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European Arrest Warrant and Constitutional Principles of the Member States: a Case Law-Based Outline in the Attempt to Strike the Right Balance between Interacting Legal Systems

Published online by Cambridge University Press:  06 March 2019

Extract

“No one would accord the status of extradition to legal assistance for the surrender of an accused between a court in the Land of Bavaria and a court in the Land of Lower Saxony, or between a court in the autonomous community of Catalonia and a court in the autonomous community of Andalusia, from which it follows that assistance should not be regarded as extradition where it takes place in the context of the European Union.”

The analogy, perhaps a bit strained, was made by Advocate General Jarabo Colomer, in his final attempt to trace as sharp as possible the boundary between the European arrest warrant, which is mainly a judicial tool aimed at granting legal assistance in criminal matters among Member States, and extradition, an intergovernmental procedure having a political goal, as provided in a number of international and European conventions, with the latter being adopted under article K 3 of the Maastricht Treaty, and which were all replaced as of 1 January 2004, by framework decision 2002/584/JHA (the Justice and Home Affairs Council) relating, specifically, to the European arrest warrant (the “Framework Decision”).

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Copyright © 2008 by German Law Journal GbR 

References

1 The present article is a revised and specific part of the broader and different paper “EU Enlargement and European Constitutionalism through the looking glass of the interaction between national and supranational legal systems”, forthcoming in a changed and revised version in Yearbook of European Law (2009) and as a working paper in the series of the Jean Monnet Center for International and Regional Economic Law & Justice, NYU School of Law (http://www.jeanmonnetprogram.org/). Another version of the some article is forthcoming on the European Journal of Legal Studies (www.ejls.eu). All my thanks to Wojciech Sadurski and to Christina K. Kowalik-Banczyk for their very helpful comments on an earlier draft of the Paper. I would like to thank also Erna Fütö for her very helpful support in researching the relevant German literature.Google Scholar

2 See conclusions to C-303/05 Advocaten de Wererd VZW c. Leden Van de Ministerraad, para. 45, fn. 40Google Scholar

3 See conclusions to C-303/05 Advocaten de Wererd VZW c. Leden Van de Ministerraad, following the preliminary reference of the Belgian Cour d'Arbitrage, with regard to the alleged Community illegitimacy of framework decision 2002/584/JHA on the European arrest warrant. The relevant decision of the Court of Justice dated 3 May 2007, is available at: http://curia.europa.eu/jurisp/cgibin/form.pl?lang=en&newform=newform&alljur=alljur&jurcdj=jurcdj&jurtpi=jurtpi&jurtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoj=docnoj&docnoor=docnoor&typeord=ALLTYP&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&numaff=C-303%2F05&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nomusuel=&domaine=&mots=&resmax=100&Submit=Submit, last accessed 1 October 2008.Google Scholar

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5 Convention on streamlined extradition procedures among European Member States of 10 March 1995 and the Convention on extradition among European Member States of 27 November 1996.Google Scholar

6 Trybunal Konstytucyjny (Polish Constitutional Court), ruling 27 April 2005 (P 1/05), available in a vast summary in English at: http://www.trybunal.gov.pl/eng/summaries/summaries_assets/documents/P_1_05_GB.pdf last accesed, 1 October 2008.Google Scholar

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8 Cyprus Supreme Court, ruling 7 November 2005 (294/2005), available only in the Greek language at: www.cylaw.org. With that decision, the Court noted that the national regulation for the adoption of the framework decision establishing the arrest warrant, was incompatible with art. 11.2 (f) of the Constitution, according to the original wording of which: “no one can be deprived of their freedom except for those cases provided for by the law.” According to the disposition, those cases comprised solely the extradition of foreigners, thus ruling out the possibility that a Cypriot citizen could be extradited. Particularly, the Cypriot Court recalled, as a ruling of 1991 had already clarified how the extradition of a Cypriot citizen was banned by art. 11.2 F of the Constitution. The ruling, in fact, made express reference to the Pupino case, therefore recalling the discretionary freedom left to the single national judges, as regards assessment of the national regulation's compliance to a framework decision adopted in the third pillar. On the strength of this ruling, art. 11 of the Constitution was reviewed and today it provides that: “the arrest of a citizen of the Republic aimed at surrender following the issue of an arrest warrant, is possible only with regard to facts and actions subsequent to Cyprus’ adhesion to the European Union.”Google Scholar

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10 The very first time that proposed cooperation in criminal matters at a European level was advanced was in 1975, in concurrence with the establishment of the Trevi Group, an intergovernmental forum to improve interstate cooperation in counterterrorism matters within the EC.Google Scholar

