Held, (1) in relation to the applicability of the two-step examination established by previous authority, it was necessary to stress the links which existed, for the purposes of the fundamental right to a fair trial within the meaning of article 47 of the Charter, between the guarantees of judicial independence and impartiality as well as that of access to a tribunal previously established by law. The two-step examination was, accordingly, applicable where the judicial authority called on to execute a European arrest warrant was assessing whether, if the requested person was surrendered to the issuing member state, there was a real risk that that person’s fundamental right to a fair trial before a tribunal previously established by law would be breached due to systemic or generalised deficiencies concerning the independence of the judiciary in the issuing state. The two-stage assessment required a general appraisal of the situation in the issuing member state, followed by an individual appraisal of the situation of the requested person, from which it was apparent that they were actually exposed to the real risk of breach of the fundamental right to a fair trial. Under the first step, the executing judicial authority had to carry out an overall assessment of whether there was such a risk, on the basis of objective, reliable, specific and properly updated factors. Such factors included, in the present case, the information contained in the European Commission’s Reasoned Proposal of 20 December 2017 submitted in accordance with article 7(1) of the EU Treaty regarding the rule of law in Poland, the Resolution adopted in 2020 by the Supreme Court, Poland, and the relevant case law of the Court of Justice and of the European Court of Human Rights. By contrast, the fact that a body which was involved in the appointment of judges, such as the KRS, was made up of members representing or chosen by the legislature or the executive, did not, in itself, give rise to any doubt as to the independence of the judges appointed. By the second step, the executing authority had to determine whether, and to what extent, any deficiencies were liable to materialise if the requested person was surrendered to the issuing member state, considering the particular circumstances of the case. It was for the requested person to adduce specific evidence showing that systemic or generalised deficiencies in the judicial system had or could have a tangible influence on the criminal proceedings. Such evidence could be supplemented, as appropriate, by information provided by the issuing judicial authority. If, following the two-step assessment, the executing judicial authority found that there were substantial grounds for believing that there was a real risk that, if surrendered to the issuing state, the requested person’s fundamental right to a fair trial before an independent and impartial tribunal previously established by law could be breached, that authority should not, under article 1(3) of Framework Decision 2002/584, execute the EAW (paras 52, 53, 55, 66, 75, 76–79, 81, 83, 101, 102, operative part).

(2) In relation to the situation in the first case, in which an EAW was issued for the purposes of executing a custodial sentence or detention order, the executing judicial authority had to take account of the information relating to the composition of the panel of judges who heard the criminal case or any other circumstance relevant to the assessment of the independence and impartiality of that panel. It was not sufficient, in order to refuse surrender, that one or more judges who participated in those proceedings were appointed on application of a body such as the KRS. The requested person had, in addition, to provide information relating to the procedure for the appointment of the judges concerned and their possible secondment, which would lead to a finding that the composition of that panel of judges was such as to affect the fundamental right to a fair trial. Further, account should be taken of the fact that the requested person might be able to request the recusal of a judge on the ground of a breach or potential breach of the right to a fair trial, and of the outcome of any request for recusal (paras 86–88, 102, operative part).

(3) In relation to the situation in the second case, in which an EAW was issued for the purposes of conducting a criminal prosecution, the executing judicial authority had to take account of the information relating to the personal situation of the requested person, the nature of the offence, the factual context surrounding that EAW or any other circumstance relevant to the assessment of the independence and impartiality of the judges likely to hear the proceedings. Such information could also relate to statements made by public authorities which might have an influence on the specific case. By contrast, the fact that the identity of the judges who would eventually hear the case was not known at the time of the decision on surrender or, when their identity was known, that those judges were appointed on application of a body such as the KRS, was not sufficient to refuse that surrender (paras 93, 94, 96–99, 102, operative part).