Download Urgent Ruling & Expedited Procedure in EU Law: Asylum Cases & Judicial Independence and more Lecture notes Law in PDF only on Docsity!
1
U RGENT PRELIMINARY RULING PROCEDURE
AND EXPEDITED PROCEDURE
In order to ensure that cases can be dealt with more expeditiously if required, Article 23a of the Statute of the Court of Justice of the European Union 1 provides:
‘The Rules of Procedure may provide for an expedited or accelerated procedure and, for references for a preliminary ruling relating to the area of freedom, security and justice, an urgent procedure.
Those procedures may provide, in respect of the submission of statements of case or written observations, for a shorter period than that provided for by Article 23, and, in derogation from the fourth paragraph of Article 20, for the case to be determined without a submission from the Advocate General.
In addition, the urgent procedure may provide for restriction of the parties and other interested persons mentioned in Article 23, authorised to submit statements of case or written observations and, in cases of extreme urgency, for the written stage of the procedure to be omitted.’
An expedited or accelerated procedure has existed since 2000 and is now governed by Article 105 et seq. of the Rules of Procedure of the Court of Justice 2 in the case of references for a preliminary ruling, and by Article 133 et seq. of those Rules in the case of direct actions. 3 The
1 Consolidated version of Protocol (No 3) on the Statute of the Court of Justice of the European Union, annexed to the Treaties, as amended. 2 Rules of Procedure of the Court of Justice of 25 September 2012 (OJ 2012 L 265, p. 1), as amended on 18 June 2013 (OJ 2013 L 173, p. 65), 19 July 2016 (OJ 2016 L 217, p. 69) and 9 April 2019 (OJ 2019 L 111, p. 73). 3 It should be noted in that regard that Article 151 of the Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1) also provides for the possibility of adjudicating under an expedited procedure, ’having regard to the particular urgency and the circumstances of the case’.
2
expedited procedure can be applied irrespective of the type of proceedings, if the nature of the case requires that it be dealt with within a short time. 4
The request that a case be dealt with pursuant to an expedited procedure is made by the referring court or tribunal, in the case of a reference for a preliminary ruling, and by the applicant or the defendant, in the case of a direct action. The decision is taken by the President of the Court, after hearing the Judge-Rapporteur, the Advocate General and, where appropriate, the other party to the proceedings. Exceptionally, the President of the Court may also decide of his own motion to apply the expedited procedure. Until January 2019, the President of the Court ruled by order in response to any request for the expedited procedure. That practice was abandoned, however, and, since February 2019, the practice has been to mention briefly the reasons for acceptance or refusal in the decision which closes the proceedings.
The urgent preliminary ruling procedure is more recent, having been established in 2008 in response to the extension of the powers of the European Union and jurisdiction of the Court in the area of freedom, security and justice. Given the particularly sensitive nature of that field, it seemed necessary to introduce a specific exceptional procedure that would enable the interests at stake to be protected if necessary. Thus, unlike the expedited procedure, which can be applied in all areas of EU law and to any type of proceedings, the urgent preliminary ruling procedure, governed by Article 107 et seq. of the Rules of Procedure of the Court, is reserved for references for a preliminary ruling that raise questions in the areas covered by Title V of Part Three of the Treaty on the Functioning of the European Union (FEU Treaty), relating to the area of freedom, security and justice.
The decision as to whether or not to grant a request from a referring court or tribunal that a case be dealt with under the urgent preliminary ruling procedure is taken by a Chamber specially designated by the Court, and no reasons are given. However, if the request for an urgent preliminary ruling procedure is granted, the Court, when issuing its substantive ruling, will often summarise the arguments of the referring court or tribunal justifying the use of that procedure. Moreover, where the referring court or tribunal does not request the urgent preliminary ruling procedure but that procedure does, on the face of it, seem to be required, the President of the Court can ask the competent Chamber to consider the need for the reference to be determined pursuant to the urgent preliminary ruling procedure, which can then be applied of the Court’s own motion.
It should further be noted that the provisions governing the expedited procedure and the urgent preliminary ruling procedure do not set out in detail the circumstances in which those procedures are intended to be used. Only the fourth paragraph of Article 267 TFEU expressly mentions a situation requiring the Court to act ‘with the minimum of delay’, that is where a question referred for a preliminary ruling is raised in a case with regard to a person in custody. In the absence of additional guidance, the purpose of this fact sheet is to present cases that are representative of the procedures applied by the Court and which enable the reasons that may justify the application of the urgent preliminary ruling procedure or of the expedited procedure to be better understood.
