Written by Anetta Tselepi
More than two decades have already passed since October 1999, when the European Council, meeting in Tampere during the first Finnish Presidency of the Council of the European Union, devoted the core of its discussions to Justice and Home Affairs ‒ for the very first and only time and marked a major step in shaping the European Union’s policy on immigration, asylum, and the development of an area of freedom, security, and justice (hereinafter “AFSJ”). Since the Tampere European Council, the traditional legal assistance system, in which States render legal assistance on request, has been transformed into a system of mutual recognition.
The idea behind the principle of mutual recognition is that the European Member States are to a great extent required to render assistance to one another. Pursuant to Article 67 paragraph 4 of the Treaty on Functioning of the European Union (hereinafter “TFEU”), the principle of mutual recognition in European Criminal Law is one of the foundational principles for judicial cooperation among European Union (hereinafter “EU”) Member States. Being formally introduced in the Treaty of Amsterdam (entry into force on 1st of May 1999) and being later reaffirmed by the Treaty of Lisbon (entry into force on 1st of December 2009), under the scope of the European Criminal Law, the principle of mutual recognition means that judicial decisions made in one EU Member State must be recognized and enforced by the judicial authorities of another Member State, with minimal formalities. Thus, it is based on mutual trust between Member States in each other’s judicial systems, fair trial standards, and human rights protections, while it also facilitates cross-border justice within the European Union.
This means that – ideally – few or no grounds for refusal may exist. This is partly intended to allow the necessary procedures to be standardised and run quickly. Another innovation of the establishment of the principle of mutual recognition is closely connected with the fact that within the EU, legal assistance is arranged mainly by means of framework decisions. A framework decision – in view of its definition in Article 34 paragraph 2 (b) of the EU Treaty – gives rise to the obligation for the Member States to adjust their national legislation in accordance with the contents of the framework decision. Therefore, cooperation between the Member States based on the principle of mutual recognition is realised primarily through harmonisation of legislation. Nonetheless, one common problem, and as such frequently highlighted by academic commentary, which arises when discussing the notion of EU criminal law cooperation is that there is no definition of “mutual trust” in the field of criminal law. This lack of conseptualisation has been considered as constituting a significant lacuna. In this regard, it is often pointed out that there is currently insufficient mutual trust between Member States and no adequate European regime for the protection of human rights within the former third pillar to justify such an analogy with the internal market and mutual recognition.
The principle of mutual recognition is embedded in the primary law of the European Union. Article 82 paragraph 1(b)(i) and (ii) of the TFEU confers upon the EU the competence to establish rules for all Member States concerning the mutual recognition of judicial decisions and orders of all types, and indeed through any legislative instrument: either a Regulation or a Directive. Pursuant to Article 82 paragraph 2 of the TFEU, a harmonization of criminal procedural laws arises in the explicitly enumerated areas, while being limited to a specific type of legislative act, namely Directives. More specifically, this Article refers that “To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States. They shall concern: (a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament. Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals”. Furthermore, this provision is also constrained by Article 82 paragraph 3 of the TFEU, which serves as an emergency brake mechanism, and under which “Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure. Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply”.
Under point 33 of the Tampere Conclusions, after having affirmed that cooperation between authorities and the judicial protection of individual rights would be facilitated by enhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation, the European Council endorsed the principle of mutual recognition as “the cornerstone of judicial cooperation in both civil and criminal matters within the Union”, which should apply both to judgements and to other decisions of judicial authorities. While calling for the adoption, by December 2000, of a programme of measures to implement the principle of mutual recognition, the Tampere Conclusions also indicated the first priorities to be pursued through its implementation: in the first place, the replacement of extradition by the simple transfer of persons already sentenced and fast- track procedures for other cases; secondly, application of the principle to pre-trial orders, in particular to measures aimed to freeze and seize evidence or assets. The programme of measures requested by the European Council was promptly drafted by the Commission and discussed by the JHA Council at the end of 2000, then published in January 2001. It listed a set of 24 measures hierarchically ordered by a scale of priorities from 1 to 6. This was just a few months before the 9/11 attacks in New York and Washington that suddenly also revolutionized this scale of priorities ‒ together with the world as we used to know it.
