Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

ORDER OF THE COURT (Eighth Chamber)

4 July 2024 (*)

(Reference for a preliminary ruling – Article 267 TFEU – Criminal proceedings – Accused person remanded in custody – Consequence of a reference for a preliminary ruling on the main proceedings – Refusal by the referring court to continue the proceedings on the substance of the case until the response of the Court of Justice has been received – Duty to proceed expeditiously in criminal proceedings particularly in cases involving detention – Request for recusal of the judge hearing the application for legitimate suspicion of conflict of interests)

In Case C‑288/24 [Stegmon] (i),

REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Berlin I (Regional Court, Berlin I, Germany), made by decision of 23 April 2024, received at the Court on 24 April 2024, in the criminal proceedings against

M.R.

other party:

Staatsanwaltschaft Berlin,

THE COURT (Eighth Chamber),

composed of K. Jürimäe (Rapporteur), President of the Third Chamber, acting as President of the Eighth Chamber, N. Jääskinen and M. Gavalec, Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        This request for a preliminary ruling concerns the interpretation of Article 267 TFEU.

2        The request has been made in criminal proceedings brought against M.R. and concern the legality a request for recusal of a judge submitted by the Staatsanwaltschaft Berlin (Berlin Public Prosecutor’s Office, Germany).

 German law

3        The general duty to proceed expeditiously in criminal cases is derived from the rule of law principle provided for under the Grundgesetz (Basic Law).

4        Under Paragraph 24 of the Strafprozessordnung (Code of Criminal Procedure) in the version published on 7 April 1987 (BGBl. 1987 I, p. 1074, 1319), as amended by the law of 27 March 2024 (BGBl. 2024 I, No 109) (‘the StPO’), the public prosecutor’s office, the private prosecutor or the accused may request the recusal of a judge on the ground of legitimate suspicion of conflict of interests, namely where there is a reason which is such as to cast doubt as to the impartiality of that judge.

5        In accordance with Paragraph 27(1) of the StPO, the formation of judges, to which the recused judge belongs, is to give a ruling on the request for recusal without the recused judge’s involvement.

6        Paragraph 121(1) of the StPO provides that, until the judgment has been delivered, pre-trial detention for one and the same offence may exceed a period of six months on the basis of the same facts only if the particular difficulty or the unusual extent of the investigation or some other important reason does not yet make it possible to deliver a judgment and justify continuation of the detention. However, under Paragraph 121(3) of the StPO, that time limit is suspended if the inter partes proceedings commenced before the expiry of the six-month time limit.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

7        The main proceedings concern allegations of drug trafficking targeting M.R. Those accusations are based on information resulting from the analysis of data from phones equipped with a software called ‘EncroChat’, which allows end-to-end encrypted communication.

8        In that procedure, an arrest warrant was issued against M.R. He was first placed in pre-trial detention on 4 May 2023.

9        By a judgment of 29 June 2023, the Landgericht Berlin (Regional Court, Berlin, Germany), first, allowed the formal charges, and commenced the inter partes criminal proceedings. Second, it stayed those proceedings in order to submit a request to the Court of Justice of the European Union for a preliminary ruling on the interpretation of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1), which was entered in the register of the Court of Justice as Staatsanwaltschaft Berlin II (C‑675/23). Third and final, it set aside the arrest warrant in respect of M.R., taking into account the uncertainty regarding the date when the decision of the Court of Justice would be delivered.

10      On 30 June 2023, the Berlin Public Prosecutor’s Office lodged an appeal against that judgment in so far as it set aside the arrest warrant at issue. The Generalstaatsanwaltschaft Berlin (General Prosecutor’s Office in Berlin, Germany) was joined to the appeal on 10 July 2023.

11      By a decision of 24 July 2023, the Kammergericht Berlin (Higher Regional Court, Berlin, Germany) set aside the judgment of 29 June 2023, in so far as it set aside that arrest warrant at issue, and declared that the arrest warrant could once more put into effect. In the grounds for its decision, it indicated that that judgment, in so far as it stays the proceedings, does not prevent that arrest warrant being implemented. It found that the Landgericht Berlin (Regional Court, Berlin), on the contrary, would have the opportunity to reconsider its assessment relating to the stay of proceedings in light of the duty to proceed expeditiously which is required in cases involving detention and pointed out ‘as a precaution’ that a decision to stay proceedings was subject to appeal from the Public Prosecutor’s Office.

