Margarida Vasconcelos: the European Commission has recognized that European Arrest Warrant “is far from perfect.”

The European Arrest Warrant has entered into force in January 2004 and has lead to extremely injustice situations. On 11 April, the European Commission adopted a report on the implementation of the Council Framework Decision on the European arrest warrant, where it assesses how Member States have implemented it since 2007. The Commission has finally recognized that “the EAW system is far from perfect.

Viviane Reding, the EU’s Justice Commissioner said “National governments need to build up trust between their judicial systems so that the European arrest warrant works even more efficiently. In view of their important fundamental rights implications, European arrest warrants should not be issued mechanically, or automatically, for crimes that are not very serious such as bicycle theft." Consequently, the principle of proportionality has not been respected as Member States have been issuing arrest warrants for offences that are not serious. According to the Commission's report, between 2005 and 2009 54,689 EAWs have been issued and 11,630 executed. The UK has issued 665 arrest warrants and executed 468.

Extradition used to take around one year, but under the EAW the time of transfer of a suspected or convicted criminals between member states has been cut to 16 when the suspect agrees to surrender or 48 days when they do not.

The Commission pointed out that several Member States, including the UK, have not amended their legislations in accordance to previous Council and Commission reports. The European Commission has therefore called on EU Member States to fully comply with the Council framework decision. Particularly, the Commission has asked member states to issue arrest warrants "in a proportionate way" and not for minor offences. This issue does not concern the UK, but the Commission noted that the UK has not implemented any of the recommended legislative changes in order to fully comply with the framework decision. Presently, the Commission cannot launch infringement procedures against Member States that have failed to fully comply with this framework decision, but from 2014 it would be able to do so. The Government should therefore opt out from any amendment to this measure.

It is important to recall that the Protocol on transitional provisions annexed to the Treaties covers the Court’s jurisdiction and Commission competence over third pillar matters before the entry into force of the Lisbon Treaty, for instances, the Framework Decision on the European arrest warrant. According to Article 10 of this Protocol the Court limited jurisdiction, before the Lisbon Treaty, over police and judicial cooperation in criminal matters, is retained for existing measures for five years after the entry into force of the Lisbon Treaty. Under former Article 35 TEU, the ECJ had jurisdiction to give preliminary rulings on interpretation and validity of framework decisions, decisions and conventions adopted under Title VI (police and judicial cooperation in criminal matters) however only to the courts of a Member State which has expressly accepted such jurisdiction. The UK has not submitted a declaration under Article 35 EU thus it does not accept the jurisdiction of the Court to give preliminary rulings on such matters. Moreover, the Commission does not have powers to initiate infringement procedures against Member States concerning the implementation of these matters in their national law, for a five years period. During this period the Court has full jurisdiction over an existing act which is amended and the Commission will have powers to initiate infringement procedures, but the UK has an opt out over amended acts.

It is important to clarify that the European Commission is allowed to launch infringement procedures against the member states as regards legislation adopted after the Lisbon Treaty has entered into force likewise the ECJ has full jurisdiction.  As regards legislation adopted before the Lisbon treaty entry into force the Court has full jurisdiction if such acts are amended during the five years transition period.

At the end of the transitional period, 1 December 2014, any Third Pillar measures, which have not been transposed, will be subject to ECJ jurisdiction. The UK may notify the Council, (at the latest 6 months before the expiring of the transitional period) that it does not accept the Commission and ECJ’s powers over existing EU measures, which have not been amended under the Lisbon Treaty. In this case, all third pillar legislation, which has not been amended, will cease to apply to the UK as from the date of expiry of the transitional period. This is therefore a good chance for the Government to get rid of burdensome regulations, such as the EAW. It is, therefore, essential that the Government opt outs of the measures entirely.

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