ECJ - Study Guide by Institute of Research & Training on European Affairs

EUropa.S. 2019

April 19 â&#x20AC;&#x201C; 22nd | University of Piraeus

Organized by: Institute of Research & Training on European Affairs

EUropa.S. 2019 European Court of Justice

Study Guide and Case

EUropa.S. 2019 European Court of Justice Study Guide

Table of Contents

Table of Contents _____________________________________________________ 2 Greetings of the Board _________________________________________________ 3 Composition of the European Court of Justice _______________________________ 4 Jurisdiction of the European Court of Justice ________________________________ 6 Precedent ___________________________________________________________ 7 The preliminary ruling procedure _________________________________________ 7 Framework Decision 2002/284 ___________________________________________ 8 Framework Decision2009/299/JHA ______________________________________ 11 Compatibility of the Framework Decisions with the Right to a Fair Trial, the Right of Defense and the Principle of Non-Discrimination (Articles 47, 48 and 21 EUCFR) __ 13 Conflict between national and EU law under article 53 EUCFR _________________ 18 Europa.S. 2019 ECJ Case _______________________________________________ 21 Case Law ___________________________________________________________ 22 Bibliography ________________________________________________________ 23 ANNEX _____________________________________________________________ 24

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EUropa.S. 2019 European Court of Justice Study Guide

Greetings of the Board Dear Participants, It is an honor to welcome you in this year’s EUropa.S. and more specifically in the European Court of Justice. The European Court of Justice was first introduced in Europa.S. in 2015 and since then it runs every year with great success. In 2015 it was awarded as the best Institution of the Simulation. As you can easily understand the level of the competition is significantly high. All participants shall be well-prepared and ready to participate in a unique experience. This year’s case includes a European arrest warrant against a French national on the grounds of human trafficking charges. The issues are raised in front of the Court with the form of a preliminary ruling. Critical issues have appeared regarding the execution of the arrest warrant since the defendant requested a re-trial as he was sentenced in absentia. Moreover, the case questions whether or not human rights deriving from the European Union’s Charter of Fundamental Rights are protected and whether the defendant had his right to a fair trial secured. In the study guide you will find useful information related to the Court’s functioning, as well as the Case. Moreover, we have included essential information regarding the articles of the necessary Framework Decisions and those of the European Union’s Charter of Fundamental Rights (EUCFR). Those articles are applicable to the case and they will provide you with a basis for your own research. We would like to thank you in advance for your interest in the European Court of Justice and we are sure that our collaboration will be excellent and the conference will run smoothly. We wish you all the best!

Best regards, The Board of the European Court of Justice

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EUropa.S. 2019 European Court of Justice Study Guide

Composition of theEuropean Court of Justice Since the very first attempt to establish a solid entity which would ensure stability and prosperity all over Europe, the Member States signed numerous Treaties and as a result the European Communities were formed. The Communities were later transformed into the European Union. The basic instrument responsible for dealing with conflicts between Member States was the judicial institution known as the European Court of Justice, which consists of the Court, the General Court and some specified courts. The function of the ECJ is to ensure that in the interpretation and application of the Treaties the law is observed (Article 19 of the Lisbon Treaty1). The procedure is divided into two parts. The first one is the written submission of the necessary documents. The second one is oral in front of the Court. When the first oral round is over, the judges’ deliberations begin. A Judge from every Μember-State participates in the Court. Advocates-General contribute to the procedure as well as stated in article 252 TFEU2. In total there are 28 Judges and 8 Advocates-General. They are all appointed by agreement of the governments of Member States and their service lasts for 6 years. Their service is renewable. However, according to article 253 TFEU3 “Every three years there shall be a partial replacement of the Judges and Advocates- General, in accordance with the conditions laid down in the Statute of the Court of Justice of the European Union” 4. The Judges shall be persons with impartiality whose independence is beyond doubt and who possess the necessary skills and qualifications to prove their competence. Every MemberState chooses a judge to represent the judicial system of their country. Usually the Member State sends a national of its own. Of course, the rest of the Member States have to give their permission to that selection. Article 255 TFEU 5 founds a Commission responsible for examining the judges and expressing opinion regarding their competence. The Commission’s opinions are not binding but theyhave to be taken under consideration. A negative opinion cannot easily be ignored. The judges elect one of their own as President of the Court for three years. The Advocates-General assist the Court. Their independence also needs to be beyond doubt. They are members of the Court, but they do not participate in the 1

EUR-Lex, 2018. Treaty of Lisbon [Online]. Available at: https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=celex%3A12007L%2FTXT [Accessed on 01.12.2018] 2 EUR-Lex, 2018. Treaty on the Functioning of the European Union [Online]. Available at: https://eurlex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT[Accessed on 01.12.2018] 3 Ibid 4 nd Eugenia Sachpekidou,2015, European Law, 2 edition, Thessaloniki: Sakkoulas publications 5 Ibid. 2 EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 4

EUropa.S. 2019 European Court of Justice Study Guide voting procedure except for administrative issues. Their role is to express and justify their opinion acting with impartiality and independence. They usually present the incidents of the case and then analyse the legal issues brought upon the Court. Their reasoned conclusions are not mandatory and the Court can reject them without any further explanation but usually they are taken into account. They are not obliged to protect any specific interest. Their role is to present reasoned conclusions related to the Case in public. Neither the Applicant nor the Defendant has the ability to object to the Advocates-General conclusions. The appointment of a Registrar is also established as stated in Article 18 of Rules of Procedure of the Court of Justice6 and in Article 253 of the Lisbon Treaty7. The Registrar is the Secretary General of the ECJ managing its departments under the authority of the President of the Court.

Each case is also assigned with one Judge-Rapporteur who is the judge of the ECJ responsible for organising the arguments of the parties (Article 15 of Rules of Procedure of the Court of Justice8). Their task also involves forming a draft judgment regarding which deliberation takes place prior to the issue of the final judgment. Once the procedure is closed, a preliminary report is presented by them. According to Article 251 TFEU9 the Court may sit in a Grand Chamber of 15 Judges or in smaller Chambers from 3 to 5 Judges or even as a full court. However, the Court sits as a full court only in cases of exceptional significance such as disciplinary issues against another Institution of the EU or for cases that demand wider attention. The Grand Chamber of 15 Judges is usually responsible for dealing with legal issues of great importance after the request of a Member State or another Institution of the EU. However, the smaller Chamber of 5 Judges is the one judging most legal issues until now, since the Grand Chamber has only intervened in exceptional occasions. In Europa.S. 2019 the Grand Chamber of the Court of Justice. Therefore, all legal proceedings will run according to its rules and procedures.

