‘From Solange II to Forever I’ the German Federal Constitutional Court and the European Arrest Warrant (and How the CJEU Responded)
| Published date | 01 September 2016 |
| Date | 01 September 2016 |
| DOI | 10.1177/203228441600700303 |
| Author | Frank Meyer |
| Subject Matter | Case Notes |
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 3, 2016 277
CASE NOTES
‘FROM SOLANGE II TO FOREVER I’
e German Federal Constitutional Court
and the European Arrest Warrant
(and how the CJEU responded)
F M*
1. INTRODUCTION
On 26January 2016, the German Federal C onstitutional Court (BVerfG) published a n
order (dating from 15December 2015) that appears to be nothing short of a judicial
earthquake.1 For the rst time the court i nvoked the German Constitut ion to deny
the execution of a European Arrest Warrant based on the so-ca lled identity review
(Identitätsvorbehalt). To ensure the protection of the most fundamental rights and
principles enshrined in t he German constitution the court reser ves to itself the power
to defy the supremacy of EU law, should EU measures prove irreconcilable with
identity-shaping tenets of German constitutional law. is invites the question what
egregious measures t he EU had taken that drove the Federal Constitutional Court
into triggering this nuclear option. e straightforward answer is ‘none’, at least not
in this case a nd not yet. Notwithsta nding that the Federa l Constitutional Court was
right to stop the surrender process under the given circumstances it chose a highly
tenuous line of argument in order to est ablish its jurisdiction. In es sence, the BVerfG’s
decision is a misled pre-emptive stri ke and a thinly veiled messa ge to the CJEU: When
fundamental domestic constitutional rights are at stake, it is for the Karlsruhe court
to act as the legitimate ultimate arbiter based on powers derived directly from the
national constitution and u nbridled by Union law. To call this “Solange III” would
mischaracterise its impact. e BVerfG insists that it has and will a lways have the
unfettered origina l and supreme authority to rule whenever principles are involved
that fall under t he so-called eternity clause (Ewigkeitsgarantie): ‘Forever I’.
* Prof. Dr. iur., LL.M. (Yale), Chai r of Criminal L aw and Procedure includ ing International Cr iminal
Law, University of Zurich .
1 BVerfG, Order of 15December 2015, 2 BvR 2735/14.
Frank Meyer
278 Intersentia
is article proceeds in ve analy tic steps. First, it needs to be explained what has
actually happened (2.). e second section provides an a nalysis of the Constitutional
Court’s decision (3.). Against this backdrop the article highlights why the court was
mistaken to resort to the identity review (4.) and what the true reasons behind this
remarkable order might have been (5.). e nal part out lines an alternative path that
the BVerfG should have taken (6.). e article concludes that the cour t passed up an
opportunity to capita lise on the (still underestimated) potentials of the Åkerberg
Fransson judgment and to contribute to the emergence of common human rights
standards in t he EU and European judicial cultu re at large.
2. THE FACTS OF THE CASE
e prosecutor general’s o ce at the Florence Corte di Appel lo had issued a European
Arrest Warrant in 2014 seeking surrender of a U.S. citizen from Germany for the
purpose of executing a custodial sentence. e requested person had been found
guilty a nd sentenced in absence to a prison term of thirty yea rs by the Florence Corte
di Appello in 1992. e competent German judicial author ity (in this case, the Higher
Regional Court [Oberlandesgericht] Duesseldorf) found the execution of the war rant
permissible in spite of substantiated a ssertions submitted by the requested person that
he would not be granted a su cient retrial once surrendered to Italy. e complainant
had neither been summoned in person before his conv iction in absentia nor personally
served with the decision a erwards. Pursuant to section 83 No. 3 German Code of
Mutual Legal Assistance (IRG) and Art. 4a FD EAW, the legality of the execution
therefore depended on whether the convict would be g ranted a right to a retrial or an
appeal.2 Such an appeal is to guara ntee the rights of the defence a nd is characterise d
by the following elements as spelled out in Recit al 11 FD EAW: “the person concerned
has the right to be present, the merits of the case, including fresh evidence are
re-examined, a nd the proceedings can lead to t he original decision being reversed.”
But as distinct f rom other preconditions the EAW form does not require the issuing
authority to provide specif ying information about how this precondition w ill be met.
e Ita lian authorities simply had to tick box 3.4 of the EAW form (according to which
inter alia “when served w ith the decision, the person wil l be expressly informed of his
or her right to a retrial or appea l, in which he or she has the right to participate and
which allows the merit s of the case, including fresh evidence, to be re- examined, and
which may lead to the original decision being reversed”), which they did without
providing any additional information.3 In an era of mutual recognition and mutual
trust this could have been satisfactory bearing in mind how well-entrenched these
standards are in the case law of the ECtHR. Article 9 of the new Directive on the
2 Meyer, in: Ambos/Kön ig/Rackow (eds.), Rechtshil ferecht in Strafsac hen, 2015, §83 IRG mn. 913.
3 e Italian authorit ies also did not ll in t he time frame within wh ich the person would have to
request a retria l or appeal.
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