The European Arrest Warrant and the protection of the best interests of the child: The Court's last word on the limits of mutual recognition and the evolving obligations of national judicial authorities in Case C-261/22 GN

Abstract

The annotation analyses the recent CJEU preliminary ruling in the GN case, the latest chapter of the EAW effectiveness vs fundamental rights protection saga. The Court confirms that, in principle, considerations related to the best interests of the child can justify denial of execution of an EAW. However, this limitation can be triggered solely through the demanding Aranyosi and Căldăraru test. By taking this stance, the Court refuses to add a new category of exceptions to mutual recognition. In addition, based on its ever-refined case law, the Court fine-grains the obligations incumbent upon the national judicial authorities with respect to the conduct of direct exchanges of information and seems to advocate for a new obligation for the issuing judicial authority to refrain from using the EAW system when the circumstances of a case make refusal of surrender a highly likely option.

1. Introduction

In its recent preliminary ruling in the GN case, ¹ the Court of Justice was asked to reconcile the search for an effective system of surrender between Member States with the protection of the best interests of the minor child of the wanted person. The Court confirmed that, in principle, considerations relating to the best interests of the child may justify a refusal to execute a European Arrest Warrant (EAW). However, this limitation can only be triggered through the demanding Aranyosi and Căldăraru test, ² as the vulnerability of a minor does not justify the creation of a new category of deviations from the principle of mutual recognition.

The judgment deserves attention for two main reasons. First, it is the latest episode in a crucial jurisprudential season in which the Court has had the opportunity to strike a balance between effectiveness and the protection of fundamental rights in the EU model of judicial cooperation. Second, the Grand Chamber has provided a number of clarifications on the role of the judicial authorities involved.

This annotation opens with an overview of the factual background (section 2), of the Opinion of Advocate General (AG) Ćapeta (section 3) and of the decision of the Grand Chamber (section 4) and then analyses the main legal knots underpinning GN. First, the preliminary ruling consolidates the set of exceptions to the principle of mutual recognition in the EAW system (section 5). The facts of GN presented the Court with an interesting opportunity to overcome the renowned two-step Aranyosi and Căldăraru test and to establish a new methodology for assessing the risk of violation of fundamental rights, with a focus on the best interests of the child (section 5.A). I submit that the Court instead took a definitive position on the exclusive nature of Aranyosi and Căldăraru. Provided that the formal grounds for refusal established in the Framework Decision and the humanitarian clause in Article 23(4) do not apply, the Court outlines this test as the sole and default assessment to accommodate mutual trust and fundamental rights (section 5.B). Similar considerations apply to the two-stage structure of Aranyosi and Căldăraru, which GN upholds notwithstanding the particular vulnerability – and consequent need for protection – of a minor child (section 5.C). I also argue that the Court's final words in Aranyosi and Căldăraru are reflected in two parallel and recent interpretative developments concerning Framework Decision 2008/909/JHA on the transfer of prisoners and the obligations of issuing judicial authorities in the context of the EAW (section 5.D). Section 6 looks at recent developments in Luxembourg case law concerning the regime of exchange of information between judicial authorities and the consequences of a lack of or defective cooperation. Before some concluding remarks, section 7 examines the place of the protection of the best interests of the child in the EAW system and critically discusses the Italian legal framework, from which the preliminary ruling in the commentary emanates.

2. The facts in the main proceedings

In September 2021, GN, a Nigerian national, was arrested in Italy on the basis of a European Arrest Warrant issued for enforcement purposes by a Belgian judicial authority. In the enforcement proceedings before the Court of Appeal of Bologna, Ms GN's defence argued that the personal and family situation of the woman, who was pregnant and the mother of a child under the age of three living with her, should preclude her surrender. The executing authority initiated an exchange of information procedure under Article 15(2) of Framework Decision 2002/584/JHA to obtain information on the prison regime to which GN would be subject, in particular as regards the measures applied to her minor child. However, the Antwerp Public Prosecutor's Office merely stated that the answer to these questions fell within the competence of the Federal Public Service for Justice. This interlocutory communication laconically put an end to the exchange. The issuing authority did not bother to find the requested clarifications, and nor did the Court of Appeal in Bologna in turn ask for further clarifications.

It therefore decided to refuse surrender on the grounds that the information available was not sufficient to verify that Belgian law provided for procedures and modes of detention granting the child's right to maternal assistance.

Following an appeal, the Court of Cassation stayed the proceedings and asked to the Court of Justice, inter alia, whether the EAW Framework Decision and the Charter required the refusal to execute or the postponement of the surrender of the mother of a cohabiting minor child.

