I. Introduction

This article focuses on the different implementation solutions of mutual recognition framework decisions, based on a study of the first four framework decisions and their implementation in the Nordic Member States.¹ The Lisbon Treaty changed the environment of EU criminal law and explicitly mentions mutual recognition in Art. 82(1) TFEU. This article also briefly analyses the change towards using either directives or regulations as mutual recognition instruments.

II. Different Techniques of Implementation

A. Through transformation, the most commonly used form of implementation, the framework decisions are transformed into national legislation and into some of the rules on cooperation in criminal matters in the respective national legal systems. Transformation entails modifying other relevant national legislation to correspond with the implementing national legislation.² Transformation can firstly be done by implementing the framework decision entirely into one corresponding national act.³ Transformation can also be used to transform several mutual recognition framework decisions into one national act.⁴ This type of transformation can include common provisions applicable to all forms of cooperation. That facilitates developing an internal coherence and developing similar solutions as regards grounds for refusal. This is desirable in order to achieve a uniform application of mutual recognition.

B. Incorporation can also be used in the implementation of framework decisions (although usually used to implement international conventions). The framework decision then applies directly and is treated as domestic legislation. ⁵ Incorporation has the advantage that there is no need to draft new national legislation. Framework decisions are nevertheless intended to be implemented into the national legal systems. This can impact the precision of their provisions, as the framework decisions are perhaps not intended to be directly applicable. Some adjustments or clarifications are possibly expected to be done when implementing. When the provisions of the framework decisions are specific enough, this form of implementation facilitates the coherent use of the framework decisions in the EU. Incorporation also facilitates the uniform definition of particular terms in framework decisions, as required by the ECJ. This may not be the best solution from the perspective of maintaining the coherence of national legal systems. It is, however, possible for the national legislator to insert sections in the national acts where further national rules or adjustments are considered necessary.⁶

III. Different Possibilities When Implementing Grounds for Refusal

The basic idea is that judicial decisions are to be recognised unless a ground for refusal is applicable. The implementation of grounds for refusal thus becomes important. In the former third pillar, no clear guidelines were to be found on exact and correct implementation. This can also be seen by the types of grounds for refusal, which are either mandatory or optional in the framework decisions. Whether the option is meant for the national legislator or the judicial authority is unclear.

A. The national legislator can first choose not to implement an optional ground for refusal. In some cases, Member States have considered it appropriate not to insert an optional ground for refusal if situations where the ground would be applied are very rare.⁷ The same applies for situations where a choice has been made not to implement a conditional recognition.⁸ Discretion is used by the national legislator in these situations. It is within the Member States’ margin of discretion not to implement all grounds for refusal or to establish a more far-reaching meaning for a provision exemplifying mutual recognition.

B. Implementing optional grounds for refusal can be done in two different ways: either in a mandatory way or in a not mandatory way for the judicial authorities. The national legislator uses the previous when grounds for refusal are implemented as obligatory for the judicial authorities. This occurs mainly in situations where the ground for refusal is considered essential for cooperation.⁹ When the optionality is reserved for the judicial authorities, the national legislator maintains the discretion for their use. When the conditions are met, the judicial authorities have an option, whether to apply the grounds for refusal or not. This enables a more flexible application of national legislation and, for some grounds for refusal, the optional nature can be appropriate.¹⁰ Both possibilities are within the Member States’ margin of discretion.

