The 1999 Tampere European Council elevated established recognition as a cornerstone of the Area of Freedom, Security and Justice, which is now expressly identified as the second objective of the European Union under Article 3 TEU. This choice laid the foundations for a model of cooperation among judicial authorities based on the presumption that the legal systems of all Member States ensure an equivalent level of protection.

Judicial cooperation in criminal matters also falls within the scope of the principle of mutual recognition and represents one of its most sensitive and pivotal areas. Among the many instruments embodying judicial cooperation in criminal matters, the Framework Decision on the European Arrest Warrant (EAW) is a key instrument. Adopted by the Council in 2002, in the aftermath of the events of 11 September 2001, it has replaced the extradition procedures between Member States with a simplified mechanism for the surrender of persons sought either for the enforcement of a sentence or for the purposes of criminal prosecution in a Member State other than that in which they are located. Specifically, the Framework Decision provides that, where a judicial authority of a Member State issues an arrest warrant for a person present in the territory of another Member State, that warrant must be executed by the judicial authority of the executing State without any review of the merits of the decision. Consistently with the principles of mutual trust and mutual recognition, this mechanism is accompanied by an exhaustive list of grounds for refusal of execution, set out in Articles 3, 4 and 4a of the Framework Decision.

However, given the sensitivity of the area concerned, practical experience has shown that the concrete operation of the mechanisms of the warrant may give rise to tensions with the need to ensure the effective protection of the fundamental rights of the persons whose surrender is requested. These tensions are reflected in the frequent references for a preliminary ruling to the Court of Justice, aimed at clarifying the operation of the mechanisms of judicial cooperation. While the European Arrest Warrant has been held compatible with the principle of legality and its corollaries (Advocaten voor de Wereld), and it has also been ruled out that the standards of protection guaranteed by national constitutions may constitute an obstacle to the execution of the warrant (Melloni), a number of preliminary references have given rise to a line of case-law which, by interpretatively admitting additional grounds for the suspension or refusal of execution, has contributed to refining and supplementing the EAW regime.

Without prejudice to the grounds for refusal expressly provided for in the Framework Decision, starting with the Aranyosi and Căldăraru judgment, the Court of Justice has acknowledged that, in some exceptional circumstances, surrender is not automatic. In particular, where there is a real risk that the requested person would be subjected to inhuman or degrading treatment as a result of the systemic or generalised deficiencies affecting the detention conditions in the issuing Member State, the executing judicial authority may suspend or refuse surrender. In its judgment in LM, the Court further clarified that systemic or generalised deficiencies in the organisation of the judicial system of the issuing Member State – particularly those liable to undermine judicial independence – may also affect the automatic execution of the warrant. This occurs where such deficiencies give rise to a real risk of breach of the right to a fair trial for the person whose surrender is sought in order to prosecute him or her in the issuing Member State.

A further development of this approach emerges from the E.D.L. case, which originated from a preliminary reference by the Italian Constitutional Court. The case concerns the protection of the physical and mental health of the requested person and highlights how, in the context of the execution of an EAW, fundamental rights other than those directly linked either to the enforcement of a sentence or to the conduct of criminal proceedings may come into play. As in the previous cases, the Court of Justice stressed the need for a thorough exchange of information between the authorities involved, aimed at verifying that, in the issuing State, the specific situation of the person concerned by the warrant is adequately addressed so as to avert the risks identified to his or her health and personal integrity.

The system established by the Framework Decision on the European Arrest Warrant operates within a multifaceted legal context characterised by the coexistence of different models of criminal justice. In addition to the structural differences between the legal systems of the Member States, judicial cooperation is influenced by the circumstances of the individual case, which include both the situation of the issuing Member State and the personal situation of the individual whose surrender is requested. In light of these differences, the written rules governing the EAW must be complemented – inter alia – by a proactive exchange of information between the authorities involved, in order to ensure the effective protection of the fundamental rights of persons subject to a warrant, without undermining the efficiency of the surrender system or the mutual trust on which the entire mechanism is based.

