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Issuing the European Arrest Warrant

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European Arrest Warrant

Abstract

The chapter deals with the issuing procedure of the European arrest warrant. It is divided into seven sections and is summarised with concluding observations. While Sect. 6.1 briefly describes alternatives of issuing, Sect. 6.2 deals with ‘standard’ issuing and Sect. 6.3 analyses in detail issuing without verification of the double criminality of the offence. Special attention is focused on the conditions for issuing the European arrest warrant and to the analysis of the categories of offences what do not require the double criminality of the offence. Further, Sect. 6.4 deals with the proportionality test prior the issuing the European arrest warrant. Section 6.5 is focused on the form and the content of the EAW. While Sect. 6.6 analyses its transmission, Sect. 6.7 deals with its translation.

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Notes

  1. 1.

    Mackarel (2007), p. 40.

  2. 2.

    Murphy (2011), p. 232.

  3. 3.

    Article 2(1) of the Framework Decision on the EAW.

  4. 4.

    Article 2(2) of the Framework Decision on the EAW.

  5. 5.

    Article 2(1) of the Framework Decision on the EAW.

  6. 6.

    Mackarel (2007), p. 40.

  7. 7.

    Pursuant to Mitsilegas—see: Mitsilegas (2009), p. 121; see also: Sievers (2008), pp. 109–128; Dumitrescu (2011), pp. 141–156.

  8. 8.

    De Bondt et al. (2010) and Vermeulen et al. (2011).

  9. 9.

    Fletcher et al. (2008), p. 115; De Hert et al. (2009), pp. 55–78.

  10. 10.

    Article 2(2) of the Framework Decision on the EAW; the list of 32 offences is common for almost all mutual recognition instruments, see: Article 3(2) of the Council Framework Decision 2003/577/JHA of 22nd July 2003 on the execution in the European Union of orders freezing property or evidence. Official Journal of the European Union, L 196/45 of 2.8.2003; Article 6(1) of the Council Framework Decision 2006/783/JHA of 6th October 2006 on the application of the principle of mutual recognition to confiscation orders. Official Journal of the European Union, L 328/59 of 24.11.2006; Article 7(1) of the Council Framework Decision 2008/909/JHA of 27th November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. Official Journal of the European Union, L 327/27, 5.12.2008; Article 10(1) of the Council Framework Decision 2008/947/JHA of 27th November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions. Official Journal of the European Union, L 337/102, 16.12.2008; Article 14(1) of the Council Framework Decision 2008/978/JHA of 18th December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. Official Journal of the European Union, L 350/72 of 30.12.2008; Article 14(1) of the Council Framework Decision 2009/829/JHA of 23rd October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention. Official Journal of the European Union, L 294/20 of 11.11.2009.

    However, as regards the application of the principle of mutual recognition to financial penalties, there is the ‘extended version’ of the list of 32 offences—from 32 to 39. In addition to 32 ‘regular categories of offences’ there are added seven categories of offences, namely: conduct which infringes road traffic regulations, including breaches of regulations pertaining to driving hours and rest periods and regulations on hazardous goods; smuggling of goods; infringements of intellectual property rights; threats and acts of violence against persons, including violence during sport events; criminal damage; theft; offences established by the issuing State and serving the purpose of implementing obligations arising from instruments adopted under the Treaty establishing the European Community or under Title VI of the Treaty on EU—i.e. ‘Provisions on police and judicial co-operation in criminal matters’—Articles 26–42 (both as amended by the Treaty of Nice; Official Journal of the European Union, C 321/E/1 of 29.12.2006); see: Article 5(1) of the Council Framework Decision 2005/214/JHA of 24th February 2005 on the application of the principle of mutual recognition to financial penalties. Official Journal of the European Union, L 76/16 of 22.3.2005.

  11. 11.

    Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the protection of the European Communities’ financial interests. Official Journal of the European Communities, C 316/49 of 27.11.1995.

  12. 12.

    Pursuant to the Rome Statute of the International Criminal Court, the jurisdiction of the International Criminal Court is limited to the most serious crimes of concern to the international community as a whole. It has jurisdiction with respect to: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression [Article 5(1) of the Rome Statute]; details see: Askin (1999), pp. 33–59; or Doria et al. (2009).

  13. 13.

    Article 2(3) of the Framework Decision on the EAW.

  14. 14.

    Article 2(4) of the Framework Decision on the EAW.

  15. 15.

    Murphy (2011), p. 233.

  16. 16.

    Commission of the European Communities (2007): ‘Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States’, COM(2007) 407, p. 8.

  17. 17.

    Council Framework Decision 2008/978/JHA of 18th December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. Official Journal of the European Union, C 115/13 of 9.5.2008.

  18. 18.

