European Arrest Warrant Research Articles

European Arrest Warrants, the rule of law and communication: What future for mutual recognition?

This contribution addresses the insistence of the Court of Justice of the European Union on the two-step test in the context of European Arrest Warrants (EAWs) and focuses on the advantages this approach offers whilst acknowledging its downsides. Crucially, the Court's approach keeps the vertical and horizontal channels of communication open and is flanked by a subtle broadening of the criteria, which the requested judicial authority can take into consideration when assessing the second limb of the test. This shift provides national judicial authorities with tools to respond to rule of law violations by refusing the execution of an EAW. This move to judicial subsidiarity creates pitfalls, but the Court's focus on communication has the potential to transform the Court's initial top-down approach to mutual trust into a bottom-up approach, which could foster the emergence of, and strengthen, real trust between national judicial authorities.

Is One Step Enough? Serious Illness as a Ground for Non-execution of a European Arrest Warrant

The subject of the commentary is the judgment of the Court of Justice regarding the possibility of non-execution of a European Arrest Warrant regarding a person suffering serious, chronic, and potentially irreversible illness. Since the Framework Decision on the European arrest warrant does not provide the ground for the non-execution of the warrant based on the threat to the health of the person concerned, the referring court was in doubt, whether such a premise can justify the non-execution of the warrant. The main legal problem dealt with in the commentary was the consideration of whether in such a case the executing judicial authority may refuse to execute such a warrant, and, if so, on what legal basis.

Exploring the Ne Bis in Idem principle: Material scope and application in EU law

This article examines and analyses the application of the ne bis in idem principle based on a final verdict of acquittal or conviction by a competent court where the cases have already been concluded by a final decision. It examines the principle concerning Article 4 of Protocol No. 7 of the European Convention on Human Rights (Article 4P7 ECHR), Article 50 of the Charter of Fundamental Rights of the European Union and its implication under Articles 54 to 58 of the Convention Implementing the Schengen Agreement (CISA). By reviewing previous literature, case law and fact sheets of the Court of Justice on the Ne bis in idem principle, the paper analyses the material scope of application of the principle and highlights the multifaceted significance of the Ne Bis in idem principle in criminal proceedings and the harmonisation of legal practices within the European Union. It reaffirms the principle's foundational importance in fostering fairness, legal certainty, and the protection of fundamental rights across a wide array of legal contexts. It elaborates and provides an interpretative analysis of the principle on the associated jurisprudence of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The paper also shows that the ne bis in idem principle serves as a common ground for judicial cooperation in criminal matters and mutual recognition of the Council Framework Decision 2002/584/JHA concerning the European Arrest Warrant (‘EAW FD’) and Directive 2014/41/EU regarding the European Investigation Order in criminal matters.

Human Rights Standards as a Bar to Extradition from the European Union to the United Kingdom

Abstract Since 1 January 2021, the Trade and Cooperation Agreement between the United Kingdom and the European Union has regulated extradition to and from the United Kingdom and Member States of the European Union. A recent judgment of a German court denying extradition of a suspect to the United Kingdom illustrates the subtle differences between the terms and operation of the Trade and Cooperation Agreement Warrant and those of the European Arrest Warrant that had applied previously. This paper notes the absence of mutual trust as an underlying principle in the Trade and Cooperation Agreement, and the failure of the British authorities to grasp and respond to the changed criteria. At the same time, it highlights the implications of a judgment that finds that the treatment of prisoners in British prisons might be so inhuman and degrading that persons should not be extradited to face imprisonment in the United Kingdom.

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.

The European Arrest Warrant and the protection of the best interests of the child: The Court's last word on the limits of mutual recognition and the evolving obligations of national judicial authorities in Case C-261/22 GN

The annotation analyses the recent CJEU preliminary ruling in the GN case, the latest chapter of the EAW effectiveness vs fundamental rights protection saga. The Court confirms that, in principle, considerations related to the best interests of the child can justify denial of execution of an EAW. However, this limitation can be triggered solely through the demanding Aranyosi and Căldăraru test. By taking this stance, the Court refuses to add a new category of exceptions to mutual recognition. In addition, based on its ever-refined case law, the Court fine-grains the obligations incumbent upon the national judicial authorities with respect to the conduct of direct exchanges of information and seems to advocate for a new obligation for the issuing judicial authority to refrain from using the EAW system when the circumstances of a case make refusal of surrender a highly likely option.

The European Arrest Warrant - Optional Reasons for Refusing its Execution. Case Law Aspects

This paper aims to bring to attention certain optional reasons for refusing the execution of a European arrest warrant, situations in which the courts can defeat the principle of mutual recognition and trust between the judicial authorities of the European Union states, which represents the “cornerstone” of judicial cooperation in criminal matters. The judicial enforcement authorities cannot refuse to execute a European arrest warrant except for reasons resulting from the Council Framework Decision No. 2002/584/JAI of 13 June 2002, however, in practice, the optional reasons for non-execution often raised problems, the wording of article 4 and article 4a leaving a margin in the judgment of the courts.

