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44 Common Market L. Rev. 9 (2007)
European Constitutionalism and the European Arrest Warrant: In Search of the Limits of Contrapunctual Principles

handle is hein.kluwer/cmlr0044 and id is 11 raw text is: Common Market Law Review 44: 9-40, 2007. © 2007 Kluwer Law International. Printed in the Netherlands. EUROPEAN CONSTITUTIONALISM AND THE EUROPEAN ARREST WARRANT: IN SEARCH OF THE LIMITS OF CONTRAPUNCTUAL PRINCIPLES JAN KOMAREK* 1. Introduction - national constitutional courts and their perspectives on the European constitutional order 1.1. Setting the scene: Problems with the European Arrest Warrant The European Arrest Warrant Framework Decision (EAW Framework De- cision)' is a problematic instrument in an ever growing Area of Freedom, Security and Justice.2 Three constitutional courts in Europe have (so far) found its implementation into national law unconstitutional,3 while the fourth showed that there might be ways to reconcile sometimes rigid constitutional *Somerville College, Oxford. This is an updated and substantively revised version of my ear- lier article, European Constitutional Pluralism and the European Arrest Warrant: Contrapunctu- al Principles in Disharmony, Jean Monnet Working Paper 10/05, available at www.jeanmonnet- program.org/papers/05/05 1001 .html. I am grateful to participants of the WISH 2005 conference for their comments on a yet earlier draft of this article, particularly to F. Snyder. I further thank A. Hinarejos Parga, D. Leczykiewicz, P. Craig, S. Weatherill and other participants of the Ox- ford EC Law Discussion Group held on 27 Oct. 2006 as well as M. Poiares Maduro, M. Kumm, Z. Kiihn, N. Barber and M. Bobek, who provided me with further stimulating comments and dis- cussions at various stages of writing. All faults remain of course mine. Comments are welcome at jankomarek@centrum.cz. 1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest war- rant and the surrender procedures between Member States, O.J. 2002, L 190/1. 2. See generally Walker, In search of the area of freedom, security and justice: A consti- tutional odyssey in Walker (Ed.), Europe's Area of Freedom, Security and Justice (Oxford, 2004). 3. Polish Constitutional Tribunal, judgment of 27 April 2005, P 1/05, available in En- glish at www.trybunal.gov.plleng/summaries/summaries-assets/documents/P_1_05_fullGB. pdf, German Federal Constitutional Court, judgment of 18 July 2005, 2 BvR 2236/04, available in English at: www.bundesverfassungsgericht.de/en/decisions/rs20050718_2bvr223604en.html; Supreme Court of Cyprus, judgment of 7 Nov. 2005, Ap. No. 294/2005. The decision in Greek with a short English summary is available as a Council document No 14281/05 of 11 Nov. 2005. For short information on it, see Mitsilegas, The constitutional implications of mutual recogni- tion in criminal matters in the EU, 43 CML Rev. (2006) 1277, at 1298. Copyright 2007 by Kluwer Law International. All rights reserved. No claims asserted to original government works.

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