Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

 ▪

Judgment of 18 April 2023 , E.D.L. (Ground for refusal based on illness), Case C‑699/21, EU:C:2023:295

Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Article 23(4) – Surrender procedures between Member States – Grounds for non-execution – Article 4(3) TEU – Duty of sincere cooperation – Postponement of the execution of the European arrest warrant – Article 4 of the Charter of Fundamental Rights of the European Union – Prohibition of inhuman or degrading treatment – Serious, chronic and potentially irreversible illness – Risk of serious harm to health affecting the person concerned by the European arrest warrant

Facts

On 9 September 2019, the Općinski sud u Zadru (Municipal Court, Zadar, Croatia) issued a European arrest warrant (EAW) against E.D.L., who resides in Italy, for the purposes of conducting a criminal prosecution in Croatia.

The Corte d’appello di Milano (Court of Appeal, Milan, Italy), the judicial authority competent to execute that EAW, required E.D.L. to be assessed by a psychiatrist. The expert’s report revealed, inter alia, the existence of a psychotic disorder requiring treatment with medication and psychotherapy, and identified a significant risk of suicide in the event of imprisonment. On the basis of that expert’s report, the Corte d’appello di Milano held, first, that the execution of the EAW would interrupt E.D.L.’s treatment and lead to a deterioration in his general state of health, the effects of which could be exceptionally serious. Second, that court found that the relevant national provisions transposing Framework Decision 2002/584 do not provide that health reasons of that kind may constitute a ground for refusing to surrender in proceedings for the execution of a EAW. The Corte d’appello di Milano asked the Corte costituzionale (Constitutional Court, Italy) about the constitutionality of those provisions.

As the situation of a serious threat to the health of the requested person due to chronic illnesses of a potentially indefinite duration is not included among the grounds for non-execution of a EAW, the Corte costituzionale is uncertain whether it would be possible to remedy this risk by postponing the surrender of that person on the basis of Article 23(4) of Framework Decision 2002/584.

Findings of the ECJ

The ECJ recalls that the principle of mutual trust between the Member States and the principle of mutual recognition, which constitutes the “cornerstone” of judicial cooperation in criminal matters, are of fundamental importance in EU law and, specifically, that “the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law”.

As regards Framework Decision 2002/584, the ECJ reiterates that the executing judicial authorities may refuse to execute a EAW only on grounds stemming from this Framework Decision, as interpreted by the Court, and that, while execution of the EAW constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly. The ECJ observes that Framework Decision 2002/584 does not provide that the executing judicial authorities may refuse to execute a EAW solely on the ground that the requested person suffers from serious, chronic and potentially irreversible illnesses. Having regard to the principle of mutual trust, the ECJ emphasizes that “there is a presumption that the care and treatment provided in the Member States for the management of, inter alia, such illnesses will be adequate, whether in prisons or in the context of alternative arrangements for making that person available to the judicial authorities of the issuing Member State”.

However, it is apparent from Article 23(4) of Framework Decision 2002/584 that, in exceptional circumstances, relating, inter alia, to the life or health of the requested person being manifestly endangered, surrender may be temporarily postponed. The ECJ therefore concludes that “the executing judicial authority is authorised to postpone temporarily the surrender of the requested person, provided that there are serious reasons for believing, on the basis of objective material, such as medical certificates or expert reports, that the execution of the arrest warrant manifestly risks endangering the health of that person, for example because of a temporary illness or condition of that person existing before the date on which he or she is to be surrendered”. That discretion must be exercised in accordance, inter alia, with Article 4 of the Charter.

It follows that, “in a situation where the executing judicial authority has, in the light of the objective material before it, substantial and established grounds for believing that the surrender of the requested person, who is seriously ill, would expose him or her to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health, that authority is required, in accordance with Article 4 of the Charter, to exercise the power provided for in Article 23(4) of Framework Decision 2002/584 by deciding to postpone the surrender”. In such situations, the ECJ highlights the importance of the duty of sincere cooperation, laid down in the first subparagraph of Article 4(3) TEU, as it must inform the dialogue between both the executing and the issuing judicial authorities.