4 In the new Rules of Procedure of the Court of Justice, the expression ‘within a short time’ has replaced the ‘exceptional urgency’ referred to in the earlier Rules of Procedure.
4
The Court decided that it was not necessary to apply the PPU, on the ground that Directive 2001/83 was adopted on the basis of Article 95 EC, now Article 114 TFEU, which forms part of Title VII of Part Three of the FEU Treaty. The PPU is reserved for those references for a preliminary ruling which raise one or more questions in the fields referred to in Title V of Part Three of the FEU Treaty (paragraph 8). Nevertheless, the President of the Court decided, of his own motion, that the case should be dealt with under the expedited procedure. 10
2. Reasons for the application of the urgent preliminary ruling procedure
2.1 Risk of deterioration of the parent/child relationship
Judgment of 22 December 2010,Aguirre Zarraga (C-491/10 PPU, EU:C:2010:828)
In this case, a Spanish national and a German national who were the parents of a young daughter had initiated divorce proceedings in Spain, the family’s habitual place of residence. In that context, sole rights of custody in respect of their daughter had been provisionally awarded to the father, who appeared best placed to ensure that the child’s family environment was maintained, the mother having expressed her wish to settle in Germany with her new partner. However, after having spent the summer at her mother’s new residence in Germany, the child did not return to Spain. Several sets of proceedings were then initiated by the parents, in Spain and in Germany, seeking, respectively, the child’s return to Spain, the recognition and enforcement of Spanish decisions in Germany and the definitive award of rights of custody.
In that context, the Oberlandesgericht Celle (Higher Regional Court, Celle, Germany) referred a number of questions to the Court of Justice concerning the interpretation of Article 42, headed ‘Return of the child’, of Regulation No 2201/2003. 11
The Court decided of its own motion that the reference for a preliminary ruling should be dealt with under the PPU. In that regard, it observed that it recognised the urgency of ruling in cases of child removal, in particular where the separation of a child from the parent to whom custody had previously been awarded, even if only provisionally, would be likely to bring about a deterioration of their relationship, or harm that relationship, and to cause psychological damage (paragraph 39). Applying that case-law to this particular case, the Court of Justice noted that the child had been separated from her father for more than 2 years and that, given the distance between the parents and their strained relationship, there was a real and serious risk that the child and her father would have absolutely no contact for the duration of the proceedings before the referring court. According to the Court of Justice, in those circumstances, the use of the ordinary procedure might cause serious, and perhaps irreparable, harm to the relationship between father and daughter and also further jeopardise the daughter’s integration into the father’s family and social environment in the event of any return to Spain (paragraph 40).
10 See below, in Part II of this fact sheet, headed ‘The expedited procedure’, section 1.2. Particular severity of the legal uncertainty to which the reference for a preliminary ruling relates. 11 Council Regulation (EC) No 2201/2003 o f 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).
5
Judgment of 22 December 2010,Mercredi (C-497/10 PP U, EU:C:2010:829)
The dispute in the main proceedings was between a British national and a French national, concerning the custody of their daughter. In this case, when the child was 2 months old, the mother and child had left the United Kingdom, where the child was habitually resident, for the island of Réunion (France), without the father having been told beforehand. That removal was, however, lawful, since the mother had been the only person with rights of custody at the time. Proceedings had subsequently been brought by the parents in the United Kingdom and in France, in particular, for a parental responsibility order and for the child’s habitual residence to be fixed. Although a French court had ruled in favour of the mother on those points, the Court of Appeal (England & Wales) (Civil Division) (United Kingdom) considered that it was necessary to identify the court with jurisdiction under EU law, which entailed clarification, by the Court of Justice, of the test under Articles 8 and 10 of Regulation No 2201/2003 that enables the child’s habitual residence to be determined.
The Court of Appeal (England & Wales) (Civil Division) therefore submitted a request for a preliminary ruling to the Court of Justice and requested that the PPU be applied. In support of the latter, it stated that, since the court with jurisdiction had not been identified, the applications made by the father for an order enabling him to maintain his relationship with his child could not be dealt with. The Court of Justice decided to apply the PPU, pointing out that the case concerned a child who was 16 months old and who had been separated from her father for more than a year. For the Court of Justice, given that the child was at a developmentally sensitive age, the continuation of that situation, an additional feature of which was the considerable distance between the places where the father and the child were living, might seriously harm their future relationship (paragraph 39).
Judgment of 26 April 2012,Health Service Executive (C-92/12 PPU, EU:C:2012:255) 12
In this case, the High Court (Ireland), before which proceedings had been brought by the authority with responsibility for children taken into public care in Ireland, had ordered the placement of a child of Irish nationality in a secure care institution in the United Kingdom, the country of the mother’s residence. Clinical professionals had concluded that there was no institution in Ireland that could meet the child’s specific protection needs.