The Council Framework Decision 2002/584 on the European Arrest Warrant and the Surrender Procedures between Member States
The primary tool for implementing the principle of mutual recognition in the area of procedural acts aimed at the arrest of individuals for bringing them before criminal justice is the Council Framework Decision 2002/584/JHA of 13 June 2002, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, concerning the European Arrest Warrant (hereinafter “EAW”) and the surrender procedures between Member States. The European Arrest Warrant is, in essence, a request issued by a judicial authority of one EU Member State (the “issuing state” or “issuing judicial authority”) for the arrest of a person in another Member State (the “executing state”) and for that person’s surrender to the issuing state for the purpose of either criminal prosecution or the execution of a custodial sentence or detention order. More specifically, the EAW is the first legal instrument based on the mutual recognition of judicial decisions in criminal matters within a common European Area of Freedom, Security and Justice, and it represents a radical shift from the traditional extradition system, which has now been replaced by a surrender mechanism – a shift that significantly affects procedures, time limits, and the grounds for refusal of surrender.
Among the features of the new system, which have been and remain the subject of intense discussion and criticism, the following stand out: a) the abolition of the principle of double criminality for 32 specifically listed categories of offenses, provided that the offense in question under the law of the issuing state is punishable by a custodial sentence with a maximum duration of at least three years, b) the elimination of the so-called “administrative” stage of extradition, thus limiting the process solely to the judicial phase and the legal determinations it entails, c) the abolition of additional grounds for refusing extradition, beyond those already mentioned, that are typically found in international treaties, and the establishment of a rule that refusal to execute a warrant is permitted only exceptionally, when one of the specific (either mandatory or optional depending on national implementation) grounds – which are generally exhaustively listed – is met, d) the introduction of strict time limits for the execution of the surrender request, e) the establishment of a standard form for the arrest warrant, f) the explicit obligation to surrender nationals to foreign jurisdictions, even if under certain conditions and g) the introduction of various procedural rules aiming to accelerate and simplify the surrender process.
The European Arrest Warrant, which is based on the deprivation of personal liberty, is primarily designed to facilitate the criminal prosecution of the most serious or harmful offenses, which in essence justify its use, or for the enforcement of penalties. Therefore, it must be used in an efficient, effective, and proportionate manner, as a tool for preventing and combating crime, while simultaneously safeguarding the human rights of suspects and convicted individuals. The EAW is intended to be used only in cases where a national arrest warrant or any other enforceable judicial decision with an equivalent effect has been issued. Additionally, a brief overview of the relevant articles of the Framework Decision appears necessary. In particular, the general rule set out in Article 2(1) provides that the EAW may be issued for 1) acts punishable under the law of the issuing state by a custodial sentence or detention order with a maximum duration of at least 12 months; or 2) if a sentence has already been imposed, for convictions involving at least 4 months of deprivation of liberty. In such cases, the principle of double criminality applies (Article 2(4)), allowing the executing state to make surrender conditional upon whether the act constitutes an offense under its own legal system. Exceptions to this general rule are provided for specific crimes listed in Article 2(2) (ranging from human trafficking to crimes under the jurisdiction of the International Criminal Court), for which double criminality is not required, provided they are punishable in the issuing state by a custodial sentence or detention order of at least three years, and are defined according to the law of that state. The list in this provision is not limited to cross-border crimes or crimes specifically related to the EU, but includes “ordinary” crimes, such as fraud, arson, etc. In other words, it contains terms that aim to capture broader criminal phenomena, such as racism and xenophobia. Nevertheless, the Court of Justice of the European Union (hereinafter “CJEU”) has confirmed the validity of Framework Decision 2002/584/JHA following a preliminary question from a Belgian court. Additionally, the Court of Justice of the European Communities (hereinafter “ECJ”) was asked to determine whether the Framework Decision violated the principle of legality, due to the lack of precise definitions for the offenses exempt from the double criminality requirement—instead describing them in broad categories. The Court ruled that, while the principle of legality does indeed reflect common constitutional traditions of the Member States and thus forms part of primary EU law, it is not violated in this case, as the specific legal definitions of the offenses in question exist at least in the law of the issuing Member State.
