Courts and Compliance in the European Union: The European Arrest Warrant in National Constitutional Courts NYU

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Courts and Compliance in the European Union: The European Arrest Warrant in National Constitutional Courts NYU School of Law • New York, NY 10012 The Jean Monnet Working Paper Series can be found at: www.JeanMonnetProgram.org

on   http://wwwjeanmonnetprogram.org/papers/08/080501.pdf

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This paper tests the argument as to whether and how constitutional courts act as veto players in the process of complying with EU law. My findings show that rather than courts acting as veto players and sustaining the status quo, their decisions actually led to significant changes to the constitutions of several member states. The process of European integration and the supremacy of EU law suspended the power of national constitutional courts as veto players. Instead, these courts acted as agents of the European Union by enforcing EU law.

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One of the key pieces of legislation was the Framework Decision on the European Arrest Warrant (EAW), which set the foundation for Europeanizing criminal law in three important ways. First, it required national measures to be implemented that required judicial officials to recognize the legal and judicial institutions of other member states and their decisions as equally legitimate and competent. Second, member states were also required to implement procedures by which citizens or non-citizens residing in one EU member state could be transferred to another member state without undergoing a formal extradition procedure, redefined as surrender. Third, and most importantly, the principle of double criminality was lifted. Surrender to another country was no longer limited by whether the suspect violated a law in the extraditing state. A member state could issue such a warrant under two conditions. First, a member state can request the arrest and transfer of an individual if the suspected crime was punishable by at least 12 months of detainment or where a sentence of at least four months was already handed down. Second, surrender of a suspect could also occur if a series of offenses listed in the Decision was punishable by the issuing member state of at least 3 years of detention. As long as the warrant by the issuing state met these criteria, all extradition procedures for nationals or non-nationals would be waived.

All EU member states implemented the law by November 1, 2004, eleven months after the official deadline of December 31, 2003 listed in the Framework Decision. Italy was the only exception, which passed the necessary legislation more than one year later. Half of all EU member states implemented the EAW on time (BE, DK, ES, IE, CY, LT HU, PL, PT, SI, FI, SE, and the UK), with the Czech Republic and Germany following eight months later.

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In the case of the European Arrest Warrant, the constitutional limits are easy to discover. Most continental European countries with a civil law tradition possess explicit bans on the extradition of their nationals. In several countries, such as Portugal and Slovenia, the constitution was amended before courts could decide whether implementing legislation was constitutional or not. Not all civil law countries have an outright ban on extradition. For example, France, the origin of the civil law tradition, as well as Belgium, Greece, Luxembourg, and Spain do not have such provisions in their constitutions. With the exception of Cyprus, all common law countries in the EU (Ireland, Malta, and the United Kingdom) also do not have such provisions. Still, we should expect that those countries with explicit bans on the extradition of its nationals will lead constitutional courts to invalidate national legislation implementing the Framework Decision.

Page 15, Although national constitutional courts have not always or completely accepted the doctrine of supremacy and do not stand beneath the European Court of Justice in a completely rationalized hierarchical legal order, the legal integration of the EU has made national constitutional courts additio nal agents of the European Union responsible for enforcing EU law. If true, then when national laws giving effect to EU law conflict when basic constitutional norms, national constitutional courts will not jeopardize non-compliance with EU law by vetoing the national legislation giving effect to EU law.

Page 33. Conclusion:

The European Arrest Warrant is an important first step in the integration of national criminal legal systems. In this case, an exogenous shock, an act of international terrorism, and the threat of future attacks in Europe accelerated cooperation under the Third Pillar. This Framework Decision also led to a series of constitutional challenges in several countries that prevented EU member states from fulfilling their agreements with other EU member states to remove obstacles to extraditing nationals. Where there were bans on the extradition of one’s nationals, constitutional appeals developed. Yet, although the classic veto players approach predicts that permanent non-compliance would result because constitutional courts exercised their power of judicial review, their decisions actually served to transform the legislative status quo. Although there were delays in compliance, the ultimate result was national legislation that complied better with the principles laid down in the Framework Decision.

The rapid approval of changes to national constitutions in light of the legal demands contained in the Framework Decision raises a series of additional issues that further research should address. First, the German Constitutional Court’s decision to require concrete review of the quality of legal protections for criminal suspects in other EU member states for (only) Germans during the surrender process illustrates the skepticism judicial authorities have concerning whether other countries’ legal system meet their own standards in terms of protecting a person’s rights and privileges. The European Arrest Warrant attempts to address those concerns by specifying a limited number of rights a suspect is entitled to, including the right to legal assistance and to be informed of the charges against him or her. In addition, the FD stipulated in its preamble that all surrender procedures should be in compliance with Article 6 of the Treaty of European Union and the Charter of Fundamental Rights of the EU. These stipulations raise the question as to whether, in reality, other member states meet these standards.

If not, is this hindering the process of mutual recognition in criminal affairs and, as a consequence, state efforts to prevent and combat international terrorism? If many countries did not have these rights and other forms of legal protections or lack a professional criminal legal system, has the European Arrest Warrant been an agent of institutional change? If so, can we speak of the "Europeanization" criminal legal systems in the European Union? If national criminal legal systems are being "Europeanized," then some countries may be improving or raising the quality of their protections and treatment of terrorist suspects. At the same time, some countries’ citizens may be subjected to prosecution by authorities whose standards do not meet those of the surrendering country. While basic minimum standards of criminal procedure and rights may be espoused and in place, continued divergence in national legal systems may hinder continued cooperation in the Third Pillar, as judicial officials in practice refuse to comply with EU law.