Having been called upon to rule on the continuation of the child’s placement in the institution concerned, the High Court asked the Court of Justice whether the decision it had adopted came within the scope of Regulation No 2201/2003 and whether that decision had to be recognised and declared enforceable in the requested Member State before it could be enforced in that Member State.
The High Court also asked that the PPU be applied, a request that was granted by the Court of Justice. In that regard, the High Court stated, first, that the child was detained for her own protection, against her will, in a secure care institution. Second, it pointed out that its jurisdiction depended on whether Regulation No 2201/2003 was applicable to the main proceedings and,
12 This judgment was presented in the 2012 Annual Report, p. 26.
7
Judgment of 30 November 2009 (Grand Chamber),Kadzoev (C-357/09 PP U, EU:C:2009:741)
A person who had no identity documents and stated that he had been born in Chechnya was arrested by the Bulgarian authorities and detained, in a special detention facility for foreign nationals, pending execution of the deportation measure to which he was subject. However, for the purposes of executing that measure, documents enabling him to travel abroad had to be obtained. Three years later, those documents had still not been obtained. Furthermore, the person concerned had made applications for asylum and applications for his detention to be replaced by a less severe measure, which had all been rejected.
Against that background, the director of the administration responsible for that detention facility had commenced proceedings in the Administrativen sad Sofia-grad (Administrative Court, Sofia, Bulgaria) for a ruling of the court’s own motion on the action to be taken with respect to that detention. The national court noted that, before the Bulgarian Law on foreign nationals was amended 14 for the purpose of transposing Directive 2008/115, 15 the duration of detention in a detention facility was not limited to any period. Moreover, it found that there was no transitional provision governing situations in which detention decisions had been taken before that amendment. Consequently, it decided to ask the Court of Justice about the interpretation of Article 15(4) to (6) of Directive 2008/115.
The referring court also requested that the PPU be applied, stating that the case raised the question whether the person concerned should be kept in detention or released. In that regard, if there was no ‘reasonable prospect of removal’ in his case, within the meaning of Article 15(4) of Directive 2008/115, it might be necessary to order his immediate release, in accordance with that provision (paragraphs 29 and 32). In view of the above, the Court of Justice decided to grant the PPU request.
Judgment of 17 March 2016,Mirza (C-695/15 PP U, EU:C:2016:188) 16
A Pakistani national, from Serbia, had entered Hungary and lodged a first application for international protection there. However, since he had left the place of residence assigned to him by the Hungarian authorities, examination of his application had been discontinued on the ground that he had implicitly withdrawn it. He was subsequently taken in for questioning in the Czech Republic and, at the request of the Czech authorities, was taken back by Hungary, pursuant to the procedure provided for by Regulation No 604/2013 17 (‘the Dublin III Regulation’). The individual concerned then submitted a second application for international protection in Hungary and was held in detention while that application was examined. The application was rejected as inadmissible on the ground that Serbia had to be classified as a safe third country in this case. An order was made for the return and removal of the individual concerned.
14 Zakon za chuzhdentsite v Republika Balgaria (Law on foreign nationals in the Republic of Bulgaria) (DV No 153 of 1998), as amended on 15 May 2009 (DV No 36 of 2009). 15 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98). 16 This judgment was presented in the 2016 Annual Report, p. 36. 17 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31).
8
In that context, the Debreceni közigazgatási és munkaügyi bíróság (Administrative and Labour Court, Debrecen, Hungary), before which an action against the decision rejecting the second application for international protection had been brought, decided to refer certain questions to the Court of Justice concerning the circumstances in which a Member State may envisage sending an applicant to a safe third country, in accordance with Article 3(3) of the Dublin III Regulation, without analysing the substance of that person’s application.
The referring court also requested that the PPU be applied, pointing out that the individual concerned was, until 1 January 2016, the subject of a detention order. In addition, in response to a request from the Court of Justice, the referring court stated that that order had been extended until the date of a final decision on his application for international protection or, in the absence of any such decision by 1 March 2016, until the latter date. However, again according to the referring court, after 1 March 2016, the detention order could be extended again for a period of 60 days, up to a total detention period of 6 months.
The Court of Justice recalled its case-law according to which it is appropriate to take into account the fact that the person concerned is deprived of his liberty and that the question whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings. Moreover, it pointed out that that person’s situation must be assessed as it stood at the time when consideration was given to whether the reference should be dealt with under the PPU (paragraph 34). Applying that case-law here, the Court of Justice noted that, in this case, the criteria were fulfilled. The individual’s continued detention depended on the outcome of the case in the main proceedings, which concerned the lawfulness of the rejection of his application for international protection (paragraph 35). Consequently, the Court of Justice acceded to the PPU request.