3. The Advocate General Ćapeta's opinion

Advocate General Ćapeta conducted a thorough analysis of the possibility of refusing to surrender GN on the grounds that the best interests of her minor child, as enshrined in Article 24 of the Charter, must be protected. First, she acknowledged that the Aranyosi and Căldăraru test would hardly justify a refusal to surrender, ³ due to the absence of any information concerning the first part of analysis, namely the demonstration of systemic or generalized shortcomings in the Belgian prison system, with regard to the regime reserved for minors and the measures put in place to preserve a meaningful relationship between GN and her child. ⁴

At the same time, AG Ćapeta pointed out that Article 24 of the Charter must be given priority whenever a public authority takes a decision affecting the legal sphere of a minor. ⁵ The particular vulnerability of minors requires a detailed examination of the individual circumstances of each case. This consideration led the AG to outline a straightforward syllogism. The major premise is that, in EAW procedures, the executing authority must determine in concreto the best interests of the child. To this end, it must make use of all available instruments to take a fully informed decision, including direct communication with the issuing authority. However, as in the present case, these instruments may prove ineffective, in particular due to a lack of cooperation on the part of the issuing authorities. Consequently, were the executing authority not provided ‘with sufficient information to enable it to be absolutely certain that the execution of the European Arrest Warrant would not be contrary to the best interests of the child’, ⁶ the major premise would be undermined to such an extent that surrender should be refused. More specifically, ‘[i]f the executing authority does not receive sufficient information that would allow it to be absolutely certain that the execution of the EAW would not go against the best interests of the child, it should refuse surrender.’ ⁷

4. The decision of the Court of Justice

As a premise, the Court recalled that, by virtue of mutual trust and mutual recognition, national judicial authorities are generally obliged to assume that the legal systems of other Member States guarantee an appropriate level of protection of fundamental rights, benchmarked against the standards laid down by EU law. Apart from the exceptional cases outlined in the Court's case law, national authorities are not entitled to verify whether another Member State has complied with its fundamental rights obligations in a specific case. ⁸ Furthermore, the executing authorities may deny execution of an EAW solely on the basis of the Framework Decision 2002/584/JHA, as interpreted by the Court. ⁹

From these premises, the Court deduced a hardly questionable argument: the Framework Decision does not contain any provision allowing recognition to be refused ‘on the sole ground that the person who is the subject of that arrest warrant is the mother of young children living with her’. ¹⁰ Nevertheless, considerations relating to the protection of fundamental rights must be examined in light of Article 1(3) of the EAW Framework Decision, which reiterates that EU secondary law cannot alter the obligation to respect the Charter. ¹¹ That argument lays the foundations for invoking Articles 7 and 24(2) and (3) of the Charter itself, concerning the protection of private and family life and the protection of the best interests of the child respectively.

According to the Court, because of mutual trust, any risk of violation of these rights must be assessed in accordance with the well-established double Aranyosi and Căldăraru test. It is therefore necessary to conduct a two-step evaluation: the first is aimed at detecting ‘systemic or generalised deficiencies’ with regard to the protection of the rights in question; the second implies an individualized and precise verification of the concrete risk of violation. ¹²

Ultimately, the Grand Chamber accepted the abstract possibility of limiting the obligation to surrender on the basis of the best interests of the child, provided that such a limitation is based on the well-established Aranyosi and Căldăraru scheme, a task to be carried out by the referring judge.

5. The best interests of the child and the framework of exceptions to mutual recognition in the European Arrest Warrant system: The Court closes the circle

A. Categories of derogation from the obligation to execute an EAW and the best interests of the child

In the light of the EAW Framework Decision and the extensive case law interpreting it, the set of possible derogations from the obligation to execute a European Arrest Warrant on grounds relating to the protection of fundamental rights consists of four main elements, ¹³ each characterized by different operational premises, investigative methods and legal implications.

First, the nuclear option – which has so far remained on paper and will hopefully remain a theoretical possibility in the future – outlined in recital 10. This text provides for the possibility of suspending the EAW mechanism ‘in the event of a serious and persistent breach’ by one Member State of the principles set out in Article 6(1) TEU concerning the protection of fundamental rights enshrined in the Charter and the EU values established in Article 2 TEU. ¹⁴ Second, the mandatory and optional grounds for refusal set out in Articles 3, 4 and 4a of the Framework Decision. ¹⁵ Third, the humanitarian clause under Article 23(4), which allows for the temporary postponement of execution in the event of serious and urgent humanitarian considerations. Fourth, the Aranyosi and Căldăraru test.

In this framework, as AG Ćapeta observed, GN had an element of (in my opinion partial) ¹⁶ novelty: the dilemma refusal vs execution of the EAW revolved around the possible violation of a fundamental right of a subject other than the wanted person, that is, her minor child. Moreover, this was the first case in which the decision whether to limit the obligation to surrender had to be taken with respect to provisions of the Charter other than Articles 4 and 47, namely Articles 7 and 24(2) and (3). As far as is relevant to the present case, Article 24(2) states that ‘in all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration’. In addition, para. 3 provides for the right of the child to maintain regular personal relations and direct contact with their parents, unless this is contrary to their best interests. Article 24 is then reflected in Article 7 of the Charter, concerning the protection of private and family life. According to the settled case law of the Court of Justice, the possibility of preserving family unity, and in particular genuine relations between parents and offspring, is indeed a ‘fundamental element’ of the latter right. ¹⁷

Article 24 enjoys a wide scope of application. ¹⁸ The Court has consistently held that it covers all measures which, although addressed to third parties, have ‘important consequences’ for the child. ¹⁹ It is also well established that, irrespective of the specific legal area or factual situation, the determination of what is actually the best interests of the child requires an individualized assessment. ²⁰ The Court's precedents show, for example, the need to appreciate the intensity and quality of the ties with the parent and, conversely, the adult's capacity to assume responsibility for the child's care. ²¹

By virtue of these lines of case law, both the AG and the Court preliminarily confirmed the relevance of this provision of the Charter in the present case. ²² From this viewpoint, GN was an important touchstone for the Court. The case raised the key question of whether the vulnerability inherent in the age of minors should compel the Court to envisage a new species of the genus of limits to mutual recognition, in addition to the four options briefly described at the beginning of this sub-section. ²³

The Court did not follow this path. It discarded the relevance of the humanitarian clause and addressed the risk of a violation of the best interests of the child solely through the lens of the well-established Aranyosi and Căldăraru test.