    Article 14(2) of the Framework Decision 2008/978/JHA on the European evidence warrant […].

  19. 19.

    Murphy (2011), p. 234.

  20. 20.

    The author’s analysis of the categories of the offences on the list of 32 offences has been previously elaborated in his former works, namely: Klimek (2009, 2010).

  21. 21.

    Ten Commandments: ‘You shall not murder’ (No. 5); Exodus 20:1–21, Deuteronomy 5:1–23.

  22. 22.

    Keijzer (2005), p. 151.

  23. 23.

    De Bondt et al. (2010), p. 18.

  24. 24.

    Mackarel (2007), p. 44.

  25. 25.

    Boháčik (2004), p. 1014.

  26. 26.

    Judgment of the Court of Justice of the European Communities of 3rd May 2007—Case C-303/05—Advocaten voor de Wereld VZW v Leden van de Ministerraad, para. 13.

  27. 27.

    Commission of the European Communities (2006): ‘Report from the Commission based on Article 34 of the Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States’ (revised version), COM(2006) 8 final, p. 3.

  28. 28.

    Commission of the European Communities (2004): ‘Green paper on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union’, COM(2004) 334 final, p. 9.

  29. 29.

    Calderoni (2010), p. 7.

  30. 30.

    Calderoni (2010), p. 7.

  31. 31.

    Judgment of the Court of Justice of the European Communities of 3rd May 2007—Case C-303/05—Advocaten voor de Wereld VZW v Leden van de Ministerraad, para. 52.

  32. 32.

    Council Framework Decision 2008/978/JHA of 18th December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. Official Journal of the European Union, C 115/13 of 9.5.2008.

  33. 33.

    De Hert et al. (2009), p. 66.

  34. 34.

    Specific offences are recognised as offences which are within the legislative competence of the EU. The European Parliament and the Council of the EU may, by means of directives, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. In addition, the Council of the EU may adopt a decision identifying other areas of crime that meet the specified criteria [Article 83(1) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon]. Furthermore, the general policy objective of the EU is to ensure a high level of security through measures to prevent and combat crime [Article 67(3) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon].

    The Treaty on the functioning of the EU does not use the wording ‘Euro crimes’. The term is used by the European Commission, see European Commission (2011): ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’, COM(2011) 573 final, p. 5.

    In literature there can be observed the term ‘Euro-crimes’, see: Chalmers et al. (2010), p. 613; Miettinen (2013), p. 145.

    In addition, also the term ‘Eurocrimes’ can be observed, see: Klip (2012), p. 211.

  35. 35.

    For example: Commission of the European Communities (2002): ‘Proposal for a Council Framework Decision on attacks against information systems’, COM(2002) 173 final, p. 7; European Commission (2010): ‘Proposal for a Directive of the European Parliament and of the Council on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA’, COM(2010) 94 final, p. 3.

  36. 36.

    Paoli (2008), pp. 37 and 39.

  37. 37.

    Article 83(1) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon.

  38. 38.

    Paoli (2008), p. 51.

  39. 39.

    European Commission (2010): ‘Communication from the Commission to the European Parliament and the Council: The EU Internal Security Strategy in Action: Five steps towards a more secure Europe’, COM(2010) 673 final, p. 4.

  40. 40.

    Council Framework Decision 2008/841/JHA of 24th October 2008 on the fight against organised crime. Official Journal of the European Union, L 300/42 of 11.11.2008. The Framework Decision supplemented, replaced and repealed the it forerunner—the Joint action 98/733/JHA of 21st December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union. Official Journal of the European Communities, L 351/1 of 29.12.1998. In addition, it builds on the UN Convention Against Transnational Organised Crime (‘Palermo Convention’) of 2000 and its protocols.

  41. 41.

    Article 2 of the Framework Decision 2008/841/JHA on the fight against organised crime.

  42. 42.

    Article 3(2) of the Framework Decision 2008/841/JHA on the fight against organised crime.

  43. 43.

    Article 2 of the Framework Decision 2008/841/JHA on the fight against organised crime; the definition of the structured association has been adopted as well as in the Council Framework Decision 2002/475/JHA of 13th June 2002 on combating terrorism as amended by the Framework Decision 2008/919/JHA. Official Journal of the European Communities, L 164/3 of 22.6.2002. In this case, the term structured group shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure [Article 2(1) of the Framework Decision].

  44. 44.

    Commission of the European Communities (2004): ‘Communication from the Commission to the Council and the European Parliament on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information’, COM(2004) 221 final, p. 7.

  45. 45.

    Calderoni (2008), p. 265.

  46. 46.

    Calderoni (2012), p. 1390.

  47. 47.

    Hart (2009), p. 4.

  48. 48.

