperation in criminal matters – and, consequently, to EU law. In its decision of 15 December 2015, the BVerfG held that it could review, within the framework of a so-called identity review, violations of fundamental rights emanating from EU law on a case-by-case basisFootnote 93 provided those violations related to the absolute guarantee of human dignity.Footnote 94 This approach could also potentially be extended to the dignity-related core areas of other fundamental rights.Footnote 95 The identification of such dignity-related core areas ultimately leads to immunisation from the political process and raises concerns, not only in terms of EU law but also national constitutional law.Footnote 96 Applying (German) dignity-related core areas to the context of the area of freedom, security and justice would mean shielding those areas from EU law because of their intrinsic relation to human dignity.Footnote 97
Against this backdrop, the European Court of Justice should be particularly cautious when further developing the concept of the ‘essence’ of fundamental rights under EU law. Should this concept evolve into something resembling absolute ‘core contents’ not subject to proportionality tests,Footnote 98 as is the case with Article 4 CFR (with which the Court of Justice draws an explicit analogy with regard to the essence of Article 47 CFR),Footnote 99 such an approach would be subject to the said objections and should be handled with care. In addition, such a development might produce negative, albeit unintended side-effects, for it could be used as a justification by national courts to proceed in the same manner with regard to national standards – perhaps even with reference to Article 4(2) TEU.
Federalism I: the horizontal dimension
Extending fundamental rights responsibility within the area of freedom, security and justice
Mutual trust is also a federal problem. Of course, the merest mention of federalism in the EU context requires justification to this day,Footnote 100 a fact not without irony, given that there is a venerable tradition of federalism that can be precisely linked with the interrelation between states that has long since been displaced by the much younger tradition of federalism that applies to the relationship between several entities or governments (to use the terminology of the Federalist Papers)Footnote 101 within a state.Footnote 102 If we agree, however, that federalism relates, in very general terms, to a balance of power between the search for unity and the protection of diversity in a multi-levelled polity,Footnote 103 then it can, as an analytical concept, help determine which tools are appropriate in order to strike the right balance in a given setting such as the EU.Footnote 104
As should already be apparent, the principle of mutual trust is first and foremost a horizontal principle governing the relationship between Member States. That does not mean, however, that the principle itself should form part of national law. Instead, it is a principle of EU law that relates specifically to the transnational interplay between Member States. If EU law forbids, in exceptional circumstances, a person from being transferred from Member State A to Member State B because of a risk to the essence of a certain EU fundamental right in Member State B, then Member State A would itself violate the respective fundamental right by knowingly transferring the said person to B. Holding A responsible for transferring a person to B, where he or she would be exposed to a real risk of said gravity, would in all cases imply preventively extending the human rights responsibility from troublemaking Member State B to Member State A.
From this perspective, ‘mutual trust’ appears to be a terminologically irritating way of describing the federal problem of attributing and distributing the responsibility for the protection of fundamental rights within a multi-levelled polity. A presumption of fundamental rights compliance, such as the one flowing from mutual trust, lies (implicitly) at the heart of every act of cooperation between bodies who exercise public authority within a polity abiding by the rule of law – particularly, but not exclusively, within a federal state. As an example, within the Federal Republic of Germany, Bavarian authorities cooperateFootnote 105 (or should cooperate) with Hessian authorities since both are bound by the fundamental rights of the German Basic Law and both presume that their peers generally respect these rights or, in the exceptional case they do not, will be sanctioned accordingly. The EU, of course, is not a federal state. The constitutional autonomy of the Member States (to avoid the notion of sovereignty) within the EU is far greater than in most federal states. However, the European Court of Justice rightly hints at the federal dimension of mutual trust when it states that the latter is ‘of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained’.Footnote 106
Preventively extending human-rights responsibility to Member States from which the real risk of a violation of the essence of a fundamental right does not emanate harbours the risk of creating wrong incentives. This becomes particularly apparent in European asylum law. Here, courts might, in future, not only be concerned with determining the limits of mutual trust based on the absolute guarantee of Article 4 CFR or the essence of Article 47(2) CFR, but also on the essence of, say, the right to private and family life under Article 7 CFR, a possibility which, in light of the fact that European Court of Human Rights case law has been particularly influential for the law of transnational migration, does not seem at all far-fetched.