Judgment of 1 June 2016,Bob-Dogi (C-241/15, EU:C:2016:385) 18
A Hungarian court had issued a European arrest warrant against a Romanian national, in order to commence criminal proceedings. The individual concerned had then been arrested in Romania and had appeared before the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania), which was responsible for deciding whether he was to be remanded in custody and surrendered to the Hungarian judicial authorities. In that context, the Curtea de Apel Cluj (Court of Appeal, Cluj) had ordered his immediate release, but also that he be subject to supervision measures.
The Curtea de Apel Cluj (Court of Appeal, Cluj), querying the interpretation of Article 8(1)(c) of Framework Decision 2002/584, 19 and, more specifically, the consequences of the fact that no national arrest warrant had been issued prior to and separately from the European arrest warrant, decided to submit a request for a preliminary ruling to the Court of Justice.
18 This judgment was presented in the 2016 Annual Report, p. 44. 19 Council Framework Decision 2002/584/JHA o f 13 June 2002 on the European arrest warrant and the surrender procedures between Member States — Statements made by certain Member States on the adoption of the Framework Decision (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24).
10
detention. However, the rechtbank Amsterdam (District Court, Amsterdam) subsequently stayed the proceedings indefinitely, pending the reply by the Court of Justice to the request for a preliminary ruling submitted in RO (C-327/18 PPU). 22 In parallel, since 90 days had elapsed since his arrest, the British national applied for his detention to be suspended.
In that context, the rechtbank Amsterdam (District Court, Amsterdam) considered the continued detention of the person concerned in the light of Framework Decision 2002/584 and Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which provides for the right to liberty and security. Under the national legislation at issue, 23 such a person must be released once 90 days have elapsed since his arrest. However, the legislation has been interpreted as allowing detention to continue when the executing judicial authority decides to refer a question to the Court of Justice for a preliminary ruling or to await the reply to a request for a preliminary ruling submitted by another executing judicial authority. In both situations, the 90-day period must then be deemed to be suspended.
The rechtbank Amsterdam (District Court, Amsterdam) requested that the reference for a preliminary ruling be dealt with under the PPU, arguing that the person concerned was being held in custody in the Netherlands solely on the basis of the European arrest warrant, and that it could not determine the application for suspension of his detention until the Court of Justice had ruled on that reference. The Court of Justice recalled its settled case-law, according to which it is necessary to take into account the fact that the person concerned is being deprived of his liberty and that the question whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings, since his situation must be assessed as it stands at the time when consideration is given to the request that the reference be dealt with under the PPU. In this case, the Court of Justice considered that the criteria were fulfilled and therefore decided to apply the PPU (paragraphs 30 and 31).
Subsequently, however, the rechtbank Amsterdam (District Court, Amsterdam) informed the Court of Justice that it had ordered the suspension, subject to conditions, of detention until delivery of the decision on the British national’s surrender to the United Kingdom. The referring court had calculated that the 90-day period had expired, even taking into account the period during which that 90-day period had been suspended. In those circumstances, the Court of Justice considered that the urgency had ceased to apply and that, accordingly, it was no longer necessary that the case be dealt with in accordance with the PPU.
2.3 Risk of interference with fundamental rights
Judgment of 16 February 2017,C. K. and Others (C-578/16 PPU, EU:C:2017:127)
In this case, a Syrian national and an Egyptian national had entered the territory of the European Union by means of a visa issued by the Republic of Croatia, before submitting applications for asylum to the Republic of Slovenia. The Slovenian authorities had then sent a request to the Croatian authorities to take charge of them, the Republic of Croatia being the Member State
22 This case gave rise to the judgment of 19 September 2018, RO (C-327/18 PPU, EU:C:2018:733). 23 Overleveringswet (Law on the surrender of sentenced persons) (Stb. 2004, No 195).
11
responsible for examining their applications, in accordance with the Dublin III Regulation. The Republic of Croatia acceded to that request. However, since the Syrian national was pregnant, the transfer to Croatia had to be postponed until the birth of the child. Subsequently, the individuals concerned objected to that transfer, claiming that it would have negative consequences for the state of health of the Syrian national, which were also likely to affect the wellbeing of her newborn child, and, moreover, that they had been victims of racially motivated remarks and abuse in Croatia. The transfer decision was initially annulled at first instance, before being confirmed on appeal by the Vrhovno sodišče (Supreme Court, Slovenia). However, the Ustavno sodišče (Constitutional Court, Slovenia), to which the individuals concerned appealed, set aside the judgment of Vrhovno sodišče (Supreme Court) and referred the case back to it.