EUR-Lex, 2018. Rules of Procedure of the Court of Justice [Online]. Available at: https://eurlex.europa.eu/legal-content/EN/TXT/?uri=celex:32012Q0929(01) [Accessed on 01.12.2018] 7 Ibid. 1 8 Ibid. 6 9 Ibid. 2 EUropa.S. 2019, April 19thâ&#x20AC;&#x201C;22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 5

EUropa.S. 2019 European Court of Justice Study Guide

Jurisdiction of the European Court of Justice10 ECJ’s basic tasks are the interpretation of the EU law, so that it will be applied in the same way among all Member States, and the settlement of various legal disputes. The Court properly fulfils these tasks since its jurisdiction has been clearly defined and categorized in the following proceedings: a) References for preliminary rulings: The courts of all the Member- States work in close cooperation with the Court of Justice in order for an effective and uniform application of the EU legislation to be ensured and divergent interpretations to be prevented. This can only be achieved if national courts refer to the ECJ and ask for clarifications when they are in doubt about whether a point of EU law is interpreted correctly, or their national legislation is compatible with that law or an act of EU law or mechanism is valid. The Court’s reply is not merely an opinion but a judgment that binds the national court to which it is addressed as well as any other national court before which the same issue is raised. b) Actions for failure to fulfill obligations: The ECJ is enabled to determine whether a Member- State has fulfilled its obligations under the European legislation. An action for infringement of EU law may be brought before the Court of Justice by the Commission or by a Member- State when an obligation has not been fulfilled. Shortly after the preliminary procedure has not led to the termination of the failure, the Court orders the Member- State to comply with its judgment with no further delay and it may impose a financial penalty as well if the country keeps being at fault. c) Actions for annulment: In case that a regulation, directive or decision adopted by an institution, body or agency of the European Union found to be violating EU treaties or fundamental rights, the Court can be asked to annul it. When a Member- State applies against the European Parliament and/or against the Council or one European Institution applies against another, the Court of Justice has exclusive jurisdiction over these cases. In all other actions of this type and particularly in actions brought by individuals, the General Court has jurisdiction at first instance. d) Actions for failure to act: The ECJ can review the lawfulness of the failure of the institutions, bodies or agencies of the European Union to act, but only after they had been called on to act. Both the Court of Justice and the General Court have jurisdiction to hear actions for failure to act according to the same criteria as above. 10

Europa.eu, 2018.Court of Justice of the European Union (CJEU) [Online]. Available at: https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en [Accessed on 25.11.2018] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 6

EUropa.S. 2019 European Court of Justice Study Guide e) Actions for damages: This proceeding enables the actions or inactions of the institutions, bodies or agencies of the European Union to be examined. As a result, any individual or company who has had their interests harmed can take action through the Court. f) Appeals: Admissible and well-founded appeals on points of law can only be brought before the Court of Justice against judgments and orders of the General Court. The Court of Justice may itself decide the case if the state of the proceedings permits so. Otherwise, the case is being brought back to the General Court, which is bound by the Court of Justice’s decision on the appeal.

Precedent11 There is no official doctrine of precedent (stare decisis) in the Law of the European Union. Of course, this does not mean that the European Court of Justice disregards its earlier decisions. Although the precedent is not binding, the Court’s influence and jurisprudence are well established. The jurisprudence provides the Applicant and the Defendant with the necessary legal statements to support their actions. During the deliberation the judges tend to refer to previous rulings in order to justify their opinion. Those references are entirely acceptable and respected by the Grand Chamber.

The preliminary ruling procedure12 Preliminary ruling is a process of collaboration between the ECJ and the national courts of all EU countries through which the uniform application of EU law and the assistance of national judges will be guaranteed. Its significance is detected on article 267 of the TFEU13 which entitles the courts in all Member States to refer to the ECJ for a preliminary ruling when the interpretation or the validity of an EU law or action is in question. A set of EU recommendations establish some prerequisites for the admissibility of a preliminary ruling. Firstly, although the Treaty of Lisbon allows the General Court as well to address preliminary rulings, this provision has never been put into effect and the jurisdiction remains exclusively to the European Court of Justice. Secondly, any 11

FAIRHURST J., (2010), Law of the European Union, 8th ed., Pearson Education Limited, pg. 161162. 5 Ec.europa.eu. (2017). Infringements - European Commission. 12 EUR-Lex, 2018. Preliminary ruling proceedings — recommendations to national courts [Online]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14552 [Accessed on 26.11.2018] 13 Ibid. 2 EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 7

EUropa.S. 2019 European Court of Justice Study Guide national court or body that performs judicial work, before which a case has been brought, can request for a preliminary ruling. What constitutes a court, or a body is a matter of European Union law and for its determination the ECJ takes into account a number of non-absolute criteria, namely whether it is established by law and is permanent, its jurisdiction is compulsory, it has an inter partes procedure, it applies rules of law, it is independent. Especially paragraphs 2 and 3 of article 267 of the TFEU are of utmost importance since they differentiate between the right and the obligation of national authorities to seek a preliminary ruling as well as they clarify the circumstances under which national courts are relieved from their duty to refer, such as when (i) the questions posed to the Court are irrelevant to the decision in the main proceedings, (ii) a situation is “materially identical with a question which has already been subject of a preliminary ruling in a similar case” (‘acteéclairé’)14, or (iii) the right interpretation is “so obvious as to leave no scope for any reasonable doubt” (‘acteclair’)15. Last but not least, only questions concerning the interpretation of EU law -not national law or facts raised in the main proceedings- or the validity of the acts of Union’s institutions, bodies or agencies are admissible under the condition that a Court’s decision will enable a national court to give judgement or there is no alternative judicial remedy under national law. The ECJ gives rulings shortly after it is found that EU law can be applied to the case in the main proceedings without applying it by itself, but it is applicant’s duty to draw conclusions from the ruling. Despite the existence of provisions regarding the effects of a Court’s decision during other procedures, like the infringement proceedings, there is no relevant reference on the TFEU for the preliminary ruling procedure. However, it is widely accepted that ECJ’s decision regarding referrals are binding as well not only on the national court that requested the reference for a preliminary ruling but on all the national courts of the Member- States before which the same or a similar case might be brought. National court’s disobedience or avoidance to comply with ECJ’s decision constitutes an infringement of EU law and can be offended before the Court.