The more expansive preventive extension becomes, the more a trouble-making state might be incentivised to lower its own standards with a view to extricating itself increasingly, de facto, from its primary responsibility to ensure a sufficient level of fundamental rights protection for asylum seekers. In a worst-case scenario, this could even promote the further dismantling of protection standards in that state since it could ultimately contribute to a (cynical) strategy aimed at preventing asylum seekers from arriving in the first place. In light of the fundamental divisions across Europe on refugee policy, such a race to the bottom is by no means a theoretical scenario. Preventive extension of fundamental rights responsibility to the monitoring state, therefore, needs to remain the exception. For proceedings related to European Arrest Warrants, the European Court of Justice thus rightly emphasised that the protection of fundamental rights ‘must fall primarily within the responsibility of the issuing Member State’.Footnote 107
The condition of ‘systemic deficiencies’: a federal safeguard
Ensuring that the protection of fundamental rights falls primarily within the responsibility of the trouble-making state, however, can only succeed if the European Court of Justice sticks to the criterion of systemic deficiencies as a necessary condition for the prohibition of transfers. Here one encounters a problem specific to asylum law. As already mentioned, in contrast to the European Arrest Warrant case law, the case law on Dublin transfers no longer seems to guarantee that the criterion of systemic deficiencies, as initially established by NS,Footnote 108 remains a constitutive condition for allowing a prohibition of transfers, as was suggested by the Court of Justice in 2013 in Abdullahi Footnote 109 and reinforced by the EU legislator in Article 3(2) subparagraph 2 of the Dublin-III-regulation.
This particular doubt essentially stems from the case law of the European Court of Human Rights. The latter adopted, at first, the criterion of systemic deficiencies in its case law on Article 3 ECHR and intra-European transfers.Footnote 110 However, in 2014, the Grand Chamber held, in Tarakhel, that prohibitions on transfers could be justified regardless of ‘systemic deficiencies’ in the destination country. The Court argued that the origin of the real risk to Article 3 ECHR in the state of destination was ultimately irrelevant under the Convention and that any decision on transfers had to be based on an examination of individual circumstances.Footnote 111 Following the frank response of the European Court of Justice in Opinion 2/13, which in part could be read as a – certainly not entirely unfounded, yet disproportionate – criticism of the European Court of Human Rights’ blindness to the EU’s federal structure,Footnote 112 signs have recently begun to point toward rapprochement.Footnote 113 That the relationship between the European Court of Human Rights’ case law on Article 3 ECHR and the Court of Justice’s case law on Article 4 CFR in the context of a European Arrest Warrant is far from being settled, however, is mirrored by a decision of the German BVerfG which sanctioned an ordinary court of last resort for refraining from making a preliminary reference to the European Court of Justice in this respect.Footnote 114
The fact that signs have recently begun to point toward rapprochement means that the criterion of systemic deficiencies has been put into question in the field of asylum law. In one case, the European Court of Justice (Fifth Chamber) declined to apply it, implicitly adopting the central argument of the European Court of Human Rights according to which, in light of the absolute character of Article 4 CFR, transfers should also be prohibited in case of concrete impending risk to the individual, regardless of the presence of systemic deficiencies.Footnote 115 That said, the case in question related to a situation in which the real risk to the person’s fundamental rights did not emanate from the state of destination, but from the transfer itself, i.e. an action by the requested state irrespective of the human rights situation in the state of destination.Footnote 116 The case was thus explicitly unconcerned with the (rebuttable) presumption of fundamental rights compliance by the country of destination.Footnote 117 In its latest case law, however, the Court seems to step away from the criterion of systemic deficiencies also in cases in which the risk emanates from the state of destination.Footnote 118
