What is the EAW?
The European Arrest Warrant is the most important legal instrument developed in the area of mutual recognition of judicial decisions in Europe and currently represents one of the most effective methods of judicial cooperation. The EAW consists in a simplified and expeditious surrendering procedure that has replaced extradition among Member States. In other words, a person who has committed a serious crime in an EU country but lives in another Member State can be returned to the first one to face justice quickly and with little administrative burden.
Such a supra-national procedural measure of criminal law has no historical precedent. The main innovation of the EAW is represented by its judicial nature. In fact, whilst extradition is in the hands of the executive so that the surrender of criminals requires ministerial consent with all the bureaucratic and political consequences that such a mechanism implies, the EAW necessitates the sole judicial intervention.
How did the EAW originate?
The origins of the EAW lie in the increasing influence on criminal law that the European Union has exerted since the coming into force of the Treaty of Maastricht (1993) and, in particular, the Treaty of Amsterdam (1999), establishing an area of freedom, security and justice between Member States, which aims at ensuring the free movement of persons within the Union offering at the same time a high level of protection through judicial and police cooperation, common asylum and immigration policies and a concerted effort to fight transnational crime.
Within such a legal framework common objectives have been identified in criminal law matters. In particular, according to articles 30 and 31 of the Treaty on European Union and articles 82 to 86 of the Treaty on the Functioning of the European Union, Member States are supposed to work towards harmonising their different substantive and procedural criminal rules and integrating their legal systems through the mutual recognition of the respective judicial decisions.
The adoption of the EAW became a political priority after the vicious attack of 11 September 2001 that drew attention to the necessity of carrying out an effective war against terrorism at global level. As a result, this legal instrument was adopted by means of the Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States of the European Union (2002/584/JHA) of 18 July 2002.
How does the EAW operate?
The EAW is issued by the judicial authority of a Member State to obtain the arrest and surrender by another Member State of an individual for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. There are limited grounds for refusal to recognise and execute a warrant; the EAW must be dealt with a matter of urgency.
Since the adoption of the EAW, two main concerns have arisen in relation to the way in which it operates: its impact on the fundamental rights of the affected individuals; and, in a related manner, its compatibility with the principle of proportionality, which prevents the application of judicial cooperation measures where they would be excessive (e.g. the EAW cannot be applied in relation to minor offences). However, these concerns are tempered by the reciprocal trust that exists between Member States, which justifies a highly automatic mutual recognition of judicial decisions.
Protocol 36 to the EU Treaties envisaged a special provision tailored to the UK to refuse accepting the liberalisation of the scrutiny powers of the European institutions after a five-year period and therefore allowing it to withdraw from the entire measures developed in the area of criminal law before the entry into force of the Lisbon Treaty. David Cameron’s government used this option in July 2013 by communicating its wish to opt out of all Union acts adopted before the end of 2009. As a consequence, the old EU Third Pillar on police and criminal justice matters has ceased to apply to the UK. The Prime Minister justified such a decision on national sovereignty grounds. However, the Centre for European Reform warned the decision would have “major implications” for Britain’s security as the opt-out would make it more difficult for British police to conduct international investigations and convict criminals abroad.
In November 2014, the UK decided to exercise the right to “opt back in” as regards some of these measures, and the government notified its wish to opt-back-in to 35 measures that were considered of vital interest to the UK. The UK has been eventually allowed to immediately re-join 29 non-Schengen measures, including the European Arrest Warrant as well as Europol and Eurojust. However, the UK’s selective participation in the EU criminal law matters poses significant challenges to the coherence of the EU law and the protection of fundamental rights.
What could Brexit mean?
A Brexit scenario can represent a rather clear-cut from a legal perspective, which would most likely make these challenges more acute in the future. In fact, on the one hand, a complete abandonment of all the measures implemented so far at the European Union level would represent a significant step backwards for the fight against transnational crime. On the other, negotiating the maintenance of only some selected key measures, such as the EAW, outside the common area of freedom, security and justice might nonetheless result in an incoherent and as such ineffective system.
Dr Costantino Grasso is Lecturer in Financial Crime and Corporate Governance at University of East London (School of Business and Law) and Global Module Leader for Corporate Governance and Ethics at Queen Mary University of London (School of Law).