I contend that, in doing so, the Court has sealed the current configuration of the boundaries placed on the golden rule of mutual recognition in the EAW system. More precisely, in my view, GN can be read as the final word on, first, the exclusive nature of Aranyosi and Căldăraru as a methodology for balancing mutual trust and competing fundamental rights considerations not covered by other provisions of the Framework Decision, and, second, the structure of the two-step test.

B. The exclusive nature of the Aranyosi and Căldăraru test

Since 2016, the extension of the Aranyosi and Căldăraru test from the original core of the mandatory prohibition of inhuman and degrading treatment to further fundamental rights has been widely advocated in academia. ²⁴ The question has often been raised as to whether, to what extent and in what form this scheme could occasionally be extended to other specific rights, particularly derogable ones. ²⁵ This approach has been reasonably justified by the way in which the Court itself has developed the two-step test over time. On the one hand, the Court of Justice has always refrained from expressly depicting Aranyosi and Căldăraru as the sole (and therefore all-encompassing) option to accommodate considerations of mutual trust and fundamental rights not covered by other provisions of the EAW Framework Decision. On the other hand, the gradual fine-tuning of this regime is the result of the ‘stone by stone’ approach that characterizes the Court's working methodology, also due to the characteristics of its jurisdiction under Article 267 TFEU. ²⁶ Accordingly, in recent years the Court has clarified the test in various ways, ranging from the powers conferred on the judicial authorities involved to the intensity of the burden of proof. It has also extended it to multiple facets of Article 47 of the Charter, namely the right to an impartial judge, ²⁷ the right to a court established by law ²⁸ and, more recently, the right to be tried by a court that is not manifestly incompetent. ²⁹ In any event, the Court has consistently rejected any attempt to replace this system with alternative ways of assessing the intensity of fundamental rights concerns.

In this context, GN adds a crucial brick to the already solid wall of Aranyosi and Căldăraru. Admittedly, the Grand Chamber does not expressly label this test as the only option available to national authorities. However, this message can be read between the lines of the judgment, which is the culmination of a steadily consistent line of case law.

Notwithstanding the peculiar factual background of the case, the Court held that, where the formal grounds for refusal do not apply, Article 1(3) of the EAW Framework Decision allows the executing judicial authority to refrain from giving effect to an EAW only in exceptional circumstances, which must be benchmarked against the standard of protection afforded by EU law. ³⁰ According to established case law, the reference to exceptional circumstances is key to fostering mutual trust and limiting the scope for centrifugal forces. ³¹ The standard set at the EU level does not only encompass the substantive level of protection, but also the methodology for assessing the risk of violation. In this respect, the Court confirmed that domestic authorities must ‘assess whether there is a real risk of breach of the fundamental rights enshrined in Article 7 and Article 24(2) and (3) of the Charter in the context of a two-step examination’, ³² namely the Aranyosi and Căldăraru test. Any further and different approach unilaterally developed by the executing authorities ‘cannot permit the inference that that risk has been established’. ³³

This position follows the traces of two parallel lines of reasoning used by the Court of Justice to preserve the consistency of Aranyosi and Căldăraru. On the one hand, in a series of precedents, the Court, again sitting in the Grand Chamber, recalled that the existence of a risk of infringement of fundamental rights permits the executing judicial authority to refrain from giving effect to an EAW ‘following an appropriate examination’. ³⁴ Tracing back the precedents quoted by the Court, when the situation is not covered by more specific provisions of the EAW Framework Decision – namely the grounds for refusal and the humanitarian clause – the ‘appropriate examination’ at issue is the Aranyosi and Căldăraru test. ³⁵

On the other hand, the Court has clarified that any domestic provisions allowing for the refusal of an EAW on the basis of fundamental rights concerns can only be relied upon by the executing authorities if ‘the scope of that provision does not go beyond the scope of Article 1(3) […] as interpreted by the Court’, including the methodology, procedure and standard of proof for triggering this fundamental rights safety net under the Aranyosi and Căldăraru framework. ³⁶

These considerations are not called into question by the recent E.D.L. case, in which the Court interpreted the humanitarian clause under Article 23(4) for the first time. ³⁷ On that occasion, the Grand Chamber indicated that, if the humanitarian concerns justifying the temporary and exceptional postponement of surrender cannot be ruled out within a ‘reasonable period of time’, the judicial authority concerned must – again exceptionally – refuse to execute the EAW on the basis of Article 1(3) of the Framework Decision, to avoid seriously affecting the health and life prospects of the requested person. ³⁸ In such situations, therefore, denial of surrender stems from the risks for the person concerned, even in the absence of systemic and generalized deficiencies in the issuing State.

