The European Arrest Warrant and EU Citizenship : EU Citizenship in Relation to Foreseeability Problems in the Surrender Procedure

This book offers an in-depth analysis of the relationship between EU citizenship, the European arrest warrant (EAW), and the legality principle. It focuses on the role of the EAW in relation to two foreseeability problems with which EU citizens -- especially those who exercise free movement rights -- could be confronted. These problems concern the foreseeability of specific national criminal laws at the time of the offense on the one hand and forum decisions on the other. The first part of the book addresses the extent to which these foreseeability problems and the role of the EAW therein are viewed as legality problems at the EU level and in three national legal orders (the Netherlands, Germany, and England and Wales). In turn, the second part of the book critically examines the current scope and content of the legality principle in light of the EU's objective to offer its citizens an Area of Freedom, Security and Justice (AFSJ) in which both safety and free movement are guaranteed. As EU citizens often encounter foreseeability problems when exercising their free movement rights, it is argued that they should be protected by a transnational framework of fundamental rights. The book subsequently makes recommendations for a transnational interpretation of the legality principle, one which fits the normative context of the AFSJ as described in Article 3(2) TEU. On the basis of the evolution of EU citizenship over time, the book also develops two EU citizenship narratives and explains how they could contribute to transnational fundamental rights protection and a solution to foreseeability problems. With regard to arriving at concrete solutions, the book offers recommendations for EU legislation that could adequately remedy foreseeability problems and the role of the EAW therein Contents Chapter 1: Introduction 1.1 The Research Topic 1.1.1 Promises Made to the EU Citizen in the EU Criminal Justice Setting 1.1.2 Establishing a Safe AFSJ for EU Citizens 1.1.3 Possible Complications for the EU Citizen and the Role of the EAW Therein 1.2 Research Questions 1.3 Scientific and Societal Relevance 1.4 Methodology 1.5 The Selected National Jurisdictions 1.6 Looking Ahead References Chapter 2: Setting the Scene 2.1 Introduction 2.2 The Development of EU Citizenship: A Bird ́s-Eye View 2.2.1 The General Development of EU Citizenship 2.2.1.1 Pre-Maastricht: The First Contours of EU Citizenship 2.2.1.2 Post-Maastricht: A Strong `Free Movement ́ EU Citizen and the Careful Development of a Static EU Citizen 2.2.2 The Development of the Position of the EU Citizen Within the Specific Context of the AFSJ 2.2.3 Interim Conclusion 2.3 The Principle of Mutual Recognition 2.4 The European Arrest Warrant: The First Mutual Recognition Instrument in the AFSJ 2.5 The EAW and the Foreseeability of Criminal Offences and Sanctions 2.6 The EAW and the Right to a Tribunal Established by Law 2.7 Two Perspectives on the EAW: An Intergovernmental and a Transnational One 2.7.1 Introduction 2.7.2 The Intergovernmental Perspective 2.7.3 The Transnational Perspective 2.8 Concluding Remarks and the Structure of the Book References Chapter 3: The Legality Principle: Its Link to the EAW, Jurisdiction and Forum Choices 3.1 Introduction 3.2 The Scope of Application of the Charter 3.2.1 Four Categories of National Rules and Measures 3.2.2 The Legislation Route 3.2.2.1 Introduction 3.2.2.2 The FDEAW 3.2.2.3 EU Rules on Jurisdiction and Forum Choices 3.2.3 The Free Movement Route 3.2.3.1 National Derogation Measures and Their Justification 3.2.3.2 The Legal Framework to Assess Possible Obstacles to Free Movement: The Disadvantage Criterion and Criterion of Serious... 3.2.4 Interim Conclusion 3.3 Article 49 CFR: The Nullum Crimen Sine Lege, Nulla Poena Sine Lege Principle 3.3.1 An Introduction 3.3.2 An Accessible and Foreseeable Law: The Requirement Explained 3.3.3 The EAW: Outside the Scope of the Substantive Legality Principle? 