In English Voices From Spain

A feasible but dangerous preliminary ruling

Originally published in Spanish, «Una prejudicial factible pero peligrosa». Daniel Sarmiento. Agenda Pública. 

10th April 2018

The decision of the Schleswig-Holstein Court to partially dismiss the execution of the European arrest warrant issued by the Spanish Supreme Court against Carles Puigdemont has sparked a strong reaction in Spain, whose next destination could be the request for a preliminary ruling to the Court of Justice of the European Union (CJEU).

It seems difficult to remain objective in juridical questions when confronted with the “procés” [TN: the process of independence for Catalonia].This last episode has not been an exception, and soon there were reactions as disproportionate as rash over the German court decision.

I will not say that the author of this text has no opinion over the “procés”. Actually, it’s quite the opposite, and so I have stated elsewhere. It wouldn’t be fair to accuse others of lack of objectivity while I have manifested in the strongest terms my criticism to the Catalan independence movement. That notwithstanding, I believe that the potential submission to the Luxembourg Court of a request for a preliminary ruling from the Spanish Supreme Court (which would be the first ever issued from its Penal Tribunal) is a question technical and relevant enough to deserve a cold and aseptic analysis, both juridical and in terms of advisability.

The preliminary ruling that Llarena is likely to request is a mechanism of judicial cooperation established in article 267 of the Treaty on the Functioning of the European Union. It is the jewel of the crown of the European appeals system, since through it judges from all member states can present a question about the European Union Law, as long as it is useful to settle some unclear point of a lawsuit. Also, the Court of Justice is extremely generous and flexible with national courts, so it admits preliminary rulings on all kind of jurisdictions and over all kinds of questions. It is a procedure utterly non-formalist, in which cooperation and support between judges (national and European) take precedence over the rights of the parties or the strict adherence to the legal procedure framework.

The difficulty involved in the Puigdemont case would lie in the fact that the issuing tribunal would be disputing the decision of a tribunal of another Member State. The preliminary rulings are used so that the national tribunals can clarify the questions of interpretation or validity raised by Union law, but not the questions of legality based on national laws of another Member State and, even less, its judicial decisions, as the Court of Justice has stated repeatedly in many occasions.

Nevertheless, the Puigdemont case has enough peculiarities to avoid falling in this problem. The request for a preliminary ruling from judge Llarena would have the side-effect of reviewing the decision of the German court, but the truth is that the main goal would be to answer a quite definite doubt of interpretation of Article 2, paragraph 4 of the Framework Decision (FD) regulating the European arrest warrant. As long as the Spanish judge had legitimate and reasonable doubts about a matter of interpretation of the European Union Law, the CJEU will answer even if the result is not directly related to it or requires the revision of a decision issued by another judicial authority. There are plenty of cases in which a member state complains because it understands that these requests are only applied on subjects outside the European Union Law. These complaints are usually disregarded.

Additionally, the German court has decided over the request from judge Llarena, or at least over the part related to the offence of rebellion, as a court of last resort. Only a constitutional complaint to the German Constitutional Court could review this decision, and so it cannot be classified as having “judicial remedy under national law”, in the terms of the Article 267 of the Treaty. Therefore, as long as the interpretation of Article 4, paragraph 2 of the Framework Decision is not clear, the German court is required to request a preliminary ruling to the Court of Justice. And it seems that in the Puigdemont case the interpretation was not clear cut, as the German prosecutor had decided in the completely opposite direction. Therefore it could be argued that this is a judiciary resolution in violation of Article 267, in the sense that a decision has been issued without requesting a preliminary ruling from the Court of Justice. This could justify that the issuing judge (Llarena) requested the ruling himself and therefore prevent the lack of authority that could be argued against it. If the execution court failed to request a preliminary ruling before issuing a decision without judicial remedy under national law, it is not unreasonable that the judge issuing the warrant does it instead.

Therefore, the problems of a preliminary ruling in the Puigdemont case are not related to procedure. Actually, Llarena could justify its need based of a breach of procedure by the German court that would be corrected by the Spanish Supreme Court itself requesting the ruling directly.

A different subject is whether this ruling would produce the desired outcome.

The background question in the Puigdemont case is not minor. It would no doubt receive special attention from the Court of Justice. It is somehow odd that, in the framework of a procedure for judicial cooperation and in an area without physical frontiers, a European arrest warrant had to be subjected to such intense scrutiny before being executed in a member state. Actually this isn’t usual at all: the European arrest warrants are normally carried out in an expeditious way and without much consideration by the execution court. This is so because the offences that justify the issuing of European arrest warrants are those enumerated in the list in Article 2, paragraph 2 of the Framework Decision. In these cases the judicial cooperation is practically automatic and there is not much to check. The problems arise when the offence is not included in that list, such as in the case of rebellion. In this case, the Article 2, paragraph 4 of the FD states, with some ambiguities, the faculties of the execution judge.

As stated in the FD itself, outside the list of offences in paragraph 2, “surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing member state, whatever the constituent elements or however it is described”.

This precept, despite what some media have argued, doesn’t mean that the issuing court should make an abstract analysis without assessing the facts. The rule does not forbid this assessment; it only requires that, while doing it, it must disregard the constituent elements or however it is described and focus exclusively on whether the relevant facts are constituent of an offence in the execution state. In order to do so it is evident that the facts must be minimally qualified and subsumed into one or more offences described in the Criminal Code of the execution state. What the execution court should do is an analysis of the facts, and then a qualification of them with regard to the penal types specified in the national law.