11 For an overview on the evolution and state of the art of the cooperation process in criminal matters, and more generally on the institutional evolution concerning the third pillar, see for the Italian doctrine: C. Tracogna, La tutela della libertà personale nel procedimento di consegna attivato dal mandato d'arresto europeo, in Rivista italiana di diritto e procedura penale, 988 (2007). Also the broad bibliography mentioned, among which: La cooperazione in materia di giustizia e affari interni tra comunitarizzazione e metodo intergovernativo, in Il Diritto dell'Unione Europe 481 (1998); E. Gatti-A. Venegoni, La cooperazione giudiziaria in materia penale dal “Terzo Pilastro” alla Convenzione, in Quest. giust. 407 (2003); B. Piattoli, Cooperazione giudiziaria e pubblico ministero europeo 65 (2002); Salazar, L., La cooperazione giudiziaria in materia penale, in Giustizia e affari interni nell'Unione europea. Il “terzo pilastro” del Trattato di Maastricht 133 (N. Parisi-D. Rinoldi eds. 1998). For comparison with foreign literature, see Mitsilegas, The constitutional implications of mutual recognition in criminal matters in the EU, in 43 Common Market Law Review 1277 (2006); Kerchove, G. De, L'Europe Pénale: Bilan et Perspectives, in, Police and Judicial Co-operation in The European Union 335 (A. Moore ed. 2004); Kuijper, P.J., The evolution of the third pillar from Maastricht to the European Constitution: institutional aspects, in 41 Common Market Law Review 609 (2004); Europe's Area of Freedom, Security and Justice (N. Walker ed. 2004).Google Scholar

12 M. Calmieri, Mandato di arresto europeo, la cooperazione comunitaria in materia penale (2005).Google Scholar

13 Art. 3 EU.Google Scholar

14 Art. 29 EU.Google Scholar

15 Currently, to our knowledge, only Spain, Hungary, Austria, Czech Republic, Finland, France, Germany, Greece, Italy, Luxembourg, Holland, Portugal, Slovenia and Sweden have subscribed the declaration provided by art. 35 EU, conferring the power to rule over preliminary questions to the Court of Justice. This means that the other Member States, although willing, could not address the Court of Justice for a preliminary question concerning any third pillar-related issue. For an in-depth study, see Fletcher, M. The European Court of Justice, carving itself an influential role in the EU third pillar, paper submitted for presentation at the Montreal International Conference 17–19 May 2007 and available at: www.unc.edu/euce/eusa2007/papers. See Also Tridimas, T., Knocking on Heaven's Door: Fragmentation, Efficiency and Defiance in the preliminary Reference Procedure, 40 Common Market Law Review 9 (2003).Google Scholar

16 J. Wouters and F. Naerts, Of arrest warrants, terrorist offences and extradition deals: an appraisal of the EU's main criminal law measures against terrorism after “11 September”, 41 Common Market Law Review 909 (2004).Google Scholar

17 See the Conclusions of the President of the European Council gathered in Tampere, Finland on 15–16 October 1999, which reads as follows: “the strengthening of the mutual recognition of the judicial decisions and the necessary harmonization of the legislations, would ease the cooperation among authorities as well as the judicial protection of individual rights.”Google Scholar

18 See Mitsilegas, , The Constitutional Implications of mutual recognition in criminal matters in the EU, 43 Common Market Law Review 1277–1283 (2006).Google Scholar

19 See whereas 1 and 11 of the framework decision 2002/584. For an in-depth study of its most innovative and complex aspects, see S. Alegre, M. Leaf, Mutual recognition in European judicial cooperation: A step too far too soon? Case study – the European Arrest Warrant, in 10 European Law Journal 200 (2004).Google Scholar

20 Whereas 9 and art. 7 of Framework Decision 2002/584.Google Scholar

21 See for comparison whereas 5, 6, 10 and art. 1 n. 2 of Framework Decision 2002/584.Google Scholar

22 Mitsilegas, supra note 17, 1284.Google Scholar

23 For this and the other outlines concerning the discipline of the decision on the European arrest warrant, see the broad study by C. Tracogna, supra, note 10.Google Scholar

24 Plachta, M., (Non) extradition of nationals: a never ending story? 13 Emory International Law Review 77 (1999).Google Scholar

25 In this particular instance, the additional guarantees are represented by the power to subject the surrender to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.Google Scholar

26 For an in-depth study on the extradition principle at both a national and international level, refer to supra, note 23. Namely the author points out how «the justification of the rule of non extradition of nationals largely derives from a jealousy guarded conception of national sovereignty, and it presupposes the existence of sharp contrasts in the administration of criminal justice between states, resulting in potentially unfair treatment” (supra, note 23 at 99,100).Google Scholar