At a normative level, sticking to the criterion of systemic deficiencies would be convincing, however. The threshold of systemic deficiencies, which is also relevant in other areas of Union law,Footnote 119 fulfils, at its core, the role of a federal safeguard. The European Court of Justice’s approach ultimately represents a balanced middle way, which, on the one hand, acknowledges that the presumption of fundamental rights compliance must be rebuttable in order to ensure effective fundamental rights protection in case a state fails, but which, on the other hand, also ties this refutability to a condition that precisely does not allow for a preventive extension of fundamental rights responsibility in every individual case. Within certain limits, EU law not only allows but requires national courts to monitor their peers’ compliance with fundamental rights. This division of labour with regard to the concretisation of fundamental rights could be considered to fulfil, at least to a certain extent, the normative promise of constitutionalism in a legal pluralistic context.Footnote 120 At the same time, in the sense of a ‘horizontal Solange’,Footnote 121 a qualified degree of severity and predictability is required in order to activate such horizontal monitoring. The criterion of systemic deficiencies fulfils this requirement. The European Court of Justice thus counters the danger of fragmentation of the area of freedom, security and justice. National courts should not be forced to assume the role of guardians over their peers’ fundamental rights compliance, save for exceptional circumstances.
The ‘where’ not ‘whether’ of fundamental rights protections
Throughout all of this – and this cannot be emphasised enough – one should not lose track of the fact that the threshold for systemic deficiencies, as established by the European Court of Justice in the fields of cooperation in criminal matters and (still?) asylum law, is not at all intended to undermine fundamental rights protection, as such. Its purpose is to impede the disproportionate preventive extension of fundamental rights responsibility to the transferring state. The primary responsibility for fundamental rights protection should generally remain with the state of destination, which is bound by EU fundamental rights under the conditions of Article 51(1) CFR and also subject to external human rights controls as a contracting party to the ECHR. Herein lies a fundamental difference with cases with a third-country context.
We are thus ultimately concerned with the ‘where’ and not the ‘whether’ of fundamental rights protection in a multi-levelled union of states that all share an obligation to respect fundamental rights and abide by the rule of law. It is only when a Member State (partially) loses its rule of law character that a preventive extension of fundamental rights responsibility to the transferring state is justified. The broader the scope of potential limits to mutual trust, the more important the threshold of systemic deficiencies becomes. That this threshold has been maintained, at least in the context of judicial cooperation on criminal matters, is in and of itself undoubtedly one of the great merits of LM. The European Court of Justice referred the decision on the existence of systemic deficiencies, as well as the individual risk prognosis, back to the Irish High Court.
Federalism II: the vertical dimension
The European Court of Justice’s role in defining the limits to mutual trust: why the European Court should take (back) control
In LM, the Court of Justice referred the decision on the existence of systemic deficiencies, as well as the individual risk assessment, back to the Irish High Court. This raises the question of what the verticalFootnote 122 relationship between Union and Member States, or more concretely, between the European Court of Justice and national courts, entails. The central thesis, which can only be outlined in broad strokes within the scope of this article, is that the Court of Justice should assume greater responsibility for determining the presence of systemic deficiencies in the state of destination. My proposal is that the European Court of Justice, within the framework of its competence to interpret EU law under Article 267(1) TFEU, should state more explicitly than it currently does, whether there are systemic deficiencies in the country of destination (first Aranyosi step), while national courts should be concerned primarily with carrying out the concrete individual risk assessment (second Aranyosi step).Footnote 123 This would provide legal certainty throughout the area of freedom, security and justice, at least for a while. It is precisely the proliferation of potential, essence-based limits to mutual trust that requires this slight (yet important) recalibration of responsibility in the vertical relationship between courts at the EU and national levels.