Against that background, the Vrhovno sodišče (Supreme Court) asked the Court of Justice to clarify the discretionary clause provided for in Article 17 of the Dublin III Regulation, which, by way of derogation, allows a Member State to examine an application for international protection lodged with it, even if such examination is not its responsibility under the criteria laid down by that regulation.
The referring court also requested that the PPU be applied, stating that, taking into account the state of health of the Syrian national, the question of her status should be resolved as rapidly as possible. In that regard, the Court of Justice found that the possibility that the appellants might be transferred to Croatia before the end of an ordinary preliminary ruling procedure could not be ruled out. In response to a request to the referring court for clarification, 24 the latter indicated that even though the first-instance court had ordered the suspension of enforcement of the decision to transfer the persons concerned, there was no judicial measure suspending the enforcement of that decision at the then current stage of the national proceedings (paragraphs 49 and 50). Consequently, the Court of Justice granted the request for the PPU.
Judgment of 7 March 2017 (Grand Chamber),X and X (C-638/16 PPU, EU:C:2017:173) 25
A couple of Syrian nationals and their three children living in Syria had submitted applications for humanitarian visas, based on Article 25(1)(a) of Regulation No 810/2009 26 (‘Visa Code’), at the Belgian Embassy in Lebanon before returning to Syria. The purpose of the applications was to obtain visas with limited territorial validity, to enable the family to leave Syria and ultimately to apply for asylum in Belgium. The applicants stated that one of them had been abducted by a terrorist group and tortured, and finally released following the payment of a ransom. They emphasised the deterioration of the security situation in Syria generally, and that they were at risk of persecution because they belonged to the Orthodox Christian community. Their applications were refused on the ground, inter alia, that they intended to stay more than 90 days in Belgium and that Belgian diplomatic posts are not among the authorities to which a foreign national can submit an application for asylum.
24 Request made on the basis of Article 101(1) of the Rules of Procedure of the Court of Justice. 25 This judgment was presented in the 2017 Annual Report, p. 41. 26 Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243, p. 1), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182, p. 1).
13
The Tribunale di Milano (District Court, Milan) also sought the application of the PPU. In that regard, it stated that the applicant was required to leave Italy immediately and that he could be removed to Nigeria at any moment, where he would be exposed to a serious risk of being subjected to the death penalty, torture or other inhuman or degrading punishments or treatment. In addition, the referring court emphasised that the Court’s answer to the question raised was likely to have a decisive influence on whether the applicant could stay in Italy pending the outcome of his appeal in cassation (paragraphs 24 and 25). In that context, the Court of Justice noted that the possibility of the applicant being removed to Nigeria before the end of an ordinary preliminary ruling procedure could not be ruled out, and therefore decided to grant the request for a PPU (paragraph 27).
Judgment of 17 October 2018,UD (C-393/18 PP U, EU:C:2018:835)
Following her marriage to a British national, a Bangladeshi national had been granted a visa enabling her to live in the United Kingdom. The couple had subsequently travelled to Bangladesh during the Bangladeshi national’s pregnancy. Their daughter was born there and had never been to the United Kingdom, the father having returned there alone. According to the mother’s claims, which were disputed by the father, the father had tricked her into giving birth in a third country and coerced her into remaining in that country with the child, without access to gas, electricity or clean water, without income and in a community that stigmatised her. Accordingly, the mother commenced proceedings in the High Court of Justice (England & Wales), Family Division (United Kingdom) for an order that the child be made a ward of that court and that she and the child return to the United Kingdom.
First of all, the High Court of Justice (England & Wales), Family Division, considered it necessary to resolve the issue of its jurisdiction to make a decision concerning the child, which involved determining whether the child’s habitual residence, for the purposes of Article 8(1) of Regulation No 2201/2003, could be considered to be in the United Kingdom, even though she had never been to that Member State. Further, the High Court of Justice (England & Wales), Family Division, queried whether the circumstances of the case, notably the father’s behaviour and the breach of the fundamental rights of the mother or of the child, had an effect on that concept of ‘habitual residence’.
