10

Domesticating the European Arrest

Warrant: European Criminal Law between
Fragmentation and Acculturation
Renaud Colson

In the wake of the attacks of September 11th, the impetus given to the se-
curitization of the European Union (EU) agenda offered an opportunity to
flesh out the project of a common policy in criminal matters.1 Following
swift negotiations with the European Commission and the European
Parliament,2 the Council of the European Union – consisting of a repre-
sentative of each Member State – adopted the Framework Decision on the
European Arrest Warrant (EAW) and the surrender procedures between
Member States on 13 June 2002.3 Aiming at ‘abolishing extradition be-
tween Member States and replacing it by a system of surrender between
judicial authorities’,4 the Framework Decision on the EAW was conceived
as ‘the first concrete measure in the field of criminal law implementing
the principle of mutual recognition’.5 It is designed to facilitate the arrest
and the transfer ‘of a requested person, for the purposes of conducting a

1
On the EU’s reaction to the terrorist attacks of 11 September 2011, see J. Wouter and F.
Naert, ‘Of Arrest Warrants, Terrorist Offences and Extradition Deals: An Appraisal of the
EU’s Main Criminal Law Measures against Terrorism after 11 September’, Common Market
Law Review, 41 (2004), 909–35.
2
On the birth of the European Arrest Warrant, see M. Plachta and W. van Ballegooij, ‘ The
Framework Decision on the European Arrest Warrant and Surrender Procedures between
Member States of the European Union’, in R. Blekxtoon and W. van Ballegooij (eds.),
Handbook on the European Arrest Warrant (The Hague: TMC Asser Press, 2005), esp.
32–36.
3
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest
Warrant and the surrender procedure between Member States, OJ L 190, 18.7.2002. There is
a vast amount of literature on the European Arrest Warrant. For a detailed presentation of
this instrument, see among others N. Keijzer and E. van Sliedregt (eds.), The European Arrest
Warrant in Practice (The Hague: TMC Asser Press, 2009), and in French, S. Bot, Le mandat
d’arrêt européen (Bruxelles: Larcier, 2009).
4
Council Framework Decision 2002/584/JHA, 5th recital of the preamble.
5
Ibid., 6th recital of the preamble.

199

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 200 Renaud Colson

criminal prosecution or executing a custodial sentence or detention order’

from a Member State to another.
Beyond terminological changes,6 the Framework Decision establishes
a ‘system of free movement of judicial decisions’, which differs from the
previous extradition procedure in many ways. The major breakthrough of
the scheme is the complete judicialization of the surrender process from
the issuing of the warrant to its execution.7 Under this instrument the role
of executive authorities is limited to ‘practical and administrative assis-
tance’8 and the procedure is entirely placed in the hands of the Member
States’ judiciaries, which become the only bodies competent to issue and
execute a EAW. The Framework Decision shortens the lengthy extradition
process by setting a ninety-day time limit for the execution of the warrant9
and it renders the substantive requirements for transfer less onerous. The
double criminality principle – according to which extraditable infractions
must be punishable in both the requesting and the requested states – is
not required for thirty-two enumerated offences.10 The political offence
exception is also abolished and so too the nationality exception accord-
ing to which states do not extradite their own nationals. However, the
Framework Decision does set out many grounds for non-execution of the
EAW – some mandatory and some optional – including amnesty in the
executing state, ne bis in idem, age of criminal responsibility, and locus de-
licti exceptions.11
The legislation establishing the EAW did not become directly applica-
ble upon its adoption by the Council of the European Union.12 It could
only acquire legal effect through implementation in each of the EU
Member States. The latter were bound to take the necessary measures to
comply with the new instrument by the end of 2003, which they all did
(though not always on time). Eventually all Member States transposed
6
Instead of ‘extradition’, ‘extradition request’, ‘requesting states’, and ‘requested state’, the
Framework Decision uses the words ‘surrender’, ‘arrest warrant’, ‘state of issue’, and ‘state of
execution’, thus contributing a terminological evolution stressing automaticity in the pro-
cess of removing a person from one state to another.
7
O. Lagodny, ‘“Extradition” without a Granting Procedure: The Concept of “Surrender”’, in
R. Blekxtoon and W. van Ballegooij (eds.), Handbook on the European Arrest Warrant (The
Hague: TMC Asser Press, 2005), 39-45.
8
9th recital and Art. 7 of the Council Framework Decision 2002/584/JHA.
9
Council Framework Decision 2002/584/JHA, Art. 17 and 23.
10
Ibid., Art. 2(2).
11
Ibid., Art. 3 and 4.
12
On the legal effects of Framework Decisions, see A. Hinajeros, ‘On the Legal Effects of
Framework Decisions and Decisions: Directly Applicable, Directly Effective, Self-
executing, Supreme?’, European Law Journal, 14–5 (2008), 620–634.

