The case law of the Court of Justice of the European Union on ‘judicial authority’ and issuing European arrest warrants
| DOI | 10.1177/20322844211027654 |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2021, Vol. 12(4) 508–530
© The Author(s) 2021
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DOI: 10.1177/20322844211027654
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The case law of the Court of
Justice of the European Union
on ‘judicial authority’and
issuing European arrest
warrants
Tricia Harkin
Abstract
The case law of the Court of Justice from 2016 to 2019 on the interpretation of ‘judicialauthority’in
Article 6(1) FD-EAW essentially examines whether a public prosecutor can be an issuing judicial
authority and if so, howMember States’systems for issuingEAWs ensure effective judicialprotection
for the personconcerned. For the Advocate General,applying the Court’s‘ruleof law’jurisprudence,
effective judicialprotection when deprivationof liberty is involved can only be assured by a body with
the highest level of judicial independence, being a court. The Court’s broader approach of including
public prosecutorswith sufficiency of independencefrom the executive and requiring theirdecisions
to be amenable to review by a court, when applied in practice arguably falls short of the requisite
standardof effective judicial protection.There is also a lack of clarity about accessto the interpretative
jurisdiction of the Court by public prosecutors acting as judicial authorities. Effective judicial pro-
tection and EU cooperation in criminal matters would now be betterserved by the designation in all
Member States of a court as the issuing judicial authority for the FD-EAW. This is against the
background of the uniquely coercive nature of the EAW in terms of deprivation of liberty; the
differences in Member States’institutional arrangements for public prosecutors and the post-Lisbon
effective constitutionalisation of judicial protection of rights of individuals.
Keywords
European arrest warrant, public prosecutor, judicial authority, judicial independence, effective
judicial protection, rule of law
Corresponding author:
Tricia Harkin, Office of the Director of Public Prosecutions, Infirmary Road, Dublin 5, Ireland.
Email: tricia.harkin@dppireland.ie
Introduction
This article examines the case law of the Court of Justice of the European Union (the Court) on the
interpretation of ‘judicial authority’in Article 6(1) of Council Framework Decision 2002/584/JHA
of 13 June 2002 on the European arrest warrant and the surrender procedures between Member
States
1
(FD-EAW), and in particular whether a public prosecutor can be a judicial authority. Article
6(1) FD-EAW provides as follows:
‘The issuing judicial authority shall be the judicial authority of the issuing Member State which is
competent to issue a European arrest warrant by virtue of the law of that State’.
After setting out briefly the context in which the ‘judicial authority case law’arose, the case law
is presented focusing in particular on the differences in approach between the Court and the
Advocate General (AG). The consequences for Member States are then briefly referenced.
The case law and the different conclusions of the AG and the Court as to whether a judicial
authority should exclude public prosecutors is then analysed, looking at the rationale and effect of
the Court’s judgments in the context of ensuring effective judicial protection. Then, the issue of
access to the Court by a judicial authority that is a public prosecutor by way of the preliminary
reference procedure in Article 267 TFEU is raised. Finally, it is concluded that effective judicial
protection is best ensured where the authority that issues an EAW is a court.
Overview and context
Overview
Between 2016 and 2019, there were eleven references to the Court on the interpretation of issuing
‘judicial authority’and ‘judicial decision’in the FD-EAW. Six references came from the Neth-
erlands, three from Ireland, and one each from Germany and Luxembourg. The resulting Opinions
and judgments were delivered in four ‘batches’: October and November 2016 (three cases); April
and May 2019 (three cases); September and October 2019 (one case); November and December
2019 (four cases). With joined cases, this has produced nine Opinions and nine judgments, in-
cluding two Grand Chamber judgments. Eight Opinions were given by AG Campos S ´
anchez
Bordona with one by AG Sharpston.
Initially establishing that an issuing judicial authority could not be an authority that was part of
the executive (police or government minister), the focus in the case law then moved to whether and
in what circumstances a public prosecutor could be an issuing judicial authority and how effective
judicial protection is ensured in the process to issue an EAW. The Court and AG Campos S´
anchez
Bordona came to different conclusions. While the Court identified circumstances in which a public
prosecutor could be a judicial authority, the AG consistently argued that this role should be reserved
only to courts.
1. [2002] OJ L190/1.
Harkin 509
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