Extending the Proportionality test in EAW case laws: An Examination of Xanthopoulou’s Case Study

Abstract

This research thesis seeks to analyze whether the Court of Justice of the European Union aligns its decision with the proportionality principle per se of Article 52 (1) of the EU Charter of Fundamental Rights in case-laws related to the European Arrest Warrant. While the principle of mutual recognition has been the cornerstone and mechanism of the EAW and non-execution followed a strict interpretation of the mandatory and optional grounds for refusal listed in Article 3 and 4 of the Framework Decision of the EAW in the earlier half of its history, recent jurisprudence of the CJEU suggests that interpretations of this legal instrument has been shifting towards fundamental rights considerations. In her book Fundamental rights and mutual trust in the area of freedom, security and justice: a role for proportionality, Ermioni Xanthopoulou proposed utilizing the proportionality test to resolve fundamental right interference in EAW case laws. The author extends the case study in Xanthopoulou’s book to examine whether her solution applies to four cases where the requirements of the EAW are apparently lacking, and to evaluate whether her recommendation for the CJEU to apply the proportionality test truly enables fundamental rights to be reconciled when confronted with the principles of mutual recognition and mutual trust. This case study shows Xanthopoulou’s solution does help protect fundamental rights, however, the Court has already incorporated proportionality in its judicial reasoning and would have reached the same decision if the proportionality test was strictly applied.