The AY Case – Construing EAW ne bis in idem within the Boundaries of the Preliminary Ruling Reference

Abstract

This article analyses and comments on the opinion of the Advocate General and the ECJ judgment in case C-268/17 (European arrest warrant against AY). Interestingly, the case has remained somewhat unnoticed, the literature on it being scarce. However, it addresses some quite appealing issues. First, the case poses interesting questions on the admissibility of the reference for a preliminary ruling. Here, the Advocate General’s and the Court’s views disagree, which opens a general debate around the preliminary ruling reference mechanism. Second, the case deals with the obligation of the executing authority to decide on each incoming EAW, even if an earlier one relating to the same person and the same facts had already been refused. Third, the ECJ had the opportunity, for the first time, to specify its case law on the provisions reflecting the ne bis in idem principle in the Framework Decision on the European Arrest Warrant (Arts. 3(2) and 4(3)). This article stresses that the ECJ lays down the foundation of a neatly subjective ne bis in idem principle, which primarily refers to the requested person rather than to the offence that was the subject of criminal proceedings