12      On 26 July 2023, the Berlin Public Prosecutor’s Office lodged an appeal against the judgment of 29 June 2023, in so far as it stayed the proceedings, on the ground that the suspension and the failure to advance the proceedings were contrary to the duty to proceed expeditiously. On 9 August 2023, the General Prosecutor’s Office in Berlin was also joined to that appeal, explaining that it would be contrary to that duty to await the decision of the Court of Justice.

13      By a decision of 13 September 2023, the Kammergericht Berlin (Higher Regional Court, Berlin) set aside the judgment of 29 June 2023, in so far as it stayed the proceedings. It also indicated that a stay in proceedings could not, in general, be ordered for the purpose of clarifying legal questions. However, a stay of proceedings while awaiting the resolution of a ‘test case’ giving rise to a preliminary reference to the Court appeared to be ‘justified by way of exception’. Taking into account the duty to proceed expeditiously, such a possibility would, however, be subject to the decision of the Court in the ‘test case’ being imminent and the delay not entailing any unacceptable burdens for the accused person. The Kammergericht Berlin (Higher Regional Court, Berlin) concluding that in those circumstances, the judgment of 29 June 2023, in so far as it stayed the proceedings, was ‘vitiated by a manifest error of assessment’, as the date on which the Court’s decision would deliver its decision was not known. Moreover, it could not be ruled out that a further request for a preliminary ruling could prove necessary based on the as the specific nature of the present case.

14      By a judgment of 20 October 2023, the Landgericht Berlin (Regional Court, Berlin) nevertheless once more set aside the arrest warrant at issue, relying on the duty to proceed expeditiously. An appeal was lodged against that judgment by the Berlin Public Prosecutor’s Office. The General Prosecutor’s Office in Berlin was joined to that appeal, stating that if that arrest warrant were once again put into effect, and if the Landgericht Berlin (Regional Court, Berlin) were to fail to schedule dates for the trial hearing rapidly, it would then be necessary to examine whether that could justify making a request for recusal.

15      By a decision of 6 December 2023, the Kammergericht Berlin (Higher Regional Court, Berlin) set aside the judgment of 20 October 2023, and once more put the arrest warrant at issue into effect. In that decision, it clarified that there was nothing to prevent the rapid further planning and scheduling of the trial hearing. Following that decision, the Berlin Public Prosecutor’s Office invited the Landgericht Berlin (Regional Court, Berlin) to schedule the trial hearing as soon and as rapidly as possible.

16      By a decision of 12 March 2024, the Kammergericht Berlin (Higher Regional Court, Berlin) set aside the arrest warrant at issue, finding that the Landgericht Berlin (Regional Court, Berlin), called since 1 January 2024, ‘the Landgericht Berlin I (Regional Court, Berlin I)’, had failed to take sufficient account of the duty to proceed expeditiously by having failed to schedule the trial hearing. Considering that that involved ‘a serious failure to comply with the rigorous requirements of constitutional law’, for which the Landgericht Berlin I (Regional Court, Berlin I), had been solely responsible, the Kammergericht Berlin (Higher Regional Court, Berlin), took the view that the duty to proceed expeditiously had been infringed to such a degree that it would be disproportionate not to set aside the arrest warrant at issue.

17      The referring court states that M.R. has been serving a multi-year custodial sentence on facts relating to another case. The term of his detention is fixed, in principle, on 28 May 2026, but an early release may be considered from 27 July 2024, after two thirds of the sentence.

18      In that context, by letter of 28 May 2024, the Berlin Public Prosecutor’s Office lodged a request for recusal of the Chair of the adjudicating panel of the Landgericht Berlin I (Regional Court, Berlin I) having adopted the judgments at issue (‘the Chair of the panel’), for an apparent conflict of interests. In support of its request, it explained that the Chair of the panel had continued to fail to schedule a date for the trial hearing despite the fact that the accused person remained in custody and that the Kammergericht Berlin (Higher Regional Court, Berlin) had pointed out the urgency for such a date to be scheduled.