27 See, infra, note 2, AG's conclusions.Google Scholar

28 Plachta, M., European Arrest Warrant: revolution in extradition, 11 European Journal of Crime, Criminal Law and Criminal Justice 193 (2003); Lagodny, O., Extradition without a granting procedure: the concept of surrender, in Handbook of the European arrest warrant, 41 (T. Blekxtoon and W. Van Ballegooij eds. 2005); Jegouzo, I., Le mandate d'arret europeen ou la premiere concretisation de l'espace judiciaire europeen, in Gazette du Palais 2311 (2004).Google Scholar

29 As the Advocate General pointed out in the mentioned conclusions, the preamble to the Spanish law dated 14–3-2003, on the EAW and surrender procedures (BOE n. 65 of 17–3-2003, 10244), highlights how: “the EAW changes the classical extradition procedures so radically that one can safely say that extradition as it once was no longer exists in the framework of the relationships between Member States in matters of justice and cooperation.”Google Scholar

30 In the pre-amendment version of the constitutional texts, the inadmissibility of nationals’ extradition was ratified by the German (art. 16, para 2), Austrian (art. 12, para. 1), Latvian (art. 98), Slovak (art. 23, para. 4), Polish (art. 55), Slovenian (art. 47), Finish (art. 9.3), Cypriot (art. 11.2) and to a lesser extent, by the Czech (art. 14 of the Fundamental liberties and rights’ Charter) and Portuguese Constitutions.Google Scholar

31 Other constitutional texts provide, as sole exception to the extradition ban, that a different measure be imposed by an international treaty (art. 36.2 Estonian Const.; art. 26,1 Italian Const.; art. 13 Lithuanian Const.).Google Scholar

32 Italy was the last European country to transpose the Framework decision through its adoption, on 22 April 2005 of the 1 n. 69. See F. Impalà, The European Arrest Warrant in the Italian legal system between mutual recognition and mutual fear within the European area of Freedom, Security and Justice, 2–1 Utrecht Law Review 56 (2005). It is worth noting how some very authoritative doctrine had already highlighted, before the adoption of the Framework decision's final version, its incompatibility with the constitutional principle, among others, of the peremptory nature of crime. See Caianello, et al., Parere sulla proposta di decisione quadro sul mandato di arresto europeo, in Cassazione penale 462 (2002).Google Scholar

33 Under art. 33 para. 3, of the Portuguese Constitution, which followed the review: “the extradition of Portuguese citizens from Portuguese territory shall only be permissible where an international agreement has established reciprocal extradition arrangements, or in cases of terrorism or international organised crime, and on condition that the applicant state's legal system enshrines guarantees of a just and fair trial.”Google Scholar

34 Before the review of 2001, art. 23 para. 4, provided the right for the Slovak citizens: “not to leave their homeland, be expelled or extradited to another state.” The review brought to the elimination of the reference to the right not to be removed.Google Scholar

35 In Latvia, two acts promulgated respectively on 16 June 2004 – and in force as of 30 June 2004 – and 17 June 2004 – in force as of 21 October 2004 – introduced the necessary amendments to implement the constitutional modifications to art. 98 and the other relevant parts of the code of criminal law, in order to execute the EAW of Lithuanian citizens.Google Scholar

36 In the original version, art. 47 of the Slovenian constitution, provided the extradition ban of its citizens. Following its review, occurred with the Constitutional Act 24- 899/2003, the notion of surrender was added, as autonomous constitutional concept, compared to extradition. Today, art. 47 of the Slovenian constitution, states verbatim that: “no Slovenian citizen may be extradited or surrendered (in execution of a EAW), unless the said extradition or surrender order stems from an international treaty, through which Slovenia has granted part of its sovereign powers to an international organisation.”Google Scholar

37 The German constitution, in its original wording, utterly banned the extradition of a German citizen. The 47th review to the fundamental act of 29 November 2000, added to the unconditional ban provided for by 16 (2), the disposition according to which: “no German may be extradited to a foreign country. The law can provide otherwise for extraditions to a Member State of the European Union or to an international court of justice, as long as the rule of law is upheld (Rechtsstaaliche Grundsatze).”Google Scholar

38 Prior to the 2000 review, art. 16 of the Basic Law was rather strict: “no German citizen may be extradited abroad.”Google Scholar

39 See, supra note 6.Google Scholar

40 ECJ, ruling of 16–6-2005, C-105/03 in ECR, I-5285 among which see at least: Mazzocchi, V., Il caso Pupino e il principio di interpretazione conforme delle decisioni quadro, Quaderni Costituzionali 884 (2005).; Salvatelli, P., La Corte di giustizia e la comunitarizzazione del terzo pilastro, Quaderni Costituzionali 887 (2005); and Spaventa, E., Opening pandora's Box: some reflections on the costitutional effect of the decision in pupino, 3 European Constitutional Law Review 5 (2007).Google Scholar