Regarding the procedural stages, the transmission of the European Arrest Warrant (EAW) to the executing judicial authority is required (Article 9(1)), as well as the registration of the wanted person in the Schengen Information System if their location is unknown (Article 9(2), see also Article 10). In addition, upon arrest, the wanted person must be informed of the existence and content of the EAW and of their right to legal representation and interpretation services (Article 11). Furthermore, if the arrested person declares their consent to surrender, this consent – along with, where applicable, explicit waiver of the benefit of the “specialty rule” mentioned in Article 27(2) – must be given before the executing judicial authority in accordance with the national law of the executing Member State (Article 13). This consent and the explicit waiver of the specialty rule must be given voluntarily and with full awareness of the consequences, since such consent is in principle irrevocable (Article 13(4)). In the absence of consent (Article 14), the arrested person has the right to be heard by the judicial authority of the executing state, in accordance with the law of that Member State. There is also the possibility to request the urgent submission of necessary supplementary information (Article 15(2)). In accordance with the benefit of the specialty rule, Article 27(2) states “[…] a person who has been surrendered shall not be prosecuted, sentenced, or otherwise deprived of liberty for an offense committed before their surrender other than that for which they were surrendered,” unless the issuing Member State has made a notification to the contrary (Article 27(1)) or one of the exceptions under paragraph 3 applies (e.g., the surrendered person, although able to leave the territory of the Member State to which they were surrendered, did not do so within 45 days after final release, or they returned to that territory after having left it).
Nonetheless, it is beyond a doubt that the grounds for mandatory and optional non-execution have been the subject of intense criticism. Based on Article 3 of FD EAW, which deals with mandatory grounds for refusal, the executing judicial authority has the obligation to refuse the execution of the EAW when it finds that one of the situations included in that article is present. Pursuant to Article 4 of FD EAW, the executing judicial authority has instead the option to decide whether to refuse or not the execution of the EAW. According to the Court, this means that the executing judicial authority must enjoy a margin of appreciation while taking the decision on whether to execute or not the EAW.
The Luxemburg court has found that Member States have a margin of discretion to decide whether to transpose or not into their domestic law one or more of the grounds for optional non-execution listed in Article 4 of FD EAW. By transposing a part of those refusal grounds, Member States would limit the situations in which the executing judicial authority may refuse the execution of the EAW. This would facilitate the surrender of the requested persons. That choice and the subsequent effect would be in harmony with the principle of mutual recognition, on which the FD EAW is founded.
However, if Member States have transposed them, the executing judicial authorities cannot be required, under national law, to automatically refuse the execution of the EAW for those grounds, without having the possibility to assess the specific circumstances of the case. This means that national provisions implementing Article 4 of FD EAW cannot deny the executing judicial authority the opportunity to determine, based on the circumstances of each case, whether the grounds for refusal are fulfilled. Otherwise, it would mean transforming the option for refusal to an obligation that the executing authorities have under that article. Thereby, the refusal which is regarded as an exception would practically become the rule.
When it comes to the principle of “ne bis in idem”, Article 3(2) EAW FD and Article 4(3) EAW FD expressly recognise it as a safeguard to be respected in the execution of an EAW. The principle of “ne bis in idem” is envisaged in both Articles 3(2) and 4(5) of FD EAW. Both provisions refer to the situation in which the requested person has been finally judged by for the same acts to which the EAW refers. If the requested person has been sentenced for the same acts, the application of these provisions requires an additional condition, that the sentence has been served, is being served, or may no longer be executed under the law of the sentencing country. The wording of Articles 3(2) and Article 4(5) of FD EAW is almost identical, with the only difference that in the former provision the final judgment against the requested person has been delivered “by a Member State”, whereas in the second “by a third country”.