C. Although the grounds for refusal in the framework decisions are considered exhaustive, the national judicial authorities can apply other grounds for refusal. These grounds can be included in national legislation by the national legislator. Examples can be found in all Nordic countries implementing legislation in relation to surrender and human rights grounds for refusal.¹¹ The national judicial authority can further refuse recognition if another ground is in conflict with recognition. This can be based on an ongoing European procedure, which needs to be decided on before the recognition takes place. An asylum-seeking process could be seen as an example of a “Union-legal” ground for refusing the recognition and execution of an arrest warrant. The cases Gataeva and Gataev of the Helsinki district court are good examples of this.¹²

The cases concerned two Russian nationals sought in arrest warrants issued by Lithuania for the execution of sentences. Both persons had applied for asylum in Finland when the arrest warrants were received. The district court refused surrender based on the human rights ground for refusal, as extradition¹³ could have endangered the persons’ right to a fair trial. The case was appealed to the Supreme Court, which requested a preliminary ruling from the ECJ. At issue was especially whether a framework decision was to be interpreted in such a way that recognition could be refused on grounds for which there are no explicit provisions in the framework decision. If refusal could be based on grounds not expressly included in the framework decision, the Supreme Court asked to be informed of the conditions for such a refusal. The request for a preliminary ruling was rescinded, however, as the judgments in Lithuania were reversed and the arrest warrants revoked. The question of extradition was therefore no longer relevant and no preliminary ruling was issued by the ECJ.

If either the national legislator or the national judicial authorities apply further grounds for refusal, this could be considered unacceptable. However, in situations where refusal of recognition is based on human rights concerns or other Union-legal grounds, that can be considered within the Member States’ discretion.

D. In some exceptional situations, mandatory grounds for refusal can be disregarded in the implementation process. This would occur in situations where the ground for refusal is not considered essential for refusing cooperation. There are no such examples in Nordic implementing legislation today, but the possibility exists. For the Member States, a choice to cooperate beyond the framework decisions seems possible (here, parallels can be drawn to minimum harmonisation in substantive criminal law). This could be considered within the margin of discretion of the Member States, unless the ground for refusal is necessary for cooperation.

IV. Reasons Behind the Different Grounds for Refusal

There are several reasons behind the different grounds for refusal, both at the EU and national levels. Some general characteristics can be distinguished. They motivate and explain the differing implementation and mandatory or optional nature of the grounds for refusal.

A. Some of the grounds for refusal can be seen as prerequisites for mutual recognition. These grounds lay down the minimum requirements in order for recognition to apply. Unless these prerequisites exist, there is no starting point for recognition. Situations involving insufficient information, the non-existence of the requested object, and concurrent requests are all based on practical legal reasons that preclude the possibility of recognition.¹⁴ Recognition is refused when these minimum requirements are not met. These grounds for refusal are generally similar in the framework decisions and in the implementing national legislation.

B. Some of the grounds for refusal are consequences of applying mutual recognition. These consequences are the results of applying mutual recognition and can have either positive or negative effects. An outcome is positive if it allows recognition to take place. The abolition of double criminality for the offences on the list included in mutual recognition instruments can be considered a positive outcome of mutual recognition.¹⁵ Although not an actual ground for refusal, the explicit mentioning of the abolition in all framework decisions signifies a determined approach, whereas, for offences that are not in the list, the double criminality requirement still applies.

If an outcome is negative, recognition is refused. Ne bis in idem is such an outcome of mutual recognition.¹⁶ It ensues from accepting the legal force of prior decisions rendered in other Member States. This strengthens the free movement of persons affected by these decisions and legal certainty. Persons are only to be prosecuted and judged once for the same offence in the EU. The first prosecution is recognised as a prosecution in all Member States, and therefore a new prosecution would be contrary to the general principle prohibiting double jeopardy. The consequence of a prior final decision is that recognition of any subsequent decision must be refused, and thus it functions as a ground for refusal.

These grounds for refusal are mainly similar in framework decisions and implementing legislation. The margin of discretion for the Member States seems limited when implementing grounds for refusal, as these outcomes are consequences of applying mutual recognition. If the implementation expresses a broader degree of mutual recognition (abolishing the double criminality requirement for more offences than those listed), however, this is not problematic.

C. Some of the grounds for refusal are based on respect for established principles of international law. Mutual recognition is not intended to amend established principles of international law, but to make cooperation more efficient. This is not to take place without respect for the existing principles of international law. Examples are human rights grounds for refusal and grounds related to immunities and privileges.¹⁷ Such grounds for refusal are present both in framework decisions and implementing legislation, and are usually similar in both.