Double criminality and the European Arrest Warrant: current trends and future developments in light of the KL case

In line with its case-law, in the KL case the Court of Justice of the European Union further reduced the scope of the principle of double criminality in the European Arrest Warrant. This paper serves to critique this decision by taking into consideration the various competing issues at stake and resulting human rights repercussions. Furthermore, it examines the contents and consequences of the CJEU’s interpretation of the said principle, with particular emphasis on the concept of legal interest. Finally, by referring to the judgement in question and the one in the E.D.L. case, this essay advances a different reading of the proportionality of offences and penalties in surrender proceedings.

European Arrest Warrant and Protection of Нuman Rights: Problem Questions of Application in Context Practice of the CJEU

European Arrest Warrant and Protection of Нuman Rights: Problem Questions of Application in Context Practice of the CJEU

Creation of a new ground for refusal of execution of the european arrest warrant by case-law: the existence of a serious, chronic and potentially incurable disease - a possible impunity? Effects on public safety.

In the Advocate General's view, the executing court must in principle respect the (exhaustive) grounds for non-execution expressly provided for in Framework Decision 2002/584 (Articles 3, 4 and 4a), i.e. grounds strictly related to the offences prosecuted and the progress of the criminal proceedings against them and only in exceptional circumstances, where there are sufficient grounds for assessing a serious risk of a breach of Articles 3 or 4 of the Charter for reasons inherent in the state of health of the sought person, which endangers his life, the executing court may, after receiving relevant information from the issuing court and insofar as the serious risk persists, suspend the execution of the EAW (European Arrest Warrant) already decided, but not lead to its refusal. The exceptional character would result not so much from the general conditions of detention or medical care in the issuing Member State itself, but from the surrender itself, in so far as it could, as such, imminently endanger the life, physical integrity or health of the sought person. Likewise, the circumstances of the case do not allow the surrender to be classified as inhuman treatment, since there are no indications to date to suggest that the wanted person will not receive the necessary medical care in the issuing State.

Erosion of the Principle of Mutual Recognition. European Arrest Warrant and the Principle of Mutual Recognition in the Light of the Recent CJEU Rulings

An effective implementation of mutual recognition in the Area of Freedom, Security, and Justice requires mutual trust between the Member State. Mutual trust has been eroded in some Member States due to the rule of law crisis. However, it is not only the rule of law crisis, but also the departure of the Member States from the shared values of respect for fundamental rights, as well as the differences in the prosecutorial systems of individual Member States, that have caused changes in the perception of the principle of mutual recognition. This paper will examine the evolving approach to the principle of mutual recognition based on the recent Court of Justice of the European Union rulings on the European arrest warrant. The analysis concludes that the CJEU attaches more importance to the protection of the principle of mutual recognition, the prosecution of perpetrators of crime, and the unwavering presumption of respect for fundamental rights by the Member states than to the effective protection of fundamental rights.

Detention Pending Execution of the European Arrest Warrant – Dutch and Polish Experience. Some Reflection from the Human Rights Perspective

This article focuses on detention pending surrender, i.e. detention of the requested person in the executing Mem­ber State on the basis of the European Arrest Warrant (EAW). It defines the scope of application of Article 5 of the Euro­pean Convention on Human Rights to such detention and anal­yses the case-law of the Court of Justice of the European Union on time limits of keeping the requested person in detention in the executing MS as well as on the notion of “the execut­ing judicial authority” entitled to decide on detention pending surrender. Both issues are explored with reference to national law and practice of the Netherlands and Poland. The article pro­vides the answer to the question whether national provisions which limit the duration of detention pending surrender prop­erly reflect the normative content of the framework decision on the EAW. The answer to this question is given with due regard to the standard of protection of the requested person stemming from Article 5 § 1 ECHR and Article 6 of the Charter of Funda­mental Rights. Furthermore, the analyses focus on Dutch and Polish provisions concerning the authority entitled to decide on detention pending surrender and their compliance with the CJEU’s jurisprudence on the notion of “the executing ju­dicial authority.” Recognising that detention is the basic meas­ure for ensuring the effectiveness of surrender, we try to define the limits of its use in the EAW procedure, stemming from the requirements of protection of human rights.

The Systemic and the Particular in European Law—Judicial Cooperation in Criminal Matters

AbstractThe article discusses the role for systemic and particular deficiencies in EU criminal law. It does so by analyzing in depth that law as regards the European Arrest Warrant (EAW), but also across measures of EU criminal law that have not yet been explored under this light. While the attention of the literature has been mainly on the EAW and the way those deficiencies can led to refusing the execution of the warrant, a wider assessment reveals the existence of a latent law of the systemic and the particular in this field. The conclusions reveal that the understanding and application of systemic and particular deficiencies in EU criminal law have significant implications in terms of the principle of mutual trust and the complex interaction between different EU values.