19      According to the Berlin Public Prosecutor’s Office, the fact that the Chair of the panel had deliberately ignored that advice and was thereby responsible for the arrest warrant at issue having been set aside, permitted the inference that she was making her decisions without taking into account the guidance provided by the higher courts but was instead pursuing only her own interests. Those interests are linked to the question, raised by her and which she regards as decisive for the outcome of the proceedings, whether it is possible to use certain evidence. She is alleged not to have taken into account the duty of diligence and the duty to proceed expeditiously by which she is bound because her organisation of those proceedings was solely determined by her refusal to contemplate scheduling the trial hearing until the Court had given judgment on the request for a preliminary ruling in the case in Staatsanwaltschaft Berlin II (C‑675/23).

20      In accordance with Paragraph 27(1) of the StPO, the Chamber of the Landgericht Berlin I (Regional Court, Berlin I), of which the Chair of the panel forms part, must give a ruling on the request referred to in paragraph 18 of the present order. The Chair of the panel was replaced by the Vice-Chair.

21      Against that background, the Landgericht Berlin I (Regional Court, Berlin I), the referring court, in the composition indicated in the previous paragraph of the present order, states that the Chair of the panel based the judgments in the main proceedings on the case-law of the Court. It follows from the case-law of the Court that a judge who has submitted a request for a preliminary ruling cannot, before the conclusion of proceedings before the Court, be required, by instruction of the appeal court, or to be urged, due to the threat of ‘disciplinary action’, to continue the main proceedings. On the contrary, that judge must await the decision of the Court and may only, while so waiting, carry out procedural steps which are unconnected with the questions referred. The same applies in cases involving detention.

22      The referring court concludes that that case-law of the Court is equally applicable in criminal matters, taking into account the Court’s ability to give rulings in urgent preliminary ruling proceedings or an accelerated preliminary ruling procedure.

23      In those circumstances, the Landgericht Berlin I (Regional Court, Berlin I) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is Article 267 TFEU to be interpreted as meaning that it authorises the referring court, or even requires it to refrain, until the Court issues its decision in relation to the main proceedings, from taking any procedural measures that have a connection with the questions referred for a preliminary ruling?

(2)      Does Article 267 TFEU prohibit basing a finding of an apparent conflict of interests solely on the fact that a judge is awaiting the Court’s decision on his or her reference for a preliminary ruling?

(3)      Do the answers to the first and second questions referred apply respectively also to a criminal case involving detention, in respect of which there is a special duty to proceed expeditiously?’

 Procedure before the Court

24      In its request for a preliminary ruling, the referring court requested that the present case be determined pursuant to the expedited procedure provided for under Article 105 of the Rules of Procedure of the Court of Justice, or, in the alternative, to expedited processing on the basis of Article 53(3) of those rules of procedure.

25      In the light of the decision of the Court to rule by reasoned order, in accordance with Article 99 of the Rules of Procedure, there is no need to adjudicate on that request.

 Consideration of the questions referred

26      Under Article 99 of its Rules of Procedure, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order where the reply to the question referred for a preliminary ruling may be clearly deduced from existing case-law.

27      In the present case, the Court considers that the interpretation of EU law which the referring court is seeking by its three questions referred for a preliminary ruling may be clearly deduced from the case-law of the Court and that it is, therefore, appropriate to apply Article 99 of the Rules of Procedure in the present case.

28      Furthermore, in so far as the referring court is asking, by its third question, whether the answers to the first question and second questions are also applicable to a case involving detention in criminal proceedings which is subject to a specific duty to proceed expeditiously, account is to be taken of that aspect in the examination of the first and second questions and that aspect is not to be examined separately.

 The first question

29      By its first question, the referring court is asking, in essence, whether Article 267 TFEU must be interpreted as meaning that it precludes, in criminal proceedings subject to a duty to proceed expeditiously on account of the accused person having been imprisoned, a national court which has made a request for a preliminary ruling from continuing the main proceedings pending the Court’s reply to that question, by carrying out procedural steps which have a connection with the questions referred for a preliminary ruling.

30      It must be recalled, in the first place, concerning Article 267 TFEU, that the keystone of the judicial system established by the Treaties is the preliminary ruling procedure provided for in that provision, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniformity in the interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (see, to that effect, Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 176, and judgments of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 71, and of 17 May 2023, BK and ZhP (Partial stay of the main proceedings), C‑176/22, EU:C:2023:416, paragraph 26).