    Aronowitz (2009), p. 9.

  49. 49.

    Human Trafficking: Joint UN Commentary on the EU Directive – A Human Rights-Based Approach. OHCHR – UNHCR – UNICEF – UNODC – UN Women – ILO, 2011, p. 30.

  50. 50.

    Under the EU Charter, trafficking in human beings is prohibited [Article 5(3) of the EU Charter]; see: EU Network of Independent Experts on Fundamental Rights: ‘Commentary of the Charter of Fundamental Rights of the European Union’, 2006, pp. 55 et seq.

  51. 51.

    European Commission (2010): ‘Proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA’, COM(2010) 95 final, p. 2.

  52. 52.

    Article 83(1) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon.

  53. 53.

    Human Trafficking: Joint UN Commentary on the EU Directive – A Human Rights-Based Approach. OHCHR – UNHCR – UNICEF – UNODC – UN Women – ILO, 2011, p. 18.

  54. 54.

    Directive 2011/36/EU of the European Parliament and of the Council of 5th April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. Official Journal of the European Union, L 101/1 of 15.4.2011. The replaced Framework Decision 2002/629/JHA on combating trafficking in human beings was the first response of the EU to a generally perceived need to address the serious criminal offence of trafficking in human beings at EU level. As a result, the EU Member States generally dispose of specific criminal law provisions incriminating trafficking in human beings for the purpose of sexual and labour exploitation, and providing for effective proportionate and dissuasive penalties—see: Commission of the European Communities: ‘Report from the Commission to the Council and the European Parliament based on Article 10 of the Council Framework Decision of 19th July 2002 on combating trafficking in human beings’, COM(2006) 187 final. In spite this fact the EU decided to adopt a new legislation with added value.

  55. 55.

    Article 1 of the Directive 2011/36/EU on […] trafficking in human beings […].

  56. 56.

    Article 2(1)(2) of the Directive 2011/36/EU on […] trafficking in human beings […].

  57. 57.

    Article 2(3)(4)(5)(6) of the Directive 2011/36/EU on […] trafficking in human beings […].

  58. 58.

    Article 8 of the Directive 2011/36/EU on […] trafficking in human beings […].

  59. 59.

    Jenkins (2001), pp. 25 and 26.

  60. 60.

    Article 83(1) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon.

  61. 61.

    European Commission (2010): ‘Proposal for a Directive of the European Parliament and of the Council on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA’, COM(2010) 94 final, p. 8.

  62. 62.

    Directive 2011/92/EU of the European Parliament and of the Council of 13th December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA. Official Journal of the European Union, L 335/1 of 17.12.2011. The Directive aims expand the provisions of its forerunner—the Council Framework Decision 2004/68/JHA of 22nd December 2003 on combating the sexual exploitation of children and child pornography. Official Journal of the European Union, L 13/44 of 20.1.2004. It introduced a minimum of approximation of the EU Member States’ legislation, among others, to criminalise the most serious forms of child sexual abuse and exploitation. Although the requirements have generally been put into implementation, the Framework Decision has a number of shortcomings. It approximated legislation only on a limited number of offences, does not address new forms of abuse and exploitation using information technology etc. Since the amendments to be made were of substantial number and nature, it was decided that the Framework Decision should be replaced in its entirety. See: European Commission (2007): ‘Report from the Commission based on Article 12 of the Council Framework Decision of 22nd December 2003 on combating the sexual exploitation of children and child pornography’, COM(2007) 716 final.

  63. 63.

    Article 1 of the Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography […].

  64. 64.

    Recital 1 of the Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography […].

  65. 65.

    Articles 3–6 of the Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography […].

  66. 66.

    See: Klimek (2012b), pp. 135–144.

  67. 67.

    McClean (2012), p. 238.

  68. 68.

    Weil and Rosen (2003), p. 1.

  69. 69.

    Article 83(1) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon.

  70. 70.

    European Commission (2011): ‘Communication from the Commission to the European Parliament and the Council: Towards a stronger European response to drugs’, COM(2011) 689 final, p. 2.

  71. 71.

    Council Framework Decision 2004/757/JHA of 25th October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. Official Journal of the European Union, L 335/8 of 11.11.2004. The Framework Decision builds on the UN legal framework, namely the Single Convention on Narcotic Drugs of 1961 as amended by its Protocol of 1972, the Convention on Psychotropic Substances of 1971 and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.

  72. 72.

    Article 2(1)(a)(b)(c) of the Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.

  73. 73.

    Council Decision 2005/387/JHA of 10th May 2005 on the information exchange, risk-assessment and control of new psychoactive substances. Official Journal of the European Union, L 127/32 of 20.5.2005. The Decision establishes a mechanism for a rapid exchange of information on new psychoactive substances (Article 1 of the Decision).

