The claimant requests that his employer reimburse him for travel expenses to the Court of Justice of the European Union in Luxembourg. Furthermore, he requests determinations regarding the conditions of the performance of his duties as a judge.

The claimant is a presiding judge at a higher regional court (OLG, Oberlandesgericht). In 2015, the Criminal Senate at the Higher Regional Court presided over by the claimant suspended two transfer proceedings for the purposes of criminal prosecution to Hungary and Romania and referred several questions to the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) for a preliminary ruling. After the Court of Justice had informed the referring Senate at the Higher Regional Court that a date for an oral hearing had been fixed, the claimant decided to travel to Luxembourg to attend the oral hearing.

He notified the defendant via an electronic staff portal for the reporting and settlement of official trips, adding the note that the trip concerned activities connected with the dispensing of justice, so that an order or approval was not required. The President of the Higher Regional Court refused to approve an official trip. She justified this decision by stating that the claimant's presence during the oral hearing at the Court of Justice was not required, neither within the framework of his duty to dispense justice nor for other reasons. She suggested that he apply for special leave. The claimant submitted a subsidiary application for special leave and travelled to Luxembourg.

The request for reimbursement of travel expenses amounting to approximately EUR 840 submitted subsequently by the claimant was rejected. The action filed following an unsuccessful objection aimed at reimbursement of the travel expenses, at the determination that the trip to the Court of Justice was an official trip not requiring approval and at other determinations was not successful in the lower instances. The Higher Administrative Court (OVG, Oberverwaltungsgericht) based its decision on the argument that the claimant's trip did not concern a judicial duty that would be subject to the protection of judicial independence. The power to define whether a judicial activity within this meaning is concerned did not lie with the judge himself or herself; rather, it has to be determined using objective criteria. The observation by the claimant of the oral hearing before the Court of Justice was not a judicial activity directly connected with the judge's duty to dispense justice in specific proceedings.

The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) dismissed the claimant's appeal on points of law. 

8 The claimant's appeal on points of law is without merit. (...)

12 The court of appeal dismissed the claimant's appeal (...) without violating law that is subject to an appeal on points of law. The claimant does not have a claim against the defendant for reimbursement of the travel expenses incurred for the trip to the Court of Justice in Luxembourg. A claim under section 3 (1) first sentence of the Travel Expenses Act of the Free Hanseatic City of Bremen (BremRKG, Bremisches Reisekostengesetz) of 24 February 2009 (Law Gazette of the Free Hanseatic City of Bremen (BremGBl., Bremisches Gesetzblatt) 2009, 48) which, pursuant to section 1 (1) BremRKG, also applies to judges in Bremen, would require an official trip within the meaning of the national law governing travel expenses, a condition not met here (a). The observation of the proceedings at an oral hearing before the Court of Justice in preliminary ruling proceedings under article 267 of the Treaty on the Functioning of the European Union (TFEU) is not a judicial duty (aa). Evidence cannot be taken in proceedings suspended for a preliminary ruling by the Court of Justice (bb). EU law does not result in a different conclusion (b).

13 a) Pursuant to section 3 (1) first sentence BremRKG, on application, persons travelling on duty are reimbursed for the travel expenses incurred due to their duties. Section 2 (2) first sentence BremRKG provides that official trips are trips made for the purpose of performing duties at locations other than the place of employment. Pursuant to the second sentence of the provision, such trips must have been ordered or approved electronically, unless an order or approval does not come into consideration because of the travelling person's office or because of the nature of the duty.

14 Under section 2 (2) first sentence BremRKG and the corresponding provision in section 2 (1) first sentence of the Federal Travel Expenses Act (BRKG, Bundesreisekostengesetz), the duty of a civil servant is defined as the official tasks he or she is entrusted with for direct performance in his or her specific office (BVerwG, judgments of 12 December 1979 - 6 C 23.78 - (...), of 14 February 1984 - 6 C 46.83 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 69, 24 <26> and of 22 January 2009 - 2 A 3.08 - (...) para. 21). Whether a trip serves the direct performance of the duty a civil servant has been entrusted with and is therefore afforded by official reasons is a decision to be taken by the employer, not by the civil servant (BVerwG, decision of 3 February 2010 - 2 B 113.09 - (...) para. 4).