31      In order to preserve the practical effect of that procedure, the order or the judgment given by the Court in response to a request for a preliminary ruling sent to it by a national court, is binding on that court as regards the interpretation of EU law for the purposes of solving the dispute before it (see, to that effect, judgments of 3 February 1977, Benedetti, 52/76, EU:C:1977:16, paragraph 26, and of 17 May 2023, BK and ZhP (Partial stay of the main proceedings), C‑176/22, EU:C:2023:416, paragraph 27).

32      It follows from the case-law of the Court that that effect is not liable to be undermined while that court adopts procedural steps, between the date on which a request for a preliminary ruling is made to the Court and the date on which the Court answers that request, which are necessary and concern aspects which have no connection with the questions referred, namely procedural steps which are not such as to prevent that court from complying, in the proceedings before it, with the subsequent decision of the Court (see, to that effect, judgment of 17 May 2023, BK and ZhP (Partial stay of the main proceedings), C‑176/22, EU:C:2023:416, paragraphs 28 and 30).

33      However, such procedural steps cannot be adopted where they are capable of depriving the questions referred to the Court for a preliminary ruling of their purpose and their interest in light of the dispute pending before the national court. Such steps would be capable of preventing that court from complying with the decision by which the Court answers those questions. In such a scenario, the practical effect of the cooperation mechanism provided for in Article 267 TFEU would be compromised, since, in addition, the Court has no jurisdiction in preliminary ruling proceedings to provide advisory responses (see, to that effect, judgment of 6 June 2024, AVVA and Others (Trial by videoconference in the absence of a European Investigation Order), C‑255/23 and C‑285/23, EU:C:2024:462, paragraphs 38 to 40).

34      In the second place, it should be recalled that the right of accused persons to have their case heard within a reasonable time, enshrined in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union with respect to the trial procedure, must, in criminal law, be respected not only during the trial procedure, but also during the stage of the preliminary investigation, from the moment when the person concerned is accused (see, to that effect, judgment of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 71, and order of 12 February 2019, RH, C‑8/19 PPU, EU:C:2019:110, paragraph 32).

35      The respect of that right being all the more necessary in the event of imprisonment, it is expressly provided in the fourth paragraph of Article 267 TFEU that, if a question is raised in a case pending before a court of a Member State with regard to a person in custody, the Court is to act with the minimum of delay.

36      Indeed, it is precisely in order for the implementation of that right to be guaranteed that the accelerated and urgent procedures, established by Article 23a of the Statute of the Court of Justice of the European Union, may be activated where the request for a preliminary ruling, which concerns a person in custody, is capable of having an impact on the release from custody of that person (see, to that effect, order of 12 February 2019, RH, C‑8/19 PPU, EU:C:2019:110, paragraphs 33 to 35, and judgment of 17 March 2021, JR (Arrest warrant  – Conviction in a third State, Member of the EEA), C‑488/19, EU:C:2021:206, paragraphs 36 to 40).

37      However, the mere fact that a person is serving a custodial sentence on account of a conviction which has no connection with the case in which a request for a preliminary ruling takes place is not, in itself, such as to require that that case be dealt with as a matter of urgency (see, to that effect, order of the President of the Court of 1 October 2018, Miasto Łowicz and Prokurator Generalny w Płocku, C‑558/18 and C‑563/18, EU:C:2018:923, paragraph 23).

38      In addition, it must also be recalled that it is primarily for the national court before which the urgent dispute has been brought, which is best placed to assess the specific issues for the parties and considers it necessary to refer questions to the Court for a preliminary ruling on the interpretation of EU law, to adopt, pending the decision of the Court, all adequate interim measures to guarantee the full effectiveness of the decision that it itself is called upon to make but also the effectiveness of the rights of the persons concerned (see, to that effect, judgment of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 66, and orders of the President of the Court of 10 April 2018, Gómez del Moral Guasch, C‑125/18, EU:C:2018:253, paragraph 15, and of 25 February 2021, Sea Watch, C‑14/21 and C‑15/21, EU:C:2021:149, paragraph 33).

39      It follows that, even though the national court which has made a request for a preliminary ruling must await the Court’s reply to its request for a preliminary ruling, there is nothing to prevent it from adopting any measure which is an alternative to detention which is capable of ensuring that the fundamental rights of the suspect or the accused person are observed (see, to that effect, order of 12 February 2019, RH, C‑8/19 PPU, EU:C:2019:110, paragraph 41).