Framework Decision 2002/28416

Limante, Agne. Recent Developments in the Acte Clair Case Law of the EU Court of Justice: Towards a more Flexible Approach. JCMS: Journal of Common Market Studies, 2016, DOI: 10.1111/jcms.12434 15 Ibid. 16 EUR-Lex, 2018. Council Framework Decision 2002/284/JHA [Online]. Available at: https://eurlex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32002F0584 [Accessed on: 02.12.2018] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 8

EUropa.S. 2019 European Court of Justice Study Guide The purpose of that decision was to replace the multilateral system of extradition between Member-States with a more effective system of surrender of convicted persons or suspects. In that way the proceedings would be simplified and speeded up17. Based on the principle of confidence and co-operation between MemberStates the judicial authorities will have an easier task in prosecuting criminals, placing them in custody or detention and enforcing judgments. Each national authority must recognize requests made by judicial authorities of another EU Member and hand over the person asked within a set deadline. The warrant is applicable in two types of cases: a) offences punishable by imprisonment or a detention order for a maximum period of at least 1 year; b) a final custodial sentence has been passed or a detention order has been made, for sentences of at least 4 months. Of course, EU countries can act with flexibility regarding the different circumstances of each case especially the gravity of the offense and the sentence. Furthermore, every person who has been arrested has the right to be well-informed about the content of the arrest warrant. All Member-States are obliged to act upon a European arrest warrant (Article 1). Only in cases of Article 3 and 4 the Members are allowed to refuse the execution of such a warrant. Those articles refer to mandatory and optional non-execution. There are three cases in which the EU countries must refuse the execution of the arrest warrant:   

When an EU country has already handed down a final judgment on the person concerned for the same offence, When the offence is covered by an amnesty in the EU country asked to hand over the perpetrator, When the person concerned may not be held criminally responsible by the EU country asked to act on the warrant, owing to his/her age18.

Law Explorer, 2015. Legal Basis: Framework Decision 2002/584/JHA on the European Arrest Warrant and the Surrender Procedures Between Member States [Online]. Available at: https://lawexplores.com/legal-basis-framework-decision-2002584jha-on-the-european-arrestwarrant-and-the-surrender-procedures-between-member-states/ [Accessed on 02.12.2018] 18 EUR-Lex, 2015. More effective extradition procedures: European arrest warrant [Online]. Available at: https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=LEGISSUM%3Al33167&fbclid=IwAR2ON_BjK4x14X-R2oRYeu7oWRnNH27tpdnRAeHUjnAKMLnJRBA9sIu3vw [Accessed on 01.12.2018] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 9

EUropa.S. 2019 European Court of Justice Study Guide Article 5 paragraph 1 of the Framework Decision 2002/584 was aiming at the protection of the convicted person’s rights. More specifically: a) If the person was convicted after being judged in absentia, b) And if the decision rendered in absentia was due to the fact that the person had not been summoned or informed about the time and place, then the Member-State that issues the warrant must guarantee to the person convicted that they will have the right to apply for a retrial of the case in which they will be present. The execution of the arrest warrant will take place only after the person’s rights are ensured19. Of course, this article is compatible with the right to a fair trial and to an effective remedy as stated in Article 47 of the EU Charter. The retrial is essential since in the first conviction the person did not exercise their right to defend themselves. However, the Member-State that is asked to execute the arrest warrant is not necessarily obliged to obey and has the ability to deny the execution of the warrant if the issuing member does not guarantee the right to a retrial. The issue became even more severe when article 5(1) was replaced with article 4a providing national judicial authorities with the ability to protect the person’s rights and making the execution to depend on conditions. Article 4a(1) was introduced in order to narrow down the circumstances under which the executing judicial authority can deny the surrender of the convicted person. That article precluded the executing judicial authorities from making the execution of the arrest warrant conditional upon the conviction rendered in absentia being open to review20. Of course, there is always the possibility that the person concerned attempts to avoid trial. In such a case, it is important to observe whether or not they had appointed an attorney on their behalf. If there was no attorney, then it is clear that the convicted was judged in absentia and their rights were violated. However, if an attorney was hired and was present at the trial defending the person concerned, then it would be irrational to support that they maintain their right to re-trial.

Curia, 2012. C-399/11, Melloni case, Opinion of Advocate General Bot [Online]. Available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=127841&pageIndex=0&doclang=E N&mode=req&dir=&occ=first&part=1&cid=1446897 [Accessed on 02.12.2018] 20 Curia, 2013. C-399/11, Melloni Case, Judgement of the Court [Online]. Available at:http://curia.europa.eu/juris/document/document.jsf?text=&docid=135894&pageIndex=0&doclang =EN&mode=req&dir=&occ=first&part=1&cid=1450164 [Accessed on 30.11.2018] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 10

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Framework Decision2009/299/JHA21 On 26 February 2009 the Council of the European Union adopted the Framework Decision 2009/299/JHA in order to enhance people’s procedural rights and to refine the definition of the common grounds for non-recognition in instruments that implement the principle of mutual recognition relating to decisions rendered in absentia. For the fulfilment of this objective, the Framework Decision amends a set of previous Framework Decisions regarding the judicial cooperation and the surrender procedures between Member States, namely Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA. Although the principle of mutual recognition, as stemmed from the Regulation (EC) No. 764/2008, originally refers to the market’s operation and guarantees the free movement of products22 , it was unanimously accepted that it should also be applicable to criminal matters, in order to overcome the difficulties that arose from the cooperation of judicial authorities so far. It is commonly known that the traditional judicial cooperation in criminal matters, based on the “request” principle, was extremely slow and complex, which is why it was decided that the principle of mutual cooperation should be the cornerstone of judicial cooperation within the European Union. This principle, founded on notions of equivalence and trust, actually demands that a final decision under criminal law taken by one MemberState’s authority to be accepted and recognised as it stands by another MemberState23. However, other principles, such as the principle of “ne bis in idem”, also referred to as the principle of dual criminality, should not be ignored, otherwise the new European judicial system will prove to be inadequate and the protection of individual rights will suffer24. There is no doubt, though, that more steps ahead, like the reinforcement of mutual trust among Member- States, need to be taken in order to make the principle of mutual recognition be fully implemented and operate smoothly.