The Court has also pointed out that the application of the “ne bis in idem” principle is different when the requested person has been finally judged “by a Member State” (Article 3(2) of FD EAW) or “by a third country” (Article 4(5) of FD EAW). The reason is, according to the Court, that the level of trust that exists between Member States is not the same as the trust that Member States have towards third countries and their criminal justice systems. While the former implies a high degree of mutual trust, the same cannot be presumed for the latter. Accordingly, under Article 3(2) of FD EAW the executing judicial authority has the obligation to refuse the execution of the EAW. Whereas pursuant to Article 4(5) of FD EAW, the executing judicial authority enjoys a margin of appreciation, to verify and examine in which circumstances the requested person has been judged or sentenced in the third country, before deciding whether to refuse the execution of the EAW. Therefore, the Court has ruled that, when Member States decide to transpose Article 4(5) of FD EAW, the executing judicial authority must enjoy, under national law, a margin of appreciation to decide whether to refuse the execution of the EAW for the grounds to which that provision refers.
The Court has also interpretated the expression “the sentence … may no longer be executed under the law of the sentencing country” used in Article 4(5) FD EAW. The Court has found that, in principle, such expression covers all the leniency measures provided for by the laws of the sentencing country which have the effect that the sanction imposed can no longer be executed. That expression includes all the leniency measures that have such legal effect, regardless, of the seriousness of the facts, the authority which granted the measure, or of the considerations from which it arises. For example, a remission of sentence granted by a nonjudicial authority, which may be given also to persons convicted of serious acts and is not related to the penal policy, cannot be automatically excluded from the application of Article 4(5) of FD EAW. Nonetheless, the definition of the leniency measure under national law is not mandatory for the executing judicial authority. Since the latter must enjoy a margin of appreciation under Article 4(5) of FD EAW, that authority should be able to examine, among others, the circumstances in which the requested person has benefited from a general leniency measure, and the scope and conditions of that measure. When taking the decision on whether to refuse or not the execution of the EAW on those grounds, the executing judicial authority must consider both: the purpose of preventing impunity and fighting against crime, and that of ensuring legal certainty for the requested person. Identity of facts should be the only applicable rule, denying any residual role to formal criteria based on the legal definition of the offence. Ne bis in idem is recognised as an autonomous concept of European law, as defined in the Mantello case; as such, it deserves uniform application throughout the EU.
Finally, Article 5 establishes certain safeguards that must be provided by the Member State issuing the warrant. It is therefore required that a new trial be held with the presence of the person concerned, if that person was neither summoned in person nor otherwise informed of the date and place of the hearing that led to the decision issued in their absence. There are also provisions for the review of the imposed sentence or for the application of leniency measures when the offense underlying the EAW is punishable by life imprisonment or a life-long custodial security measure. Furthermore, provision is made for the possibility of transfer for the service of the sentence to be imposed in the issuing state when the person is a national or resident of the executing state.
The principle of mutual recognition and the European Arrest Warrant under the scope of case law
A catalytic role was played by the case law of the Court of Justice of the European Union in the development and interpretation of the European Arrest Warrant, as well as the principle of mutual recognition. Initially, in two decisions issued in 2013, the CJEU, upholding the principle of mutual trust, ruled that the executing judicial authority may not make the execution of a warrant conditional on requirements other than those set out in the specific provisions of the Framework Decision. Thus, the Court did not accept the reservation of “EU public order” as a limit to mutual recognition, resulting in Article 1(3) being viewed as merely “clarificatory” in nature and essentially rendered ineffective. Specifically, in the Radu case, the referring court asked for clarification, within the context of a preliminary ruling, on “whether Framework Decision 2002/584 must, in light of Articles 47 and 48 of the Charter and Article 6 of the ECHR, be interpreted as allowing executing judicial authorities to refuse execution of a European Arrest Warrant on the grounds that the issuing judicial authorities did not give the requested person a chance to be heard before the warrant was issued”. Similarly, in the Melloni v. Ministerio case, concerning an early attempt to recognize “national public order” as a restriction on the principle of mutual recognition, the referring court asked whether “Article 53 of the Charter, interpreted systematically in conjunction with the rights recognized under Articles 47 and 48, allows a Member State to make the surrender of a person convicted in absentia conditional on the judgment being subject to review in the requesting Member State, thereby affording those rights a higher level of protection than that provided by EU law, in order to prevent an interpretation that would limit or undermine fundamental rights enshrined in the Constitution of the executing Member State”.
