Problem 5 – The Julian Assange debacle
What is the European Arrest Warrant?
What is the difference between the European Arrest Warrant and the laws on extradition?
On which grounds can a European Arrest Warrant be refused?
Herlin-Karnell (2013) – From mutual trust to the full effectiveness of EU Law: 10 years of the European Arrest
Warrant
The European Arrest Warrant (EAW) has become the most litigated Third Pillar instrument in the European Union’s
history. It was highly controversial when it was adopted in 2002 as it abolished dual criminality for a list of 31 categories
of crimes and introduced the concept of mutual recognition in the AFSJ. Nevertheless, the instrument is still ‘alive and
kicking’ and continues to provoke debate. With the abolishment of the pillars of the Union, the rules concerning mutual
recognition now form part of the AFSJ and are governed by Article 67 and 82 TFEU.
The debate on the EAW has been centered on the interpretation of mutual trust and the elasticity of the loyalty
principle, which is codified in Article 4(3) TEU. The Advocaten voor de Wereld-case was the first test case on the validity
of the EAW, in which the legality of the EAW was upheld. In this case the judgement indicated that the EAW was a legal
experiment based on the necessary conception of the existence of trust. This judgement insisted that the underlying idea of
the EAW and the rule to abolish the notion of dual criminality did not breach the principle of legality, since the Framework
Decision was concerned with procedural law and not substantive law. The main reason for such a conclusion was the high
degree of trust and solidarity between the Member States.
Grounds for refusing the EAW
The question that became the crucial testing ground for the credibility of the EAW and its establishment of the principle of
mutual trust was the possibility for Member States to choose not to execute the request of an EAW under certain
circumstances. For example, Article 3 EAW provides a list of mandatory grounds for refusing to execute an EAW. Article
4 EAW on the other hand, lists a number of optional grounds for refusing to surrender and thereby reinstates the dual
criminality concern by giving some discretion to national authorities in this regard. The Court has been forced to deal with
these issues in a number of recent judgements. The Da Silva Jorge-case and the Melvin West-case are part of this series of
cases (however, the Melvin West-case was not mandatory for this problem anymore, so will not be explained in this
summary).
Case law
Case C-303/05 (Advocaten voor de Wereld)
The association “Advocaten voor de Wereld” brought an action before the Belgian Arbitragehof/Cour d'Arbitrage (Court
of Arbitration) seeking the annulment of the Belgian law transposing the provisions of the Framework Decision on the
European arrest warrant and the surrender procedures between Member States. The Belgian Court referred to the Court of
Justice for a preliminary ruling several questions concerning the validity of the Framework Decision (paragraph 16).
Conclusions
With respect to the first claim, that the subject-matter of the European arrest warrant ought to have been regulated by means
of a convention and not a framework decision, the Court found that Article 34 EU does not establish any order of priority
between the different instruments listed in that provision, with the result that it cannot be ruled out that the Council may
have a choice between several instruments in order to regulate the same subject-matter (paragraph 35-37).
While it is true that the European arrest warrant could equally have been the subject of a convention, it is within
the Council’s discretion to give preference to the legal instrument of the framework decision in the case where, as here, the
conditions governing the adoption of such a measure are satisfied (paragraph 41). This conclusion is not invalidated by the
fact that the Framework Decision replaced from 1 January 2004, only in relations between Member States, the
corresponding provisions of the earlier conventions on extradition. Any other interpretation unsupported either by Article
34(2) EU or by any other provision of the EU Treaty would risk depriving of its essential effectiveness the Council’s
recognised power to adopt framework decisions in fields previously governed by international conventions (paragraph 42).
It follows that the Framework Decision was not adopted in a manner contrary to Article 34(2)(b) EU.
The second question concerned the infringement of the principle of legality and nondiscrimination because Article
2(2) of the Framework Decision contains a list of more than 30 offences in respect of which the usual condition of double
criminality is dispensed with if those offences are punishable in the issuing Member State by a custodial sentence or a
detention order for a maximum period of at least three years.