Within the framework of a preliminary reference procedure, the European Court of Justice cannot, of course, directly assess the legal and/or factual situation within a Member State. The preliminary reference procedure fulfils a different function than, for example, the infringement procedure. However, as has already been pointed out, the Court does have jurisdiction under Article 267 TFEU to provide national courts with all the guidance necessary for the interpretation of EU law to enable those courts to decide cases at hand as far as EU law is concerned.Footnote 124 This could very well include guidance as to whether the concept of systemic deficiencies, as defined by EU law, extends to circumstances like those in the main proceedings. Following such an approach would not be revolutionary. With NS, the case law on asylum offers an example of the Court acknowledging the presence of systemic deficiencies by relying on publicly available information as well as the previous case law of the ECHR.Footnote 125 Furthermore, in ASJP, the Court of Justice actually assessed a national austerity measure in terms of judicial independenceFootnote 126 and came to the conclusion that the ‘measures at issue in the main proceedings cannot be considered to impair the independence’ of the judicial authority in question.Footnote 127
A more active approach by the Court of Justice would also not relieve national courts of their responsibility to evaluate the existence of systemic deficiencies on the basis of qualified information such as the information mentioned in Aranyosi and LM. As demonstrated above, one of the central elements of the horizontal Solange lies precisely in the national courts’ obligation not to dismiss plaintiffs’ objections to transfers a limine, but to carry out, under the conditions specified in Aranyosi and LM, an assessment of the situation in the state of destination. Should the assessment lead to the conclusion that there might be systemic deficiencies, national courts would then need to enter into a dialogue with the Court of Justice to provide legal certainty. If the European Court of Justice does not, with the necessary degree of clarity, indicate whether or not the condition of systemic deficiencies has been met in a situation equal to that in the state of destination, the risk of EU-wide inconsistencies looms large. The possibility of courts in different Member States (or even within one Member State) regularly arriving at different conclusions as to the existence of systemic deficiencies in a specific country of destination could end up fragmenting the area of freedom, security and justice. In the context of Dublin-transfers, such inconsistencies and inequalities can already be observed; this has memorably been dubbed the ‘Dublin lottery’.Footnote 128
The European Court of Justice would be the court best suited to decide on the presence of systemic deficiencies in a given setting. First, the Court of Justice must ensure, according to its mandate laid down in Article 19(1) subparagraph 1 TEU, that EU law is applied uniformly and equally. The notion of systemic deficiencies is a term of art in EU law. If various courts of various Member States differ as to its application vis-à-vis a peer, the uniform application of EU law and, with it, equality before the law could be put at risk. That the European Court of Justice assumes this responsibility is particularly important in the (common) case that the Commission has not (yet) filed a reasoned proposal under Article 7(1) TEU. Second, within the framework of a preliminary reference procedure, all Member States, including the state of destination, are entitled to submit observations. The same applies to the European Commission, which represents the Union’s interests. A comparable forum for the articulation of EU-wide interests does not – and cannot – exist at national level. Third, there is a certain correlation between the legal standard and level of decision-making. While it makes perfect sense for national courts, being closest to an individual case at hand, to carry out the individual risk assessment, the criterion of systemic deficiencies, which is aimed at the general, overarching nature of a Member State’s failure to comply with fundamental tenets of EU law, is better handled by the Court of Justice at the supranational level.
One has to admit that any judicial decision relating to the question of systemic deficiencies can only provide legal certainty for a limited period of time, as the situation in the state of destination is prone to change. This problem is, however, inevitable, at both the national and EU level. Furthermore, within the framework of Article 267 TFEU, the urgent preliminary ruling procedure,Footnote 129 which is regularly applied in cases similar to those at issue here, can help reduce the duration and thus limit the problem considerably.