In both of these decisions, the CJEU ruled that Member States can refuse to execute an EAW only if one of the mandatory non-execution grounds listed in Article 3 or one of the optional grounds listed in Articles 4 and 4a of the Framework Decision applies. Furthermore, in the Melloni case, the interpretation attempted by the Spanish court, aiming to offer a higher level of protection to the requested person based on the Spanish Constitution, was held by the CJEU to violate the principle of primacy of EU law. This is because it would allow a Member State to obstruct the application of EU law-compliant acts, solely on the basis that such acts do not meet the fundamental rights guaranteed under its own Constitution. This interpretation was further supported by harmonization achieved at the EU level through Framework Decision 2009/299/JHA on the execution of EAWs in absentia.
In this way, the role of fundamental rights appeared to be confined to the cases where they are expressly specified as grounds for refusal within the Framework Decision. In Melloni v Ministerio case, the Court found that: “Allowing a Member State to invoke Article 53 of the Charter of Fundamental Rights of the EU (hereinafter “the Charter”) to condition the surrender of a person convicted in absentia on a requirement not provided for in Framework Decision 2009/299 – namely that the conviction must be open to review in the issuing Member State – to avoid a violation of the right to a fair trial and rights of the defense guaranteed by the executing Member State’s Constitution, would, by challenging the uniformity of the level of fundamental rights protection set by the Framework Decision, undermine the principles of mutual trust and mutual recognition which that decision aims to strengthen, and consequently jeopardize the effectiveness of the Framework Decision”.
Moreover, on 18 December 2014, the CJEU delivered its long awaited Opinion 2/13 on the compatibility with EU law of the draft agreement for EU accession to the European Convention on Human Rights (hereinafter “ECHR”). The CJEU concluded, to the great surprise of many, that the accession agreement is not compatible with EU law. Indeed it found so many obstacles with the agreement that it has now rendered accession very difficult, if not impossible. It is also important to mention that, in its Opinion of 18 December 2014 (paras. 191–192), the CJEU emphasized that “The principle of mutual trust between Member States is of fundamental importance in Union law, enabling the creation and maintenance of an area without internal borders. This principle, particularly in the area of freedom, security, and justice, requires each Member State – except in exceptional cases – to presume that all other Member States comply with Union law and, especially, respect fundamental rights recognized therein. Specifically, when applying Union law, Member States may be required to presume that other Member States respect fundamental rights, and thus are not allowed, except in exceptional cases, to require a higher national standard of protection or to review whether another Member State has respected fundamental rights in a specific case”. Therefore, the CJEU sees mutual trust as limited to trust between states, essentially excluding the affected individual from its reasoning. Two negative obligations arise from this, and more specifically: 1) Member States may not demand a higher national level of protection of fundamental rights than that guaranteed by EU law and 2) Except in exceptional cases, they may not verify whether another Member State has respected fundamental rights in a given case.