  74. 74.

    Article 2(d) of the Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.

  75. 75.

    Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11th February 2004 on drug precursors as amended by Regulation (EC) No 219/2009. Official Journal of the European Union, L 47/1 of 18.2.2004. The Regulation lays down rules for the monitoring of trade between the EU and third countries in certain substances frequently used for the illicit manufacture of narcotic drugs and psychotropic substances for the purpose of preventing the diversion of such substances. It applies to imports, exports and intermediary activities (Article 1 of the Regulation).

  76. 76.

    Council Regulation (EC) No 111/2005 of 22nd December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors. Official Journal of the European Union, L 22/1 of 26.1.2005. The Regulation establishes harmonised measures for the intra-EU control and monitoring of certain substances frequently used for the illicit manufacture of narcotic drugs or psychotropic substances with a view to preventing the diversion of such substances (Article 1 of the Regulation).

  77. 77.

    Article 3(1) of the Framework Decision 2004/757/JHA on the information exchange, risk-assessment and control of new psychoactive substances.

  78. 78.

    Article 2(2) of the Framework Decision 2004/757/JHA on the information exchange, risk-assessment and control of new psychoactive substances.

  79. 79.

    Commission of the European Communities (2009): ‘Report from the Commission on the implementation of Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking’, COM(2009) 669 final, p. 10.

  80. 80.

    European Commission (2011): ‘Communication from the Commission to the European Parliament and the Council: Towards a stronger European response to drugs’, COM(2011) 689 final, pp. 4 and 11.

  81. 81.

    Parliament of the Kingdom of Great Britain (2012): ‘The EU Drugs Strategy: 26th Report of Session 2010–12’, House of Lords papers, Paper 270, p. 28.

  82. 82.

    Jason-Lloyd (1997), p. 1.

  83. 83.

    Stessens (2000), pp. 82 and 83.

  84. 84.

    Article 83(1) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon.

  85. 85.

    Directive 2005/60/EC of the European Parliament and of the Council of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing as amended by the Directive 2010/78/EU. Official Journal of the European Union, L 309/15 of 25.11.2005.

  86. 86.

    Commission of the European Communities (2004): ‘Proposal for a Directive of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering, including terrorist financing’, COM(2004) 448 final, p. 3.

  87. 87.

    Article 1(1) of the Directive 2005/60/EC on […] money laundering […].

  88. 88.

    Article 1(2)(a)(b)(c)(d) of the Directive 2005/60/EC on […] money laundering […].

  89. 89.

    Article 1(3) of the Directive 2005/60/EC on […] money laundering […].

  90. 90.

    European Commission (2013): ‘Proposal for a Directive of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing’, COM(2013) 45 final.

  91. 91.

    Marsh (2009), p. 1.

  92. 92.

    See: Klimek (2012a), pp. 12–24.

  93. 93.

    Council Framework Decision 2000/383/JHA of 29th May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro. Official Journal of the European Communities, L 140/1 of 14.6.2000. The Framework Decision supplements the provisions and facilitates the application of the International Convention for the Suppression of Counterfeiting Currency of 1929, at international level, the basic instrument of protection the currency. Following its ratification a degree of standardisation of the EU Member States legislation had already taken place. The Framework Decision, however, was designated to introduce the legislation solely as regards the euro.

    The Framework Decision has been supplemented by the Council Decision 2001/887/JHA of 6th December 2001 on the protection of the euro against counterfeiting. Official Journal of the European Communities, L 329/1 of 14.12.2001. It supplemented existing provisions on the protection of the euro against counterfeiting, in particular the Framework Decision 2000/383/JHA. It required the EU Member States to ensure that in the context of investigations into counterfeiting and offences related to counterfeiting of the euro, firstly, are carried out the necessary expert analyses of suspected counterfeit notes by a National Analysis Centre, and secondly, are carried out the necessary expert analyses of suspected counterfeit coins by a Coin National Analysis Centre, both designated or established pursuant to the Council Regulation (EC) No 1338/2001 of 28th June 2001 laying down measures necessary for the protection of the euro against counterfeiting. Official Journal of the European Communities, L 181/6 of 4.7.2001.

  94. 94.

    Article 3 of the Framework Decision 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro.

  95. 95.

    Details see: Commission of the European Communities (2007): ‘Third report based on Article 11 of the Council Framework Decision of 29th May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro’, COM(2007) 524 final.

  96. 96.

    European Commission (2011): ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Commission Work Programme 2012: Delivering European renewal’, COM(2011) 777 final, Vol. 1/2.

  97. 97.

    European Commission (2011): ‘Annex to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Commission Work Programme 2012: Delivering European renewal’, COM(2011) 777 final, Vol. 2/2, p. 20.

