The evolution of European Union criminal law (1957-2012)

discretion in Title VI TEU(A), one which the Court, in this case, was not willing to
scrutinise. 781
Most judicial resistance at national level related either to the abolition of the principle of
non extradition of nationals or to the lack of a human rights and political clause as a
ground for refusal to extradite. This resistance was signalling a shift in the paradigm of
cooperation, not least because the previous legal status quo, which protected those
guarantees, was enshrined in Member States’ constitutional orders. Hence, several
Constitutional Courts had to take a stance on whether or not to allow extradition of their
own nationals. On 27 April 2005, the Polish Constitutional Court delivered a decision in
relation to a Dutch EAW that had been issued in respect to a Polish citizen to face
criminal proceedings in the Netherlands. The Court was forced to annul the provision of
national law implementing the Framework Decision on the EAW authorising the
extradition of Polish nationals on the grounds that it was unconstitutional as it violated
Article 55 (1) of the Polish Constitution which stated the prohibition of extradition of
Polish citizens. Nonetheless, the will of the Court was one of conciliation between the
Polish Constitutional legal order and EU law. It expressed this clearly when stating the
EAW to be:
“…a form of advanced cooperation between the Member States, assisting the fight
against crime and improving security. Accordingly, ensuring the continuity of its
functioning should constitute the Polish legislator’s highest priority.” 782
The Court found an alternative way thus to conciliate the national Constitution with the
EAW and suspended the ruling for 18 months to allow for the necessary constitutional
changes to take place. 783 Once this would happen the annulled provisions could be
781 D. Sarmiento, “European Union: The European Arrest Warrant and the quest for constitutional
coherence” (2008) 6 International Journal of Constitutional Law 171.
782 Judgment of the Polish Constitutional Court on the European Arrest Warrant, P 1/05, 27 April
2005; English Translation of the Decision can be found at http://www.asser.nl/eurowarrantwebroot/documents/cms_eaw_74_1_EAWrelease_270405.pdf,
last visited on 22 January 2012.
783 Komarek, for example, is of opinion that the Court could have reached a similar outcome by
interpreting the Constitution in a more “EU-opened way”, see J. Komarek, “European
Constitutionalism and the European Arrest Warrant: Contrapunctual Principles in Disharmony”,
Jean Monnet Working Paper 10/05, New York School of Law, NY 10012, 14; A. NuBberger, on
the contrary, argues that although the judgement might seem to suggest that the Tribunal denies
the supremacy of EU law and is adopting a Eurosceptical position given the obligation to apply
consistently its constitutional provisions, its reasoning as a whole indicates a pro-European
attitude, in “Poland: The Constitutional Tribunal on the Implementation of the European Arrest
Warrant” (2008) 6 International Journal of Constitutional Law 162.
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