CASES: European Arrest Warrant Cases and the Principles of Non‐discrimination and EU Citizenship
| Date | 01 September 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00820.x |
| Published date | 01 September 2010 |
| Author | Ester Herlin‐Karnell |
CASES
European ArrestWarrant Cases and the Principles
of Non-discrimination and EU Citizenship
Ester Herlin-Karnell
n
This case comment provides an analysis of the recent judgment inWolzenburg (C-123/08), deliv-
ered on 6 October 2009 not yet reported(Grand chamber) concerning the application of the EU
principles of nondiscrimination and citize nship to the European ArrestWarrant cases. It also con-
siders the impact of the Lisbon Treaty as well as the implications of the Citizenship Directive
2004/38/ECfor this area of law.
INTRODUCTION
There was a time when the Wol z e n b ur g case would have been a controversial step in
the process of European integration byextending the pri nciples of non-discrimina-
tion and citizenship rights to the third pillar domain (EU justice and home a¡airs). I
will argue that it wouldhavebeen even morecontroversial notto extendthese prin-
ciples to the third pillar. It will be shown that the questions raised by this case could
have a signi¢cant impact upon how the European ArrestWarrant (EAW)
1
cases are
dealt with.There is at least one reason for this.There is a risk that the law governing
the optional refusal to surrender could lead to national protectionism. Moreover, the
peculiarities that have characterised the thirdpil lar will remain for sometime despite
the recent rati¢cationof the LisbonTreatyand the i nclusion of the formerthird pil lar
into the core of the EU. After all, the Citizenship Directive 2004/38/EC and the
Netherlands in the present case are not alone in stipulating a ¢ve-year residence per-
iod before a non-national is to be treated equally to home nationals, as the Lisbon
Treaty also provides a ¢ve year transition ^ or alteration time ^ period before the
existing third-pillar instruments will be treated in the same way as Community
instruments. For this reason, the implications of the Wo l z e n b u r g case will remain
interesting even after the entry into force of the LisbonTreaty.
2
THE LEGAL SETTING
EU criminal law cooperation increased signi¢cantly in the e¡ort to combat ter-
rorism, in the aftermath of 9/11 in particular. One of the ¢rst instruments to be
n
Facultyof Law,Free Universityof Amsterdam (VU).Thanks to Professor Gareth Davies,Harry Pana-
gopulos and the anonymous reviewer for helpful comments on this piece, with the usual disclaimer.
1 [2002] OJ L 190/1, on the EAW.
2 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the Eur-
opean Community,signed at Lisbon 13December 2007, OJ C 306 of 17 December 2007.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(5) 824^857
To continue reading
Request your trial