15 For judges, the term "duty" pursuant to section 2 (2) second sentence BremRKG has to be modified in accordance with the nature of the duty in that official trips, due to the principle of judicial independence, do not require approval if they are undertaken within the framework of the performance of judicial duties. The determination of whether a trip by a judge is an official trip not requiring approval is to be based on objective criteria (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 17 April 1979 - 2 BvR 403/78 - (...) regarding the refusal of an official trip abroad as "too costly"; Federal Court of Justice (BGH, Bundesgerichtshof), Federal Service Court (Dienstgericht des Bundes), judgments of 27 January 1978 - RiZ <R> 3/77 - Rulings of the Federal Court of Justice (BGHZ, Entscheidungen des Bundesgerichtshofs) 71, 9 <12 et seqq.> and of 16 April 1985 - RiZ 1/85 - BGHZ 94, 150 <153>) and not on the subjective assessment of the judge concerned.

16 The distinction between official trips not requiring approval due to judicial duties on the one hand and official trips by a judge requiring approval on the other hand must be made in view of the principle of judicial independence as guaranteed under article 97 of the Basic Law (GG, Grundgesetz). Accordingly, the judicial core activity of dispensing justice is, as a matter of principle, not subject to supervision pursuant to section 26 of the German Judiciary Act (DRiG, Deutsches Richtergesetz) (see BGH, Federal Service Court, judgments of 23 October 1963 - RiZ 1/62 - BGHZ 42, 163 <169>, of 9 March 1967 - RiZ 2/66 - BGHZ 47, 275 <285> and of 3 January 1969 - RiZ 6/68 - BGHZ 51, 280 <285>). An exception applies in cases where the judge has obviously and without any doubt performed his or her duties incorrectly (BGH, Federal Service Court, judgments of 24 June 1991 - RiZ 3/91 - (...) para. 8, of 5 July 2000 - RiZ 6/99 - (...) and of 17 April 2008 - RiZ 3/07 - BGHZ 176, 162 para. 16; (...)).

17 The traditional principles of the law governing the office of a judge which are protected under article 33 (5) GG include in particular the principle of substantive and personal independence (BVerfG, chamber decision of 4 February 2016 - 2 BvR 2223/15 - (...) para. 76). According to the so-called "core-area jurisprudence" which the Federal Constitutional Court uses to determine the area of protection of article 97 GG, the "core area" of judicial activities includes the dispensing of justice as such as well as the decisions on the matter and procedural decisions that directly serve it, including any acts by the judge that are not expressly legally required, but serve the interests of the person seeking justice, and are connected with the judge's task in specific proceedings of dispensing justice and securing legal peace (BVerfG, chamber decision of 4 February 2016 - 2 BvR 2223/15 - (...) para. 77; BGH, Federal Service Court, judgments of 22 February 2006 - RiZ 3/05 - (...) para. 21 and of 12 May 2020 - RiZ 3/19 - (...) para. 23; (...)).

18 aa) Based on the above standards, attendance at an oral hearing before the Court of Justice in preliminary ruling proceedings pursuant to article 267 TFEU by a Member State judge who was involved in the decision to request the preliminary ruling does not constitute a part of the core area of a judge's duty of dispensing justice. The reason for this is that the core area of the activity of a lower-court judge does not comprise influencing decisions by higher instances or personally observing their oral hearings. Insofar, the task of dispensing justice and securing legal peace is incumbent on the supreme courts. In proceedings before the supreme courts, the judges at the lower-instance courts, in contrast, have the tasks defined in the applicable procedural law, such as the obligation to forward the files or - as in cases of article 101 (1) of the Rules of Procedure of the Court of Justice of the European Union (hereinafter Rules of Procedure) of 29 September 2012, OJ L 265 p. 1 - to respond in a timely manner to requests for clarification of facts and of the national legal situation. If the referring Member State judge participates in an oral hearing before the Court of Justice and in the subsequent discussion with members of the Court of Justice, he or she does so not in his or her function as an institution of the administration of justice performing his or her judicial duty of dispensing justice (...), but rather as a legal professional interested in further training and in the development of the law.

