Effective and Legitimate?: Learning from the Lessons of 10 Years of Practice with the European Arrest Warrant

Date01 September 2014
Published date01 September 2014
Subject MatterArticle
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 3, 2014 327
Learning from the Lessons of 10 Years of Practice
with the European Arrest Warrant
L M*
e article examines the European Arrest Warrant (EAW) and the issues which have
emerged in its  rst 10 years of practice. A er a  rst section explaining the choice for the
principle of mutual recognition as expression of e ec tive nes s and sub sidi ari ty in judi cia l
cooperation in criminal matters , the articles discusses questions such a s (ab)uses of the
EAW as a mutual legal assistance instrument, the question of petty crimes and the
proportionality test, the relation be tween mutual trust, fundamental r ights and judicial
review, and, lastly, nationality and residenc e clauses. It concludes on the importance of
addressing these issu es in the appropriate legal setting, be it legislative or judic ial, with
the aim of strengthening the e ectivene ss and legitimacy of the EAW.
Keywords: e ectiveness; European Arrest Warrant; legitimacy; mutual recognition;
principle of legality; pet ty crimes; proportionality ; non-discr imination
10 years of practice with the European Arrest Warrant (EAW)1 have provided
materials and debates for a discussion of the instrument, its bene ts and its
shortcomi ngs.  is a rticle aims at presenting and disc ussing (some of) those issues. It
does so in order to explore the question of whether these 10 years of practice have
given the legal community and society an e ective and legitimate instrument, or
* Assistant profes sor at the University of Twente, the Nethe rlands.
1 Council Framework Deci sion of 13June 2002, OJ [2002] L190/1, 18July 2002.
Luisa Mari n
328 Intersentia
whether, without undermin ing the importance of the E AW, they point to some crucial
issues that deserve t he attention of the legal community and of politica l circles.
It is not easy to de ne e ectiveness in relation to the EAW.  e genesis and li fe of
the EAW are characterised by di erent meanings of e ectiveness, which is a multi-
faceted concept. First, as a policy rationale, e ectiveness has played a crucial role in
the choice for mutual recognition (MR), the reg ulatory principle underlying the E AW,
as an alternative to harmonisation. Second, e ectiveness in judicial cooperation in
criminal matters aims at providing law enforcement authorities with instruments
supporting their crime  ghting mission. Like many other human activities, crime
takes now place in a post-national context, and is increasingly organised beyond
borders, through transnational networks, whereas until recently, criminal law and
criminal procedure were – mainly – a matter of national sovereignty and of
internationa l cooperation. With t he EAW, e ectiveness gives shape to a transnational
legal instru ment.  ird, e ectiveness has its own meaning and history in EU law, of
paramount importance in shaping EU law as we know it today. E ectiveness in EU
law is also known as t he principle of e et utile, which the Court of Justice of the EU
(CJEU or ‘the Court’) has dev ised in order to: a) secure the correct implementation of
EU law into domestic legal orders and b) strengthen t he enforcement of EU law against
domestic law.  e rst meaning of e ectiveness in EU law relates to recognition and
acceptance of a “new legal order”,2 a legal system of “its own”,3 and to the systemic
interactions between them.  e principle of e ectiveness refers to domestic courts,
re qu ir in g t he m t o g ive ad eq ua te e  ect to EU law, hence making them the  rst enforcers
of EU law.
On the other side, legitimac y takes on a new meaning in the context of the EU a s
ref orm ed b y t he Tre at y of Lis bon (ToL). Le git im acy is here us ed a s a r ela tio na l con ce pt,
to inquire how much the EAW (and its 10 years of practice) squares with the post-
Lisbon EU.  e ToL has de facto constitutiona lised the treaties without the rhetor ic of
the constitution.4 At the institutional level, it has forti ed the acquis of the Treaty of
Amsterdam, thanks to the shi from unanimity to quali ed majority voting within
the Council, and with the European Parliament (EP) structurally involved as
co-legislator via the ordina ry legislative procedure. As to the protection of rights, t he
Court now has full jurisdiction, and legal status has been given to the Charter of
Fundamental Rights (CFR).  ird, the Treaty of Lisbon is important because justice
cooperation has been relocated into the realm of the Union system, bearing many
implications. For example, now the legal pri nciples of Union law also apply to former
ird Pillar instruments. Second, at t he end of the transitional period, in December
2014, the Commission will a lso have the power to start infringement proceedi ngs on
2 As stated in Van Gend en Loos, Cas e 26/62, judgment of 5February 1963.
3 Case 6/64, Costa v. ENEL, judg ment of 15July 1964.
4 A. Rosas and L. Armat i, referring to Umberto E co’s masterpiece, de ne the Lisb on Treaty as “a rose
by any other name” in EU Constitutional Law: an Introduction, Hart, O xford, 2012, p.1.

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