What is the European Arrest Warrant?
What is the difference between the European Arrest Warrant and the laws on extradition?
On which grounds can a European Arrest Warrant be refused?
Herlin-Karnell (2013) – From mutual trust to the full effectiveness of EU Law: 10 years of the European Arrest
Warrant
The European Arrest Warrant (EAW) has become the most litigated Third Pillar instrument in the European Union’s
history. It was highly controversial when it was adopted in 2002 as it abolished dual criminality for a list of 31 categories
of crimes and introduced the concept of mutual recognition in the AFSJ. Nevertheless, the instrument is still ‘alive and
kicking’ and continues to provoke debate. With the abolishment of the pillars of the Union, the rules concerning mutual
recognition now form part of the AFSJ and are governed by Article 67 and 82 TFEU.
The debate on the EAW has been centered on the interpretation of mutual trust and the elasticity of the loyalty
principle, which is codified in Article 4(3) TEU. The Advocaten voor de Wereld-case was the first test case on the validity
of the EAW, in which the legality of the EAW was upheld. In this case the judgement indicated that the EAW was a legal
experiment based on the necessary conception of the existence of trust. This judgement insisted that the underlying idea of
the EAW and the rule to abolish the notion of dual criminality did not breach the principle of legality, since the Framework
Decision was concerned with procedural law and not substantive law. The main reason for such a conclusion was the high
degree of trust and solidarity between the Member States.
Grounds for refusing the EAW
The question that became the crucial testing ground for the credibility of the EAW and its establishment of the principle of
mutual trust was the possibility for Member States to choose not to execute the request of an EAW under certain
circumstances. For example, Article 3 EAW provides a list of mandatory grounds for refusing to execute an EAW. Article
4 EAW on the other hand, lists a number of optional grounds for refusing to surrender and thereby reinstates the dual
criminality concern by giving some discretion to national authorities in this regard. The Court has been forced to deal with
these issues in a number of recent judgements. The Da Silva Jorge-case and the Melvin West-case are part of this series of
cases (however, the Melvin West-case was not mandatory for this problem anymore, so will not be explained in this
summary).
Case law
Case C-303/05 (Advocaten voor de Wereld)
The association “Advocaten voor de Wereld” brought an action before the Belgian Arbitragehof/Cour d'Arbitrage (Court
of Arbitration) seeking the annulment of the Belgian law transposing the provisions of the Framework Decision on the
European arrest warrant and the surrender procedures between Member States. The Belgian Court referred to the Court of
Justice for a preliminary ruling several questions concerning the validity of the Framework Decision (paragraph 16).
Conclusions
With respect to the first claim, that the subject-matter of the European arrest warrant ought to have been regulated by means
of a convention and not a framework decision, the Court found that Article 34 EU does not establish any order of priority
between the different instruments listed in that provision, with the result that it cannot be ruled out that the Council may
have a choice between several instruments in order to regulate the same subject-matter (paragraph 35-37).
While it is true that the European arrest warrant could equally have been the subject of a convention, it is within
the Council’s discretion to give preference to the legal instrument of the framework decision in the case where, as here, the
conditions governing the adoption of such a measure are satisfied (paragraph 41). This conclusion is not invalidated by the
fact that the Framework Decision replaced from 1 January 2004, only in relations between Member States, the
corresponding provisions of the earlier conventions on extradition. Any other interpretation unsupported either by Article
34(2) EU or by any other provision of the EU Treaty would risk depriving of its essential effectiveness the Council’s
recognised power to adopt framework decisions in fields previously governed by international conventions (paragraph 42).
It follows that the Framework Decision was not adopted in a manner contrary to Article 34(2)(b) EU.
The second question concerned the infringement of the principle of legality and nondiscrimination because Article
2(2) of the Framework Decision contains a list of more than 30 offences in respect of which the usual condition of double
criminality is dispensed with if those offences are punishable in the issuing Member State by a custodial sentence or a
detention order for a maximum period of at least three years.