41 According to which: “the present Treaty marks a further step in the process of the creation of a closer union of the peoples of Europe, where decisions be taken for the citizens’ sake and in the name of transparency.”Google Scholar

42 WCJ ruling 13–11-1990, C-106/89, Marleasing in ECR, I-4135.Google Scholar

43 In this regard, objections were raised by the Italian, English and Swedish governments intervening in the debate, who remarked within the EU Treaty regarding the lack of a provision similar to EC Treaty's art. 10 concerning the loyal cooperation between Member States and the Community, standard feature in the ECJ jurisprudence and therefore sine qua non condition to set out the principle of consistent interpretation of the national legislations to EC law. See also Mazzocchi, supra, note 39, 886.Google Scholar

44 Perhaps, it may be worth noticing how the British House of Lords, notwithstanding its reputation of “eurosceptical” judge, immediately welcomed the Pupino outcome – expressly quoting the ruling of the ECJ in its reasoning – declaring it binding on all national judges. Namely, in the recent case Dabas (appellant) v. High Court of justice, (Madrid) (Respondent)- UKHL, dated 28–2-2007, Lord Bingham of Cornhill, with regard to the framework decision's adoption procedures, stated as follows: “a national authority may not seek to frustrate or impede achievement of the purpose of the decision, for that would impede the general duty of cooperation binding on member States under article 10 of the EC Treaty.” In light of such considerations, the English Supreme Court of Justice added that although a national judge may not, as the ruling clearly reads, attain to a contra legem interpretation of the national law: “He must do as far as possible in light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34 (2) (b) EU.” To support these statements, the mentioned passage expressly quotes the ECJ's Pupino case.Google Scholar

45 For an interesting comment on the relevant decision, see: Palermo, F., La sentenza del Bundesverfassungsgericht sul mandato di arresto europeo, Quaderni Costituzionali 897 (2005). Also also Tomuschat, C., Inconsistencies. The German Federal Constitutional Court on the European Arrest Warrant, in 2 European Constitutional Law Review 209 (2006); Pierini, J.P., Il mandato d'arresto europeo alla prova del Bundesverfassungsgericht tedesco: «schiaffo» all'Europa o cura negligente dei diritti del nazionale da parte del legislatore?, in Cass. pen. 237 (2006); J. Woelk, Parlare a nuora perché suocera intenda: il BVerfG dichiara incostituzionale la legge di attuazione del mandato d'arresto europeo, Dir. pubblico comparato ed europeo 160 (2006); Molders, S., Case note, The European Arrest Warrant in the German Federal Constitutional Court, 7 German Law Journal No.1 45 (2006); Nohlen, N., Germany: The European Arrest Warrant case, 6 International Journal of Constitutional Law, No. 1 153 (2008).Google Scholar

46 As the obiter dictum of the constitutional judge Gerhardt shows the Senat was not unanimous in its opinion. See NJW 2005, 2302.Google Scholar

47 Provision as per art. 4 para. 7 of decision 2002/584/ JHA.Google Scholar

48 Hufeld, U., Der Europäisches Haftbefehl vor dem BVerfG – NJW 2005, 2289, JuS 2005, 865, 866.Google Scholar

49 As Francesco Palermo observed, the constitutional judges consider this principle as having been complied with, thus sorting out a difficult situation: “in fact, the non-recognition of subsidiarity, therefore of the urgent need for a European discipline on the European arrest warrant, would have hampered it forever. Conversely, the judges deem Germany's participation in European judicial cooperation a significant step towards the administration of justice within an integrated context, which makes it not only possible, but desirable as well.” See, supra note 44, F. Palermo at 899.Google Scholar

50 Komarek, J., European Costitutionalism and the European Arrest Warrant: in search of the limits of the “contrapunctual principles“, 44 Common Market Law Review 9, 24 (2007).Google Scholar

51 ECJ 11–2-2003 in the joint cases C-187/01 e C-385/01 Hüseyin Gözütok e Klaus Brügge. Google Scholar

52 Judge Gerhardt takes a dissenting opinion on the innovation brought about by the Pupino ruling asserting that the Court's decision contradicts the ECJ ruling of June 16th 2005, where it is emphasised that the principle of Member States’ loyal cooperation in the area of police and judicial cooperation in criminal matters must also be respected by the Member State when implementing framework decisions within the third pillar. See C. Tomuschat, Inconsistencies – the German Federal Constitutional Court on the Arrest Warrant, 2 European Constitutional Law Review 209, 212 (2006).Google Scholar

