Mutual Recognition Instruments and the Role of the Cjeu: The Grounds for Non-Execution
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| DOI | 10.1177/203228441500600414 |
| Author | Lorena Bachmaier |
| Subject Matter | Session 4: The Ex-“Third Pillar” Instruments in the Lisbon Era: Towards a Full-Fledged Judicial Control in the AFSJ? |
New Journal of Eu ropean Crimina l Law, Vol. 6, Issue 4, 2015 505
MUTUAL RECOGNITION INSTRUMENTS AND
THE ROLE OF THE CJEU: THE GROUNDS FOR
NON-EXECUTION*
L B**
ABSTRACT
e paper discusse s in what way the full jurisdiction in criminal justice cooperation
matters – since 1December 2014 – will a ect the work of the ECJ in the eld of judicial
cooperation in criminal matters . Moreover in the light of the ECJ’s recent case law on the
European Arrest Warrant the paper analyses how the principle of mutua l recognition in
criminal matters is being implemented and whether this progress ha s been at the
expense of lower ing the level of protection of fundamental right s in criminal proceedings.
Such analysis will help to identify what has been the role of the ECJ in the realm of
judicial cooperation in criminal matters and what its future role should be: over-
stressing assumed mutual tr ust, without strengthening the fundamental rights
perspective, may end up in gene ral distrust.
Keywords: cooperation in criminal matters; European Arrest Warrant; European
Court of Justice; mutua l recognition
1. INTRODUCTION
Since it was agreed, in the widely cited Tampere European Council in 1999, that the
principle of mutual recognition would be t he cornerstone in the establishment of the
Area of Freedom, Security a nd Justice (hereina er AFSJ), numerous legal i nstruments
have been adopted in the eld of judicial cooperation and the harmonisat ion of
substantive crimi nal law. However, neither the principle of mutual recog nition, nor its
articulation in the various European instru ments, as well as the implementation of
those instru ments in each of the member states, have been exempt from criticism a nd
* is contribution is to be considered an article, with reference to the traditional NJECL division
between Ar ticles and Opinion.
** Professor, Complutense Univer sity, Madrid.
Lorena Bachmaier
506 Intersentia
controversy. Undoubtedly, there is a main objection against a system based on
facilitating a nd expediting cri minal judicial cooperation based on the principle of
mutual recognition: such pri nciple, and the instruments for its development, are not
counterbalanced by a system of gu arantees to protect the fu ndamental rights of the
suspect or accused at the same level. In other words, the arg ument is that defence
rights must be adequately gua ranteed and must run in parallel to t he States’ facilities
for criminal prosecut ion at a supranational level.
It is important to note that, on the way towards building a Europea n Area of
Freedom, Security and Just ice (AFSJ), the Court of Justice of the European Union
(ECJ) has played a signi cant role, espec ially through referr als for preliminar y rulings,
by de ning important issues such a s the extent of the principle of ne bis in idem, the
right to appeal, or the scope of the grounds for refusal to execute a European Arrest
War ran t (EAW) .
is contribution is not a imed at re-examining the f ull scope and meaning of the
principle of mutual recognition in criminal matters.1 It focuses on two speci c
points. Firstly, it discusses in what way the full jurisdiction in cri minal justice
cooperation matters – since 1December 2014 – will a ect the work of the ECJ. And
secondly, in the light of the ECJ’s case law on the execut ion of European Arrest
Warrants, it tries to asse ss the role that the ECJ may have in building the AFSJ.
Although many inst ruments have been adopted at the EU level in the eld of
police and judicial cooperat ion in criminal matters with in the ird Pillar,2 the EAW
is considered the “jewel in t he crown”.3 Its widespread use a nd its ability to streamline
extradition processe s have contributed to its being understoo d as a true precursor of
the establishment of a European judicial area . As it would be unfeasible to ana lyse
here each and every one of the ground s for refusal of execution of the various cr iminal
judicial cooperation inst ruments, this paper is limited to the most representative
instrument of cooperat ion, the EAW. By examining the way in w hich the grounds for
refusal of the exec ution of the EAW are interpreted, it becomes pos sible to determine
how the principle of mutual recognition in cr iminal matters is implemented and also
to assess whether t his progress is occurring at the expense of lowering t he level of
protection of fundamental rights in criminal proceedings. Such analysis will help us
discern what the role of the ECJ is play ing in the realm of judicial cooperation in
criminal matters.
1 See, for example, C. Janssens, e principle of mutu al recognition in EU law, Oxford, 2013, pp. 132
., comparing it a lso with its applicat ion in the eld of the common marke t.
2 E. Baker, e Cou rt of Justice of the EU and t he “New” Lisbon Treaty Environ ment Five Years On,
European Journa l of Crime, Crimina l Law and Criminal Jus tice 23(2015), pp. 1–10, p.1: the acquis of
the ird Pillar, adopte d under Title VI TEU be fore the Treaty of Lisbon compri ses 133 instrume nts.
3 Council Fra mework Decision of 13June 2002 on the Eu ropean arrest warra nt and the surrender
procedures bet ween Member States, (2002/58 4/JHA).
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