40      In view of all the foregoing reasons, the answer to the first question is that Article 267 TFEU must be interpreted as meaning that it precludes, in criminal proceedings subject to a duty to proceed expeditiously on account of the accused person having been imprisoned, a national court which has made a request for a preliminary ruling from continuing the main proceedings pending the Court’s reply to that question, by carrying out procedural steps which have a connection with the questions referred for a preliminary ruling.

 The second question

41      By its second question, the referring court is asking, in essence, whether Article 267 TFEU must be interpreted as meaning that it precludes a recusal in respect of a judge from being obtained on the sole ground that that judge is awaiting the decision of the Court in relation to the request for a preliminary ruling which that judge has brought before it where the main proceedings concern a person in custody.

42      Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case before them (judgments of 16 January 1974, Rheinmühlen-Düsseldorf, 166/73, EU:C:1974:3, paragraph 3, and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 91).

43      Accordingly, a rule of national law or a national practice cannot prevent a national court from exercising that discretion, which is an inherent part of the system of cooperation between the national courts and the Court of Justice established in Article 267 TFEU and of the functions of the court responsible for the application of EU law entrusted by that provision to the national courts (see, to that effect, judgments of 16 January 1974, Rheinmühlen-Düsseldorf, 166/73, EU:C:1974:3, paragraph 4, and of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraphs 32 and 33, and judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 93). Similarly, in order to ensure the effectiveness of that discretion, a national court must be able to maintain a reference for a preliminary ruling after it has been made (judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 93).

44      The Court has inferred from the above considerations that a national rule or practice, the effect of which may inter alia be that a national court will choose to refrain from referring questions for a preliminary ruling to the Court in order to avoid having the case withdrawn from it, is detrimental to the prerogatives granted to national courts and tribunals by Article 267 TFEU and, consequently, to the effectiveness of the cooperation between the Court and the national courts and tribunals established by the preliminary ruling mechanism (see, inter alia, judgments of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 25, and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 94).

45      The declining of jurisdiction in the proceedings is the precise consequence of a recusal. Consequently, if a national judge may be recused on the sole ground that that he or she refused to schedule proceedings to give a ruling on the substance of the dispute brought before it at a point before the Court of Justice has answered the request for a preliminary ruling which that judge had submitted to the Court of Justice in those proceedings, that possibility might lead certain national judges to refrain from referring questions for a preliminary ruling to the Court of Justice.

46      In addition, the jurisdiction conferred by Article 267 TFEU on any national court or tribunal to make a reference to the Court of Justice for a preliminary ruling cannot be called into question by the application of national rules which permit national court dealing with an appeal to vary the order for reference, to set aside the reference and to order the referring court to resume the domestic law proceedings (see, to that effect, judgment of 16 December 2008, Cartesio, C‑210/06, EU:C:2008:723, paragraph 98, and order of 12 February 2019, RH, C‑8/19 PPU, EU:C:2019:110, paragraph 40).

47      The fact that the person who is the subject of the main proceedings is imprisoned is also not such as to alter the scope of the prerogatives granted to the national court in Article 267 TFEU, for the reasons recalled in paragraphs 35, 36, 38 and 39 of the present order.

48      In view of all the foregoing reasons, the answer to the second question is that Article 267 TFEU must be interpreted as meaning that it precludes a recusal in respect of a judge from being obtained on the sole ground that that judge is awaiting the decision of the Court in relation to the request for a preliminary ruling which that judge has brought before it where the main proceedings concern a person in custody.

 Costs

49      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court.

On those grounds, the Court (Eighth Chamber) hereby orders:

1.      Article 267 TFEU must be interpreted as meaning that it precludes, in criminal proceedings subject to a duty to proceed expeditiously on account of the accused person having been imprisoned, a national court which has made a request for a preliminary ruling from continuing the main proceedings pending the Court’s reply to that question, by carrying out procedural steps which have a connection with the questions referred for a preliminary ruling.

2.      Article 267 TFEU must be interpreted as meaning that it precludes a recusal in respect of a judge from being obtained on the sole ground that that judge is awaiting the decision of the Court in relation to the request for a preliminary ruling which that judge has brought before it where the main proceedings concern a person in custody.

[Signatures]

*      Language of the case: German.

i      The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.

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