The referring court also requested that the reference for a preliminary ruling be dealt with under the PPU, a request that was granted by the Court of Justice. In that regard, the Court stated at the outset that, in the event that the father’s coercion of the mother is established, the child’s current welfare would be seriously compromised. Any delay in taking judicial decisions relating to the child would prolong the situation and would thereby risk causing serious, possibly irreparable, harm to that child’s development. Next, the Court noted that, in the event of a possible return to the United Kingdom, such a delay would also risk being detrimental to the child’s integration in her new family and social environment. Last, the Court pointed out that the very young age of the child (1 year and 2 months at the date of the order for reference) made her stimulation and development particularly delicate (paragraphs 26 and 27).
14
II. The expedited procedure
1. Reasons for the application of the expedited procedure
1.1 Nature and sensitivity of the area of interpretation covered by the reference
for a preliminary ruling
Order of 22 February 2008,Kozłowski (C-66/08, not published, EU:C:2008:116) 29
The case in the main proceedings concerned a Polish national who had been residing for a number of years, albeit not continuously and probably illegally, in Germany, where he was then serving a prison sentence. This Polish national was the subject of a European arrest warrant that had been issued by a Polish court for the purposes of execution of a sentence of imprisonment previously imposed on him. In that context, the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart, Germany), which was required to rule on the surrender of the person concerned to the Polish judicial authorities, considered the interpretation of the residence or domicile condition in Article 4(6) of Framework Decision 2002/584. That provision lays down a ground for optional non-execution of a European arrest warrant if the requested person ‘is staying in, or is a national or a resident of the executing Member State’ and that State undertakes to execute the foreign sentence.
The Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart) also requested that the reference for a preliminary ruling be dealt with under the PPU, on the ground that the Polish national’s detention in Germany would shortly be coming to an end and, moreover, there was a possibility of his early release.
Having indicated that the request for the PPU, which was inapplicable in this case, should be treated as a request for the accelerated (now expedited) procedure to be applied, 30 the President of the Court noted that the case raised issues of interpretation pertaining to a sensitive area of activity of the European legislature and to key aspects of the functioning of the European arrest warrant, on which the Court of Justice was being called upon to rule for the first time. The interpretation sought could have general consequences, both for the authorities called upon to cooperate in the context of the European arrest warrant and for the rights of requested persons, who were in a situation of uncertainty. Accordingly, the President of the Court considered that a prompt response would enable the executing judicial authority to rule in the best possible circumstances on the request for surrender submitted to it, thus giving it the opportunity to comply, with the minimum of delay, with its obligations under Framework Decision 2002/584 (paragraphs 11 and 12). He therefore ordered that the case be dealt with under the accelerated procedure.
1.2 Particular severity of the legal uncertainty to which the reference for a
preliminary ruling relates
29 The judgment of 17 July 2008, Kozłowski (C-66/08, EU:C:2008:437) was presented in the 2008 Annual Report, p. 52. 30 See above, in Part I of this fact sheet, headed ‘The urgent preliminary ruling procedure’, section 1. Scope of the urgent preliminary ruling procedure.
16
rely on the expiry of the period for making the take charge request, and, second, the detailed rules for calculating that period. In accordance with Article 21(1) of the Dublin III Regulation, in the event of non-compliance with the deadlines prescribed, responsibility for examining the application is transferred to the Member State in which it was lodged. However, the Verwaltungsgericht Minden (Administrative Court, Minden) noted that such delays were extremely common in Germany, due to the unusual increase in the number of asylum seekers from 2015.
In Jafari (C-646/16), the members of an Afghan family had crossed the border between Serbia and Croatia. The Croatian authorities had then organised transport for them to the Slovenian border, with the aim of helping them to travel to other Member States in order to make an application for international protection there, which the family did in Austria. However, in so far as the Dublin III Regulation provides that the responsibility is to be assumed by the Member State whose external border has been crossed irregularly, the Austrian authorities had requested the Croatian authorities to take charge of the individuals concerned. The family’s applications had therefore been rejected and it was ordered that they be transferred to Croatia. The Verwaltungsgerichtshof (Supreme Administrative Court, Austria) before which those decisions were challenged, asked the Court of Justice how the criteria relating to the issuing of residence documents or visas and to entry or stay, provided for in Articles 12 and 13 of the Dublin III Regulation, were to be applied.
Both referring courts requested that the expedited procedure be applied, and their requests were granted by the President of the Court.
In both cases, the President of the Court began by recalling that, in the normal course of events, the large number of persons or legal situations potentially concerned by the decision to be made by a national court after it has made a reference for a preliminary ruling to the Court of Justice does not, in itself, constitute an exceptional circumstance that would justify the use of an expedited procedure (orders of 15 February 2017, Mengesteab , C-670/16, not published, EU:C:2017:120, paragraph 10, and Jafari , C-646/16, not published, EU:C:2017:138, paragraph 10).