Because of this conclusion, some authors have made the interesting argument that E.D.L. marks a shift in the Court's approach. ³⁹ It has been argued that the Court is adding a new building block to its case law on the implications of Article 1(3), to replace the two-step test with an alternative ‘reasoned risk-based test’. ⁴⁰

I believe that E.D.L. should be read the other way round. Instead of opening a new era of Luxembourg jurisprudence on the conundrum of effectiveness and fundamental rights in the EAW system, the Court sought to confirm the current configuration of the limits of mutual trust stemming from the obligation to protect fundamental rights. My contention is based on the following arguments, which I believe are reinforced by the GN.

First, both E.D.L. and GN outline the significant technical difference between Article 23(4) and the exceptions to mutual recognition in the strict sense, including those deriving from Aranyosi and Căldăraru. The latter deviate per se from the rule, namely the duty to recognize and enforce the foreign judicial decision. Instead, the humanitarian clause is an expression and integral part of it. In fact, this provision presupposes the adoption of a positive decision on recognition and surrender and allows for an ex post temporary suspension of its enforcement. Nevertheless, the obligation to surrender remains in principle and must be complied with once the humanitarian concerns have ceased to exist. This is clear from the wording and the context of Article 23(4), which is placed in the chapter of the EAW Framework Decision dedicated to the surrender procedure and which ‘constitutes an exception to the executing judicial authority's obligation to ensure the surrender of the requested person as soon as possible’. ⁴¹

This leads to a second and even more important argument: the humanitarian clause is conceptually different from the mutual trust and mutual recognition exceptions. As AG Campos Sanchez Bordona observed in E.D.L., Article 23(4) serves the purpose of granting protection to individuals in situations which are not covered by the grounds for refusal and in which rebutting the presumption of mutual trust by resorting to the Aranyosi and Căldăraru test would be ‘both unnecessary and inappropriate’. ⁴² In other words, the humanitarian clause does not overlap with Aranyosi and Căldăraru and applies to situations that are inherently different in nature.

Also, the humanitarian clause is not meant to challenge mutual trust, since it is a safety net that operates regardless of the level of protection of a given right in the issuing Member State. Even the most fundamental rights-compliant domestic legal system would inevitably be faced with a refusal to surrender on humanitarian grounds, for the simple reason that this provision has nothing to do with the risks arising from blind mutual trust.

Moreover, while the Court's recurring explanations of the demanding Aranyosi and Căldăraru test is that the EAW system is based on the assumption that the issuing State has the primary responsibility for protecting the rights of the requested person, ⁴³ the humanitarian clause covers situations in which the availability of appropriate remedies in the issuing State is both pointless and ineffectual. Here, the need for protection arises from special, exceptional and serious personal circumstances which may be aggravated by the enforcement of the executing authority's decision to surrender the requested person. Therefore, Article 23(4) reverses the conceptual perspective on which the deviations from mutual trust are based: instead of engaging in a difficult balancing exercise between competing interests, it focuses exclusively on the requested person's need for protection, on the grounds of its exceptional gravity and to the detriment of any other consideration.

These reflections are connected to a third argument concerning the scope of application of the humanitarian clause. GN confirms that the Court has set a strict twofold limit to this provision.

On the one hand, the suspension of execution is ‘impracticable for a considerable period of time’. ⁴⁴ It follows that the clause in question can be invoked only in situations which are (or at least have a reasonable prospect of being) temporary in nature. Conversely, using Article 23(4) regardless of this precondition would amount to an attempt to force both its text and context. What is more, it would be an undue and disguised means for affecting mutual trust and mutual recognition. ⁴⁵ In addition, the temporary nature of the suspension of surrender explains one of the core arguments which led the Court to acknowledge that the execution of the EAW may be lifted after a reasonable period of time has elapsed without result. If this suspension were extended ad infinitum, the requested person could remain indefinitely subject to the EAW issued against him or her and to any coercive measures adopted by the executing Member State, even though there was no realistic prospect of that person being surrendered to the issuing Member State. ⁴⁶

On the other hand, the Court has set a high threshold of intensity for the humanitarian grounds in question. They amount to exceptional, serious and urgent circumstances relating ‘to the life and health of the requested person being manifestly endangered’, read through the lens of Article 4 of the Charter. ⁴⁷ In line with this approach, AG Ćapeta herself contended that stretching Article 23(4) to the factual background in GN ‘would not meet the standard of humanitarian reasons as interpreted by the Court’, thereby again distorting the text and the purpose of this clause. ⁴⁸

Overall, therefore, as GN confirms, in E.D.L. the Court simply took on the AG's proposal to ‘modulate the meaning and scope’ of Article 23(4) and achieve an outcome – namely, denial of surrender – that is ‘materially equivalent’ to a deviation from mutual recognition. ⁴⁹ However, this substantive equivalence cannot justify a reading of the Court's use of Article 23(4) in conjunction with Article 1(3) as a departure from Aranyosi and Căldăraru. The reason why the risk assessment carried out by the Court in E.D.L. differs from the two-step test is that the two situations are in no way comparable in terms of premises, context, conceptual design and objectives. ⁵⁰