  98. 98.

    Judgment of the Court of Justice of the European Communities of 21st September 1989—Case 68/88—Commission of the European Communities v Hellenic Republic.

  99. 99.

    Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests. Official Journal of the European Communities, C 316/49 of 27.11.1995; the Convention entered into force on 17th October 2002; see: also the Council Act of 26th July 1995 drawing up the Convention on the protection of the European Communities’ financial interests. Official Journal of the European Communities, C 316/48 of 27.11.1995.

  100. 100.

    Protocol drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the protection of the European Communities’ financial interests. Official Journal of the European Communities, C 151/5 of 20.5.1997; Second Protocol drawn up on the basis of Article K.3 of the treaty on European Union, to the Convention on the protection of the European Communities’ financial interests. Official Journal of the European Communities, C 221/12 of 19.7.1997.

  101. 101.

    Article 1(1)(a) of the Convention on the protection of the financial interests.

  102. 102.

    Article 1(1)(b) of the Convention on the protection of the financial interests.

  103. 103.

    Article 1(2)(3) of the Convention on the protection of the financial interests.

  104. 104.

    Commission of the European Communities (2004): ‘Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee, the European Central Bank and Europol: A new EU Action Plan 2004–2007 to prevent fraud on non-cash means of payment’, COM(2004) 679 final, pp. 2–3.

  105. 105.

    Article 83(1) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon.

  106. 106.

    Council Framework Decision 2001/413/JHA of 28th May 2001 on combating fraud and counterfeiting of non-cash means of payment. Official Journal of the European Communities, L 149/1 of 2.6.2001.

  107. 107.

    Council Decision 2008/976/JHA of 16th December 2008 on the European Judicial Network. Official Journal of the European Union, L 348/130 of 24.12.2008.

  108. 108.

    Council Framework Decision 2008/841/JHA of 24th October 2008 on the fight against organised crime. Official Journal of the European Union, L 300/42 of 11.11.2008.

  109. 109.

    Commission of the European Communities (1999): ‘Proposal for a Council Framework Decision on combating fraud and counterfeiting of non-cash means of payment’, COM(1999) 438 final, p. 2.

  110. 110.

    Article 2(a)(b)(c)(d) of the Framework Decision 2001/413/JHA on combating fraud and counterfeiting of non-cash means of payment.

  111. 111.

    Article 1(a) of the Framework Decision 2001/413/JHA on combating fraud and counterfeiting of non-cash means of payment.

  112. 112.

    See: Clough (2010), p. 3.

  113. 113.

    Symantec (2011): ‘Norton Cybercrime Report 2011’, 7th September 2011; European Commission (2012): ‘Communication from the Commission to the Council and the European Parliament: Tackling Crime in our Digital Age: Establishing a European Cybercrime Centre’, COM(2012) 140 final, p. 2.

  114. 114.

    See: Clough (2010), p. 10; Brenner (2010), p. 39; Smith et al. (2004), p. 7; Záhora (2005), p. 207.

  115. 115.

    European Commission (2012): ‘Communication from the Commission to the Council and the European Parliament: Tackling Crime in our Digital Age: Establishing a European Cybercrime Centre’, COM(2012) 140 final, p. 2.

  116. 116.

    Article 83(1) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon.

  117. 117.

    Council Framework Decision 2001/413/JHA of 28th May 2001 on combating fraud and counterfeiting of non-cash means of payment. Official Journal of the European Communities, L 149/1 of 2.6.2001.

  118. 118.

    Article 3 of the Framework Decision 2001/413/JHA on combating fraud and counterfeiting of non-cash means of payment.

  119. 119.

    Article 4 of the Framework Decision 2001/413/JHA on combating fraud and counterfeiting of non-cash means of payment.

  120. 120.

    European Commission (2010): ‘Proposal for a Directive of the European Parliament and of the Council on attacks against information systems and repealing Council Framework Decision 2005/222/JHA’, COM(2010) 517 final, p. 8.

  121. 121.

    Directive 2013/40/EU of the European Parliament and of the Council of 12th August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA. Official Journal of the European Union, L 218/8, 14.8.2013. The Directive is intended to be consistent with the approach adopted in the Convention on cybercrime of 2001, adopted by the Council of Europe. Council of Europe, European Treaty Series No. 185 [2001]. Budapest, 23rd November 2001.

  122. 122.

    Article 3 of the Directive 2013/40/EU on attacks against information systems […].

  123. 123.

    Article 4 of the Directive 2013/40/EU on attacks against information systems […].

  124. 124.

    Article 5 of the Directive 2013/40/EU on attacks against information systems […].

  125. 125.

    Article 6 of the Directive 2013/40/EU on attacks against information systems […].