19 Further training and education are, however, not to be regarded as duties within the meaning of the law governing travel expenses (BVerwG, judgments of 12 December 1979 - 6 C 23.78 - (...), of 14 February 1984 - 6 C 46.83 - BVerwGE 69, 24 <26> and of 22 January 2009 - 2 A 3.08 - (...) para. 21). Accordingly, trips by a judge to the German Judicial Academy (Deutsche Richterakademie) where know-how and professional expertise and experience is supplemented and consolidated do not constitute official trips, even if the judge concerned only participates in the event with the aim of obtaining knowledge for pending proceedings (...). The same applies to the attendance at an oral hearing before the Federal Constitutional Court in specific judicial review proceedings pursuant to article 100 (1) GG by members of the referring court. The referring judge's interest in the answer to the legal questions in the relevant accessory but independent interim proceedings before the constitutional or EU courts is equal to the interest of a judge waiting for a ruling by the Federal Constitutional Court or by the Court of Justice on "their" decision to request a preliminary ruling.

20 bb) The claimant's submission that he investigated or intended to investigate facts for the main proceedings by means of an unregulated form of taking evidence (Freibeweis) during the discussion with the President of the Court of Justice and other persons conducted on the occasion of the trip, does not lead to a different conclusion.

21 When a Member State court submits a request for a preliminary ruling under article 267 TFEU to the Court of Justice, the Member State court suspends the proceedings - as it does in referral proceedings to the Federal Constitutional Court under article 100 (1) GG (see, for instance, the operative part of the decision in BVerwG, decision of 27 March 2019 - 6 C 6.18 - BVerwGE 165, 99 para. 4 or BGH, decision of 21 April 2020 - 6 StR 41/20 - (...)). This applies irrespective of the procedural law applicable to the specialised court concerned (see, for instance, section 94 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung), section 148 of the Code of Civil Procedure (ZPO, Zivilprozessordnung)). This is what the claimant's Senate did in the two transfer cases they had referred to the Court of Justice.

22 In suspended proceedings, acts by a judge are not entirely ruled out. It is possible to set aside the request for a preliminary ruling (or the referral under article 100 (1) GG), and thus also set aside the suspension of the proceedings. In any case, however, any taking of evidence - whether formally or in an unregulated form - is ruled out from the outset whilst the proceedings are suspended. Facts that could and may be investigated in suspended proceedings simply do not exist. Insofar as the claimant asserts that on the occasion of his participation in the oral hearing at the Court of Justice he intended to obtain knowledge by means of an unregulated form of taking evidence for a pending decision on the further remand in custody in one of the extradition proceedings, there is no direct procedural connection between the decision on the further remand in custody and the suspended extradition proceedings. Moreover, such "unregulated form of taking evidence" would not have complied with the requirements under EU law for the obtaining of information in cases of European Arrest Warrants and under the European Investigation Order in criminal matters (see para. 30 et seqq. below).

23 Also, the Court of Justice does not take evidence in preliminary rulings proceedings under article 267 TFEU. In preliminary rulings proceedings, the Court of Justice answers questions relating to interpretation and validity in view of EU law. It is for the referring court alone to prepare the facts of the case (see CJEU, judgments of 4 May 1999 - C-262/96, Sürül - (...) para. 95, of 11 September 2008 - C-11/07, Eckelkamp - (...) para. 32 and of 8 June 2016 - C-479/14, Hünnebeck - (...) para. 36; (...)).

24 b) EU law does not provide for a claim by a Member State judge against his or her employer for reimbursement of travel expenses incurred for attending an oral hearing at the Court of Justice and conducting expert discussions in Luxembourg on the occasion of a request for a preliminary ruling under article 267 TFEU. The judge's right to direct communication without approval requirements between him or her as a member of the referring national court and the Court of Justice is designed as a written, digital and telephonic dialogue. This dialogue does not comprise travel activities.