In conclusion, the Court's converging lines of reasoning and their repetition in the particular factual circumstances of the GN case lead to the conclusion that the preliminary ruling in comment marks a de facto break with the ‘stone by stone’ approach previously followed by the Court itself. As the EAW Framework Decision currently stands, in the absence of reforms that are widely called for but not yet on the horizon, ⁵¹ it is no longer a question of either elaborating alternative assessments or identifying selected situations to which this methodology of ascertaining the risk of violation of rights may occasionally apply. The dual Aranyosi and Căldăraru test must be seen as the sole and default evaluative parameter for assessing any possible violation of fundamental rights connected to the execution of an EAW that does not already fall within the operational scope of one of the grounds for refusal or the humanitarian clause. From this perspective, therefore, Articles 3, 4 and 23(4) of the Framework Decision become a lex specialis in relation to the lex generalis dictated by the two-step test.

Although the Court of Justice is not immune to the ‘doctrine of change’, ⁵² it is hard to imagine at this stage any departures from ten years of ever-expanding and consistent case law, or even partial departures. Moreover, most of the relevant case law has been developed by the Grand Chamber. This element makes an interpretative U-turn even more unlikely and, in any event, increases the already high price of a paradigm shift in terms of the Court's credibility and the maintenance of mutual trust. Notwithstanding the variability of the legal and factual circumstances that can be brought to Luxembourg, the Court has provided solid evidence that the ‘walls of Jericho’ are not likely to fall. ⁵³

C. The two-step structure of the Aranyosi and Căldăraru test

Similar considerations apply to the two-step structure of the Aranyosi and Căldăraru test. Several scholars have criticized it. The two-prong evaluation is deemed, inter alia, to set too high a threshold for derogation from mutual recognition and to place an excessive burden of proof on the requested person at the expense of fundamental rights. So far, this criticism has been elaborated especially with respect to the implications of backsliding on the rule of law, with a focus on EAWs issued by Polish authorities. The core argument is that, in such circumstances, the test should be re-designed, since providing evidence in support of the individualized prong ultimately amounts to a probatio diabolica. ⁵⁴

For the first time, in GN the concern was reversed: the absence of systemic deficiencies in the Belgian prison system prevented the executing authorities from assessing the actual risk of a violation of the best interests of the requested person's minor child. Therefore, the vulnerability of the minor could have been an element in favour of the possibility of carrying out a halved Aranyosi and Căldăraru test, based on the sole second phase and centred on the individual circumstances of the case. AG Ćapeta herself acknowledged that a fully-fledged Aranyosi and Căldăraru assessment would have certainly led to the execution of the EAW, due to the absence of any evidence of systemic or generalized deficiencies concerning the preservation of family life in Belgian detention facilities and the regime reserved to minors in that national prison system. Still, as the AG herself made clear, skipping the first prong of the test ‘would render the principle of mutual trust, on which mutual recognition is based, devoid of any substance’. ⁵⁵ In other words, dismantling the two-step structure would be too costly for the EAW system as such.

Building on the opinion, the Court took the opportunity to confirm – and extend to the peculiar factual background of GN – its consistent case law on how the test should be applied. It reiterated its description of the two-prong test as a composite unicum: irrespective of the fundamental right at stake, both steps of the test are cumulative and equally mandatory. Moreover, as Puig Gordi made expressly clear, they are not interchangeable: the individual assessment must follow the systemic assessment and neither step can be skipped. ⁵⁶ It follows that the presumption of mutual trust can be rebutted only if both evaluations are passed. Any deviation from this scheme would unduly affect mutual trust, with negative spillovers on judicial cooperation in criminal matters as a whole.

D. The converging trajectories of the Luxembourg case law: the extension of Aranyosi and Căldăraru to Framework Decision 2008/909/JHA and the rising obligation to refrain from issuing an EAW

From a wider perspective, the generalization of the Aranyosi and Căldăraru formula and of its two-step structure finds further support in other parallel developments of the Luxembourg case law. These converging trajectories concern Framework Decision 2008/909/JHA on the transfer of prisoners between Member States, ⁵⁷ and the obligations incumbent upon the issuing judicial authorities in the EAW system.

In the recent preliminary ruling in the Staatsanwaltschaft Aachen case, ⁵⁸ the Court has for the first time extended the Aranyosi and Căldăraru test to the mechanism of judicial cooperation allowing for intra-EU transfer of prisoners. The Court noted that it is for the judicial authority of the executing State – that is, the State to which the person concerned is to be transferred – to carry out this twofold assessment, to determine whether the sentence which it is called upon to recognize has been imposed in breach of Article 47 of the Charter. This is a telling stance in terms of setting up a coherent system of limits to blind mutual trust in the EU judicial space. In fact, the Framework Decision in question is complementary to the EAW system and is based on a similar normative design. Correlating Staatsanwaltschaft Aachen with GN, it can be deduced that, for all instruments of judicial cooperation in criminal matters that do not provide for a ground for refusal explicitly dedicated to the risk of violation of fundamental rights, ⁵⁹ the Aranyosi and Căldăraru paradigm constitutes the reference methodology for establishing a fundamental rights safety net that can also accommodate the EU interest in avoiding impunity. ⁶⁰ Where, on the other hand, the demands for the protection of individual rights take the form of a ground for refusal, Aranyosi and Căldăraru gives way to the legal regime of this particular category of limits to mutual recognition, also in the light of any normative peculiarities linked to the subject matter of the acts of secondary legislation in question.