  126. 126.

    Article 2(a) of the Directive 2013/40/EU on attacks against information systems […].

  127. 127.

    Council Framework Decision 2008/913/JHA of 28th November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. Official Journal of the European Union, L 328/55 of 6.12.2008. The Framework decision was adopted as a follow-up to its forerunner—the Joint Action 96/443/JHA of 15th July 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning action to combat racism and xenophobia. Official Journal of the European Communities, L 185/5 of 24.7.1996. Joint Action was followed by further legislative action addressing the need for further approximation of law and regulations of the EU Member States and for overcoming obstacles for efficient judicial co-operation which are mainly based on the divergence of legal approaches in the Member States.

  128. 128.

    Article 1(1)(a)(b)(c)(d) of the Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law.

  129. 129.

    Sands (2003), p. 3.

  130. 130.

    Article 3(3) of the Treaty on EU as amended by the Treaty of Lisbon. Official Journal of the European Union, C 83/13 of 30.3.2010.

  131. 131.

    Directive 2008/99/EC of the European Parliament and of the Council of 19th November 2008 on the protection of the environment through criminal law. Official Journal of the European Union, L 328/28, 6.12.2008. The directive is a ‘surrogate’ of the Council Framework Decision 2003/80/JHA of 27th January 2003 on the protection of the environment through criminal law. Official Journal of the European Union, L 29/55 of 5.2.2003. The Framework Decision required the Member States to provide for criminal sanctions in the case of the offences against environmental law. However, the European Commission had asked the Court of Justice to annul the Framework Decision. In its view, the legal basis chosen—a framework decision—was erroneous, because the legislative enterprise in question was a matter for a Community instrument and not, as had been done, on the basis of the Third Pillar of the EU, i.e. the area of the ‘Police and Judicial Co-operation in Criminal Matters’ (see: Action brought on 15th April 2003 by the Commission of the European Communities against the Council of the European Union (Case C-176/03)). As a consequence of the trial, the Court of Justice annulled the Framework Decision. See: Judgment of the Court of Justice of the European Communities of 13th September 2005—Case C-176/03—Commission of the European Communities v Council of the European Union; Commission of the European Communities (2005): ‘Communication from the Commission to the European Parliament and the Council on the implications of the Court’s judgment of 13th September 2005 (Case C-176/03 Commission v Council)’, COM(2005) 583 final/2; Spinellis (2006), pp. 293–302.

  132. 132.

    Article 1 of the Directive 2008/99/EC on the protection of the environment through criminal law.

  133. 133.

    Article 3(a)–(i) of the Directive 2008/99/EC on the protection of the environment through criminal law.

  134. 134.

    Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14th June 2006 on shipments of waste. Official Journal of the European Union, L 190/1, 12.7.2006. This Regulation establishes procedures and control regimes for the shipment of waste, depending on the origin, destination and route of the shipment, the type of waste shipped and the type of treatment to be applied to the waste at its destination [Article 1(1) of the Regulation].

  135. 135.

    Enders and Sandler (2006), p. 3.

  136. 136.

    Article 83(1) of the Treaty on the functioning of the EU as amended by the Treaty of Lisbon.

  137. 137.

    Enders and Sandler (2006), p. 1.

  138. 138.

    Council Framework Decision 2002/475/JHA of 13th June 2002 on combating terrorism as amended by the Framework Decision 2008/919/JHA. Official Journal of the European Communities, L 164/3 of 22.6.2002.

  139. 139.

    Article 1(1) of the Framework Decision 2002/475/JHA on combating terrorism.

  140. 140.

    Article 2(2) of the Framework Decision 2002/475/JHA on combating terrorism.

  141. 141.

    Article 2(1) of the Framework Decision 2002/475/JHA on combating terrorism.

  142. 142.

    Article 3(1)(2) of the Framework Decision 2002/475/JHA on combating terrorism.

  143. 143.

    Article 2(2) of the Framework Decision 2002/475/JHA on combating terrorism.

  144. 144.

    Herczeg (2009), p. 341.

  145. 145.

    Szarek-Mason (2010), p. 5.

  146. 146.

    Explanatory Report to the Protocol to the Convention on the protection of the European Communities’ financial interests. Official Journal of the European Communities, C 11/5 of 15.1.1998.

  147. 147.

    Protocol drawn up on the basis of Article K.3 of the Treaty on European Union to the Convention on the protection of the European Communities’ financial interests. Official Journal of the European Communities, C 313/2 of 23.10.1996. The Convention on the protection of the European Communities’ financial interests of 1995 constitutes the first agreement dealing with fraud affecting the European Communities’ budget.

  148. 148.