EUR-Lex, 2018. Council Framework Decision 2009/299/JHA [Online]. Available at: https://eurlex.europa.eu/legal-content/en/ALL/?uri=CELEX:32009F0299 [Accessed on 01.12.2018] 22 European Commission, 2018. Mutual recognition [Online]. Available at: http://ec.europa.eu/growth/single-market/goods/free-movement-sectors/mutual-recognition_en [Accessed on 02.12.2018] 23 Curia, 2018. Case C-216/18, see paras 35-43 [Online]. Available at:http://curia.europa.eu/juris/document/document.jsf?docid=204384&mode=req&pageIndex=1&dir =&occ=first&part=1&text=framework%2Bdecision%2B2009%252F299&doclang=EL&cid=3111388#ctx 1[Accessed on 02.12.2018] 24 EUR-Lex, 2005. Judicial co-operation in criminal matters: mutual recognition of final decisions in criminal matters [Online]. Available at: https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=LEGISSUM%3Al33131 [Accessed on 02.12.2018] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 11

EUropa.S. 2019 European Court of Justice Study Guide One step towards the aforementioned objective was the adoption of Framework Decision 2009/299. As stated in the recitals 2 and 4 of the aforementioned decision the lack of a framework that implements the principle of mutual recognition of final judicial decisions rendered following a trial at which the person did not appear in person underlined the need of amendments that would provide clear and common grounds for non-recognition of these decisions, so as to facilitate the judicial cooperation among EU countries. In 2009, the Council provided the conditions under which the executing authorities could execute the decisions despite the absence of the person at the trial, while at the same time fully respect the person’s right to a fair trial and the right of defence. However, this Framework Decision doesn’t aim to regulate the forms and methods that each Member-State will use in order to achieve its results, but it’s up to their discretion to transpose into their national legislation the grounds provided, while taking into account their obligation to respect the overall objective of this Framework Decision to facilitate judicial cooperation in criminal matters as well as to enhance the procedural rights of persons. Specifically, Framework Decision 2009/299 introduces two amendments regarding the Framework Decision 2002/584/JHA: it deletes article 5 paragraph 1 and it adds the new article 4a. The latter is the most crucial provision towards the promotion of judicial cooperation among EU Member-States, since it provides the grounds for optional non-execution of a European arrest warrant related exclusively to the decisions rendered following a trial at which the person did not appear in person. While the execution of a European arrest warrant is the rule, the refusal to execute it should be the exception25 that must be interpreted strictly and that is the reason why in subparagraphs (a) to (d) of article 4a, paragraph 1 the conditions under which the judicial authorities of a Member- State can refuse to execute a decision rendered in absentia are restrictively mentioned26. In detail, subparagraph (a) requires the person’s information in due time and by any means of the scheduled date and place of the trial that led to the decision and of the possibility of a decision to be handed down despite his absence. Subparagraph (b) requires person’s real and effective defence by a counsellor appointed either by the person concerned or by the State. Subparagraph (c) requires person’s information about his right to a retrial or an appeal which may lead to the reversion of the original decision and the person’s statement that he does not contest the decision or his negligence to exercise his right to a retrial within the applicable time frame. Finally, subparagraph (d) refers to the condition under which the decision wasn’t personally handed down to the 25

Curia, 2018. Case C-327/18, see paras 36-38 [Online]. Available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=205871&pageIndex=0&doclang=E N&mode=lst&dir=&occ=first&part=1&cid=5826708[Accessed on 02.12.2018] 26 Curia, 2017. Case 270/17, see paras 50-54 [Online]. Available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=193542&pageIndex=0&doclang=E N&mode=lst&dir=&occ=first&part=1&cid=5642565[Accessed on 02.12.2018] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 12

EUropa.S. 2019 European Court of Justice Study Guide person concerned but it will be served immediately after his surrender and he will be fully informed of his right to a retrial and the time frame within he can exercise it. Only if one of these criteria is verified, the executing authority could possibly refuse to execute the warrant, otherwise it is required to surrender the person. Last but not least, it is obvious that in contrary to article 5, paragraph 1 which recognised -under some circumstances- to the executing judicial authorities the ability to make the execution of a European arrest warrant conditional upon the conviction in question to be open to review, article 4a does not recognise at all this guarantee as a condition for an optional reason of non-execution. On the contrary, a systematic interpretation of the objectives of the European legislator concludes to the prohibition of dependence between the execution of a warrant and the ability of a retrial within the issuing Member- State27.

Compatibility of the Framework Decisions with the Right to a Fair Trial, the Right of Defense and the Principle of NonDiscrimination (Articles 47, 48 and 21 EUCFR) The EU Charter of Fundamental Rights is the cornerstone of the protection of human rights within the European Union since it is based on general principles and values, such as freedom, human dignity and equality among others. It cites -in conjunction with the European Convention on Human Rights (ECHR)- the fundamental rights which are binding upon EU institutions and Member- States when they implement EU law28.

Article 47 EUCFR According to article 53 EUCFR29 as long as the Charter contains rights that are also guaranteed and protected by the ECHR the meaning and the scope of those rights are similar. However, the European Union Law still has the ability to provide extensive protection to its civilians even if the ECHR does not agree. Therefore, it is essential to examine first the case-law of the European Court of Human Rights30.

Melloni case, C-399/11, see para 44 [Ibid. 21] EUROPA, 2018. Human rights [Online]. Available at:https://europa.eu/europeanunion/topics/human-rights_en[Accessed on: 01.12.2018] 29 European Parliament, 2001. Charter of Fundamental Rights of the European Union [Online]. Available at: http://www.europarl.europa.eu/charter/pdf/text_en.pdf [Accessed on 30.11.2018] 30 Ibid. 20 28

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EUropa.S. 2019 European Court of Justice Study Guide 31 Article 6 ECHR establishes everyone’s right to a fair and public hearing by an impartial tribunal. Of course, proceedings that take place in the accused’s absence are not incompatible with the aforementioned article. However, the issue of incompatibility is raised when the person judged in absentia does not have the right for a retrial in order to justify himself. First of all, it has to be clear that the accused is able to waive their right to be present during trial. If there is no evidence that he quit from his right to defend himself or that he attempted to escape trial, there is absolutely no legal basis to deny their right to a retrial32. Therefore, the refusal to reopen trial proceedings is irrational and can be found as flagrant denial of justice. The flagrant denial of justice is a term totally opposite to article 6 ECHR and as a result the accused’s rights have to be respected33. The European Court of Human Rights considers important the fact that the accused shall not be penalized for their absence from trial by being denied the right to legal assistance. Indeed, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, is one of the fundamental features of a fair trial. A person charged with a criminal offence does not lose the benefit of this right only because they were not present at the trial. According to the European Court of Human Rights, “it is of crucial importance for the fairness of the criminal justice system that the accused will be adequately defended, both at first instance and on appeal”. Although the courts and the legislature shall not tolerate unreasonable and justified absences, it is important that they guarantee the right to a fair trial and do not punish their absence by violating article 6. It is in the court’s duties to make sure that the right to a fair remedy is protected and that the lawyer of the accused has the opportunity to perform his job and defend his client even though they are absent34. Thus, the compatibility of the Framework Decision with Article 47 is beyond doubt. However, when the person concerned has been informed about the trial but has chosen to be represented by an attorney and not be present during the process, they automatically quit from the right to appear in person, but they still maintain the right to defense through the services of the attorney. In this case the circumstances are entirely different. The person’s right to a fair trial is secured and they have 31

