European Arre st Warrant
Member Stat es are in principle obliged to g ive effect to a Euro pean Arrest Warrant'.68 However, the
second part of Article 1(2) and ' in accordan ce with the p rovisions o f this Fram ework decis ion' already
indicates that this instrument contains exceptions and conditions to be met before a person may be
surrendered. One of the exceptions tha t may be imposed is dou ble crim inalit y (which will be
discussed in section 2.2.2).
In any event, reflecting the different positions by the Member States at the time of the adoption of
the Tamper e conclusions in 1999,69 academic views diverge widely on the qu estion of the degree to
which the app lication of mu tual r ecogn ition is app ropr iate in the a rea o f cr iminal law (as opposed
to the internal market) given the implications for national sovereignty and fu nd ame ntal r ig hts and
the extent to which it needs to be balanced by harmonisation of procedural standards and
sub stant ive crim inal law.70 The dilemma ha s been described as a need t o avoid as far as possible
double check s a nd cont ro ls, but also blind t rus t and the ' dere sponsibilisation ' of com petent
executin g au thor ities .71 This is part icularly relevant for cases in which ther e are concerns regarding
the fundamental rights situation in the issuing Member State, which will be discussed in section
2.2.6, as CJE U case law has no w estab lished de facto grounds for non-execution based on primary
EU law. The is sues high lighte d below will b e furt her discu ssed in th e sect ion belo w.
2.1.1. The defin ition of issuing judicial a uthorities
In Article 1
(1) of the Fr amework Decisio n an EAW is descr ibed as ' a judicia l decision ' for t he purposes
of conducting a ' criminal prosecution'. However, the lack of clarity offered by t he FD EAW as regards
the interpr etation of these concepts has led t o various problems in national implementat ion and
practice, part icularly when surrender was req uested by a prosecutor.72
EU has sinc
ed that the c
ty' (Article 6
) FD EAW)
mor e bro adly, to t he aut hor ities req uired to pa rticipat e in adm inist ering justice in the legal system
concerned, but it excludes the po lice73 or an organ of the executive74 o f the Member State. In a
number o f more recent cas es the CJEU explored th e conditions for pros ecutors to be able t o issue
EAWs, notably the need for their independence from th e executive.75 This en tails the existence of
'statutory rules and an institutional framework capable of guaranteeing that the issuing judicial
authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of
being subject, inter alia, to an ins truction in a s pecific case fr om the executive. Moreover, the
framework must enable prosecutors to assess the necessity and proportionality of issuing an EAW'.76
In this context, the CJEU has clarified that in order to afford effective judicial protection, the EAW
system entails a dual level of protection of procedural rights and fundamental rights which must be
enjoyed by t he requested person. In addition to the judicial protection provided at the first level, at
68 CJEU of 16 July 2015, Case C-237/15, P PU, Lanigan, para. 3 6.
69 Supra section 1.1.2.
70 For a discu ssion se e W. van Ball egoo ij, Th e Natu re of Mutual recognition in European Law: Re-examining the notion from
an invidividual rights perspective with a view to its further development in the criminal justice area, Intersentia, 2015,
Chapte r 3, Section 3.
71 A. Weyembergh, 'Transverse Report on Judicial Control in Cooperation in Criminal Matters. The Evolution from
Traditional Judicial Cooperation to Mutual Recognition', in K. Ligeti (Ed.), Toward a Prosecutor for the European Union,
A Comparative Analysis (Volume 1), Hart Publishing, 2013, pp. 945-985 at p. 972.
72 UK Supreme Court judgment of 30 May 2012 in Assange v Swed ish P rose cuti on Au thori ty, UKSC 22.
73 CJEU judgment of 10 November 2016, Case C-452/16 PPU, Poltorak, par as 34-52.
74 CJEU judgment of 10 November 2016, Case C-477/16 PPU, Kovalkovas, paras 28 -48.
75 CJEU judgment of 27 May 2019, Joined cases C-508/18 OG and C-82/19 PI PPU.
76 Ibidem, paras 51 and 74. CJEU of 12 December 2019, Case C-625/19 PPU, XD, para. 40; CJEU judgment of 12 December
2019, Joined cases C-566/19 PPU YR and C-626/19 PPU YC, para. 52.