That notwithstanding, if the decision (Beschluss) of the Oberlandesgericht of Schleswig-Holstein is read carefully, it is surprising that the qualification takes the court to an outcome practically equivalent to a sentence on the case. In particular when the decision is taken without having taken part in the investigation nor listened to the parties (the prosecutor does not pronounce on whether the offence was committed, but on the application of the normative on the arrest warrant). In other words, the judicial decision is equivalent to some sort of acquittal from penal responsibility that would prevent Puigdemont from being judged in Spain; an outcome even more surprising if we take into account that the execution of the European arrest warrant does not involve a conviction, but just facilitates the beginning of a penal procedure. Nevertheless the decision of the German court is so incisive in its conclusions that it has conditioned sharply the extent of the responsibility of Puigdemont, something that would not have happened if the decision had been the opposite, as the German prosecution requested.

This is the question on interpretation that, as can be seen, is neither easy nor irrelevant. The Court of Justice will be requested to clarify the extent of the control that the execution judge can perform while checking whether the relevant facts are constituent of an offence in their country. Should this control be prima facie and mainly abstract, without any assessment that indirectly leads the issuing court to elucidate the penal responsibility of the accused? Or should it be an intensive control that allows the court to decide that the facts can not only be considered prima facie as illegal but that, after an analysis of the case, conclude without doubt that constitute an offence?

Everything suggests that the Oberlandesgericht has opted for the second interpretation of the Article 4, paragraph 2 of the FD. Nevertheless, this interpretation would lead to  problematic consequences, since in the moment that a person committed an offence not listed in the set in Article 2 on a member state of the Union, it would be enough for him to flee (in an area without physical frontier) to another member state of the Union that doesn’t have an identical penal type (and probably they would never be completely identical), where he would be subject to a summary trial with higher chances of being acquitted than of being returned to the issuing state. This outcome, obviously, wasn’t intended by the member states when they negotiated the FD. It’s neither the opinion of the Court of Justice, according to two recent sentences, Piotrowski and Grundza, where the control of the specific details that the judge must consider according to the national law has been ruled out (although in cases other than those covered in Article 2, paragraph 4). If we add to this that one of these sentences was issued by the Grand Chamber of the Court of Justice, it seems that judge Llarena has reasonable motives to question the decision of the Oberlandesgericht.

And we here get to the last point of this analysis. Even if there are no procedural obstacles to request the preliminary ruling, and there are good reasons to send to Luxembourg a question of interpretation of evident relevance and complexity, is this the best option?

The preliminary ruling procedure is not a simple dialogue between judges. From the moment that the national court issues the request, a heavy institutional machinery is set in motion that allows, and sometimes requires, the intervention of multiple actors. In a case like this one, the Commission and the governments of the Member States have the right to take part and provide their opinion. It seems evident that the Spanish government would do so, as well as the European Public Prosecutor and the Commission, who takes part in all cases in its role as guardian of the treaties. And it is not impossible that the German government would do so too, who knows in which sense, as well as the states where other leaders of the procés have fled to. It is expected that the Spanish government will do its utmost to support the arguments of Llarena but, as we have seen these last months, one thing is what European governments say when they talk between themselves, and something very different what they do internally or what they could do in the court. It is possible that the interventions of the Commission, Germany or Belgium end up being so ambiguous that they result counterproductive and make evident the solitude of Llarena.

In the same way, it shouldn’t be forgotten that the preliminary ruling allows the Court of Justice to reformulate the questions that the national court sends, or even reply in a vague and incomplete form. The advantages of informality can also become disadvantages. If the Tribunal of Justice is not comfortable with the question, it can avoid it with an ambiguous answer that doesn’t clarify anything. This can happen if it feels as being taken advantage of by the national court, or when the question is so complex that no internal consensus is possible. Since no particular votes are possible, its sentences require consensus. When there isn’t, the solutions tend to be vague and undefined.

A preliminary ruling in a case such as the Puigdemont one is going to grant to the secessionism a high level European platform. The interventions of the European governments and institutions could be not to the Spanish Government liking, but at the same time they would generate intense debate in these countries, therefore amplifying the internationalization of the procés. If the sentence doesn’t resolve the issue in a sharp and clearly favorable to the arguments of Llarena, the setback for Spanish Justice would come not just from a regional German court, but from the CJEU itself. And it wouldn’t take an unfavorable sentence to consider the situation as a judicial failure; it would suffice that it was vague and ambiguous, leaving the question unresolved and in the hands, again, of the German court. These sentences are rather common in Luxembourg, in particular in complex and/or politically sensitive matters.

I don’t think that these risks are enough to discard the preliminary ruling. On the contrary, there are reasons for the Court of Justice to pronounce sooner or later on a question of Law that is generating strong social and diplomatic tensions in the Union. There’s nothing better than a sentence based on Law and issued by an independent court with the authority of the CJEU to resolve it. Nevertheless, if the Spanish Supreme Court or the Public Prosecutor believe that their arguments would be confirmed just because they are right, it is very probable that they are disappointed by the outcome. Before deciding on whether to request the ruling, it is fundamental that judge Llarena and the Public Prosecutor are certain on the position that would be adopted by other member states and the European Commission, which is not easy. Only if the isolation of Puigdemont, and not that of Llarena, is made evident, it will be possible that the outcome end up favorably for the Spanish Courts.

There are reasons for it to be so. But it’s not clear that the Spanish institutional machinery, so little adept at designing complex European strategies with a judicial background, will be up to the task and be able to devise an effective, intelligent and measured, in which would no doubt be the most important preliminary ruling since entering the Union.


Author: Daniel Sarmiento

Professor of Arministrative Law and European Union Law in University Complutense of Madrid.

Previously he has been legal secretary at the Court of Justice of the European Union, and is author of several books

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