The paper discusses possible approaches to interpretation of the Framework Decision on European Arrest Warrant after expiry of the transitional period under the Treaty of Lisbon, on December 1, 2014. Author addresses the tension between the integrative objective of the Framework Decision and other objectives of national criminal law, suggesting that the said Framework Decision allows discretion to national courts to decide on optional grounds for non-execution. Accordingly, national measures that restrict the possibility for the national courts to refer a preliminary reference on interpretation of the Framework Decision to the Court of Justice of the European Union weakens the useful effect of Art. 10 Para. 3 of protocol n° 36 annexed to the Treaty of Lisbon, as well as of Art. 267 TFEU.

SOMMARIO:

I. Introduction. - II. The added value and useful effect of the EAW. - III. Implementation of the EAW and its useful effect - IV. Final remarks - NOTE

I. Introduction.

Writing in 1997, Pierre Schlag [1], introduced the term “key ontological identities” defining them as fundamental identities around which the U.S. constitutional theory constantly revolves. Those are the Constitution as the legal basis, the Act of Founding, the people as the Agent and the Consent as the basis of legitimacy of the social arrangement under which constitutional interpretation operates. In my recent writing [2], starting from Schlag’s analysis I proposed a methodology that does not seek to identify European ontology by replicating the analytical process which would deduce European ontological identities from European constitutional thought but would imagine them, by analogy, from their U.S. counterparts. In the European Union, those identities are: the Founding Treaties as the legal basis, the process of construction of Europe as the Act, the Member States and the peoples of Europe as the agents and the consent of the agents as a basis of legitimacy. The differences between constitutional interpretation in the United States and in the European Union seem to be influenced by differences in understanding the ontology of the two legal systems. Under Art. 19 of the Treaty on European Union, the Court of Justice of the European Union (hereinafter, the CJEU) «… shall ensure that in the interpretation and application of the Treaties the law is observed». If in interpretation and application of European Union law the CJEU is, indeed, informed by its specific ontology, the question remains whether that ontology merely re-con­stitutes traditional functions of national legal rules on the European level or creates integrative ones. In the latter case, useful effect of EU can be understood as an outcome of its integrative function. This paper looks into judicial cooperation in criminal matters in order to discuss useful effect of the Framework Decision on the European Arrest Warrant (hereinafter: the EAW) [3]. The question which I will address is whether the EAW, as interpreted by the CJEU, performs integrative function that goes beyond purely national one, and if it does, to what extent? Or, to put it differently, is the CJEU interpreting the EAW as to reconstitute national criminal law on European level, or is it transforming its function into a genuinely European and integrative? In order to answer the question whether the EAW has useful effect in respect of the EU ontology I will submit the key [continua ..]

II. The added value and useful effect of the EAW.

The term “added value” is similar but not identical to the concept of useful effect (French: l’effet utile). For purposes of this paper it refers to the question what does the EAW add to the already existing legal regime, for example, a possibility to surrender one Member State’s own nationals or, mutual recognition of judgments in criminal matters. In a functional sense, the added value tells us what contributes to the European integration process. In this light, the most general question to be asked is how to measure the added value of having the European Union instead of not having it and, since there are no guarantees that added value of a legal rule will have useful effect, what meaning should one give to rules of EU law and national implementing legislation in order to create it. The concept of useful effect itself also deserves some explanation. In its plain meaning it is an interpretative guidance rule that wants to say that every legal rule is to be interpreted as producing some effect. Conversely, no rule should be interpreted in a way that would frustrate the useful effect of another rule belonging to the same system. A rule without effect hardly has any meaning at all, therefore, an interpretation that preserves certain meaning and effects should prevail over an interpretation that does not. At the same time, reference to useful effect of a rule can be used to delimit its scope of application. Overstretching the scope of one legal rule risks impinging upon the scope of another, either horizontally or vertically, between EU law and national law of a Member State. It may, therefore serve as a tool for fine tuning of federal/su­pranational arrangements. The expression l’effet utile is sometimes used by national legislature in context of implementation of secondary EU law [12]. Yet, it would be a narrow understanding of the concept to imply that without legislative transposition such effect would not exist. Another meaning is suggested by Judge Cruz Vilaça who explains it as a flip side of margin of appreciation, that is, discretion that Member States have in implementation of directives [13].Cruz Vilaça understands the principle primarily as a guarantee of integrity of the European Union legal order that projects itself to relationship with national legal orders [14]. Therefore, it overlaps with the principle of loyal cooperation under which Member States are [continua ..]

