European Arrest Warrants, the rule of law and communication: What future for mutual recognition?
| Published date | 01 August 2024 |
| DOI | http://doi.org/10.1177/1023263X241287407 |
| Author | Kathrin Hamenstädt |
| Date | 01 August 2024 |
European Arrest Warrants, the
rule of law and communication:
What future for mutual
recognition?
Kathrin Hamenstädt*
Abstract
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 cre-
ates 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.
Keywords
European Arrest Warrants, rule of law, mutual recognition, vertical communication, horizontal
communication
1. Introduction
The dismantling of the rule of law poses a threat to the EU, which appears to be paralysed in the face
of a hollowing out of its own values. EU institutions are criticized for insufficiently responding to
the violations of core EU values, a criticism that also extends to the Court of Justice of the EU
(CJEU or Court). This criticism was particularly visible in the context of the question of how to
proceed with European Arrest Warrants (EAWs) issued by Polish judicial authorities given the
*
University of Birmingham, Birmingham, UK
Corresponding author:
Kathrin Hamenstädt, DAAD-Lecturer, School of Law, Edgbaston, University of Birmingham, Birmingham B15 2TT, UK.
Email: k.hamenstaedt@bham.ac.uk
Article
Maastricht Journal of European and
Comparative Law
2024, Vol. 31(4) 487–509
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X241287407
maastrichtjournal.sagepub.com
erosion of their independence. The Polish general election on 15 October 2023 and the subsequent
change in government have altered the country’s direction, but the previous developments in Poland
could be replicated in other EU Member States, which is why it is useful to discuss judicial
responses to these threats.
This contribution takes the much-criticized L and P judgment, in which the Court upheld the
two-step test, as its starting point. Whilst many have criticized the judgment,
1
the focus of this con-
tribution rests on discussing the opportunities that the L and P judgment and subsequent judgments
offer. To this end it addresses the question of what would have happened had the Court dropped the
second step of the test and the advantages of, and strategic reasons for, maintaining the second step.
Building on the maintenance of the two-step test, this contribution argues that the Court does not
so much insist on mutual recognition, but that its focus rests on communication between judicial
authorities. The Court’s adherence to the second step of the test, which necessitates the requesting
and the rested judicial authority to enter into a dialogue, provides the possibility to strengthen chan-
nels of communication, and to shape and further develop the transnational judicial network.
Ultimately, the communication between judicial authorities creates a real chance for building up
and further enhancing networks of cooperation between judicial authorities, which in turn allows
them to foster trust.
Simultaneously, there are inherent risks in Court’s approach. The first risk results from the pos-
ition of requested courts, who have to assess, if there are indications to this effect, an erosion of the
rule of law in the issuing Member State. This can lead to unequal power dynamics, which is why
this process should be moderated to avoid and reduce frictions.
The second risk stems from the fact that the Court places the judicial responsibility for respond-
ing to rule of law (RoL) erosions on several shoulders by integrating all Member State courts in this
process. This move to judicial subsidiarity, which ensures participation of the relevant players, also
poses challenges, as it risks a fragmentation resulting from the different national judicial responses.
The contribution is structured as follows. First, it provides a short introduction to the principle of
mutual recognition in the Area of Freedom, Security and Justice (AFSJ), and exceptions to mutual
recognition in the context of the EAW, by addressing the two-pronged test (section 2), which allows
the requested authority to (temporarily) refrain from executing the EAW. Section 3 addresses the
situation in which the Court finds itself, and argues that both options, maintaining or dispensing
with the two-step test, came at a price. To that end, the section 3.A addresses the question of
what would have changed had the Court dropped the second prong of the test. Here, the focus
rests on the impact of such an approach on the vertical level of cooperation, hence the communi-
cation between national courts and the CJEU (section 3.A.1), and on the horizontal level of com-
munication between national courts (section 3.A.2). Subsequently, the focal point shifts to the
opposite direction and addresses the structural and strategic reasons for maintaining the two-
pronged test (section 3.B), in particular the separation of powers (section 3.B.1) and the trans-
national nature of the EAW (section 3.B.2). The insistence on the second step places national judi-
cial authorities at the forefront, which is structurally in line with the transnational nature of the
Framework Decision on the European Arrest Warrant
2
(FDEAW). This directs the discussion to
1. Instead of many others: A. Frackowiak-Adamska, ‘Trust Until it is Too Late! Mutual Recognition of Judgments and
Limitations of Judicial Independence in a Member State: L and P’,59Common Market Law Review (2022).
2. Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures
between Member States –Statements made by certain Member States on the adoption of the Framework Decision,
[2002] OJ L 190/1 (JHA).
488 Maastricht Journal of European and Comparative Law 31(4)
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