Legal Basis: Framework Decision 2002/584/JHA on the European Arrest Warrant and the Surrender Procedures Between Member States
Faculty of Law, Pan-European University, Bratislava, Slovak Republic
The chapter deals with the legal basis of the European arrest warrant—the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States. It is divided into five sections and is summarised with concluding observations. Section 301 introduces its legal analysis and answers a principal question as to why the European arrest warrant was introduced by the framework decision. Further, Sect. 3.2 examines its relation to the law of extradition. Subsequently, Sect. 3.3 deals with the compatibility of the Framework Decision 2002/584/JHA on the European arrest warrant […] with the European Union primary law. Section 3.4 observes the amendments of the Framework Decision. In addition, whereas it has been supplemented, Sect. 3.5 briefly mentions additional legal acts.
[…] must be understood in the context of the objective that the Union should become an Area of freedom, security and justice.1 (Eleanor Sharpston)
3.1 Legal Analysis
As introduced in the first chapter, the legal basis for the EAW at the EU level addressed for all Member States is the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States 2 (hereinafter ‘Framework Decision on the EAW’). It was adopted on 13th June 2002 and entered into force on 1st January 2004 (the EU Member States shall take the necessary measures to comply with the provisions of the Framework Decision by 31st December 20033).
Even though it is not explicitly mentioned in its text, the purpose of the Framework Decision on the EAW is to simplify and speed up the extradition procedures between the EU Member States, i.e. within the single European judicial area.4 The EU was seeking to simplify the transfer of criminals between its Member States to the most possible extent, not only with the contents of the Framework Decision on the EAW, but also with the wording in its title ‘… and Surrender Procedures between the Member States’, where it made clear that complicated extradition proceedings are now outdated within the EU.5 It should not be overlooked that the EAW provided for in the Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’6 of judicial co-operation.
As regards the structure, the Framework Decision on the EAW is divided into four chapters, namely: General Principles,7 Surrender Procedure,8 Effects of the Surrender9 and General and Final Provisions.10 In addition, it contains an annex—the specimen of the EAW.
The Framework Decision on the EAW was adopted pursuant to Article 31 and Article 34(2)(b) of the Treaty on EU as amended by the Treaty of Amsterdam.
First, pursuant to Article 31 of the Treaty on EU, common action on judicial co-operation in criminal matters shall include, among others, facilitating and accelerating co-operation between competent ministries and judicial or equivalent authorities of the EU Member States in relation to proceedings and the enforcement of decisions and facilitating extradition between Member States.11
Second, Article 34(2)(b) of the Treaty on EU provided a specific legal instrument, created purposely for approximation of law in the EU Member States—the framework decision proposed by the European Commission or by the Member States. Unanimity was always required for the adoption of framework decisions (not qualified majority).
The framework decisions were adopted for the purpose of approximation of the laws and regulations of the EU Member States. They shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. The Treaty on EU added—they shall not entail direct effect.12 It follows that the EU Member States were (and still are) obliged to introduce national legislation to bring ‘European legislation’ into force. However, the Treaty on EU did not give any rules on implementing framework decisions.
As far as the purpose of the framework decisions is concerned—approximation—it was an exclusively EU process, strictly related to the development of the policy in the Third Pillar. No other policy sector refers to approximation of Criminal law with the same precision. The focus of this process is the elimination of differences among legal systems, when these are contrasting with the EU minimum standards. Since Member States are obliged to implement framework decisions into national legislation, the EU minimum standards must prevail on national law. EU standards have a higher position than national criminal legislation contrasting with them.13 In the opinion of Grzelak, framework decision was the only legal instrument of the Third Pillar which allowed for faster attainment of the EU’s goal to maintain and develop the EU as an AFSJ.14
Framework decisions can best be compared with the legal instrument of a directive. The text of Article 34(2)(b) of the Treaty on EU is closely in line with the description of the First Pillar legal instrument of the directive in the third paragraph of Article 249 of the Treaty establishing the European Community.15 , 16 In both provisions, the binding force in relation to the result to be achieved and the right to choose the form and methods is stated.17 Thus, both instruments are binding upon Member States of the EU as to the result to be achieved but leave to the national authorities the choice of form and methods.