Moreover, GN aligns with a recent evolution of the Luxembourg case law concerning the obligations incumbent upon the issuing judicial authorities in the EAW system. On the one hand, the increasingly precise definition of the theoretical and operational framework allowing the executing judicial authorities to depart from the duty to enforce a foreign judicial decision injects consistency and predictability in the system of surrender. On the other hand, the more fine-grained contours of mutual recognition obligations have recently allowed the Court to add substance to the corresponding role of the issuing authorities. In Puig Gordi, in fact, the Court extended for the first time to the EAW an approach developed in the context of the European Investigation Order (EIO), ⁶¹ according to which the competent authorities must refrain from transmitting a request for cooperation if there are serious grounds for believing that, ‘under the conditions set out in the settled case-law of the Court’, its execution would result in a breach of Article 47 of the Charter. ⁶² In such circumstances, forwarding a certificate ‘is not compatible with the principles of mutual trust and sincere cooperation’. ⁶³ The reference to the right to an effective judicial protection can be explained by the specific context in which Gavanozov II originated, since the protection of Article 47 is the most recurring concern in EIO procedures. ⁶⁴ However, there is no apparent reason for delimiting the scope of this stance to the right to affective judicial protection alone. The Court's decision in Puig Gordi to expand this line of case law to the EAW system advocates for its extension to any situations in which, according to clear and well-established Luxembourg case law, surrender may result in the infringement of a fundamental right, a fortiori in the event of non-derogable rights.

The actual implications for the EAW system of the position held by the Grand Chamber in Puig Gordi remain to be fully developed and fine-tuned. However, it is sound to contend that the set of limits to the obligation to surrender is now defined with such a degree of consistency and solidity as to generate, de facto, an obligation of self-restraint on the part of the (potential) issuing authorities. On pain of violating the principles of mutual trust and loyal cooperation, the latter are expected to assess whether the circumstances of a particular case, on the basis of the relevant provisions of EU law and their established interpretation by the Court of Justice, would oblige the executing authority to refuse recognition in order to avoid the risk of a violation of fundamental rights. Although this obligation will require further clarification by the Court, GN increases the consistency of the EAW system and thus helps to pave the way for a more cautious attitude on the part of the issuing authorities.

6. The legal regime for the exchange of information between issuing and executing judicial authorities pursuant to Article 15(2) of the EAW Framework Decision

The Court's decision to refer the executing authority's assessment to the two-step test of Aranyosi and Căldăraru prompts further reflection on one of the central issues underlying the GN case, namely the legal regime for the exchange of information under Article 15(2) of the EAW Framework Decision.

The Court has consistently emphasized the importance of horizontal and informal contacts between the judicial authorities involved in an EAW procedure. ⁶⁵ Freed from the cumbersome diplomatic channels traditionally used in international mutual legal assistance, direct communications enhance mutual knowledge and trust. They also represent effective tools for solving practical and operational obstacles to the successful conclusion of a cooperation procedure. ⁶⁶

The Court's approach to exchanges of information has gone through different and not always consistent seasons. On the one hand, the Court has often referred to the exceptional nature of direct contacts, ⁶⁷ mainly for two reasons. Firstly, the rationale behind Article 15(2) is to remedy, without excessive procedural burdens, pathological situations of – so to speak – suboptimal compilation of the EAW certificate. The practice sadly shows recurring examples of certificates affected by gaps, unclear elements, inconsistencies or even mistakes. Secondly, however rapid and informal, such communications take time and therefore constitute a critical element with respect to the sword of Damocles of the 60-day time limit, extendable by a further 30 days, provided for in Article 17 of the Framework Decision for the execution of EAWs.

On the other hand, in recent years, exchanges of information have gained momentum, because of and in parallel to the development of the Aranyosi and Căldăraru test. In fact, direct communications between the judicial authorities have become a strategic element for the purpose of acquiring information instrumental to conducting this two-prong evaluation. The issuing authorities can more easily obtain detailed information on many aspects of the issuing State's legal order, as well as on how the wanted person will be treated once surrender has been granted. In the context of these horizontal communications, the issuing authorities may also decide – upon request or ex officio – to issue assurances, for example on the compatibility of the conditions of detention to which the person concerned will be subjected with the EU standards for the protection of fundamental rights. ⁶⁸

Ultimately, Article 15(2) has been transformed from a merely possible procedural step, not infrequently intended to remedy pathologies of cooperation, into a key instrument for the adoption of a decision on surrender. This genetic mutation is reflected in a paradigm shift occurred in the case law of the Court of Justice a few years after Aranyosi and Căldăraru. As from the ML case, ⁶⁹ in fact, the Court began to describe requests for information as an expression of the principle of sincere cooperation under Article 4(3) TEU. This principle, as is generally acknowledged, requires the Member States to adopt all the measures necessary for the correct application of Union law and to refrain from any conduct likely to undermine the effectiveness of European law and the attainment of the objectives it pursues. In contrast to its original unidirectional and vertical upward reading, according to which the loyalty bond concerned only the Member States vis-à-vis the Union, the principle in question has over time acquired a multidirectional scope, encompassing also the horizontal relations between the Member States themselves. ⁷⁰