Accordingly, the ECJ interprets Articles 1(3) and 23(4) of Framework Decision 2002/584, read in the light of Article 4 of the Charter, as meaning that:

“ – where there are substantial grounds to believe that the surrender of a requested person in execution of a European arrest warrant manifestly risks endangering his or her health, the executing judicial authority may, exceptionally, postpone that surrender temporarily;

• where the executing judicial authority called upon to decide on the surrender of a requested person who is seriously ill in execution of a European arrest warrant concludes that there are substantial and established grounds for believing that that surrender would expose that person to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health, it must postpone that surrender and ask the issuing judicial authority to provide all information relating to the conditions under which it intends to prosecute or detain that person and to the possibility of adapting those conditions to his or her state of health in order to prevent such a risk from materialising;
• if, in the light of the information provided by the issuing judicial authority and all the other information available to the executing judicial authority, it appears that that risk cannot be ruled out within a reasonable period of time, the executing judicial authority must refuse to execute the European arrest warrant. On the other hand, if that risk can be ruled out within such a period of time, a new surrender date must be agreed with the issuing judicial authority.”

Judgment of 11 May 2023, TAP Portugal (Death of the co-pilot), Joined cases C‑156/22 a C‑158/22, EU:C:2023:393

References for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Compensation to air passengers in the event of cancellation of flights – Article 5(3) – Exemption from the obligation to pay compensation – Concept of ‘extraordinary circumstances’ – Unexpected absence, due to illness or death, of a crew member whose presence is essential to the operation of the flight

Facts

On 17 July 2019, TAP was to operate a flight from Stuttgart (Germany) to Lisbon (Portugal), with a departure scheduled at 6.05. On the same day, the co-pilot who was to operate the flight concerned was found dead. Shocked by this event, the whole crew declared itself unfit to fly. As no replacement staff was available, the 6.05 flight was cancelled. Subsequently, the passengers were transported to Lisbon on a replacement flight scheduled at 16.40.

TAP refused to pay the compensation provided for in Article 7(1) of Regulation No 261/2004, claiming that the unexpected death of the co-pilot was an extraordinary circumstance within the meaning of Article 5(3) of that regulation.

On appeal, the Landgericht Stuttgart (Regional Court, Stuttgart, Germany) decided to stay the proceedings and refer to the ECJ for a preliminary ruling. The referring court asked whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the unexpected absence, due to illness or death of a crew member whose presence is essential to the operation of a flight, which occurred shortly before the scheduled departure of that flight, falls within the concept of ‘extraordinary circumstances’ within the meaning of that provision.

Findings of the ECJ

The ECJ recalls its case-law according to which the concept of ‘extraordinary circumstances’, within the meaning of Article 5(3) of Regulation No 261/2004, refers to “events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond that carrier’s actual control”, those two conditions being cumulative.

According to the ECJ, measures relating to the staff of the operating air carrier, such as measures relating to crew planning and staff working hours, fall within the normal exercise of that carrier’s activities. Therefore, operating air carriers may, as a matter of course, be faced, in the exercise of their activity, with the unexpected absence, due to illness or death, of one or more members of staff whose presence is essential to the operation of a flight, including shortly before the departure of that flight. Accordingly, the management of such an absence remains intrinsically linked to the question of crew planning and staff working hours, with the result that such an unexpected event is inherent in the normal exercise of the operating air carrier’s activity. In this regard, the ECJ emphasizes that “it is the very absence, due to illness or death, of one or more crew members, even if it was unexpected, and not the specific medical cause of that absence that constitutes an event inherent in the normal exercise of that carrier’s activity, with the result that the carrier must expect such unforeseen events to arise in the context of planning its crews and the working hours of its staff”.

Since the first of the two cumulative conditions referred to above is not satisfied, it is not necessary to verify whether the second of those conditions has been fulfilled.

Accordingly, the ECJ interprets Article 5(3) of Regulation No 261/2004 as meaning that “the unexpected absence – due to illness or death of a crew member whose presence is essential to the operation of a flight – which occurred shortly before the scheduled departure of that flight, does not fall within the concept of ‘extraordinary circumstances’ within the meaning of that provision”.