III. Implementation of the EAW and its useful effect

Consent of the Member States to integration is not absolutely secured by their accession to the Founding Treaties or by their adoption of secondary EU law. In many respects it depends on implementation and application of previously adopted rules. Implementation of framework decisions entails discretion for the Member States which can be exercised on legislative and judicial level [22]. Certainly, legislative choices made in implementation of the EAW bear consequences for national judicial authorities. Clarity of the EAW itself does not help. Namely, some of the problems that national legislatures had to face was a tension between absence of direct effect of Framework Decisions and the self-executing wording of the EAW which appears to be addressed to national judicial authorities. In this part I will discuss three questions. First, on grounds of what criteria can we determine who are the addressees of the EAW, second, are there objective criteria according to which one could decide whether the discretion granted by the EAW belong to legislative or judicial authorities and, third, what kind of definition of the term “executing judicial authority” preserves the useful effect of the EAW. a. Who Addressee?. –The problem can be illustrated by reference to Article 3 of the EAW laying down conditions for mandatory non-execution and Article 4 that prescribes the grounds for optional non-execution. Both provisions refer to national executing judicial authorities as their addressees. While Article 3 leaves them no discretion and specifies cases where execution the EAW “shall be refused”, Article 4 is drafted in non-absolute language and uses the expression “may refuse”. For example, Article 3(1) specify that national judicial authorityshall refuse to execute the EAW «… if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State" and Article 4(4) provides that the executing judicial authority may refuse to execute "where the criminal prosecution or punishment of the requested person is statute-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law». How is the latter provision to be interpreted? Does it allow national legislative authorities to prescribe a statute of limitations under national law as a ground for mandatory instead of optional [continua ..]

IV. Final remarks

The Treaty of Lisbon and the Charter of Fundamental Rights of the EU significantly changed the legal environment in which the EAW operates. Following the expiry of the five-year transitional period on December 1, 2014, the system of inter-EU rendition has grown teeth in form of European Commission enforcement powers and in form of preliminary references to the CJEU. Against those developments the fact remains that the EAW is deeply embedded in national criminal law and procedure and that initial wave of its transposition took place in a much less supranationalized legal environment. Not less importantly, the EAW regulates an extremely sensitive area of law which is considered to belong to a hard core of national sovereignty. In this sense it may be useful to recall the formative developments in area of free movement of goods. Once the customs duties have been abolished in trade between the Member States, a number of measures of equivalent effect to quantitative restrictions (hereinafter: MEEs), liable to restrict intra-Com­mu­nity trade, started to emerge what prompted the CJEU to develop tests and criteria for their legality under EU law. The rationale behind it was a suspicion that the MEEs would render abolition of customs duties and free movement of goods void of its useful effect. There is certain functional resemblance between the MEEs and national measures adopted in implementation of the EAW. National measures like definition of optional grounds for non-execution as mandatory or designation of prosecution as the executing judicial authority apparently transpose the EAW but at the same time pose questions of its useful effect. More precisely, once the interstate surrender has been liberalized, preservation of the useful effect of the EAW would require removal of such alternative barriers. Apparently, national measures that restrict the possibility for the CJEU to pronounce itself on preliminary references on interpretation of the EAW, empties Art. 10 Para. 3 of protocol No. 36 annexed to the Treaty of Lisbon, as well as of Art. 267 TFEU, of their useful effect [46]. Since December 1, 2014, national courts must have a possibility to address preliminary references to the CJEU and jurisdiction of the Court should not be frustrated by provisions of national law such as those allowing public prosecutor to disallow surrender without possibility of judicial review by a national court and, consequently, by the CJEU.

NOTE