Nevertheless, he added that that consideration could not, in these cases, be decisive, since the number of cases concerned by the questions referred for a preliminary ruling was such that the uncertainty as to their outcome risked impairing the functioning of the system established by the Dublin III Regulation and, in consequence, weakening the Common European Asylum System introduced by the EU legislature under Article 78 TFEU. These cases had arisen in an unprecedented situation in which an exceptionally high number of asylum applications had been registered in Germany, in Austria and, more generally, in the European Union, in circumstances similar to those at issue. Moreover, these cases raised issues of interpretation that were directly linked to that situation and which related to key aspects of the system established by the Dublin III Regulation, on which the Court was called upon to rule for the first time. The Court’s answer was therefore likely to have widespread repercussions for the national authorities required to cooperate in order to apply that regulation (orders of 15 February 2017, Mengesteab , C-670/16, not published, EU:C:2017:120, paragraphs 11 to 13, and Jafari , C-646/16, not published, EU:C:2017:138, paragraphs 11 to 13).
17
For the President of the Court, it followed that the uncertainty as to the determination of the Member State responsible for examining asylum applications such as that at issue in the main proceedings meant that the competent national authorities were unable to adopt the administrative and budgetary measures necessary to ensure, in accordance with the requirements of EU law and the international commitments of the Member States concerned, that those applications were examined and the asylum applicants for which they might be responsible were received. In that exceptional crisis situation, the use of the expedited procedure was necessary in order to remove as soon as possible the uncertainty that was detrimental to the proper functioning of the Common European Asylum System, which contributes to compliance with Article 18 of the Charter (orders of 15 February 2017, Mengesteab , C-670/16, not published, EU:C:2017:120, paragraphs 15 and 16, and Jafari , C-646/16, not published, EU:C:2017:138, paragraphs 14 and 15).
Order of 28 February 2017,M.A.S.and M.B. (C-42/17, not published, EU:C:2017:168) 37
A question of constitutionality was brought before the Corte costituzionale (Constitutional Court, Italy) by two Italian courts which were considering a possible breach of the principle of legality in the event that the rule in Taricco and Others^38 was applied in criminal proceedings pending before them. It will be recalled that, in that judgment, the Court of Justice found that, in two situations which it identified, the Italian limitation rules applicable to tax infringements relating to value added tax (VAT) were liable to have an adverse effect on the fulfilment of the Member States’ obligations under Article 325(1) and (2) TFEU. Consequently, the Court of Justice held that, in those situations, the national court had to give full effect to Article 325(1) and (2) TFEU, if need be by disapplying the relevant provisions of national law.
In accordance with the rule stated in that judgment, in this case, the Italian courts considered that they should not take into account the limitation period laid down in the Codice penale (Italian Criminal Code) and should, therefore, give judgment on the substance of the cases. However, the Corte costituzionale (Constitutional Court) expressed doubts as to whether that approach was compatible with the principle that offences and penalties must be defined by law, as enshrined in the Italian Constitution and interpreted by that court, since that principle requires that rules of criminal law are precisely determined and that they cannot be retroactive.
The Corte costituzionale (Constitutional Court) requested that its reference for a preliminary ruling be dealt with under the expedited procedure, claiming that a situation of profound uncertainty had arisen as to how EU law should be interpreted, that that uncertainty was weighing on the pending criminal proceedings and that it was urgent that it be removed (paragraph 6). In that regard, the President of the Court of Justice stated that a response within a short time would remove that uncertainty and that, in so far as that uncertainty affected fundamental issues of national constitutional law and EU law, the application of the expedited procedure was warranted (paragraphs 8 and 9).
37 The judgment of 5 December 2017, M.A.S. and M.B. (C-42/17, EU:C:2017:936) was presented in the 2017 Annual Report, p. 31. 38 Judgment of 8 September 2015 (C-105/14, EU:C:2015:555).
19
fundamental right to a fair trial, a right which is of cardinal importance as a 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, in particular the value of the rule of law, will be safeguarded. Second, the President of the Court pointed out that the uncertainties in the present cases were also liable to have an effect on the working of the system of judicial cooperation embodied by the preliminary ruling mechanism provided for in Article 267 TFEU, the keystone of the EU judicial system. The independence of the national courts, particularly those ruling, like the Sąd Najwyższy (Supreme Court), at last instance, is essential (orders of 26 September 2018, Zakład Ubezpieczeń Społecznyc h, C-522/18, not published, EU:C:2018:786, paragraph 15, and of 15 November 2018, Commission v Poland , C-619/18, EU:C:2018:910, paragraphs 21, 22 and 25).