The European Arrest Warrant and the Rule of Law

The European Arrest Warrant and the Rule of Law

Be careful what you ask for: The European Court of Justice's EAW jurisprudence meets the Catalan secession crisis and the European rule of law crisis in Puig Gordi and others, C-158/21, EU:C:2023:57

Puig Gordi and others, a consequence of the Europeanization of the Catalan secession crisis, is another case in the constant evolution of the Court of Justice of the European Union's (CJEU) case law on the European Arrest Warrant (EAW). To this judicial cooperation mechanism of an automatic nature, the CJEU has gradually incorporated the evaluation of fundamental rights as an integral part of its nature. This incorporation has been needed even more in the context of the rule of law crisis. In the particular case, the CJEU guides the application of the two-step test only on the possible violation of the fundamental right to a court established by law but does not express guidelines regarding other possible violations. Problems in the drawing of the preliminary reference explains the CJEU's lack of a complete answer, which may create uncertainty for the parties involved as to how the EAW should be executed in the particular case.

Glosa do wyroku Sądu Unii Europejskiej z 9 lutego 2022 r. w sprawie T-791/19 – Sped-Pro S.A. przeciwko Komisji Europejskiej – „Zasada państwa prawnego a współpraca krajów członkowskich Unii Europejskiej w obszarze ochrony konkurencji”

The aim of this case comment is to discuss whether it was justified that the General Court in its judgment dated 9 February 2022 in the case Sped-Pro (T-791/19) annulled the European Commission’s Decision No. C(2019) 6099 final dated 12 August 2019 r. (case AT.40459) connected to the potential abuse by PKP Cargo of a dominant position on the market for rail freight in Poland. In this judgement, the General Court argued on the basis of the rule of law principle and applied analogically the judgment on the European Arrest Warrant. In this regard, the analysis starts with the rule of law principle, the judicial independence of courts and administrative authorities, the obligation of loyal cooperation between European Union and member states to ensure fulfilment of the obligations arising out of this Treaty, both in the light of Union law and European courts case law.The next part of this case comment attempts to assess whether the General Court was justified in analogically applying the judgement dated 25 VII 2018 r. C-216/18 PPU Minister for Justice and Equality on the European Arrest Warrant in the field of European policy on competition. The analysis ends with the description of the practical consequences of the Commission’s finding that the President of UOKiK and the Court of Competition and Consumer Protection are not independent. In the last part of the text, the author also indicates the consequences of the proper implementation of the Directive ECN+ for analysing the scope of independence of the President of the Office of Competition and Consumer Protection. The author indicates the necessity to separate in future analysis the issue of the independence of the President of the Office of Competition and Consumer Protection (national administrative competition authority) and the Court of Competition and Consumer Protection, which in Polish is a common court.

What Article 7 Is Not: The European Arrest Warrant and the De Facto Presumption of Guilt – Protecting EU Budget Better Than Human Rights?

What Article 7 Is Not: The European Arrest Warrant and the De Facto Presumption of Guilt – Protecting EU Budget Better Than Human Rights?

Fundamental Rights Concerns Regarding the European Arrest Warrant

The European Arrest Warrant, adopted twenty years ago, has proved to be a useful instrument for strengthening transnational cooperation between EU Member States in the field of criminal law. Still, its implementation has revealed serious problems with regard to the protection of fundamental freedoms. This study highlights the relevant shortcomings of the European legislation. It also assesses the judgments issued by the EU Court of Justice to address the problems of the practical application of this legislation. The study concludes that only a significant amendment of the Framework Decision 2002/584/JHA could ensure effective protection of fundamental freedoms in the issuance and execution of the EAW.

The Use of Judicial Precedent as a Form of Activism by the Court of Justice: Strengthening the Union’s Powers to Protect the Rule of Law

Abstract The article analyses the strategic use of the reference to its caselaw by the Court of Justice as a tool to innovate EU law. It compares such use in two areas of EU law, both recently at the heart of a number of important cases: on the one hand, the European Arrest Warrant (eaw), particularly the balance between national judges’ powers to refuse the execution of the eaw and the principle of mutual trust; on the other, the recent developments in the caselaw concerning judicial independence in the context of the worsening rule of law backsliding in Poland. It shows that, while in both cases the Court makes consistently relies upon its ‘settled caselaw’, it does so in different ways. Specifically, in the case of judicial independence, the Court refers to its previous caselaw to expand and consolidate the power of EU institutions vis-à-vis Member States’ national autonomy.

War and Peace in the Context of the Multilevel Legal Order for the Protection of the Fundamental Rights of the Persons Requested for the Execution of a European Arrest Warrant

Abstract In two judgments issued on 18 November 2021, the Italian Constitutional Court requested the Court of Justice to give a preliminary ruling on the compatibility of the discipline of the European arrest warrant with respect to the fundamental rights of the requested persons as protected by the Italian Constitution and the Charter of the Fundamental Rights of the European Union. This comment expounds the fundamental points of the legal reasoning of the two decisions. In doing so, it underlines the constructive and loyal (but not neutral) attitude of the Italian Constitutional Court, highlighting in particular its use of (legislative and judicial) arguments of European law. After that, the note, sets out the reasons why the common judges raised the question of constitutionality instead of the preliminary reference. In this perspective, Judgment No. 269 of 2017 of the Constitutional Court and the Taricco saga are recalled. In the end, the note emphasizes the value of the two decisions in the current architecture of the multilevel legal system of protection of fundamental rights in criminal matters; however, it also underlines the frailty of the appreciable balance that they strike.