The European Arrest Warrant and Fundamental Rights: An Opportunity for Clarity

Abstract

Article 1(3) of the Framework Decision on the European Arrest Warrant (FD EAW) states that it “shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union”. A large number of states have implemented this provision, together with Recitals 12 & 13, introducing a mandatory ground for refusal to surrender based on a possible breach of human rights. The creation of this new ground, not foreseen in the FD EAW itself, has been criticized by the Commission and the Council. The legal power of Article 1(3) FD EAW has not yet been clarified by the Court of Justice of the European Union (CJEU). It has been provided the opportunity by the a preliminary reference from the Belgian Constitutional Court which has asked the CJEU 4 preliminary questions, including one on human rights as a sole ground for refusal to surrender.