Again, it must be emphasised that Article 34(2)(b) of the Treaty on EU had an addition (lacking in Article 249 of the Treaty establishing the European Community)—they shall not entail direct effect. It should not be overlooked, as noted Advocate General Kokott, that from Article 34(2)(b) of the Treaty on EU and from the principle of loyalty to the EU every framework decision obliges national courts to bring their interpretation of national laws as far as possible into conformity with the wording and purpose of the framework decision, regardless of whether those laws were adopted before or after the framework decision, so as to achieve the result envisaged by the framework decision.18 However, the case-law of the Court of Justice on the direct effect of directives provisions (implemented late, incorrectly or not at all) do not apply to framework decisions.19 This expresses what the drafters viewed as the intergovernmental, non-community nature of the Third Pillar of the EU.20
In the case of Pupino,21 the Court of Justice accepted the obligation to interpret national legislation in conformity with framework decisions. At the origin of the case there was a reference for a preliminary ruling22 concerning the interpretation of the Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings.23 The question was referred by the criminal court of Florence (Italy) in the proceedings against Maria Pupino, a nursery school teacher charged with injuring her under-aged pupils. The question posed to the Court of Justice was whether this act, which remained unimplemented in Italian law, affected the interpretation to be given to provisions of the Italian Code of Criminal Procedure on when special procedures could be used for particularly vulnerable victims giving evidence. The prevailing interpretation of the relevant provisions was that the special procedures were not available for victims of the offences charged. The case of Pupino is the one case in which the Court of Justice had the opportunity to express itself on the effects of framework decisions in national law in the absence of proper implementation. In the opinion of the Court of Justice, the principle of conforming interpretation is binding in relation to framework decisions adopted under the Treaty on EU. When applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with the Treaty on EU. Moreover, the national court is required to take into consideration all the rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the framework decision.24
The case of Pupino became the first step towards the breaking of the distinctions between the law of the First Pillar and the Third Pillar.25 However, its interpreting is no simple matter. Zurek argues that, using only functional interpretation, the Court of Justice in the case of Pupino reached a conclusion that framework decisions entail direct effect as in case of directives of the First Pillar of the EU. It stated the supremacy of EU law, not only of the First Pillar, but also of the Third Pillar, conceding that the courts of the EU Member States are obliged to apply a pro-European interpretation of constitutional provisions.26 Fletcher, Lööf and Gilmore argue that the Court of Justice gave to the framework decision what effectivity it could.27 Cano argues that it radically changes the panorama of the enforcement of Third Pillar instruments, placing national courts at the core of the action.28
A principal question which begs consideration is why the EAW was introduced by the framework decision?
The EAW was introduced in the period of the Third Pillar of the EU. The conventions drawn up under the Council of Europe as well as in European political co-operation or in the EU had limited success and slow progress in ratifications. Both the legal order flowing from the Treaty on EU and the advanced state of judicial co-operation between EU Member States justified the creation of the EAW by a framework decision.29 Framework decisions have quickly become useful and popular legal instruments among EU policymakers, because they made it possible to avoid the long procedures connected with the negotiation, signature and ratification of international conventions. For this reason, the EU has increasingly adopted framework decisions since the entry into force of the Treaty of Amsterdam amending the Treaty on EU.30
The popularity of framework decisions has caused the introduction of a great number of these instruments. This trend has two dimensions.31
The first dimension concerns substantive criminal law. The EU adopted framework decisions for the approximation of a wide series of offences, introducing minimum rules concerning the constituent elements of crimes and penalties related to, for example, participation in a criminal organisation,32 trafficking in human beings,33 sexual abuse and sexual exploitation of children and child pornography34 and trafficking in drugs.35 They were adopted in order to harmonise them throughout all EU Member States. Thus, they ‘by means of approximation harmonised’ series of offences at the EU level.