However, the shift occurred with the judgment of the Grand Chamber of the CJEU in Aranyosi and Căldăraru cases. These cases involved preliminary questions from the Higher Regional Court of Bremen, which, having received information about prison conditions in Hungary and Romania that could constitute inhuman or degrading treatment, asked the CJEU to clarify the scope of Article 1(3) of the Framework Decision. Specifically, the referring court inquired whether this provision allows the executing state to refuse surrender “when there are serious indications that the detention conditions in the issuing Member State infringe the fundamental rights of the individual concerned and the general principles of law as enshrined in Article 6 TEU, or whether it can or must make its decision on the permissibility of surrender dependent on the provision of guarantees concerning the detention conditions”. In this case, the CJEU, while emphasizing the importance of the principle of mutual recognition in EU law, confirmed what had already been noted in the Court’s (plenary) Opinion of 18 December 2014 – namely, that the principle of mutual trust, especially in the Area of Freedom, Security and Justice, requires each Member State, except in exceptional circumstances, to presume that all other Member States comply with EU law and, in particular, respect the fundamental rights recognized by that law. Thus, when the judicial authority of the executing Member State has before it evidence showing a real risk of inhuman or degrading treatment of detainees in the issuing Member State, it is obliged – under the level of protection of fundamental rights provided by EU law, and in particular Article 4 of the Charter – to assess whether such a risk exists when it is called upon to decide on the surrender to the issuing state’s authorities of the individual subject to a European Arrest Warrant. The Court concluded that “the execution of such a warrant cannot result in inhuman or degrading treatment of the person concerned”.
Furthermore, in attempting to specify the exceptional circumstances, under which the executing state may refuse to surrender the requested person, the Court established a two-step test. When it comes to the first level, the executing judicial authority must determine whether there are “systemic or generalized deficiencies or deficiencies affecting certain groups of people or certain detention centers”. This assessment must be based on “objective, reliable, specific, and properly updated information” regarding the detention conditions in the issuing Member State. Such information may derive, among others, from international judicial decisions (e.g., judgments of the European Court of Human Rights), from national judgments of the issuing state, as well as from decisions, reports, and other documents prepared by bodies of the Council of Europe or United Nations mechanisms. Apart from that, when it comes to the second level, if the executing authority finds that such systemic deficiencies exist, then – pursuant to Article 15(2) of the Framework Decision – it must request the urgent provision of all necessary supplementary information from the judicial authority of the issuing Member State concerning the conditions under which the person concerned will be detained. The purpose of this information is to allow the executing authority to form an informed opinion and assess, specifically and accurately, whether there are serious and substantiated grounds to believe that the person will face such a risk due to the expected detention conditions in the issuing Member State. In other words, it must ascertain whether, under the specific circumstances of the case, there are serious and substantiated grounds for believing that, following surrender to the issuing Member State, the person concerned would be exposed to a real risk of inhuman or degrading treatment in that Member State. Only if this individual risk is confirmed must the executing authority postpone the person’s surrender. If the existence of such a risk cannot be ruled out within a reasonable time frame, the authority must then decide whether to terminate the surrender procedure altogether.
This CJEU judgment was considered of exceptional importance, as it placed limits on the principle of mutual recognition—limits that were not explicitly defined in secondary EU law—in the name of protecting fundamental rights, such as the prohibition of torture and inhuman or degrading treatment. Thus, as rightly noted, it was confirmed that the principle of mutual trust between Member States cannot apply in the abstract, but must be assessed on the basis of concrete empirical data concerning the protection of fundamental rights in the individual Member States on which that trust is founded. Moreover, it is significant to add that the European Court of Human Rights (hereinafter “ECtHR”) responded in the Tarakhel and Avotinš cases that national courts cannot abstain from examining a complaint simply because they are applying EU law. Similarly, the German Federal Constitutional Court (BVerfG) stated that the compatibility of EAW execution with fundamental rights is a matter of constitutional identity, and established a constitutional obligation to ensure that the principles of Article 1(1) of the German Constitution are upheld during surrender under the EAW.
According to that, the CJEU endorses a two-step approach when assessing risks of inhuman or degrading treatment arising from EAW execution. Particularly, executing judicial authorities must conduct a general assessment of the risk when such evidence exists, and then carry out a specific and precise evaluation as to whether there are substantial grounds to believe that the individual would face such risk due to detention conditions in the issuing state, based on additional information provided by the latter. If so, execution of the EAW must be postponed until assurances are provided that eliminate the risk. This signals a shift away from automatic mutual recognition based on blind trust, toward trust earned through individualized assessments of the impact on fundamental rights — effectively a dialogical model of interaction between national authorities, inspired by the BVerfG’s approach and reshaping relations with the ECtHR, though questions remain about “who has the final say on the review of fundamental rights and based on which criteria”.