When referring a decision on systemic deficiencies back to the national court, the European Court of Justice, of course, elegantly avoids having to take a stance on the situation in the country of destination. Such judicial restraint on the part of Luxembourg could be interpreted as empowering national courts – but perhaps also as letting them down. The fact that the European Court of Justice at least does not forsake national courts entirely is demonstrated, among others, by the fact that it classifies a reasoned proposal by the Commission under Article 7(1) TEU as ‘particularly relevant information’ in determining the presence of systemic deficiencies.Footnote 130 This reduces the ever-present risk for national courts of experiencing cognitive overload when evaluating the situation in the state of destination, particularly considering that the European Court of Justice itself sets limits on the excessive investigation of national judicial authorities by their foreign colleagues.Footnote 131 However, in light of the Commission’s reasoned proposal under Article 7(1) TEU, the European Court of Justice could, in LM, have easily reached and pronounced the relevant conclusion itself, i.e. that EU law must be interpreted in such a manner that fundamental threats to the independence of the judiciary equal to those currently present in Poland constitute systemic deficiencies, not in the least to send a clear signal to the Polish government. In this context, one should note that the Irish High Court’s referral was accompanied by accusations – up to and including personal defamation of the referring judge – by some Polish media.Footnote 132 Such a populist campaign might perhaps give pause to judges in Luxembourg unwilling to expose their institution (and with it, potentially, the EU as a whole) to national crossfire. But would it not also provide a legitimate, if politically motivated, reason to step in and thus alleviate the burden on national courts?
Solange 7? On the role of the European Court of Justice against the backdrop of Article 7 TEU
An idea can be a victim of its own success. Inflated references to a formative concept can dilute it beyond recognition. This is why any recourse taken to Solange should not be overstretched, although the European Court of Justice did conceptually rely on an ‘as long as’ in the present context. In its recent case law, the Court of Justice has been called upon to decide, at least implicitly, on the relationship between the political Article 7 procedure and other forms of countering, by means of EU law, a Member State’s disregard of the values referred to in Article 2 TEU. This also affects the vertical relationship between the EU and its Member States.
It follows from the European Court of Justice’s recent case law that the Article 7 procedure neither precludes the European Court of Justice from assessing the independence of the national judiciary on the basis of Article 19(1) subparagraph 2 TEU nor prevents a person from objecting to his or her transfer on the grounds of a real risk to the essence of his or her right to a fair trial.Footnote 133 Interestingly, the Court of Justice has not commented on Article 269 TFEU thus far, essentially confining its competence of review within the scope of Article 7 TEU to procedural issues only while refraining from making any pre-emptive statements about ways of judicially enforcing a Member State’s respect of the values under Article 2 TEU outside the scope of Article 7 TEU.
In LM, the European Court of Justice makes it unequivocally clear, however, that the implementation of the European Arrest Warrant mechanism must not be suspended in general terms vis-à-vis a particular Member State ‘[a]s long as’ the European Council has not taken a decision under Article 7(2) TEU determining that there is a serious and persistent violation of the values referred to in Article 2 TEU.Footnote 134 This applies even if the Commission has already issued a reasoned proposal.Footnote 135 In other words, the general suspension of certain forms of transnational cooperation within the area of freedom, security and justice presupposes a decision by the European Council and is hence subject to veto – and it can be assumed that a Member State like Hungary would back Poland and vice versa.Footnote 136 In the absence of such a decision, the judicial authority may only refrain from giving effect to a European Arrest Warrant ‘in exceptional circumstances’, which necessarily goes hand in hand with a ‘specific and precise assessment of the particular case’.Footnote 137 By contrast, if the Court of Justice had, from the outset, not required an individual examination and predominantly relied on Article 19(1) subparagraph 2 TEU rather than Article 47(2) CFR, a general suspension of the European Arrest Warrant mechanism in respect of Poland could have resulted, something the Court of Justice clearly wanted to avoid.