25 aa) According to the established case-law of the Court of Justice, the procedure provided for in article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, through which the Court of Justice provides the national courts with indications regarding the interpretation of EU law which the national courts require to decide on the cases brought before them (CJEU, judgments of 13 March 2001 - C-379/98, PreussenElektra AG - (...) para. 38; of 19 February 2002 - C-35/99, Manuele Arduino - (...) para. 24, of 4 July 2006 - C-212/04, Adeneler - (...) para. 40 and of 3 July 2019 - C-242/18, UniCredit Leasing - (...) para. 45; (...)). This cooperation is "a direct cooperation between the Court of Justice and the national courts" leading to a "dialogue between one court and another" (CJEU, judgment of 12 February 2008 - C-2/06, Kempter - (...) para. 41 et seq.; Advocate General Trstenjak, opinion of 24 November 2010 - C-316/09, MSD Sharp & Dohme - (...) para. 63; see also CJEU, judgment of 24 June 2019 - C 619/18, European Commission/Republic of Poland - (...) para. 45).

26 The fact that this "direct cooperation" and this "dialogue" is based on a direct exchange of information between the Court of Justice and the national court can be seen, inter alia, in article 101 of the Rules of Procedure according to which the Court of Justice may, after hearing the Advocate General, request clarification from the referring court. Articles 97 (2) first sentence and (3) second sentence of the Rules of Procedure also provide for a direct exchange between the Court of Justice and the national court.

27 According to article 23 (2) of the Statute of the Court of Justice of the European Union (hereinafter Statute; Protocol on the Statute of the Court of Justice of the European Union of 26 February 2001, OJ C-80 p. 53 in the consolidated version of 17 April 2019, OJ L 111 p. 1) and article 57 of the Rules of Procedure, preliminary ruling proceedings are designed for the submission of written statements, and therefore for a written dialogue, which, as a matter of principle, is conducted in the language of the referring court (article 37 (3) of the Rules of Procedure). This dialogue is not without limits either, as can be seen from article 58 of the Rules of Procedure. According to this provision, the Court of Justice, in order to limit translation expenditure - the intra-court language of the proceedings is French - may by binding decision "set the maximum length of written pleadings or observations" lodged before it. The parties to the main proceedings cannot influence the course of the proceedings before the Court of Justice, apart from their right to submit statements; they do not have any rights of initiative (CJEU, judgment of 14 September 2006 - C-496/04, J. Slob - (...) para. 34). As the referring court remains in control of the main proceedings, it is free to withdraw the request for a preliminary ruling, with the consequence that the proceedings before the Court of Justice become devoid of object.

28 The Rules of Procedure do not, however, provide that the members of the referring court or tribunal mandatorily, regularly or even usually attend the oral hearing. If the members of the referring court or tribunal - as in the present case - are not formally summoned to attend the oral hearing, the Court of Justice may only request that the referring court provide clarification pursuant to article 101 (1) of the Rules of Procedure (...), and even this is only permitted after hearing the Advocate General. The reply of the referring court must be served on the parties to the main proceedings in accordance with article 101 (2) of the Rules of Procedure. Article 104 (2) of the Rules of Procedure merely provides that the national courts may once more refer a case to the Court of Justice if they, according to their assessment, consider that sufficient guidance is not given by a preliminary ruling. The members of the group entitled under article 96 of the Rules of Procedure to submit observations to the Court of Justice do not include the referring court (...).

29 The fact that the provisions of the Statute and of the Rules of Procedure are conclusive with regard to the role of the referring court and its participation in the mentioned "dialogue" also clearly results from the decision by the Court of Justice in case C-392/13. In this decision, the Court of Justice decided for the case of an autonomous statement by the referring court "that neither the Statute of the Court of Justice of the European Union nor the Rules of Procedure make provision for [...] the referring court to submit observations in response to the Advocate General's Opinion" (CJEU, judgment of 13 May 2015 - C-392/13, Rabal Cañas - (...) para. 32; (...)).

30 bb) The provisions of EU law on the Council Framework Decision of 13 June 2002 on the European arrest warrant (CFD <EU> 2002/584/JHA, hereinafter CFD EAW) and the European Investigation Order in criminal matters (Directive 2014/41/EU) do not result in a different conclusion either. These regulations do not provide for trips abroad in order to take evidence either. They are also aimed solely at the direct exchange of information without approval requirements between domestic and foreign authorities and assume - in particular in order to ensure documentation - that this is carried out via written or digital means or, alternatively and for purposes of preparation, possibly also by telephone.