53 For a concurring opinion, see supra, note 47, 867.Google Scholar

54 For a cross-reference to independence, see the preamble to the Czech Constitution and arts. 26 and 130 of the Polish Constitution: for the emphasis on state sovereignty, see art. 1 of the Czech Constitution, the preamble and arts. 104 para. 2 and 126 para. 2, of the Polish Constitution. For further reference see also: Stein, E., International law in internal law, 88 American Journal of International Law 427 (1994).Google Scholar

55 See: A. Albi, EU Enlargement and the Constitutions of the Central and Eastern Europe (2005).Google Scholar

56 As for the Czech Republic, in the 2001 revision of art. 10 a, a general and undifferentiated, clause of openness to international organizations was introduced, which made no mention of the EC system's peculiar features, or stressed, in any way, how the supremacy given to the Constitution could be combined with the doctrine of EC law primacy over domestic laws, as extrapolated, some decades ago, by ECJ caselaw which, as the rest of the European acquis, all the Central-Eastern European Countries have undertaken to follow pursuant to the Athens Adhesion Treaty of 2003. The same, more or less, applies to the 1997 Polish Constitution, the most recent among Central-Eastern European Countries', therefore already inclusive ab origine of the European clauses. Conversely, art. 91 para. 3, as opposed to the more international approach of the Czech Constitution, makes express reference to the EC system and particularly to the off-shoot European law, stressing its direct effect and supremacy over ordinary national regulations. Again, no mention is made of the relationship between Constitution and Community law, especially primary law.Google Scholar

57 Besides the decisions herein examined of the Warsaw and Brno's constitutional Tribunal. For Poland see the Polish constitutional tribunal, K 18/04, Judgment on Poland's Membership in the European Union (Accession Treaty case), 11.05.2005, Procedural Decision no. 176/11/A/2006 on the Excise Duty Tax, 19.12.2006. Ref. No.P 37/05; for the Czech Republic, Czech constitutional Tribunal, Pl. ÚS 50/04, 08.03.2006.Google Scholar

58 Kuhn, Z., The Application of European Union Law in the New Member States: Several Early Predictions, in 6 German Law Journal No. 3, 566 (2005).Google Scholar

59 As, for instance, the one underlying the Polish decision on the adhesion Treaty of 11–05-2005 k. 18/04 and that of the Hungarian constitutional Court (17/2004). On the first see: Pollicino, O., Dall'Est una lezione sui rapporti tra diritto costituzionale e diritto comunitario, Diritto dell’ Unione Europea 819, (4/2006), on the second: Kowalik-Banczyk, K., Should we polish it up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law, 6 German Law Journal No. 10 1360, and Lazowski, A., The Polish Constitution, the European Constitutional Treaty and the Principle of Supremacy, in, The European Constitution and National Constitutions: Ratification and Beyond, 178 (A. Albi and J. Ziller eds. 2007).Google Scholar

60 See Sajo, A, Protecting nation states and national minorities: a modest case for nationalism in Eastern Europe, U. Chi. L. Sch. Roundtable 53 (1993).Google Scholar

61 One of the first studies on the decision is by Sileoni, S., La Corte costituzionale polacca, il mandato arresto europeo e la sentenza sul trattato di Adesione all'UE, Quaderni Costituzionali 894 (2005). Now also A. Nußberger. Poland: The Constitutional Tribunal on the implementation of the European Arrest Warrant, 6 International Journal of Constitutional Law No. 1 162 (2008)Google Scholar

62 AG Kokott's conclusions to case C-105/03, Pupino, in Racc., I-5285.Google Scholar

63 Polish Constitutional Tribunal, ruling. cit., part. III, point 3.4.Google Scholar

64 Komarek, J., supra note 49, 16.Google Scholar

65 C-168/95, Arcaro, 1996, in Racc., I-4705, which at para. 42 reads: “ However, that obligation of the national court to refer to the content of the directive when interpreting the relevant rules of its own national law reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, more especially, where it has the effect of determining or aggravating, on the basis of the directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive's provisions”Google Scholar

66 Amendments to art. 55 of Constitution were made within the deadline provided for in the decision, and as of November 7th 2006, Poland has agreed to the execution of European arrest warrants against its nationals, subject to two conditions, which do not appear to be in line with the EU regulation: the fact that the crime has been committed outside Polish territory and that it is recognised under and also capable of being prosecuted under Polish criminal law.Google Scholar

67 See Pollicino, O., Dall'Est una lezione sui rapporti tra diritto costituzionale e diritto comunitario, in Diritto dell’ Unione Europea 819 (April 2006).Google Scholar