Additionally, in case ML, the CJEU highlighted the link between mutual trust and the fast-track cooperation model established under the EAW Framework Decision, noting that executing authorities must assess prison conditions in the issuing Member State based on available information. The duty of sincere cooperation (Art. 4(3) TEU) should govern the dialogue between issuing and executing judicial authorities. Nevertheless, in the Dorobantu case, the CJEU reaffirmed the Melloni rationale, stating that the executing authority may issue a surrender only in compliance with Articles 4 of the Charter and 3 ECHR, and not national law, even if the latter offers a higher level of protection. This imposes limits on judicial dialogue regarding the review of fundamental rights compliance by the issuing authority, linked to uncritical reliance on mutual trust and provided assurances. It leaves national courts to continually refer such interpretation questions to Luxembourg, reinforcing the need for further procedural harmonization at the EU level. Moreover, in Case LM, the CJEU extended the Aranyosi approach to cases involving rule of law concerns from the perspective of the right to a fair trial (Article 47 Charter), stating that “Judicial independence is an essential element of the fundamental right to a fair trial, which is crucial for ensuring protection of all rights under Union law and for upholding the common values of Member States referred to in Article 2 TEU, particularly the rule of law (para. 48)”. Yet, the CJEU still required application of the Aranyosi test even where the Commission had issued a reasoned proposal under Article 7(1) TEU identifying violations by the issuing state.
In this evolving context, one of the most recent developments saw the Amsterdam District Court request the CJEU to limit the Aranyosi test to its first step where there are indications of systemic or generalized deficiencies in judicial independence in the issuing state. The CJEU rejected this, stating that executing judicial authorities cannot deny the status of “issuing judicial authority” to all judges/courts of that Member State, provided they act independently from the executive. Moreover, the CJEU introduces an artificial distinction between judicial independence for the purpose of defining an issuing authority and judicial independence where there are systemic deficiencies in the rule of law.
In the application of the European arrest warrant mechanism, the principles of mutual trust and mutual recognition have come under the pressure of serious fundamental rights concerns in some EU Member States in particular. The latest chapter in a yet unfinished tale has been written on 17 December 2020, when the EU Court of Justice handed down its preliminary ruling in two cases in which Poland had requested the Dutch authorities to surrender two Polish nationals (joined cases L/P). In its preliminary ruling, the Court has, amongst other things, upheld the requirement for executing authorities to still carry out the second, individualised, step of the two-step test that has been developed in Aranyosi/Căldăraru and got confirmed in LM, It therefore remains required for executing authorities to assess whether there is a real risk that the sought person him/herself will be subject of a breach of the fundamental right in respect of which it was established (under the first element of the two-step test) that there are “systemic of generalised deficiencies” in the issuing Member State in safeguarding that right.
Conclusion
The principle of mutual recognition constitutes a foundational element of judicial cooperation in criminal matters within the European Union, reflecting a shift from traditional extradition mechanisms toward a system grounded in mutual trust and legal integration. The European Arrest Warrant, as the first concrete manifestation of this principle, has significantly streamlined surrender procedures among Member States, reinforcing the EU’s commitment to a common area of freedom, security, and justice. The adoption of the FD EAW has brought significant improvements regarding the surrender of persons wanted by criminal justice for the purpose of non-execution of sentencing decisions or detention orders. Nonetheless, it should be noted that mutual handover is not automatic. Speed is often at the expense of the principles of a fair trial and rule of law. In the 20 years that have passed since the entry into force of the FD EAW in 2004, it has become clear that the choice of anchoring the EAW’s functioning on a requirement of mutual trust between EU Member States’ judicial authorities has generated far-reaching constitutional and legal challenges and tensions Executing States retain the right to verify the mandatory conditions, optional conditions and guarantees that the framework decision provides. In terms of the principle of due process and more specifically regarding the right of the accused to be effectively notified of the trial against him and to participate personally in the judicial session, the FD EWA has harmonized all legal situations which are considered that they fulfil the above guarantees, leaving no possibility of interpretation by the courts of the Member States.
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