The establishment of a direct link between requests for information and a provision of systemic relevance such as Article 4(3) TEU makes it possible to envisage certain positive and negative obligations incumbent on either the issuing or the executing authority, as the case may be. On the one hand, for example, the principle of sincere cooperation may imply that direct contacts should be resorted to when strictly necessary, in a timely manner and in the form of genuine, non-pretentious and clearly formulated requests. On the other hand, the issuing authority must obtain and transmit the requested clarifications and, above all, must do so within a reasonable time, bearing in mind the urgency that characterizes the handling of EAW proceedings. Some of these obligations have in fact been expressly laid down over time in the Luxembourg case law on the EAW. ⁷¹

In this renewed perspective, possible violations of such concrete manifestations of the principle of loyal cooperation raise two questions.

First, what should their effect on the existing surrender procedure be? On this point, as GN confirms, the Court has rejected the idea of an automatic link between uncooperative conduct of the issuing authorities and denial of EAW execution. ⁷² At the same time, non-cooperation does bear consequences. The novel aspect of GN is that, for the first time, the Court has expressly qualified this breach as an element that the executing authority may take into consideration when conducting the Aranyosi and Căldăraru test. In other words, within the framework of the more articulated toolbox available to the executing authority to decide on surrender, the absence of responses or the transmission of partial, incorrect or late information is one of the factors that contribute to the decision on execution. ⁷³ This does not preclude the possibility that such a situation could give substance to a decision to refuse surrender. It does, however, prevent automatic refusals, which would entail a serious risk of fuelling mistrust between the authorities of the Member States ⁷⁴ and of frustrating the objectives of the Framework Decision in an indefinite and possibly almost structural way. Such an automatic refusal to surrender would, in effect, take the form of a new ground for refusal that would be completely deprived of legal basis in the Framework Decision. What is more, it would be in plain contrast with the text and context of Article 15(2) and with the objectives of the EAW system. ⁷⁵

In line with this argument, the Court has already had an opportunity to rule that lack of diligence in the management of the EAW execution procedure is not in itself sufficient to lift the surrender obligation, even if it results in the time limits laid down in Article 17 of the EAW Framework Decision being exceeded. In Lanigan, ⁷⁶ faced with an execution procedure that had been pending for more than a year and a half due to various procedural vicissitudes, the Court of Justice pointed out that the obligation to adopt a decision on surrender persists even once the above-mentioned time limits have expired. Failure to comply with them only affects the person's continued stay in custody, an aspect which it is for the executing authority to examine, in the light of the relevant national law.

Second, framing Article 15(2) in the context of loyal cooperation entails specifying the remedies available in the event of a breach of the obligations arising from direct communications. On the one hand, given that the pre-Lisbon limits to the direct effect of Framework Decisions is still in force, ⁷⁷ the identification of the specific modalities of conducting direct contacts through the prism of loyal cooperation would not be sufficient to allow individuals to directly invoke a breach attributable to the national authorities before national courts. ⁷⁸ On the other hand, it may be an important factor in supporting possible claims for damages in the context of State liability for breaches of Union law, a remedy that has its primary roots precisely in Article 4(3) TEU. One need only think, for example, of a person who is surrendered after receiving assurances about the conditions of detention in the issuing State but who ends up being subjected to inhuman and degrading treatment, or of the victim of a crime who is faced with the release of the wanted person as a result of a failure to respond to requests for information.

7. The best interests of the child between surrender, possible alternatives and… The original sin of the Italian legal order

Although out of the scope of the preliminary questions and therefore largely not considered by the Court, the AG discussed the potential relevance of Article 4(6) of the EAW Framework Decision in the case in question. As is well known, this provision introduces an optional ground for refusal allowing the executing authorities to deny the surrender of the executing State's nationals and of requested persons residing or staying in the executing State itself. According to settled case law, this provision aims to enhance the offender's chances of resocialization, ⁷⁹ as it allows the enforcement of the sentence to be rooted in the executing State, to preserve the family, personal and social ‘centre of gravity’ of the requested person.

In my view, precisely this ground for refusal should have been the point of reference for dealing with a situation such as the one in question. Three main arguments support my contention.

First, the Court of Justice has already had occasion to link, albeit indirectly, this provision with Article 7 of the Charter, inasmuch as the refusal of enforcement can be based precisely on the need to ensure the effectiveness of the links between the detainees and members of their family. ⁸⁰ Moreover, a sentence that is specifically designed to achieve rehabilitation objectives reduces the risk of recidivism and ultimately protects public order effectively in the long term. ⁸¹

Second, the wording, context and purpose of Article 4(6) include considerations relating to the best interests of the child. Although an express link between this provision and Article 24 of the Charter is yet to be drawn, ⁸² in other areas of EU law – e.g., the expulsion of third-country nationals or the transfer of asylum seekers ⁸³ – the Court has already argued in favour of a holistic appreciation of every subjective and objective element capable of guiding national authorities. Crucially, it responds to the simple logic that the establishment of genuine and fruitful family relationships deserves protection from the point of view of both parents and children. As pointed out by the AG, therefore, the demonstration of such ties would be apt to lead to a rhyming solution in favour of refusal of execution where surrender would impose their necessary severance. ⁸⁴

Third, the Court of Justice has upheld an autonomous notion of residence and stay for the purposes of the EAW Framework Decision, including the optional ground for refusal under consideration. It eschews a formalistic interpretation and emphasizes the need for ‘an overall assessment of various objective factors characterizing the situation of that person, which include, in particular, the length, nature and conditions of his presence and the family and economic connections which he has with the executing Member State’. ⁸⁵ This interpretation includes icto oculi elements concerning the personal situation of the minor child, which inevitably contribute to determining the extent to which the requested person and his or her family unit are rooted in a Member State.