3.3.4 Jurisdiction and the Right to an Accessible and Foreseeable Law 3.3.4.1 The Case Law of the CJEU 3.3.4.2 The Case Law of the ECtHR 3.3.4.3 The Position of the EU Legislator 3.3.4.4 The Legal Literature 3.3.4.5 Interim Conclusion 3.4 Article 47 CFR: The Right to a Tribunal Established by Law 3.4.1 An Introduction 3.4.2 Forum Choices and the Right to an Accessible and Foreseeable Law: Case Law 3.4.2.1 The Requirement of an Accessible and Foreseeable Law 3.4.2.2 Forum Decisions: Within the Scope of Article 47 CFR? 3.4.3 The Legal Literature 3.5 Conclusion References Chapter 4: The FDEAW: Safeguards Against Unforeseeable Jurisdiction Claims and the Risk of Arbitrary Forum Decisions? 4.1 Introduction 4.2 Protection Offered by the FDEAW: Executing Procedure 4.2.1 The Relevant Refusal Grounds and Guarantees 4.2.2 Double Criminality: Art 4(1) FDEAW 4.2.3 The Territoriality Exception: Art 4(7)(a) FDEAW 4.2.3.1 Its Link to Unforeseeable Jurisdiction Claims 4.2.3.2 The Territoriality Exception and Forum Choices 4.2.4 The Extraterritoriality Exception: Art 4(7)(b) FDEAW 4.2.5 Domestic Criminal Proceedings in the Executing State: Art 4(2) FDEAW 4.2.6 Fundamental Rights as a Bar to Surrender 4.2.7 Multiple EAWs: Art 16 FDEAW 4.3 Protection Offered by the FDEAW: Issuing Procedure 4.3.1 An Introduction 4.3.2 The Double Criminality Requirement: Art 2(4) FDEAW 4.3.3 The Content of the EAW: Art 8(1) FDEAW 4.3.4 Issuing Judicial Authority and Other Procedural Requirements: Art 6(1) FDEAW 4.4 Conclusion and Reflections References Chapter 5: The Dutch Legal Order: The Views on the Two Complications and Their Link to the EAW 5.1 Introduction 5.2 Protection Offered by Fundamental Rights and Principles 5.2.1 The Substantive Legality Principle 5.2.2 The EAW: Outside the Scope of the Substantive Legality Principle? 5.2.3 The Substantive Legality Principle and Rules of Jurisdiction 5.2.3.1 The Legislative Level 5.2.3.2 The Judiciary 5.2.3.3 The Legal Literature 5.2.4 Ius de non evocando 5.2.5 Interim Conclusion 5.3 The Netherlands As the Executing State 5.3.1 An Introduction to the Executing Procedure 5.3.2 The Double Criminality Requirement 5.3.3 The Territoriality Exception 5.3.3.1 An Introduction 5.3.3.2 A Link with Unforeseeable Jurisdiction Claims? 5.3.3.3 The Territoriality Exception and Forum Choices 5.3.4 The Extraterritoriality Exception 5.3.5 Domestic Proceedings for the Same Offence 5.3.6 Fundamental Rights Concerns 5.3.7 Multiple EAWs and Extradition Requests for the Same Offence 5.4 The Netherlands As the Issuing State 5.4.1 An Introduction 5.4.2 The Issuing Procedure 5.4.3 The Rules Regulating the Power to Exercise Jurisdiction 5.5 Conclusion References Chapter 6: The German Legal Order: The Views on the Two Complications and Their Link to the EAW 6.1 Introduction 6.2 Protection Offered by Fundamental Rights and Principles 6.2.1 The Gesetzlichkeitsprinzip 6.2.2 Protection Against EAWs in Case of the Two Complications: The Gesetzlichkeitsprinzip and the Constitutional Prohibition ... 6.2.3 The Substantive Legality Principle and Rules of Jurisdiction 6.2.4 The Right to a Lawful Judge (Gesetzliche Richter) 6.2.5 Interim Conclusion 6.3 Germany As the Executing State 6.3.1 Introduction to the Execution Procedure 6.3.2 Admissibility: The Double Criminality Requirement 6.3.3 Admissibility: The Nationality Exception 6.3.3.1 An Introduction to Article 80 IRG 6.3.3.2 Unforeseeable Jurisdiction Claims 6.3.3.3 The Nationality Exception and Forum Choices 6.3.4 Admissibility: Human Rights Refusal Ground 6.3.5 Granting Procedure: Domestic Proceedings for the Same Offence 6.3.6 Granting Procedure: Protection of Foreigners 6.3.7 Granting Procedure: Multiple Extradition Requests 6.3.8 Interim Conclusion 6.4 Germany As the Issuing State 6.4.1 The Issuing Procedure 6.4.2 The Rules Regulating the Power to Exercise Jurisdiction 6.5 Conclusion References Chapter 7: The Legal Order of England and Wales: The Views on the Two Complications and Their Link to the EAW 7.1 Introduction 7.2 Protection Offered by Fundamental Rights and Principles 7.2.1 The Substantive Legality Principle 7.2.2 The EAW: Outside the Scope of the Substantive Legality Principle? 