It remains to be seen whether this can be taken to mean that the European Court of Justice has more or less conceded a prerogative to the European Council as far as national rule of law crises beyond the individual case are concerned, hence affecting its systemic dimension. It is not so far-fetched to imagine that the Court of Justice could, in infringement proceedings launched by the Commission or in some of the cases based on preliminary references from Poland, also ‘bare its teeth’ beyond the individual case at hand.
From an institutional perspective, the Commission emerges as the big winner in LM. It was able, by and large, to convince Luxembourg of its legal position, having argued both for upholding the mechanism of the European Arrest Warrant to the greatest extent possible and for applying the Aranyosi test in full.Footnote 138 The Court also valorised the significance of the Commission’s reasoned proposal under Article 7(1) TEU as a central indicator for the presumption of systemic deficiencies.Footnote 139 Moreover, LM could serve in practical terms as a legal goldmine for the standards to be applied in the pending infringement proceedings against Poland.Footnote 140 The European Court of Justice has already spelt out precise requirements for the guarantee of judicial independence, whether with regard to the external aspect of protection from outside political intervention or the internal aspect of impartiality.Footnote 141 The newly framed requirements for a judicial disciplinary regime are of particular importance in this context. According to the Court of Justice, such a regime must ‘display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions’.Footnote 142 In so doing, the European Court of Justice directly targets the latest Polish reforms, which, incidentally, are also the subject of several recent preliminary references from Poland, including a reference from the Polish Supreme Court.Footnote 143 This way of setting standards in anticipation also, and definitively, points to the central role of the pending infringement proceedingsFootnote 144 in which the Commission pulls the strings with regard to the object and scope of the proceeding. The Court of Justice’s more stringent handling of the threat of penalty payments adds an additional means of achieving greater effectiveness.Footnote 145 Initial successes have furthermore recently been achieved in the context of interim relief.Footnote 146
Conclusion
The recent case law of the European Court of Justice on mutual trust, essence and – implicitly – federalism is certainly balanced and differentiated. But despite the fact that it might strengthen the rule of law and, more specifically, judicial independence across Europe, it ultimately leaves an ambivalent aftertaste. The novelties undoubtedly lie at the level of substantive law. The European Court of Justice links the concept of the ‘essence of fundamental rights’ with the values referred to in Article 2 TEU and acknowledges a new ‘fundamental right to an independent court’, which forms part of the essence of the right to a fair trial under Article 47(2) CFR. One might hope that the Court of Justice will handle the concept of ‘essence’ with care in order to avoid the theoretical and practical pitfalls of theories promoting absolute essences. Furthermore, when rooting exceptions to mutual trust in the essence of fundamental rights, the European Court of Justice increasingly avoids extending fundamental rights responsibility from the risk-emanating Member State to its peers in order to prevent counterproductive incentives. This could be achieved, in particular, by sticking to the criterion of systemic deficiencies which, as a precondition for exceptions to mutual trust, fulfils an important role as a federal safeguard.
From an institutional point of view, the Commission undoubtedly emerges emboldened by the recent case law. Although the preliminary reference by the Polish Supreme Court will also certainly play an important role in the judicial fight against the rule of law crisis,Footnote 147 much will depend on the infringement procedures launched by the Commission, the guardian of the treaties. The Court of Justice has not only provided the Commission with rich and substantial standards, in particular regarding judicial independence, but also with procedural tools that could prove effective. By contrast, the ability of individuals to bring a court challenge to the dismantling of the rule of law at the national level remains tightly circumscribed and, regarding the threshold preventing surrender, limited to exceptional circumstances. This is perhaps the greatest, albeit predictable, paradox of the specific fundamental-rights approach adopted by the Court of Justice. The European Court of Justice could have avoided it, according to this reading at least, by applying its prior ASJP case law more courageously. LM exemplifies this paradox to a nearly paradigmatic extent: in its final judgment of 19 November 2018, the Irish High Court ultimately decided to extradite Mr Celmer to Poland.Footnote 148