Ibid. 30 Steve Peers, S. 2014. The EU Charter of Fundamental Rights: A Commentary, p.1589. Bloomsbury Publishing [Online]. Available at: https://books.google.gr/books?id=htOdBQAAQBAJ&pg=PA1589&lpg=PA1589&dq=framework%20200 2%2F584%20article%205%201&source=bl&ots=FFRz7nyCK9&sig=rSS6f27mRBctRqnS-cd_zYjwXk&hl=el&sa=X&ved=2ahUKEwjhm9fN0pjfAhXDWywKHSxGAdEQ6AEwAXoECAkQAQ&fbclid=Iw AR3VOuf1fzzo3geGnQutAHY0EmbC3FaYhYAjzZ1DUkn7lUYPvxY651BQvXA#v=onepage&q=framework %202002%2F584%20article%205%201&f=false [Accessed on 02.12.2018] 33 ECHR, Idalov v. Russia [GC], no. 5826/03, 22 May 2012 [Online]. Available at:http://www.menschenrechte.ac.at/orig/12_3/Idalov.pdf [Accessed on 01.12.2018] 34 Ibid. 21 32

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EUropa.S. 2019 European Court of Justice Study Guide absolutely no excuse because they deliberately chose to be absent from the trial. They were informed about their rights and about the setting of the trial but they entrusted their attorney. Thus, their rights were protected and it would be irrational to repeat the trial only because the accused desires to have a second attempt in hope of a more lenient ruling35. The level of protection provided by the EU is sufficient enough to ensure the accused’s rights and accomplish all the desirable results. Articles 47 and 48 do not require more strict interpretation. The national judicial authorities shall not seek for an extensive protection of the right to a fair trial. The right to a retrial shall be guaranteed regarding the different circumstances of each case. The issuing MemberState shall not give any kind of insurance to the national judicial authorities if the accused person had previously quit from their right. When a person convicted in absentia deliberately did not attend the trial and preferred to entrust the protection of their rights to an attorney, the execution of the European arrest warrant against them shall not be subject to their right to a retrial. This is also stated in article 4(a)1b of the Framework Decision since a mandate was given to a legal counselor and their services were sufficient enough to protect the person’s rights and interests36. The retrial is an option only if the person was convicted in absentia or if they were not informed about the time and place of the hearing.

Article 48 EUCFR Article 48 EUCFR37 formulates the presumption of innocence (paragraph 1) and the right of defence (paragraph 2), both of which fortify the procedural rights of the person “who has been charged”, that is to say they are aimed at genuine criminal proceedings. Furthermore, they have been recognised as general principles of EU law independently of the Charter 38 in cases such as Rubach(Case C-344/08), Hoffman-La Roche (Case C-85/76) and Webmind licences (Case C-419/14). Article 48 EUCFR and article 6(2) and (3) ECHR have the same meaning and scope regarding the right they guarantee.

Ibid. 33 European Law Blog, 2014. Melloni as a Wake-up Call [Online]. Available at:http://europeanlawblog.eu/2014/03/10/melloni-as-a-wake-up-call-setting-limits-to-highernational-standards-of-fundamental-rights-protection/?fbclid=IwAR3OXl6VNa0pUSMNL6zNG__AAir2el76AOjUihIHkBGLQ9P-TT9apt7GS8 [Accessed on 01.12.2018] 37 Ibid. 30 38 Government of the United Kingdom, 2017. Charter of Fundamental Rights of the EU: Right by Right Analysis, p.70-71 [Online]. Available at:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/fi le/664891/05122017_Charter_Analysis_FINAL_VERSION.pdf[Accessed on 02.12.2018] 36

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EUropa.S. 2019 European Court of Justice Study Guide The presumption of innocence is the principle -or a legal right in most of the EU countries- usually expressed in the phrase “anyone is considered innocent unless proven guilty”. In other words, it means that the accused person is beyond any doubt innocent until the court will grant him guilty through well-structured legal and judicial proceedings, which free the accused from the burden of proof and oblige the prosecution to prove each and every element of the case39. The right of defence is thought to be a particular aspect of the right to a fair trial as enshrined in article 47 EUCFR. It aims to guarantee the ability of the accused person to have a legal counsellor who will help him throughout all the legal proceedings and will completely and adequately defend him in front of the court. Furthermore, it includes not only the right to legal representation but, most importantly, the right of information, the right of free access to the file and the right to confront and crossexamine witnesses as well. According to the Court’s opinion, all these rights should be observed during all of the proceedings that take place from the accusation till the conviction of the person, especially when they can culminate in a measure adversely affecting that person40. However, it is settled case law that fundamental rights may be restricted in order for general interests, such as confidentiality or professional secrecy, to be protected, but only when these restrictions do not constitute a disproportionate and intolerable interference to the substance of the rights guaranteed41. As far as article 4a(1) of the Framework Decision 2002/284 is concerned, it provides to Member-States the exclusive conditions under which the executing authorities can execute a European arrest warrant issued for the execution of a decision rendered in absentia without infringing the person’s rights to a fair trial and of defence. It is obvious that this article protects all the aspects of the right of defence before or after the person’s surrender, since it asks for his information, his need for legal assistance and representation, his ability to use the national legal remedies against the decision that granted him guilty42. Consequently, when he chooses by himself to be absent from his trial, despite the fact that he was informed, or to be represented by a counsellor or to willingly quit from his right to ask for a retrial or to