The second dimension concerns substantive criminal law, namely criminal procedure and co-operation in criminal matters. The EU introduced framework decisions for purposes of the adoption of common regulations concerning exchange of information, criminal procedure and, most notably, the implementation of the principle of mutual recognition, for example, the EAW, the Order freezing property or evidence,36 the European evidence warrant,37 mutual recognition of financial penalties,38 and mutual recognition of confiscation orders.39
Last, but not least, the Framework Decision on the EAW was adopted in accordance with the principles of subsidiarity 40 and proportionality. 41 Since the aim of replacing the system of multilateral extradition could not be sufficiently achieved by the EU Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at EU level, the Council of the EU might adopt measures in accordance with the principle of subsidiarity. In accordance with the principle of proportionality, the Framework Decision did not go beyond what is necessary in order to achieve that objective.
3.2 Relation to Law of Extradition
In our opinion, the surrender replaced extradition as far as the territory of the EU is concerned. However, the material act is the same. This assumption is supported by both scholars and the practice (details see Chap. 13).
A question which therefore begs consideration is how is the relation of ‘surrender’ to ‘extradition’, or in other words, how is the relation of the Framework Decision on the EAW to law of extradition.
As shown, the purpose of the Framework Decision on the EAW is to simplify and speed up the extradition procedures between the EU Member States. The EAW abolished formal extradition between the EU Member States and replaced it by a system of surrender. The EAW has radically changed existing arrangements of co-operation on extradition and constitutes a strong precedent for the application of mutual recognition in criminal matters in the EU42 (see Chap. 5, Sect. 5.1).
The provisions of the Framework Decision on the EAW did not repeal/derogate the law of extradition. As far as the EU is concerned, the law of extradition became obsolete. Without prejudice to their application in relations between the EU Member States and third States, from 1st January 2004 the Framework Decision on the EAW replaced the corresponding provisions of the following conventions applicable in the field of extradition in relations between EU Member States43:
the European Convention on Extradition44 of 1957, adopted by the Council of Europe, as well as its first additional protocol45 of 1975 and the second additional protocol46 of 1978;
the European Convention on the Suppression of Terrorism47 of 1977, as well adopted by the Council of Europe, as far as extradition is concerned;
the Agreement on the Simplification and Modernisation of Methods of Transmitting Extradition Requests of 1989;
the Convention on Simplified Extradition Procedure between the Member States of the EU48 of 1995;
the Convention relating to Extradition between the Member States of the EU49 of 1996;
the Convention implementing the Schengen Agreement50 of 1990, as far as extradition is concerned.
Thus, the Framework Decision on the EAW replaced all previous extradition agreements between EU Member States. As argues Mann, a uniform procedure for all EU Member States provides an obvious advantage to having different procedures between different countries.51
However, the EU Member States may continue to apply bilateral or multilateral agreements or arrangements in force when the Framework Decision on the EAW was adopted in so far they allow its objectives to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of EAW.52 The Member States were able within 3 months from the entry into force the Framework Decision on the EAW notify the Council of the EU and the European Commission of the existing agreements and arrangements which they wished to continue applying. Such notifications were announced by Denmark, Finland and Sweden. These states stated that in most respects the uniform legislation in force between the Nordic States53 allows the prescriptions of the Framework Decision on the EAW to be extended and enlarged and helps to simplify and facilitate further the procedures of surrender of persons who are the subject of EAWs. Denmark, Finland and Sweden therefore continue to apply the uniform legislation in force between them in so far as it allows the prescriptions of the Framework Decision on the EAW to be extended or enlarged and helps to simplify or facilitate further the procedures for surrender of persons who are the subject of EAWs.54
Moreover, the Member States may also conclude bilateral or multilateral agreements or arrangements after the Framework Decision on the EAW came into force in so far they allow its prescriptions to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of EAW, in particular by fixing time limits shorter than those fixed in the Framework Decision on the EAW. Such agreements and arrangements may in no case affect relations with the EU Member States which are not parties to them.55 Member States shall also notify the Council of the EU and the European Commission of any such a new agreement or arrangement within 3 months of signing it. However, no such a document has been notified.