    Council Act of 27th September 1996 drawing up a Protocol to the Convention on the protection of the European Communities’ financial interests. Official Journal of the European Communities, C 313/1 of 23.10.1996.

  149. 149.

    Article 2(1)(2) of the Protocol to the Convention on the protection of the European Communities’ financial interests.

  150. 150.

    Article 3(1)(2) of the Protocol to the Convention on the protection of the European Communities’ financial interests.

  151. 151.

    Article 1(a)(b)(c) of the Protocol to the Convention on the protection of the European Communities’ financial interests.

  152. 152.

    Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union. Official Journal of the European Communities, C 195/2 of 25.6.1997.

  153. 153.

    Council Act of 26th May 1997 drawing up, on the basis of Article K.3(2)(c) of the Treaty on European Union, the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union. Official Journal of the European Communities, C 195/1 of 25.6.1997.

  154. 154.

    Article 2(1)(2) of the Convention on the fight against corruption […].

  155. 155.

    Article 3(1)(2) of the Convention on the fight against corruption […].

  156. 156.

    Commission of the European Communities (2007): ‘Report from the commission to the Council based on Article 9 of the Council Framework Decision 2003/568/JHA of 22nd July 2003 on combating corruption in the private sector’, COM(2007) 328 final, p. 2.

  157. 157.

    Council Framework Decision 2003/568/JHA of 22nd July 2003 on combating corruption in the private sector. Official Journal of the European Union, L 192/54 of 31.7.2003. The Framework Decision repealed the Joint Action 98/742/JHA of 22nd December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on corruption in the private sector. Official Journal of the European Communities, L 358/2 of 31.12.1998. The Joint Action sought to address the impact of corruption on the internal market and in international trade. It called on the EU Member States to establish both passive and active corruption as criminal offences. Comparison of the Framework Decision and the Joint Action see: Commission of the European Communities (2007): ‘Annex to the Report from the Commission based on Article 9 of the Council Framework Decision 2003/568/JHA of 22nd July 2003 on combating corruption in the private sector’, Commission staff working document, SEC(2007) 808, pp. 8 et seq.

  158. 158.

    Article 2(1)(a)(b) of the Framework Decision on combating corruption in the private sector.

  159. 159.

    Commission of the European Communities (2007): ‘Report from the Commission based on Article 11 of the Council Framework Decision of 13th June 2002 on combating terrorism’, COM(2007) 681 final, p. 10; see also: Commission of the European Communities (2007): ‘Annex to the Report from the Commission based on Article 11 of the Council Framework Decision of 13th June 2002 on combating terrorism’, Commission staff working document, SEC(2007) 1463.

  160. 160.

    Council of the European Union (2009): ‘Final report on the fourth round of mutual evaluations – The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States’, document No. 8302/2/09, REV 2, p. 14.

  161. 161.

    Council of the European Union (2009): ‘Final report on the fourth round of mutual evaluations – The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States’, document No. 8302/2/09, REV 2, p. 14.

  162. 162.

    Council of the European Union (2008): ‘European Handbook on How to Issue a European Arrest Warrant’, document No. 8216/2/08, REV 2, p. 11.

  163. 163.

    Council of the European Union (2008): ‘European Handbook on How to Issue a European Arrest Warrant’, document No. 8216/2/08, REV 2, p. 17.

  164. 164.

    Article 8(a) of the Framework Decision on the EAW.

  165. 165.

    See: Annex to the Framework Decision on the EAW.

  166. 166.

    Council of the European Union (2008): ‘European Handbook on How to Issue a European Arrest Warrant’, document No. 8216/2/08, REV 2, p. 57

  167. 167.

    Council of the European Union (2008): ‘European Handbook on How to Issue a European Arrest Warrant’, document No. 8216/2/08, REV 2, p. 59.

  168. 168.

    Council of the European Union (2008): ‘European Handbook on How to Issue a European Arrest Warrant’, document No. 8216/2/08, REV 2, p. 7.

  169. 169.

    Council of the European Union (2008): ‘European Handbook on How to Issue a European Arrest Warrant’, document No. 8216/2/08, REV 2, p. 70.

  170. 170.

    Council of the European Union (2008): ‘European Handbook on How to Issue a European Arrest Warrant’, document No. 8216/2/08, REV 2, p. 71.

  171. 171.

    Article 9(1) of the Framework Decision on the EAW.

  172. 172.

    See http://www.ejn-crimjust.europa.eu/ejn/EJN_EAWAtlas.aspx (available 2013-04-04).

  173. 173.

    Article 10(1)(2) of the Framework Decision on the EAW.

  174. 174.

    The SIS was replaced by the second generation Schengen Information System—‘SIS II’, which entered into operation on 9th April 2013.