SCIRP, Beijing Law Review 2017.The Presumption of Innocence in Europe: Developments in Substantive Criminal Law,p.114 [Online]. Available at:https://file.scirp.org/pdf/BLR_2017033011053822.pdf[Accessed on 30.11.2018] 40 EUR-Lex, 2013. Texdata Software GmbH, Case C--418/11, see para 83 [Online]. Available at:https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=ecli:ECLI:EU:C:2013:588 [Accessed on 29.11.2018] 41 EUR-Lex, 2018. Case C-358/16, see paras 59-63 [Online]. Available at:https://eurlex.europa.eu/legal-content/EN/TXT/?qid=1543748858443&uri=CELEX:62016CJ0358 [Accessed on 29.11.2018] 42 Melloni case, C-399/11, see paras 49, 52 [Ibid. 21] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 16

EUropa.S. 2019 European Court of Justice Study Guide avoid exercising his right for a retrial within the applicable time frame, it is impossible for the Court to acknowledge violation of the right of defence. Article 21 EUCFR As enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, any discrimination based on colour, among other grounds, shall be prohibited while recital 12 in the preamble of the above-mentioned Framework Decision strictly declares that “nothing … may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons”43. It is therefore perceived from the factual basis provided in the description of the case that Mr. Dumont, herein being referred to as the defendant, has undergone discriminatory treatment due to his colour by the Hungarian authorities which proceeded to issue a European Arrest Warrant against him by attributing to the defendant charges of human trafficking. Nobody can deny the magnitude and ampleness of the regulatory scope of long-established axioms such as those pertaining to non-discrimination. After all, the ensemble of such principles has undoubtedly constituted the hard core of “a new legal order of international law” 44 which is comprised of a series of European values applicable to the legal system of the member states. However, as a matter of fact, the question raised in the present case is no other than “whether it is currently feasible to adopt the mutual recognition principle to criminal law cooperation matters based on the pioneering internal market model implemented within the European Union as a whole, while refusing to apply general principles of EU law such as non-discrimination”45. Or, to put it in other words, whether the Union’s mandatory need to counter any kind of criminal activity carried

Curia, 2016. Joint Cases C‑ 404/15 and C‑ 659/15 [Online]. Available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=175547&pageIndex=0&doclang=E N&mode=lst&dir=&occ=first&part=1&cid=567858 [Accessed on 05.12.2018] 44 Curia, Judgement of 1963. Case C-26/62 [Online]. Available at: http://curia.europa.eu/juris/showPdf.jsf?text=&docid=87120&pageIndex=0&doclang=EN&mode=req &dir=&occ=first&part=1&cid=6291156 [Accessed on 05.12.2018] 45 Wiley, K. 2010. European Arrest Warrant Cases and the Principles of Non-discrimination and EU Citizenship. Ester Herlin-Karnell, The Modern Law Review. Vol. 73, No. 5, pp. 824-835 [Online]. Available at: https://www.jstor.org/stable/40865585?read-now=1&seq=12#page_scan_tab_contents [Accessed on 05.12.2018] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 17

EUropa.S. 2019 European Court of Justice Study Guide out in its territory overrides the equally imperative need to respect a set of values consolidated by the EU’s legal institutions. It is, thus, fairly understood that if the claims made by the defendant are well founded and the judicial authorities of Hungary have truly issued a warrant on human trafficking charges even slightly affected by Mr. Dumont’s colour, they are clearly infringing upon the non-discrimination principle. By this means, they are not only violating the defendant’s rights but even more so the purposes of the European Arrest Warrants as a legal institution and the spirit of the documentation provisioned on its behalf.

Conflict between national and EU law under article 53 EUCFR Article 53 of the EU Charter for Fundamental Rights46 is one of the general provisions governing the Charter’s interpretation. It was introduced in order to ensure that a reduction on the level of protection of fundamental rights within the MemberStates’ legal orders as well as national peculiarities -as those noted in the Omega case47- will be avoided48. However, a big question was raised from its reference to the Member- States’ constitutions since it was claimed that article 53 could be used from national courts as a tool to undermine the principle of primacy of EU law and to declare Union’s directives or regulations inapplicable in their own jurisdictions, if they reach the conclusion that their national legal norms provide higher level of protection to human rights than the Charter’s and Union’s equivalent norms. As seen from the drafting history of the Charter, article 53 in its earlier version referred to “national law”. For the Members of the European Convention which drafted the Charter, the Commission and the European Parliament, though, this article was of utmost political significance, since it had to serve as an assurance that the Charter would not replace neither marginalise the national constitutions, but on the contrary would provide the grounds for a common and uniform European standard for human rights. Many told that a constitutional pluralism was the goal to be reached that led to the amendment of article 53 and its today’s final form. 46

Ibid. 30 Curia. Judgement of 2004, Case C-36/02 [Online]. Available at:http://curia.europa.eu/juris/document/document.jsf?text=&docid=49221&pageIndex=0&doclang= EN&mode=lst&dir=&occ=first&part=1&cid=6035008[Accessed on 01.12.2018] 48 Lorna Woods, S. 2017.Steiner & Woods EU Law,p. 162 [Online]. Oxford: Oxford University Press. Available at: https://books.google.gr/books?id=O3AuDwAAQBAJ&pg=PA162&lpg=PA162&dq=article+53+eucfr&so urce=bl&ots=h00ZBa01xS&sig=RezDWWO5SIxpmmqMO5dWxiWEZU&hl=el&sa=X&ved=2ahUKEwjvsc2Hg_3eAhVykosKHVjKDgQQ6AEw BHoECAQQAQ#v=onepage&q=article%2053%20eucfr&f=false[Accessed on 01.12.2018] 47

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EUropa.S. 2019 European Court of Justice Study Guide Constitutional pluralism is generally defined as an exchange of opinions between the ECJ and the Member- States’ national courts, where both sides are supposed to raise their arguments regarding the interpretation of fundamental rights and their protection. Actually, this would lead to the excess of the traditional hierarchical structure that places the ECJ on the top and the advancement to a dialogue among equal parts. However, many academics have expressed their objections and presented differentiated perspectives of the aforementioned concept. Specifically, on the one hand L. Azulai’s notion is based on the strengthening of the primacy of the European legal order by “forcing” the ECJ to start a conversation with the national courts, where the first one has to bear in mind the national provisions regarding the human rights and then justify its decision for the deviation or the maintenance of the level of their protection granted by the constitution of a Member- State49. However, EU law’s primacy should not be endorsed if it ignores or underestimates the constitutional traditions of the Member- States. On the other hand, Leanerts calls upon the interpretation of article 53 as stated in the Court’s judgments in Omega50 and Sayn Wittgenstein51 cases. According to his opinion, when national legislation should implement EU law, it’s upon the discretion of the national courts to determine the level of protection of fundamental human rights that would be compatible with their constitutions but under the absolute condition that the Union’s law will not be affected52. Finally, Aida Torres Pérez expressed nothing but a merging opinion stating that both of the previously mentioned approaches have their advantages and disadvantages and that a hierarchical imposition of ECJ’s standards has no legitimacy. This is why the solution should be sought somewhere in between through a productive dialogue which will advance the reasoning of the ECJ’s decisions while at the same time will show equal respect to the Member- States’ constitutional traditions53. The European Court of Justice stands clearly in favour of the principle of primacy of the EU legislation, something that can easily be concluded from the reasoning of its judgement in the Melloni case54. The Court dealt with the problem of whether a 49