7.2.3 The Substantive Legality Principle and Rules of Jurisdiction 7.2.3.1 Rules on the (Extra)territorial Scope of English Criminal Law: All Crime Is Local! 7.2.3.2 The Influence of the Rules of Venue on the Ambit of English Criminal Law 7.2.3.3 A Flexible Interpretation of the Territoriality Principle: Terminatory and Inclusive Approach 7.2.3.4 The Double Criminality Requirement As a Safeguard? 7.2.4 The Right to a Lawful Judge 7.2.5 Interim Conclusion 7.3 England As the Executing State 7.3.1 An Introduction to the Execution Procedure 7.3.2 Extradition Offences 7.3.3 Domestic Proceedings for the Same Offence 7.3.3.1 Unforeseeable Jurisdiction Claims 7.3.3.2 A Need for a Transparent System for Forum Choices? 7.3.4 The Forum Bar 7.3.4.1 An Introduction 7.3.4.2 Unforeseeable Jurisdiction Claims 7.3.4.3 A Need for a Transparent System for Forum Choices? 7.3.5 The Human Rights Ground 7.3.6 Multiple Extradition Requests 7.4 England As the Issuing State 7.4.1 An Introduction 7.4.2 The Issuing Procedure and the Rules Regulating the Power to Exercise Jurisdiction 7.5 Conclusion References Chapter 8: The Synthesis: The Current Recognition of a Triangular Link Between the EAW, the Legality Principle and Foreseeabil... 8.1 Introduction 8.2 A Recap of the Two Problems and the Role of the EAW 8.3 The Surrender of a Citizen in Case of Unforeseeable Jurisdiction Claims: Legality Issues and the Level of Protection Offer... 8.3.1 The Scope of the Substantive Legality Principle 8.3.1.1 The EU Level 8.3.1.2 The National Level 8.3.1.3 Interim Conclusion 8.3.2 Protection Offered in the Procedure for the Issuing of an EAW 8.3.2.1 The EU Level 8.3.2.2 The National Level 8.3.2.3 Interim Conclusion 8.3.3 Protection Offered in the Procedure for the Execution of an EAW 8.3.3.1 The EU Level 8.3.3.2 The National Level 8.3.3.3 Interim Conclusion 8.4 The Problems Arising from the Functioning of the FDEAW Without a Complementary EU System for Forum Choices: Legality Issue... 8.4.1 The Scope of the Right to a Tribunal Established by Law: The EU and National Level 8.4.2 Protection Offered in the Procedure for the Issuing of an EAW 8.4.2.1 The EU Level 8.4.2.2 The National Level 8.4.2.3 Interim Conclusion 8.4.3 Protection Offered in the Procedure for the Execution of an EAW 8.4.3.1 The EU Level 8.4.3.2 The National Level 8.4.3.3 Interim Conclusion 8.5 Conclusion References Chapter 9: The Intergovernmental Perspective on the EAW 9.1 Introduction 9.2 The Intergovernmental Perspective Introduced 9.3 Consequences of this Perspective for Fundamental Rights and the Position of EU Citizenship 9.4 Indications of the Intergovernmental Perspective and Its Consequences in the Legal Practice of the EU Legal Order 9.4.1 The Surrender Procedure is (Just) a (Modern) Extradition Procedure 9.4.2 A State-Focused Interpretation of Fundamental Rights 9.4.3 The Importance of National Citizenship 9.5 Indications of the Intergovernmental Perspective and Its Consequences in the Legal Practice of the National Legal Orders 9.6 Conclusion References Chapter 10: Does the Intergovernmental Shoe Still Fit? The Rise of an Alternative Perspective: Transnational Cooperation in a ... 10.1 Introduction 10.2 The First String of Arguments: The Text of the FDEAW 10.3 The Second String of Arguments: The Normative Context of the AFSJ 10.4 Development of Judicial Cooperation in the AFSJ: Pre-Lisbon 10.4.1 From the Tampere Programme to the Roadmap on Procedural Safeguards: The Development of the Free Movement Dimension 10.4.2 The Case Law of the CJEU 10.4.2.1 Kozlowski and Wolzenburg: Establishing a Common Framework for the Surrender Procedure 10.4.2.2 The Development of the Right to Free Movement Into an Abwehrrecht 10.4.2.3 The Development of the Ne Bis In Idem Principle in the Context of the AFSJ 