D. Grounds for refusal can also be based on respect for the core of state sovereignty. The Member States have competence to regulate the extent of their criminal jurisdictions, to determine the scope for exercising criminal competence and legislation regarding their own nationals, and to determine the conditions of criminal responsibility. They can be considered an essential part of a sovereign state’s criminal law competences. Mutual recognition leads to certain restrictions on the sovereignty of the Member States. Some grounds for refusal are symptomatic of the battle of competences between the EU and the Member States.¹⁸ The reason for these grounds for refusal is that the Member States have competence as regards the exclusion of the EU in matters that can be considered to be at the core of state sovereignty. Such grounds in the implementing legislation demonstrate how much the Member States have considered it possible to relinquish sovereign powers in the name of mutual recognition.

They are grounds from which a Member State may deviate in EU-level negotiations as well as in implementing national legislation. These grounds for refusal balance the interests of EU cooperation and the sovereign interests of Member States. They represent the area where competence belongs to the Member States but where the EU considers this a hindrance to cooperation. Member States are reluctant to relinquish control over issues so closely related to their sovereignty. These grounds are usually already found in the framework decisions, but they tend to be applied in the implementing legislation as far as possible. In several cases, they are mandatory, as the Member States did not wish to relinquish their sovereignty.

V. How will Directives and Regulations Impact This Development?

Art. 82 TFEU states that the ordinary legislative procedure shall be applied. This means that the current mutual recognition instruments are either directives or regulations.

A. When directives are used as mutual recognition instruments, this will not influence the different techniques of implementation. Directives are to be implemented into the national legal systems. Directives nevertheless do have a direct effect, which can be relevant if a Member State implements a mutual recognition directive incorrectly or fails to implement it on time. This should not, however, lead to interpreting the national criminal laws contra legem.¹⁹ As regards the different possibilities of the Member States to implement the grounds for refusal, the same approaches mainly seem to apply as it does in relation to framework decisions. The Member States have a possibility to safeguard their sovereign interests. An exception is the full jurisdiction of the ECJ over criminal matters, as its general competence applies pursuant to Art. 267 TFEU. The ECJ can take a more active role in mutual recognition matters and possibly apply a more EU-friendly approach. If a Member State has chosen not to implement a mandatory ground for refusal in a directive, the ECJ could − via the direct effect of the directive − state that the ground for refusal is nevertheless applicable.

B. When regulations are used as mutual recognition instruments, the above scenario regarding different possibilities changes fundamentally. No implementation is required and therefore no adjustment of the national legal system is possible. Different possibilities in relation to adjusting the grounds for refusal do not exist. The regulation is directly applicable, which leads to the Member States losing the possibilities to adjust the mutual recognition instrument in their national legal systems. This is unfavourable, especially as regards those grounds for refusal motivated by respect for the core of state sovereignty. The Member States lose their possibilities to emphasise and safeguard sovereign interests relating to national criminal law. Although this might not differ largely from previous incorporation of framework decisions, the difference is such that, with regulations, there is no possibility to amend the instrument.²⁰

VI. Conclusion

The Lisbon Treaty may not necessarily influence the implementation of mutual recognition instruments. However, EU criminal law is now part of general EU law, and the special status of EU criminal law measures is not guaranteed. Most Member States today do not consider it possible to relinquish control over matters close to their sovereignty. The lack of harmonisation is not the only reason. The Member States’ refusal to unconditionally apply mutual recognition also makes it clear that these grounds for refusal are, to a certain extent, based on mistrust between the Member States. In situations where there is mutual trust, it is possible to reduce the grounds for refusal based on mutual respect for core sovereignty. The provisions in the Nordic Arrest Warrant²¹ and its implementing legislation are prime examples of such trust.

Dr. Annika Suominen

Researcher, European Criminal Law

Faculty of law, University of Bergen, Norway