The European Arrest Warrant system
| Date | 01 December 2017 |
| DOI | 10.1177/1023263X17745804 |
| Published date | 01 December 2017 |
| Subject Matter | Case note |
Case note
The European Arrest
Warrant system: Recent
developments in the case
law of the Court of Justice
Anne Pieter van der Mei*
C-453/16 PPU Openbaar Ministerie v. Halil Ibrahim O
¨zc¸elik, EU:C:2016:860
C-452/16 PPU Openbaar Ministerie v. Krzysztof Marek Poltorak, EU:C:2016:858
Case C-294/16 PPU JZ v. Prokuratura Rejonowa Ło
´dz´ – S
´
ro
´dmies
´
cie, EU:C:2016:610
Case C-463/15 PPU Openbaar Ministerie v. A, EU:C:2015:634
Joined Cases C-404/15 and C-659/15 PPU Pa
´l Aranyosi and Robert Ca
˘lda
˘raru v. General-
staatsanwaltschaft Bremen, EU:C:2016:198
Case C-241/15 Niculaie Aurel Bob-Dogi, EU:C:2016:385
Case C-182/15 Aleksei Petruhhin v. Latvijas Republikas G¸ener
alprokurat
ura,
EU:C:2016:630.
1. Introduction
Over the course of the last two to three years, the number of preliminary ruling requests concerning
EU criminal law measures has increased significantly. This may come as no surprise and can be
explained, at least partly, by the fact that as of 1 November 2014 the competence of the Court of
Justice of the European Union (CJEU) to deliver preliminary rulings on EU criminal law measuresis
*Maastricht University, Maastricht Center for European Law, Maastricht, The Netherlands
Corresponding author:
Anne Pieter van der Mei, Faculty of Law, Maastricht University, 6200 MD Maastricht, The Netherlands.
Email: ap.vandermei@maastrichtuniversity.nl.
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(6) 882–904
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17745804
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no longer subject to the prior acceptance by theMember States.
1
In principle, all national courts are
now free to turn to the CJEU to obtain clarification on the meaning and validity of such measures.
What will also not comeas a surpriseis that many of the questions that these courtshave recently
referred to the CJEUconcern the Framework Decision onthe European Arrest Warrant (FDEAW).
2
Adopted in the wake of 9/11, the FDEAW has replaced, among the Member States, the classic
system of extradition with a more simple system that first and foremost aims to speed up the
surrender of accused or convicted persons from one Member State to another. It is thefirst concrete
measure in thefield of criminal law that implements the principle of mutual recognition. The essence
of the FDEAW-systemis simple: a European arrestwarrant (EAW) issued by oneMember State (the
‘issuing’ Member State) must be executed by another Member State (the ‘executing State’), unless
the FDEAW demands or permits non-execution.
Since its adoption, the FDEAW has been controversial, mainly because the executionof EAWs in
furtherance of the mutual recognition principle may conflict with theaccused or convicted person’s
fundamentalrights. Mutual recognitionis based on mutual trust or confidence.It is presumed that the
criminal law authorities of other Member States comply with the right to a fair trial and other
(related) fundamental rights. In practice, however, this presumption does not necessarily hold true.
3
Of course, the EU political institutions are fully aware of this and it would be wrong to state that they,
when creating the EAW-system, ignored the issue of fundamentalrights protection. The FDEAW does
contain provisions that protect procedural and fair trial rights and, more generally, it stipulates that ‘it
shall not have the effect of modifying the obligation to respect fundamental rights’.
4
However, the
political institutions decided that not all violations of fundamental rights could justify the non-execution
of EAWs. A breach of the general duty to respect (other) fundamental rights was not recognized as a
separate ground for non-execution. In other words, the political institutions did not make full respect for
all fundamental rights a precondition for the lawful application of the EAW-system.
5
In a Union that possesses its own Fundamental Rights Charter and expects from its institutions
and – when they are implementing Union law – the Member States to respect the rights enshrined
therein, this is of course not unproblematic.
6
As significant as the goals of preventing and
1. Article10(3) of Protocol No. 36 of the TEU read together with Article 35 TEU (pre-Lisbon version).
2. CouncilFramework Decision 2002/584/JHAof 13 June 2002 on the European arrest warrant and the surrenderprocedures
between MemberStates, [2002] OJ L 190/1, as amended by CouncilFramework Decision 2009/299/JHAof 26 February
2009 amending FrameworkDecisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and2008/947/JHA,
thereby enhancingthe procedural rights of persons and fostering the application of the principle of mutualrecognition to
decisions renderedin the absence of the person concerned at thetrial, [2009] OJ L 81/24 (FDEAW).
3. In the context of the eastward enlargement of the Union in particular, doubts on the fundamental rights compatibility of
the mutual recognition principle have been increasingly expressed. See, V. Mitsilegas, EU Criminal Law after Lisbon –
Rights, Trust and Transformation of Justice in Europe (Hart Publishing, 2016), p. 147.
4. Article 1(3) of the FDEAW.
5. Moreover, in order to ensure the effective functioning of the entire EAW-system, the wings of domestic courts were
clipped to a certain extent. Provisions of framework decisions like the FDEAW do not produce direct effect (Article
34(2) TEU (pre-Lisbon version), and confirmed by Case C-554/14 Ognyanov, EU: C:2016:835, para. 56 and Case C
579/15 Openbaar Ministerie v. Daniel Adam Popławski, EU: C:2017:503, para. 26) and, as observed above, such courts
were only given conditional access to the CJEU in the ambit of EU criminal law measures. However, framework
decisions do bind the Member States and this implies an obligation for national courts to interpret, insofar as is possible,
national law in conformity with such decisions. Case C 579/15 Openbaar Ministerie v. Daniel Adam Popławski, para.
6. Compare e.g. S. Alegre and M. Leaf, ‘Mutual Recognition in European Judicial Co-operation: A Step Too Far Too
Soon? Case Study – The EAW’, 10 European Law Journal (2004), p. 200-217.
van der Mei 883
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