    The development of the SIS II was to the European Commission pursuant to the Council Regulation (EC) No 2424/2001 of 6th December 2001 on the development of the second generation Schengen Information System (SIS II) (Official Journal of the European Communities, L 328/7 of 13.12.2001) and the Council Decision 2001/886/JHA of 6th December 2001 on the development of the second generation Schengen Information System (SIS II) (Official Journal of the European Communities, L 328/1 of 13.12.2001).

    At the JHA Council in December 2006 the Council of the EU decided to go ahead with the Portuguese proposal for the ‘SISone4ALL’ project, aiming to find a temporary solution to the delays and other problems experienced in running the SIS II project (see: Council of the European Union (2006): ‘SIS II, SIS 1+ and the enlargement of the Schengen area – Council conclusions’, document No. 16391/1/06, REV 1). The objective was to connect ten new Member States that joined the EU in May 2004 to the present SIS1+. From 7th July 2007, except Cyprus, all Member States concerned decided to join the project (see: the Council Decision 2007/471/EC of 12th June 2007 on the application of the provisions of the Schengen acquis relating to the Schengen Information System in the Czech Republic, the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic. Official Journal of the European Union, L 179/46 of 7.7.2007).

    In October 2008, the legal instruments governing the migration to SIS II were adopted—the ‘migration instruments’—namely the Council Regulation No 1104/2008 of 24th October 2008 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (Official Journal of the European Union, L 299/1 of 8.11.2008) and the Council Regulation 2008/839/JHA of 24th October 2008 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (Official Journal of the European Union, L 299/43 of 8.11.2008). However, progress in the development of the SIS II has not been as successful as is expected, resulting in a constant delays of its final establishing (see for example: European Commission (2009): ‘Report from the Commission to the Council and the European Parliament on the development of the second generation Schengen information system (SIS II): Progress Report: January 2009–June 2009’, COM(2009) 555 final; and European Commission (2009): ‘Report from the Commission to the Council and the European Parliament on the development of the second generation Schengen information system (SIS II): Progress Report: July 2009–December 2009’, COM(2010) 221 final.

    While the legal basis of the SIS I is the Schengen Implementing Agreement, the legal basis of the SIS II are the Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20th December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (Official Journal of the European Union, L 381/4 of 28.12.2006) and the Council Decision 2007/533/JHA of 12th June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (Official Journal of the European Union, L 205/63 of 7.8.2007).

  175. 175.

    Convention implementing the Schengen Agreement of 14th June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. Official Journal of the European Union, L 239/19 of 22.9.2000.

  176. 176.

    Article 9(2)(3) of the Framework Decision on the EAW; the Framework Decision on the EAW replaces Articles 95(1) and (2) of the Convention implementing the Schengen Agreement in this respect.

  177. 177.

    Council of the European Union (2008): ‘European Handbook on How to Issue a European Arrest Warrant’, document No. 8216/2/08, REV 2, p. 19.

  178. 178.

    Interpol is the world’s largest international police organisation with 190 member countries. Its role is to enable police around the world to work together to make the world a safer place; see http://www.interpol.int.

  179. 179.

    Council of the European Union (2008): ‘European Handbook on How to Issue a European Arrest Warrant’, document No. 8216/2/08, REV 2, p. 19.

  180. 180.

    Article 10(4)(5) of the Framework Decision on the EAW.

  181. 181.

    Article 10(6) of the Framework Decision on the EAW.

  182. 182.

    Bednarek (2009), pp. 84–99.

  183. 183.

    Article 8(2) of the Framework Decision on the EAW.

  184. 184.

    Article 8(2) of the Framework Decision on the EAW.

  185. 185.

    Bednarek (2009), pp. 90 and 91.

  186. 186.

    Bednarek (2009), p. 94.

  187. 187.

    Bednarek (2009), p. 94.

  188. 188.

    Council of the European Union (2005): ‘Implementation of the Framework Decision on the European arrest warrant’, document No. 8719/05, 2005, p. 6.

  189. 189.

    See: Article 3 of the Agreement between the Slovak Republic and the Czech Republic on legal assistance provided by the judicial authorities and on the arrangement of certain legal relations in civil and criminal matters of 29th October 1992 with a Final Protocol.

  190. 190.

    See: Article XVIII of the Agreement between the Slovak Republic and the Republic of Poland amending and facilitating the implementation of the European Convention of 13th December 1957.

  191. 191.

    See: Article XV of the Agreement between the Slovak Republic and the Republic of Austria amending the European Convention on Extradition of 13th December 1957 and facilitating its implementation.

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    Libor Klimek

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Klimek, L. (2015). Issuing the European Arrest Warrant. In: European Arrest Warrant. Springer, Cham. https://doi.org/10.1007/978-3-319-07338-5_6

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