31 According to the case-law of the Court of Justice, the judicial authority of the executing Member State is bound to assess the existence of a risk of inhuman or degrading treatment, having regard to the standard of protection of article 4 of the Charter of Fundamental Rights of the European Union (CFR), when it is called upon to decide on the surrender to the authorities of the issuing Member State of the individual sought by a European Arrest Warrant (CJEU, judgments of 5 April 2016 - C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru - (...) para. 88, of 6 September 2016 - C-182/15, Petruhhin - (...) para. 58, of 25 July 2018 - C-220/18 PPU - (...) para. 59 and of 15 October 2019 - C-128/18, Dorobantu - (...) para. 51; see also BVerfG, decision of 16 August 2018 - 2 BvR 237/18 - (...) para. 27).

32 In order to determine whether the requested person is at a real risk of inhuman or degrading treatment within the meaning of article 4 CFR in the Member State that issued the European Arrest Warrant, the mentioned authority must request pursuant to article 15 (2) CFD EAW that the judicial authority of the issuing Member State furnishes as a matter of urgency the necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State. That request may also relate to the existence, in the issuing Member State, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons (CJEU, judgments of 5 April 2016 - C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru - (...) para. 95 et seq. and of 25 July 2018 - C-220/18 PPU - (...) para. 63; see BVerfG, decision of 16 August 2018 - 2 BvR 237/18 - (...) para. 27).

33 For such an assessment, the executing judicial authority must request that the issuing judicial authority furnishes the information considered to be necessary, and must, as a matter of principle, rely on the assurances of this authority, at least in the absence of any specific indications that the detention conditions are in breach of article 4 CFR (CJEU, judgments of 25 July 2018 - C-220/18 PPU - (...) para. 112 and of 15 October 2019 - C-128/18, Dorobantu - (...) para. 68 et seq., 85; OLG Bremen, decision of 16 March 2020 - 1 Ausl A 78/19 - (...) para. 23; (...)).

34 If, in the light of the information provided pursuant to article 15 (2) CFD EAW, and of any other information that may be available to the executing judicial authority, that authority finds that there exists, for the individual in respect of whom the European Arrest Warrant has been issued, a real risk of inhuman or degrading treatment, the execution of that Warrant must be postponed but it cannot be abandoned (CJEU, judgments of 5 April 2016 - C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru - (...) para. 98 and of 25 July 2018 - C-220/18 PPU - (...) para. 65; see Advocate General Sánchez-Bordona, opinion of 4 July 2018 - C-220/18 - (...) para. 80 to 87). In those circumstances, the need to guarantee that the person concerned will not, in the event of his or her surrender to the issuing Member State, be subjected to any inhuman or degrading treatment within the meaning of article 4 CFR justifies, exceptionally, a limitation of the principles of mutual trust and recognition (CJEU, judgment of 15 October 2019 - C-128/18, Dorobantu - (...) para. 83). The instrument granted to the executing authority under the Council Framework Decision therefore is the transmission of information. Visiting other countries in an official function in order to take evidence is not provided for.

35 Nor can a general legal principle of EU law be derived from the provisions of Directive 2014/41/EU on the European Investigation Order which would allow Member State judges, without involving their own executive authorities and without consulting with the authorities of the target state, to travel to another Member State of the European Union in order to take evidence. Even taking into consideration the principle of sincere cooperation enshrined in article 4 (3) subparagraph 1 TFEU, the Court of Justice has only assumed that the executing judicial authority may request the issuing judicial authority to provide information and that the issuing judicial authority may provide assurances concerning the actual and precise conditions in which the person concerned will be detained in the issuing Member State (CJEU, judgment of 25 July 2018 - C-220/18 PPU - (...) para. 110). Therefore, the Court of Justice does not provide for trips by members of the executing judicial authority under the principle of sincere cooperation either.

36 cc) Based on the above, the Senate did not consider it appropriate to submit a request for a preliminary ruling pursuant to article 267 TFEU to the Court of Justice, as a question requiring clarification relating to the interpretation of EU law does not exist.