European Arrest Warrant System Research Articles

Between Aims and Execution: Value Trade-Offs in the Practical Implementation of the European Arrest Warrant?

Abstract The European Union (EU) increasingly develops and implements policies infused with salient and sometimes conflicting values – for instance, in migration and criminal law cooperation. However, policy implementation studies have not frequently considered how such complex value trade-offs may affect practical implementation within Member States. This article therefore quantitatively and temporally examines the practical implementation of an EU flagship criminal law measure: the simplified extradition system known as the European Arrest Warrant (EAW). Using data on EAWs decided upon by the Dutch Amsterdam District Court, we test the impact of value trade-offs by examining whether (newly introduced) safeguards for the protection of requested persons adversely affect system efficiency (measured through case turnover times). The results suggest that the design of legal tests and adjustments made to the EAW system over time through the Court of Justice of the European Union affect the balance between fundamental rights protection and efficiency in the practical implementation of the EAW.

EAW: Next Steps, Will Pandora’s Box Be Opened?

The authors advocate operational improvement of the European Arrest Warrant system. When applying the judi­cial cooperation instruments concerning criminal matters, more attention should be devoted to the requirements of proportion­ality, effective judicial protection, and coherence. The power to issue an EAW should be more circumscribed whereas executing authorities should be allowed more flexibility in the decision making process as far as the execution of an EAW is concerned. The authors conclude by sketching amendments to the legal and practical framework and the efforts required to implement them as well as by addressing the issue of political feasibility.

Extradition under the EU–UK Trade and Cooperation Agreement

When the EU–UK Trade and Cooperation Agreement (TCA) was reached between the UK and the EU on 24 December 2020, it gave extradition practitioners only a few days to identify what, if anything, would remain from the European Arrest Warrant (EAW) system before it came into force on 1 January 2021. The article starts by setting out how the EAW was implemented in the UK prior to 1 January 2021, before turning to the TCA itself and what it means for extradition or ‘surrender’ between EU member states and the UK. In short, the EAW system no longer applies. The authors set out how the TCA provides a degree of continuity, now under the watchful eye of the UK–EU ‘Specialised Committee on Law Enforcement and Judicial Cooperation’. There are notable departures from the EAW system however, in both practical and legal terms, that open the door to increased scrutiny of extradition requests. The authors explore the impact these changes may have on the future of extradition with the EU27, to or from the UK.

The European Arrest Warrant system

The European Arrest Warrant system

Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’

Abstract This two-part paper seeks to invite discussion on a deeply embedded narrative in the European scholarly and public discourse that reduces the protection of national consti­tutions to Eurosceptic, old-fashioned reluctance to relinquish sovereignty. The paper ar­gues that because of the simplistic ‘Eurosceptic’-‘Euro-friendly’ looking glass, the discourse has broadly been oblivious of, and given scholarly legitimacy to, the erosion of a range of classic constitutional rights and rule of law safeguards in EU law. Part 1 of the paper, docu­menting comparative case law in seven areas, posits an emergence at the EU level of the adoption of measures which, if attempted at national level without the constraints of EU law, would in a significant number of national legal orders prompt constitutional courts to voice serious concerns about core European constitutional values. The case studies start with some past criticisms regarding rights protection in the single market, moving then to EU measures that have affected core constitutional values, such as secret anti-terrorist measures, the Data Retention Directive, the European Arrest Warrant system with its nu­merous Kafkaesque elements, the broader move towards imposition of criminal and ad­ministrative sanctions on the basis of teleological interpretation and without a law, and the ESM Treaty. The paper also queries the reduced access to courts, the changing role of courts and an emerging gap in constitutional review. Against this background, Part 2 of the paper calls for recalibrating the discourse towards ‘substantive co-operative constitutional­ism’. The aim is to explore how to better uphold the standards of protection developed by national constitutional and supreme courts for classic, substantive constitutional values, in a context where EU constitutional law has brought about a shift towards a thin, weak, procedural version of constitutionalism, the rule of law and judicial review, with priority given to effectiveness, uniformity, trust and, after Melloni, supremacy over constitutional rights.

The Principle of Dual Criminality and the European Arrest Warrant

Under the European Arrest Warrant (EAW) system, Member States of the European Union have to arrest and surrender individuals on request of judicial authorities of other Member States, with the aim of making Europe an area of security and justice. This system of co-operation in criminal matters is controversial because of the (partial) abolition of the dual criminality verification. Because of this abolition the EAW system is thought to be fundamentally different from extradition. In this paper, which will appear as a chapter in the book 'European Arrest Warrant in Practice' (T.M.C. Asser Press/Cambridge University Press), the author describes how the EAW has been implemented in practice, especially with regard to the dual criminality requirement. The analysis shows that the EAW may not be so different from extradition after all. Moreover, the author argues that since extradition and surrender under the EAW authorize infringement on human rights, namely the right to liberty (Art. 5 ECHR), the legality principle should be considered applicable (which regrettably the European Court of Justice has not done). The rather vague descriptions of categories in Art. 2-(2) EAW Framework Decision do not meet the requirement of 'lex certa' of the principle of legality. The author is of the view that the dual criminality requirement is connected to the legality principle: citizens and judicial authorities should be in the position to know which acts may lead to extradition (including: surrender), and which don't. With the dual criminality principle abolished for 'list crimes' under the EAW, the legality principle should be given a more vigorous role to play in the EAW context.