Comparing the extradition and the surrender procedure, Vennemann argues that the EAW represents the apex in Europe’s gradual departure from the classical principles of international law governing extradition and that it definitely constitutes a new qualitative step towards a European judicial criminal area.56 Bureš states that the EAW clearly makes the EU legal process of extradition and surrender more legible and transparent than the previous myriad of extradition conventions and bilateral agreements.57
As regards the comparison of the EAW and the European evidence warrant, as argues Murphy, unlike the EAW legislation, the European evidence warrant legislation—the Framework Decision 2008/978/JHA on the European evidence warrant […]58—did not seek to replace all existing rules and procedures. Rather, it fit within the existing framework of mutual assistance and as such is a less radical and more complicated piece of legislation. The European evidence warrant shall coexist with existing instruments concerning mutual legal assistance. The Framework Decision 2008/978/JHA on the European evidence warrant […] is a more intricate measure than its counterpart, the Framework Decision on the EAW. As it must fit within the existing mutual legal assistance framework, rather than replace it entirely, its provisions are more restricted.59
Further, as regards the comparison of the EAW and the proposed European investigation order,60 the approach is the same (just a number of replaced applicable laws is different). If adopted, the Directive on the European investigation order, without prejudice to their application between the EU Member States and third States (and their temporary application), shall replace the corresponding provisions of the conventions applicable in the relationships between the Member States.61 In addition, the Directive shall repeal applicable framework decisions.62
3.3 Framework Decision Compatibility: Case C-303/05—Advocaten voor de Wereld
The EAW and the surrender procedure could equally have been the subject of a convention, but the Council of the EU decided to adopt the framework decision—a specific legislative measure of the Third Pillar of the EU. Its decision was challenged by Belgium, however, in the case of Advocaten voor de Wereld 63 the Court of Justice confirmed the framework decision as a valid legislative measure introducing the EAW and the surrender procedure. It was the case that gave the Court of Justice the opportunity to make an authoritative decision that would settle the EAW question, a highly controversial and delicate matter that involved structural issues pertaining to the EU, national constitutional limits, and the authority of European and national courts.64
In 2004 a Belgian non-profit-making association Advocaten voor de Wereld (eng. Lawyers for the World; in this section hereinafter ‘Advocaten’) brought an action before Belgian Court of Arbitration (Arbitragehof) seeking the annulment, in whole or in part, of the Belgian law transposing the provisions of the Framework Decision on the EAW into national law.65 The Court of Arbitration referred for a preliminary ruling to the Court of Justice a question concerning the validity of the Framework Decision on the EAW as to whether it was compatible with the Treaty on EU for purposes of EAW adoption.
In line with Advocaten’s opinions, the Framework Decision on the EAW could not be validly adopted for the purpose of the approximation of laws and regulations as referred to in Article 34 of the Treaty on EU, inasmuch as the Council of the EU was empowered to adopt framework decisions only to approximate progressively the rules on criminal matters in the cases referred to in Articles 29 and 31 of the Treaty EU. For other common action on judicial co-operation in criminal matters, the Council must have recourse to conventions. In addition, only a measure of the same kind could validly derogate from the convention law in force.
In those circumstances, prior to giving judgment, the Court of Arbitration decided to refer the following question to the Court of Justice for a preliminary ruling:
Is the Framework Decision on the EAW […] compatible with Article 34(2)(b) of the Treaty on EU, under which framework decisions may be adopted only for the purpose of approximation of the laws and regulations of the Member States?66
The referring Court was unsure that the Framework Decision on the EAW was the appropriate instrument, holding that it should be annulled because the EAW should have been implemented instead through a Convention.67
As we have seen, the purpose of the Framework Decision on the EAW is to replace the multilateral system of extradition between the EU Member States with a system of surrender. Advocate General Colomer argued that the dispute was focused on the type of instrument adopted, since, in the main proceedings, the suitability of a framework decision is contested on two grounds. The first is that the Framework Decision did not seek to approximate pre existing national laws, because the EAW is a newly created concept. The second ground is that prior international agreements on extradition cannot be repealed by a framework decision.68