Koen Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights', European Constitutional Law Review, 8: 375-403, 2012, 50 Ibid. 48 51 Curia. Judgment of 2010. IlonkaSayn-Wittgenstein, Case C-208/09 [Online]. Available at:http://curia.europa.eu/juris/document/document.jsf?text=&docid=83459&pageIndex=0&doclang= EN&mode=lst&dir=&occ=first&part=1&cid=6058369[Accessed on 01.12.2018] 52 Ibid. 49 53 Aida Torres Pérez ''Conflicts of Rights in the European Union: A Theory of Supranational Adjudication'', published to Oxford Scholarship Online: September 2009 54 Ibid. 21 EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 19

EUropa.S. 2019 European Court of Justice Study Guide Member- State can refuse to execute a European arrest warrant in the case of a conviction rendered in absentia due to the higher level of protection that its constitution guarantees for the fundamental rights. At first, it recalled its judgement in the Pupino case55 in order to make clear that although the Framework Decisions which are no longer in use since the Treaty of Lisbon came into force in 2009- have no direct effect due to their nature as secondary law, they shall be binding upon the Member States in order to achieve the harmonisation of national legislations, but they shall also leave to the national authorities the choice of forms and methods.56,57 Then, the Court referred to the Spanish court’s interpretation of article 53 which gives priority to the national over the EU provisions, when they offer a higher level of protection of the fundamental rights. This reasoning, when applied on a European arrest warrant issued for a sentence imposed in absentia, makes its execution subject to conditions set by a Member State, something that is not allowed under the article 4a(1) of the Framework Decision 2002/284. It also clarifies that the Framework Decision 2009/299 aims to the harmonization of the conditions under which a warrant in the case of a conviction rendered in absentia can be executed. So, if the Member States are enabled to review these conditions under the scope of their constitutional provisions, the uniformity of the protection of the rights as defined in that Framework Decision would be compromised and the principles of mutual trust and recognition would be undermined. The Court concludes to the recognition to all EU countries the ability to apply their national standards to the protection of fundamental rights when implementing EU legislation as long as the primacy, unity and effectiveness of Union’s law is not compromised and only in the areas of EU law that are not fully determined, as stated in the Åkerberg Fransson58 case as well. To conclude, it is obvious that the Court’s approach has a duality in its nature. On the one hand, it reflects the pluralistic nature of EU law since it seems to take into account the diverse perspectives of all EU countries regarding their constitutional provisions about the interpretation and protection of fundamental rights. On the 55

Curia. Judgment of 2005. Pupino Case, C-105/03 [Online]. Available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=59363&pageIndex=0&doclang=EN &mode=lst&dir=&occ=first&part=1&cid=1379645 [Accessed on 01.12.2018] 56 Dr. Stefan Lorenzmeier, K. 2006. The Legal Effect of Framework Decisions – A Case-Note on the Pupino Decision1 of the European Court of Justice [Online]. Available at:http://www.zisonline.com/dat/artikel/2006_12_97.pdf[Accessed on 01.12.2018] 57 EUR-Lex. Judgment of 2017. Daniel Adam PopławskiCase, C-579/15, see paras 28, 30-36 [Online]. Available at: https://eur-lex.europa.eu/legalcontent/EN/TXT/?qid=1542293405082&uri=CELEX:62015CJ0579 [Accessed on 01.12.2018] 58 Curia. Judgment of 2013. Åkerberg Case, C-617/10 [Online]. Available at:http://curia.europa.eu/juris/document/document.jsf?text=&docid=134202&pageIndex=0&doclang =EN&mode=lst&dir=&occ=first&part=1&cid=1380878[Accessed on 02.12.2018] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 20

EUropa.S. 2019 European Court of Justice Study Guide other hand, the Court insists on the maintenance of the principle of primacy of EU law and leaves national courts with a secondary role in the discussion for fundamental human rights since they cannot apply their higher constitutional standards of protection, especially to the areas of law that are fully harmonized 59.

Europa.S. 2019 ECJ Case The Hungarian judicial authorities issued a European arrest warrant against a French national, Mr. André Dumont, on the grounds of human trafficking charges. Nevertheless, Mr. Dumont claims that the Hungarian authorities have acted accordingly because they were biased against him on grounds of his colour and have therefore violated the principle of non-discrimination as reflected in the Charter of Fundamental Rights of the European Union. By order of 26 August 1996, the Criminal Division of the High Court (Hungary) authorized the extradition to France of Mr. Dumont, in order for him to be tried there in relation to the facts set out in arrest warrants Nos 678/1993 and 457/1993, issued on 29 December and 3 February 1993 respectively by the Court of the Lord Lyon (District Court, Lyon) (France). After being released on bail of HUF 10 000 000, which he provided on 30 November 1996, Mr. Dumont fled, so that he could not be surrendered to the French authorities. By order of 27 March 1997, the Court of the Lord Lyon declared that Mr. Dumont had failed to appear in court and directed that notice should in future be given to the lawyers who had been appointed by him. Mr. Dumont was sentenced in absentia to 10 years’ imprisonment for human trafficking. The difficulty arises from the fact that Framework Decision 2009/299 repealed Article 5(1) of Framework Decision 2002/584 and introduced therein a new Article 4a. Article 4a precludes a refusal ‘to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision’ where the person concerned, ‘being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial’.

Curia. Judgment of 2016. Case C-554/14, see paras 58-59, 66-67, 71 [Online]. Available at:http://curia.europa.eu/juris/document/document.jsf?text=&docid=185201&pageIndex=0&doclang =EN&mode=lst&dir=&occ=first&part=1&cid=1381169 [Accessed on 02.12.2018] EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 21

EUropa.S. 2019 European Court of Justice Study Guide Preliminary Rulings 1. Must Article 4a(1) of Framework Decision 2002/584/JHA, as introduced by Council Framework Decision 2009/299/JHA, be interpreted as precluding national judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant conditional upon the conviction in question being open to review, in order to guarantee the rights of defence of the person requested under the warrant? 2. In the event of the first question being answered in the affirmative, is Article 4a(1) of Framework Decision 2002/584/JHA compatible with the requirements deriving from the right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter …, and from the rights of defense guaranteed under Article 48(2) of the Charter? 3. In the event of the second question being answered in the affirmative, does Article 53 of the Charter, interpreted schematically in conjunction with the rights recognized under Articles 47 and 48 of the Charter, allow a MemberState to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording those rights a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognized by the constitution of the first-mentioned Member- State?’