68 Piquani, D., Supremacy of European Law revisited: New developments in the context of the Treaty Establishing a Constitution for Europe, paper presented at the VII World Conference of the Constitutional Law International Association held in Athens − 11–15 June 2007, available at: http://www.enelsyn.gr/papers/w4/Paper%20by%20Darinka%20Piqani.pdf, last accessed: 21 September 2008; C. W. Herrmann, Much Ado about Pluto? The Unity of the Legal Order of the European Union” revisited, EUI Working paper, May 2007, available at: www.iue.it.Google Scholar

69 They had already done so many times with decision PI US 50/04, 8 October 2006. See, supra, note 66.Google Scholar

70 Preliminary reference by the Cour d'Arbitrage dated 29 October 2005 case C-303/05, defined by the ECJ ruling, following the Czech judgement of 3 May 2007, available at: www.curia.eu.int, last accessed 21 September 2008.Google Scholar

71 As it did, instead, according to the Czech judges, the contribution of the corresponding art. 23 (4) of the Slovak Constitution which, prior to the constitutional review of 2001, made express provision of the extradition ban of Slovak citizens.Google Scholar

72 As already stressed at the beginning, under art. 4 (7), the implementing judicial authority may refuse to execute the European arrest warrant if the latter relates to offences which, according to the law of the executing Member State, have been committed in whole or in part in the territory of the executing Member State or in a place treated as such. It also permits refusal of execution where the offences were committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory.Google Scholar

73 Conclusions in case C-303/05.Google Scholar

74 Conclusions in case C-303/05. para. 8. Of the same opinion is Alonso Garcia in Justicia constitutional y Union Europea, Madrid, 2005, expressly mentioned by AG in his conclusions.Google Scholar

75 For a criticism of the judgment see now D. Sarmiento, European Union: The European Arrest Warrant and the quest for constitutional coherence, 6 International Journal of Constitutional Law 171 (2008).Google Scholar

76 With regard to the progressive adoption of measures for the setting of offences and their punishments’ constituent elements in matters relating to organised crime, terrorism and drug trafficking.Google Scholar

77 Under art. 2 (2) FD, the offences listed “if in the (issuing) Member State the punishment or the custodial sentence incurs a maximum of at least three years” provide for surrender pursuant to a EAW regardless the fact that the acts constitute an offence in both the issuing and the executing Member State.Google Scholar

78 See para. 46. The other three references to the Nice Fundamental Rights’ Charter may be found in the decisions, respectively, of 27 June 2006, 13 March 2007 and now 14 February 2008Google Scholar

79 In the broader respect of judicial cooperation in criminal matters, along with the vertical conflicts involving Member States’ legal system and EC law, there emerges within the European system a cross-pillar litigation, between the first and the third pillars. This is the case of the Commission v. Council in a dispute over the identification of the most appropriate legal basis for an act aimed at the harmonization of Member States’ criminal laws in the field of two EC relevant areas such as the environment and transportation. Noteworthy in this regard was the ECJ judgments c-176/2003 of 13–9-2005 and c-440/05 of 23–10-2007, which annulled the two framework decisions adopted under art. 14 (2)(n)EU, thus establishing that the most appropriate legal basis was to be found within the institutional dynamic of the first pillar. Accordingly, the Court clarified in the second of its rulings (par. 66) that “Although it is true that, as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community's competence (see, to that effect, Case 203/80 Casati [1981] ECR 2595, paragraph 27; Case C-226/97 Lemmens [1998] ECR I-3711, paragraph 19; and Case C-176/03 Commission v Council, paragraph 47), the fact remains that when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, the Community legislature may require the Member States to introduce such penalties in order to ensure that the rules which it lays down in that field are fully effective (see, to that effect, Case C-176/03 Commission v Council, paragraph 48).”Google Scholar

80 Court of Justice, ruling of 5–2-1963, case C-26/62, Van Gend en Loos, in ECR. I-1.Google Scholar

81 Court of Justice, ruling of 15–7-1964, case C-6/64, Costa/ENEL, in ECR I-1141.Google Scholar

82 On the strength of what has been said, see the Court's reasoning in ruling Francovich (21-11-1991, C-9/90). Initially, the Court ruled out the possibility of conferring direct effect on the directive in question, (points 1–26), conversely, later on, it asserted the obligation of the defaulting Member State to pay compensation damages, thus grounding the said obligation on its precedent pursuant to the primacy of Community law (Costa Enel, cit. e Simmenthal, sent. 9–3-1978, causa C-106/77, in ECR I- 629).Google Scholar

83 Article I-6 of the now old constitutional Treaty of Rome, stated that, as a general rule, the Union's legislation should prevail over domestic law. Although the latter rule has been “relegated” to a secondary plane along with the whole treaty, by the French and Dutch referendums, not to be restored anywhere in the draft Treaty of Lisbon's, its current relevance is evidenced above all by recalling that the declaration of art. I-6 attached to the constitutional Treaty, stressed how the latter provision reflected the relevant views of the First Instance Tribunal and the ECJ in their case law.Google Scholar