All this being said, these arguments, although fully in line with the spirit of the EAW Framework Decision, could not have led to any alternative outcome in GN. In fact, following a recent reform of the Italian law of implementation of the EAW mechanism, ⁸⁶ the applicability of this ground for refusal to foreigners has been made conditional on a previous legal and continuous period of residence or stay in Italy of at least five years. ⁸⁷ The quantitative limit in question is tailored to the 2009 Wolzenburg judgment, ⁸⁸ in which the CJEU confirmed the compatibility with the EAW Framework Decision of a similar term provided for by Dutch legislation. According to the Court, this implementation choice is proportionate, due to the need to reserve Article 4(6) to those who demonstrate a solid and stable connection with the executing State. ⁸⁹

Nevertheless, this normative approach raises more than one concern. First, curiously, the explanatory report to the Italian reform justified the five-year term in light of the aforementioned Dutch precedent. However, this was an isolated precedent, given that the Netherlands is the only Member State to have provided for a fixed minimum period of residence, in contrast to the overwhelming majority of more flexible solutions upheld in the rest of the Union. Second, as the facts underlying GN demonstrate, a predetermined and non-derogable quantum prevents any assessment of the merits of the individual and legal sphere of the persons involved, including minor children. This makes it necessary to identify alternative ways of protection – in the present case, the Aranyosi and Căldăraru test – which, however, constitute a deviation from the physiology of the system of the Framework Decision and the scope of operation of which is comparatively less generous.

From a wider perspective, the Italian way to the transposition of Article 4(6) raises problems of coordination with Framework Decision 2008/909/JHA on the transfer of prisoners. Neither the Framework Decision in question nor the Italian implementing law ⁹⁰ provide for any formal limitation of the scope of application of this mechanism based on nationality or specific and predefined periods of residence. The paradoxical and likely consequence is that a person surrendered on the basis of an EAW could then be entitled to (successfully) file a request to be transferred back to Italy under Framework Decision 2008/909/JHA, with duplication of procedures, costs and time and with obvious frustration of individual rights.

A different and more flexible approach to the implementation of the optional ground for refusal in question would have placed the executing authority in an ideal condition to assess all the information concerning the situation of the wanted person, her family members and the quality of the relevant family ties.

8. Concluding remarks

The preliminary ruling in GN closes the circle of a rich season of interpretative clarifications on the limits of surrender that are inherent in the EAW system. The Court of Justice is firmly oriented to linking any deviation from the golden rule of mutual recognition stemming from the protection of fundamental rights to the conceptual categories consistently developed in a decade of case law: the suspension of the EAW mechanism tout court following the procedure under Article 7(2) TEU; the Aranyosi and Căldăraru test based on Article 1(3) of the Framework Decision; the grounds for refusal exhaustively provided for by the European legislature; the suspension of execution for exceptional and temporary humanitarian reasons. Even though the Aranyosi and Căldăraru scheme continues to receive criticism, the Court is more than reluctant to replace it with other methodologies for assessing the risk of a violation of fundamental rights. Nor it is prepared to adjust it to the various proposals for amendments and improvements elaborated in the scholarly debate. At this point, in the absence of a reform of the EAW Framework Decision and following years of consistent Grand Chamber judgments, a paradigm shift is frankly unlikely.

At the same time, sticking to these categories can have some important implications that deserve to be highlighted. First, it contributes to the coherence and predictability of the surrender system. Second, it allows the Court of Justice and the national courts to focus on fine-tuning the methodology for assessing the applicability of these limits in individual cases. In this respect, GN provides added value with respect to how a defective collaboration from the issuing authorities during direct consultations should be handled by the executing authorities for the purposes of a decision on recognition and surrender. Third, it fuels the responsibility of national authorities. On the one hand, it sets clear standards to which national legal orders should align. On the other hand, not only the executing judicial authorities need to comply with specific obligations, but even the issuing authorities are expected to avoid the use of the EAW if the circumstances of the case reasonably fall under the scope of one of the limits to the duty to surrender. These developments place increasingly detailed limits to the exercise of coercive powers in the context of the system of surrender and enhance the accountability of the entire cycle of the EAW.

In any event, the GN case provides a telling illustration of the decisive importance of domestic legislation in implementing mutual recognition instruments. The reference for a preliminary ruling made by the Italian Court of Cassation originated from a clear choice of the Italian legislator to reduce the scope of application of the ground for refusal provided for in Article 4(6) of the EAW Framework Decision. Otherwise, this provision could have been an effective avenue for granting protection to the requested person and her minor child. This normative option is an original sin which calls for repentance.