It should, moreover, be noted that, in his order in Commission v Poland , 40 the President of the Court also responded to the allegations of the Republic of Poland that the application of an expedited procedure would affect its rights of defence. The Republic of Poland was critical of the fact that the defendant State is required to present all its arguments in a single pleading and that the procedure does not call for a reply and a rejoinder. It also argued that the Commission had delayed in bringing the action before the Court and that that delay could not be remedied by such a restriction of its procedural rights (paragraph 17). The President of the Court observed that, under the expedited procedure, the application initiating proceedings and the defence may indeed be supplemented by a reply and a rejoinder only if the President of the Court, after hearing the Judge-Rapporteur and the Advocate General, considers this to be necessary. However, should the lodging of a reply not be authorised, it is not apparent, in the absence of such a reply and therefore of arguments supplementing and developing those appearing in the application to which the defendant had all the opportunities to reply in its defence, how the defendant could claim that its rights of defence are affected by the fact that it was not in a position to lodge a rejoinder. Furthermore, the President of the Court recalled that proceedings for a declaration of failure to fulfil obligations before the Court are preceded by a pre-litigation procedure during which the parties have the opportunity to set out and develop the line of argument which they may subsequently be called upon to expound before the Court (paragraphs 23 and 24).
Order of 19 October 2018,Wightmanand Others (C-621/18, EU:C:2018:851) 41
This case was brought following the notification, on 29 March 2017, by the Prime Minister (United Kingdom), of the intention of the United Kingdom of Great Britain and Northern Ireland to withdraw from the European Union, pursuant to Article 50 TEU. In that context, the petitioners in the main proceedings — including one member of the Parliament of the United Kingdom of Great Britain and Northern Ireland, two members of the Scottish Parliament (United Kingdom) and three members of the European Parliament — lodged a petition for judicial review seeking a declaratory specifying whether, when and how that notification could unilaterally be revoked.
40 Order of 15 November 2018 (C-619/18, EU:C:2018:910). 41 The judgment of 10 December 2018, Wightman and Others (C-621/18, EU:C:2018:999), delivered by the Full Court, was presented in the 2018 Annual Report, p. 13.
20
The Court of Session, Inner House, First Division (Scotland) (United Kingdom), before which an appeal against the refusal of that petition was brought, acceded to the request of the petitioners in the main proceedings that a request for a preliminary ruling be made. Unlike the court at first instance, it considered that it was neither academic nor premature to ask the Court of Justice whether it is possible for a Member State unilaterally to revoke the notification given under Article 50(2) TEU in advance of the expiry of the two-year period referred to in that article, and to remain in the European Union. It considered, on the contrary, that an answer from the Court of Justice would clarify the options open to the members of parliament when casting their vote in these matters.
The Court of Session, Inner House, First Division (Scotland) requested that the expedited procedure be applied. It emphasised the urgency of its request in the light of, first, the two-year timetable running from 29 March 2017 which was imposed on that withdrawal procedure and, second, the fact that the parliamentary consideration and voting on that subject within the Parliament of the United Kingdom had of necessity to take place well in advance of 29 March
The President of the Court considered that the referring court had set out grounds that undeniably indicated that there was a need to make a ruling urgently. In that respect, the President of the Court recalled that, where a case raises serious uncertainties which affect fundamental issues of national constitutional law and EU law, it may be necessary, having regard to the particular circumstances of the case, to deal with it within a short time. Thus, given that the implementation of Article 50 TEU was of fundamental importance for the United Kingdom and for the constitutional order of the European Union, the particular circumstances in this case were, according to the President of the Court, such as to justify the case being dealt with within a short time (paragraphs 10 and 11).
1.3 Risk of interference with fundamental rights
Order of 15 July 2010,Purrucker (C-296/10, not published, EU:C:2010:446)
The dispute in the main proceedings was between a German national and a Spanish national concerning rights of custody of their twin children. Less than a year after the children were born, the parents had separated and had signed an agreement before a notary confirming the mother’s wish to return to her country of origin with the children. However, ultimately she had taken only one of the children to Germany, as the other child had had to remain in Spain temporarily with the father for medical reasons. The family’s situation had not changed since then.
Several sets of proceedings were commenced by each of the parents. Thus, in Spain, the father applied for, and obtained, provisional measures, although it is conceivable that those proceedings may be regarded as substantive proceedings concerned with the award of rights of custody of the children. He then sought, in Germany, enforcement of the Spanish decision granting those measures, those proceedings having given rise to the judgment in Purrucker. 42
42 Judgment of 15 July 2010 (C-256/09, EU:C:2010:437). This judgment was presented in the 2010 Annual Report, p. 52.