84 K. Lenaerts and T. Corthaut, Of Birds and Hedges, the Role of primacy in invoking norms of EU law, 31 European Law Review No.3 287 (2006).Google Scholar

85 The recent constitutional review of art. 16(2) added to the extradition ban of a German national the derogation rule of extradition to a Union Member State or before an international court, on the condition that the rule of law is upheld. (Rechtsstaatliche Grundsatze).Google Scholar

86 For an analysis of the tensions among the legal systems on fundamental rights, which seem to currently feature the supranational scenario, see Tizzano, , La Corte di giustizia delle Comunità europee ed i diritti fondamentali, in Diritto dell'Unione Europea 839 (2005).Google Scholar

87 Tomuschat, supra note 44, 209, 212.Google Scholar

88 According to which: “With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union, that is committed to democratic, social, and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To this end, the Federation may transfer sovereign powers by law, subject to the consent of the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law, or make such amendments or supplements possible, shall be subject to paragraphs (2) and (3) of article 79.”Google Scholar

89 In reference to the FCC decision of 12 October 1993, Maastricht Urteil, see particularly, J.H. Weiler, Does Europe need a constitution? Demos, Telos and the Maastricht German Decision, in 1, European Law Journal 219 (1995).Google Scholar

90 In this case, the additional guarantees arise where the surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State to serve the custodial sentence or detention order passed against him in the issuing Member State. It may be noteworthy how numerous Central-Eastern European legal systems have come to share such an open and pluralistic concept of citizenship, regardless the strong influence in terms of national identity and ethnocentrism typical of the idem sentire in Eastern Europe. Suffice it to say that art. 411 letter ‘e', of the Czech Criminal Code, as amended after the framework decision's adoption, provides, among the grounds for refusing to execute the EAW, the condition that the person being investigated “is a Czech citizen or a resident of the Czech Republic.”Google Scholar

91 As already pointed out, “ the executing judicial authority may refuse to execute an arrest warrant issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and the State undertakes to execute the sentence or detention order in accordance with its domestic law.”Google Scholar

92 Kumm, M., Who is the final arbiter of constitutionality in Europe? Three conceptions of the relationship between the German federal constitutional court and the European Court of Justice, 36 Common Market Law Review 351, 366 (1999).Google Scholar

93 For a recent contribution on the primary role that sovereignty plays within the European scenario which is characterized, more and more, by conflicts arising within legal orders, see Jakab, A., Neutralizing the sovereignty question, 2 European Constitutional Law Review 375 (2006).Google Scholar

94 With regard to the FCC decision, Julio Baquero Cruz is very critical when he stresses how «the German Constitutional Court saw the case through the exclusive prism of German Constitution, misinterpreting the framework decision». See Cruz, J. Baquero, The Legacy of the Maastricht Urteil decision and the Pluralist Movement, EUI working paper, 2007/13.Google Scholar

95 Judge Kirchhof, according to many, the “mind” behind the Maastricht decision of the Federal Constitutional Court in 1993, encompasses these factors within a common language, a shared culture, with common historical roots. Supra note 92 at 367.Google Scholar

96 See Kowalik-Banczyk, K., supra, note 58 at 1360, 1361. On the some line Angelika Nußberger, the judgment might seem to suggest that the tribunal denies the supremacy of EU law and is adopting an euroskeptical position, in fact, the opposite is true. - See A. Nußberger, Poland: The Constitutional Tribunal on the implementation of the European Arrest Warrant, 6 International Journal of Constitutional Law No.1 162, 166.Google Scholar

97 Actually, Warsaw's Constitutional Tribunal wouldn't have been in the position to use the preliminary procedure's instrument provided for by art. 35 EU anyway, owing to the not particularly eurofriendly attitude of the Kaczynski twins’ government, which, needless to say, had not carried out the (optional) jurisdiction attribution declaration to the ECJ, as per the same article of the Maastricht Treaty. The awaited change of strategy promised by the Civic Platform's leader Donald Tusk, who won the last political elections in October, has yet to come.Google Scholar