Case Law All cases of the ECJ are accessed to the official website of the Court, www.curia.europa.eu , and all cases of the European Court of Human Rights may be found on www.hudoc.echr.coe.int .

1. 2. 3. 4. 5. 6.

C-396/11, Radu Case C-216/18, LM Case ECHR, Idalov v. Russia, Application no. 5826/03, 22 May 2012 ECHR, Haralampiev v. Bulgaria, Application no. 29648/03, 24 April 2012 ECHR, Sedjovic v. Italy, Application no. 56581/00, 01 March 2006 ECHR, Dilipak and Karakaya v. Turkey, Applications nos. 7942/05 and 24838/05, 04 March 2014 7. C-105/03, Pupino Case 8. C-617/10, Åkerberg 9. ECHR, Medenicav. Switzerland, Application no. 20491/92, 14 June 2001 10. C-409/06,WinnerWetten Case 11. C-483/09 and C-1/10, Gueye and Salmerón Sánchez Joined Cases EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 22

EUropa.S. 2019 European Court of Justice Study Guide 12. C‑ 554/14, Ognyanov Case 13. C‑ 579/15, Popławski Case 14. C-327/18, RO Case 15. C-571/17, Ardic Case 16. C-270/17, Tupikas Case 17. C-284/16, Achmea Case 18. C-452/16, Poltorak Case 19. C-477/16, Kovalkovas Case 20. C-404/15 and C-659/15, Aranyosi and Căldăraru Joined Cases 21. C-358/16, UBS Europe and Others Case 22. C-123/08, Wolzenburg Case 23. C-26/62, Van Genden Loos Case

Bibliography 1. Eugenia Sachpekidou, European Law, p.520, 2nd edition, Thessaloniki 2013 2. The EU Charter of Fundamental Rights: A Commentary, Framework Decision 2002/584, p.1588 3. EUR-Lex, 2007, Explanations relating to the Charter of Fundamental Rights [Online]. Available at: https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=celex%3A32007X1214%2801%29 [Accessed on 08.12.2018] 4. Equality and Human Rights Commission, 2016. What is the Charter of Fundamental Rights of the European Union? [Online]. Available at: https://www.equalityhumanrights.com/en/what-are-human-rights/how-areyour-rights-protected/what-charter-fundamental-rights-european-union [Accessed on 08.12.2018] 5. Bin-Italia, 2016. The Charter of Fundamental Rights of the European Union: a tool to enhance and protect the rule of law? [Online]. Available at: https://www.bin-italia.org/the-charter-of-fundamental-rights-of-theeuropean-union-a-tool-to-enhance-and-protect-the-rule-of-law/ [Accessed on 08.12.2018] 6. Science Direct, 2014. The Consequences of the “Constitutionalization” of the Charter of Fundamental Rights of the European Union [Online]. Available at:https://www.sciencedirect.com/science/article/pii/S1877042814048824 [Accessed on 08.12.2018] 7. Libor Klimek, S. 2016. Mutual Recognition of Judicial Decisions in European Criminal Law, p.307 [Online]. Bratislava: Springer. Available at: https://books.google.gr/books?id=SY6xDQAAQBAJ&pg=PR14&lpg=PR14&dq= EUropa.S. 2019, April 19th–22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 23

EUropa.S. 2019 European Court of Justice Study Guide framework+decision+2009/299&source=bl&ots=FCh5rHD3A&sig=9530yj1gFL_KKGMxtIFCZYwH2fU&hl=el&sa=X&ved=2ahUKEwjKhI _I0prfAhXiqIsKHTgZB04Q6AEwBnoECAUQAQ#v=onepage&q=framework%20 decision%202009%2F299&f=false [Accessed on 09.12.2018] 8. Libor Klimek, S. 2014. European Arrest Warrant, p.163-166 [Online]. Bratislava: Springer. Available at: https://books.google.gr/books?id=DuaZBAAAQBAJ&pg=PA164&lpg=PA164& dq=framework+decision+2009/299&source=bl&ots=cvV5ewmL9Q&sig=5fen7Fd0sz1foimsbVNGWubwM&hl=el&sa=X&ved=2ahUKEwjKhI_I0prfAhXiqIsKHTgZB04Q6AE wCHoECAMQAQ#v=onepage&q=framework%20decision%202009%2F299&f= false [Accessed on 09.12.2018]

ANNEX FRAMEWORK DECISION 2002/284 Article 1 par. 2 Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. Article 2 par. 1 A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. Article 2 par. 4 For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described. Article 3 The judicial authority of the Member State of execution (hereinafter "executing judicial authority") shall refuse to execute the European arrest warrant in the following cases: EUropa.S. 2019, April 19thâ&#x20AC;&#x201C;22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 24

EUropa.S. 2019 European Court of Justice Study Guide 1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law; 2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State; 3. if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State. Article 4 par. 1 The executing judicial authority may refuse to execute the European arrest warrant: if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State; however, in relation to taxes or duties, customs and exchange, execution of the European arrest warrant shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State. Article 5 par. 1 The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions: where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment. European Convention on Human Rights Article 6 par. 1

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EUropa.S. 2019 European Court of Justice Study Guide In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. European Union Charter of Fundamental Rights Article 21 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, geneticfeatures, language, religion or belief, political or any other opinion, membership of a national minority,property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of theTreaty on European Union, and without prejudice to the special provisions of those Treaties, anydiscrimination on grounds of nationality shall be prohibited. Article 47 Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. Article 48 Everyone who has been charged shall be presumed innocent until proved guilty according to law. Respect for the rights of the defense of anyone who has been charged shall be guaranteed. Article 53 Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of EUropa.S. 2019, April 19thâ&#x20AC;&#x201C;22nd, Athens, Greece europas.irtea@gmail.com | www.europas.irtea.gr Page 26

EUropa.S. 2019 European Court of Justice Study Guide application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member Statesâ&#x20AC;&#x2122; constitutions.

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