10.4.2.4 Pupino: The Duty of Conform Interpretation 10.5 Development of Judicial Cooperation in the AFSJ: Post-Lisbon 10.5.1 Changes Brought About by the Treaty of Lisbon 10.5.1.1 The EU Legislative Procedure: The Role of the EU Citizen 10.5.1.2 Extending the Scope of the Preliminary Procedure and Infringement Procedure 10.5.1.3 Fundamental Rights 10.5.2 Post-Lisbon 5-Year Programmes 10.5.3 The Case Law of the CJEU 10.5.3.1 Article 4(6) FDEAW Further Explained: Da Silva Jorge and Poplawski 10.5.3.2 EU Citizenship and Free Movement: Petruhhin and Pisciotti 10.5.3.3 The Establishment of a Common Framework for the Issuing of an EAW 10.5.3.4 The Position of Fundamental Rights Protection in and Outside the Context of the EAW 10.6 The National Legal Orders 10.7 Does the Intergovernmental Shoe Still Fit? 10.8 A New Perspective on the EAW: Transnational Cooperation in the Normative Context of a Shared AFSJ 10.9 Conclusion References Chapter 11: A Transnational Legality Principle and Its Possible Effect on the EAW 11.1 Introduction 11.2 Transnational Cooperation Requires a Transnational Legality Principle 11.3 A Transnational Interpretation of Articles 49 and 47 CFR 11.3.1 The Scope of Application of the Charter of Fundamental Rights 11.3.2 A Transnational Interpretation of Article 49 11.3.2.1 Option 1: The Foreseeability of a Particular National Criminal Law 11.3.2.2 Option 2: The EAW Falls Within the Scope of Article 49 CFR 11.3.3 A Transnational Interpretation of Article 47 CFR 11.4 The Consequences of a Transnational Legality Principle for the EAW and Their Implementation in the Surrender Procedure 11.4.1 The EAW as an Enforcement Measure for Fundamental Rights Violations 11.4.2 The Issuing Procedure: Articles 6 and 8(1)(c) FDEAW 11.4.3 The Execution Procedure: The Fundamental Rights Route 11.5 Conclusions and Observations References Chapter 12: EU Citizenship as a Vehicle Towards a Transnational Legality Principle: Two Possible Narratives 12.1 Introduction 12.2 Two Narratives of EU Citizenship 12.3 How to Conceptualise EU Citizenship: What ́s in a Name? 12.4 The Narrative of FMB EU Citizenship 12.4.1 FMB EU Citizenship as a Vehicle Towards a Transnational Legality Principle 12.4.2 The Drawbacks of This Narrative and its (Un)suitability 12.4.3 Interim Conclusion: The Need for EU Legislative Action 12.5 The Narrative of RDB EU Citizenship 12.6 Conclusion References Chapter 13: Conclusions and Recommendations 13.1 Introduction 13.2 Conclusions 13.2.1 The Context of the Research Question 13.2.2 The Current Level of Fundamental Rights Protection 13.2.3 The Role of EU Citizenship in Addressing the Foreseeability Problems 13.3 The Legal Bases for the Proposed EU Rules on Jurisdiction and Forum Decisions 13.4 Three Categories of Regulatory Approaches to Address Positive Conflicts of Jurisdiction 13.5 A Proposal for EU Rules on Jurisdiction and Forum Choices 13.5.1 Balancing the Relevant Different Interests 13.5.2 Rules Addressing the Jurisdiction to Prescribe: Double Criminality Requirement 13.5.3 An EU System for Forum Choices: Ex Ante and Ex Post 13.5.4 Forum Decision: At What Point in Time? 13.5.5 The Choice for an Instrument: A Directive or a Regulation? 13.5.6 Appointing Competent Authorities 13.5.7 Interim Conclusion 13.6 Recommendations as to How to Amend the FDEAW 13.6.1 Introduction 13.6.2 The Operation of the EAW in the Absence of an Official Forum Decision 13.6.3 The Operation of the EAW After an Official Forum Decision 13.6.3.1 Introduction 13.6.3.2 The Execution Procedure: The Double Criminality Check (Arts 2 and 4(1) FDEAW) 13.6.3.3 The Execution Procedure: Mandatory Refusal Grounds (Art 3) 13.6.3.4 The Execution Procedure: Optional Refusal Grounds (Arts 4 and 4A) 13.6.3.5 The Execution Procedure: The Fundamental Rights Exception 13.6.3.6 The Execution Procedure: The Return Guarantee (Art 5(3)) 13.6.3.7 The Execution Procedure: Multiple EAWs (Art 16) 13.6.3.8 Changes to the Issuing Procedure (Arts 2(1), 6, 8) 13.7 Conclusion and Reflections References