 

(Focus by Valeria Salese)

 

Selected bibliography:

 

Decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al mandato d’arresto europeo e alle procedure di consegna tra Stati membri come modificata dalla decisione quadro 2009/299/GAI del Consiglio, del 26 febbraio 2009, che modifica che le decisioni quadro 2002/584/GAI, 2005/214/GAI, 2006/783/GAI, 2008/909/GAI e 2008/947/GAI.

 

S. Alegre, M. Leaf, Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study—The European Arrest Warrant, in European Law Review, 2004, p. 200; A. Willems, Mutual Trust as a Term of Art in EU Criminal Law: Revealing its Hybrid Character, in European Journal of Legal Studies, 2016, 211 ss.

 

C. Amalfitano, Spazio giudiziario europeo e libera circolazione delle decisioni penali, in Studi sull'integrazione europea, 2009, 73 ss.

 

S.A. Bloks, T. van den Brink, The Impact on National Sovereignty of Mutual Recognition in the AFSJ. Case-Study of the European Arrest Warrant, in German Law Journal, 2021, 45 ss.

 

M. Fichera, Criminal Law beyond the State: the European Model, in European Law Journal, 2013, 174 ss.

 

K. Hamenstädt, European Arrest Warrants, the Rule of Law and Communication: What Future for Mutual Recognition?, in Maastricht Journal of European and Comparative Law, 2024, 1 ss.

 

C. Honorati, Lo spazio di libertà, sicurezza e giustizia come laboratorio costituzionale dell’identità dell’Unione, in Unione europea e diritti, 2025.

 

K. Lenaerts, La Vie Après l’Avis: Exploring Mutual (Yet Not Blind) Trust, in Common Market Law Review, 2017, 805 ss.

 

S. Montaldo, On a Collision Course! Mutual Recognition, Mutual Trust and Fundamental Rights in the Recent case-law of the Court of Justice, in European Papers, 2016, 965 ss.

 

S. Montaldo, L. Grossio, La riforma della disciplina del mandato d’arresto europeo: il nuovo assetto dei limiti all’esecuzione delle richieste di consegna, in Freedom, Security and Justice, 2021, 95 ss.

 

V. Mitsilegas, The constitutional implications of mutual recognition in criminal matters in the EU, in Common Market Law Review, 2006, 1277 ss.

 

E. Regan, The Role of the Principles of Mutual Trust and Mutual Recognition in EU Law, in Il Diritto dell’Unione europea, 2018, 232 ss.

 

V. Salese, La tutela dei diritti fondamentali e l’operatività dei motivi di non-esecuzione del MAE alla luce della recente giurisprudenza della Corte di giustizia, in Quaderni AISDUE, 2023, 71 ss.

 

D. Sarmiento, European Union: The European Arrest Warrant and the Quest for Constitutional Coherence, in International Journal of Constitutional law, 2008, 171 ss.

 

M. Schwarz, Let’s talk about Trust, Baby! Theorizing Trust and Mutual Recognition in the EU’s Area of Freedom, Security and Justice, in European Law Journal, 2018, p. 124 ss.

 

E. Smith, Running before We Can Walk? Mutual Recognition at the Expense of Fair Trials in Europe’s Area of Freedom, Security and Justice, in New Journal of European Criminal Law, 2013, 82 ss.

 

T. Wischmeyer, Generating Trust Through Law? Judicial Cooperation in the European Union and the “Principle of Mutual Trust”, in German Law Journal, 2017, 339 ss.

 

Cited case law:

 

CGUE 3 maggio 2007 causa C-303/05, Advocaten voor de Wereld.

 

CGUE 26 febbraio 2013, causa C-399/11, Melloni.

 

CGUE 5 aprile 2016, cause riunite C-404/15 e C-659/15 PPU, Aranyosi e Căldăraru.

 

CGUE 25 luglio 2018, causa C-216/18 PPU, LM.

 

CGUE 18 aprile 2023, causa C-699/21, E.D.L.

 

Related case law:

 

CGUE 21 dicembre 2011, causa C-411/10 e C-493/20, N.S. e a.

 

CGUE 18 dicembre 2014, parere 2/13.

 

CGUE 31 gennaio 2023, causa C-158/21, Puig Gordi.