98 In Italy, one of the most extensive study of this issue was done by Antonio Ruggeri. Amongst his numerous papers dealing with this subject, see at least the following, Ruggeri, A. Prospettive metodiche di ricostruzione del sistema delle fonti e Carte Internazionali dei diritti, tra teoria delle fonti e teoria dell'interpretazione, Ragion Pratica 63 (2002); Ruggeri, A., Tradizioni costituzionali comuni” e “controlimiti”, tra teoria delle fonti e teoria dell'interpretazione, in DPCE 102 (2003). Such an axiologically-oriented view seems to share the reconstructive bases of MacCormick and of those supporting the constitutional pluralism rule in the framework of the relationship between the constitutional and supranational legal orders. See N. MacCormick, Beyond the sovereign State, 56 Modern Law Review 1 (1993); N. MacCormick, Questioning Sovereignty, Law State and Nation in European Commonwealth (1999); M. P. Maduro, Contrapunctual Law: Europe's Constitutional pluralism in Action, (2003); N. Walker, The idea of constitutionalism pluralism, 65 Modern Law Review 317 (2002).Google Scholar

99 Kumm, M., The jurisprudence of Constitutional conflict: constitutional Supremacy in Europe before and After the Constitutional Treaty, 12 European Law Journal 262, 286.Google Scholar

101 See Onida, V., «Armonia tra diversi» e problemi aperti. La giurisprudenza costituzionale sui rapporti tra ordinamento interno e comunitario, Quaderni costituzionali 549 (2002).Google Scholar

102 Besides the Cour d'Arbitrage, only the Austrian, VfGH, 10 March 1999, B 2251/97, B 2594/97, the Lithuanian Constitutional Courts (decision of 8–5-2007) and very recently and surprisingly the Italian Constitutional court (ordinance of 14–2-2008) have had recourse to the procedure provided by arts. 234 EC and 35 EU.Google Scholar

103 Caso Carlsen, judgement of 6–5-1998.Google Scholar

104 Panunzio, S.P., I diritti fondamentali e le Corti in Europa, in I diritti fondamentali e le Corti in Europa 25 (Panunzio ed, 2005).Google Scholar

105 Morbidelli, G., Corti costituzionali e corti europee: la tutela dei diritti (dal punto di vista della corte di Lussemburgo), Diritto processuale amministrativo 285, 341.Google Scholar

106 C. L'Heureux-Dube, The International Judicial Dialogue: When Domestic Constitutional Courts Join the Conversation, 114 Harvard L. Rev. 2049 (2001) Slaughter, A.M., A Global Community of Courts, 44 Harvard International Law Journal 191 (2003); Slaughter, A.M., A new Word Order (2004); Choudhry, S., Globalization in Search of Justification: Towards a Theory of Comparative Constitutional Interpretation, 74 Indiana L. J. 821 (1999); McCrudden, A., A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights, 20 Oxford Journal of Legal Studies 499 (2000); A. Stone Sweet, On Law, Politics and Judicialization (2002); A. Stone Sweet, Governing with judges: constitutional politics in Europe, (2000); Orucu, E., Judicial comparativism in human rights cases (2003).Google Scholar

107 Martinico, G., Il dialogo fra le Corti nell'arena del Gattopardo: l'Europa fra novità costituzionale e nostalgie di comportamento, in Giurisprudenza costituzionale e principi fondamentali, alla ricerca del nucleo duro delle costituzioni (S. Staiano ed. 2006). F. Lichere, L. Potvin Solis e A. Rayanouard (ed.), Le dialogue entre le juges européens et nationaux: incantation ou realitè, (2004); Zagrebelsky, G., Corti europee e corti nazionali, in I costituzionalisti e l'Europa: Riflessioni sui mutamenti costituzionali nel processo d'integrazione europea 529 (S.P. Panunzio ed. 2002); S.P. Panunzio (ed.), I diritti fondamentali e le Corti in Europa (2005); P. Falzea, A. Spadaro e L. Ventura, La Corte costituzionale e le Corti d'Europa (2003); V. Onida, La tutela dei diritti davanti alla Costituzionale ed il Rapporto con le Corti sovranazionali, in La tutela multilivello dei diritti, punti di crisi, problemi aperti e momenti di stabilizzazione 105 (P. Bilancia e E. De Marco 2004,); Barbera, A., Le tre corti e la tutela multilivello dei diritti, in La tutela multilivello dei diritti 89 (P. Bilancia e E. De Marco 2004); Zagrebelsky, V., I giudici nazionali, La Convenzione e la Corte europea dei diritti umani, in, La tutela multilivello dei diritti 99(P. Bilancia e E. De Marco 2004).; Garcia, R. Alonso, Il giudice nazionale come giudice europeo, Quaderni Costituzionale 111 (2005).Google Scholar

108 This view is at the heart of the recent paper of Albi, A., Supremacy of EC Law in the New Member States Bringing parliaments into the Equation of ‘Co-operative Constitutionalism, 3 European Constitutional Law Review 25 (2007).Google Scholar

109 Similar doubts are risen by U. Hufeld, supra note 47, 868.Google Scholar

110 See J. Ziller, Il nuovo Trattato europeo (2007).Google Scholar

111 Id., 60.Google Scholar

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