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 Domesticating the European Arrest Warrant 201

the Framework Decision into their own domestic legislation and the
EAW gradually replaced extradition throughout the EU.13 By 2011 the
Commission could boast of the operational success of this new ‘efficient
mechanism to ensure that open borders are not exploited by those seek-
ing to evade justice’14 by pointing to a series of indicators showing con-
sistent increases in the number of warrants issued and executed in the
preceding years and a remarkable decrease in the average time of sur-
render compared to the pre-EAW era.
Breaking with the long history of extradition15 in which the idiosyncra-
sies of domestic criminal law, complex international treaties, and overtly
political considerations had intertwined for centuries, the legal transplant
of a single instrument designed by the EU to streamline and depoliticize
surrender between the twenty-eight Member States reveals the extent of
the ongoing Europeanization of law. It signals the expanding power of
the Union, now dealing with a subject which used to be the preserve of
national states, and it reveals the depth of EU law penetration into domes-
tic jurisdictions, as the Framework Decision regulates in detail the scope
and limits of the duty to surrender which now falls on the judiciaries of the
Member States to implement the demand of their European counterparts.
This unprecedented transfer of prerogative from national political author-
ity to foreign judiciaries endowed with regulatory power is a remark-
able phenomenon. At first sight, it makes the case for the ‘convergence
thesis’ according to which the current movement towards globalization
and Europeanization drives an historic cultural rapprochement between
European legal systems.16 Influenced by a range of legal, political, and more

13
For a series of case studies on the implementation of the Framework Decision in Belgium,
France, Germany, Italy, Spain, and the United Kingdom, see M.-E. Cartier (ed.), Le man-
dat d’arrêt européen (Bruxelles: Bruylant, 2005). On Belgium, Cyprus, Finland, France,
Germany, Hungary, Italy, Poland, and Spain, see also E. Guild (ed.), Constitutional
Challenges to the European Arrest Warrant (Nijmegen: Wolf Legal Publishers, 2006), and
E. Guild and L. Marin (eds.), Still not Resolved? Constitutional Issues of the European Arrest
Warrant (Nijmegen: Wolf Legal Publishers, 2009).
14
European Commission, ‘On the implementation since 2007 of the Council Framework
Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures
between Member States’, COM(2011) 175 final, 3.
15
On the history of extradition, see I. A. Shearer, Extradition in International Law (Manchester
University Press, 1971), 5–21. See also J. Puente Egido, L’Extradition en droit international :
Problèmes choisis. Recueil des cours de l’Académie de droit international de la Haye, vol. 231
(Leiden: Martinus Nijhoff, 1991), 27–34.
16
On the ‘convergence thesis’, see B. S. Markesinis (ed.), The Gradual Convergence (Oxford:
Clarendon Press, 1994). Comp. V. G. Curran, ‘Romantic Common Law, Enlightened
Civil Law: Legal Uniformity and the Homogenization of the European Union’, Columbia

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 202 Renaud Colson

general cultural factors, increasingly legal systems seem to resemble each

other in their procedural styles and also in their distribution of formal
constitutional functions. In support of this thesis, the EAW Framework
Decision goes beyond mere technical approximation of national rules, as
witnessed, for example, in banking law or environmental law. Not only
does the new scheme affect the symbol of state sovereignty that is the
power to arrest, detain, and transfer persons. It also has an effect on the
power structure of the Member States by depoliticizing the surrender pro-
cess, whereas the technique of extradition had long displayed the signs of
a tight coupling with domestic political arrangements. In this respect it
could be argued that the achievement of the EAW not only reflects suc-
cessful legal assimilation but is also the tangible sign of a nascent EU legal
culture superseding national traditions.
However convincing the ‘convergence thesis’ may be in the light of the
apparent success of the EAW, it is important though to recognize that legal
harmonization, in the sense of a formal process of integration between
legal systems,17 offers only a narrow window on legal culture. This term,
which is often used to describe the set of ‘values, ideas and attitudes that
a society has with respect to its law’,18 reminds us that there is more to
law than formal rules. In this perspective, formal approximation of legis-
lation does not necessarily imply legal acculturation. The transposition of
the Framework Decision does not mean that from now on Member States

Journal of European Law, 7 (2001), 63–126. See also U. Mattei and L. G. Pes, ‘Civil Law
and Common Law: Toward Convergence?’, in K. E. Whittington, R. D. Kelemen, and G. A.
Caldeira (eds.), The Oxford Handbook of Law and Politics (Oxford University Press, 2010),
esp. 267–271. The ‘convergence thesis’ has been discussed from a variety of perspectives,
either disciplinary (e.g. from a law and economics approach: B. Crettez and R. Deloche,
‘On the Unification of Legal Rules in the European Union’, European Journal of Law and
Economics, 21–3 (2006), 203–214), national (e.g., from a French perspective: G. Canivet,
‘La convergence des systèmes juridiques du point de vue du droit privé français’, Revue
internationale de droit comparé, 55–1 (2003), 7–22), and thematic (e.g., from a criminal law
perspective, the contributions gathered in Crime, Procedure and Evidence in a Comparative
and International Context: Essays in Honour of Professor Mirjan Damaska, edited by J.
Jackson, M. Langer, and P. Tillers [Oxford/Portland: Hart, 2008]).
17
On the notion of legal harmonization in the field of European criminal law, see the intro-
duction ‘Objectifs et méthodes’ by M. Delmas-Marty in the collection she edited with M.
Pieth: Les chemins de l’harmonisation pénale – Harmonising Criminal Law (Paris: Société de
législation comparée, 2008), 19. See also A. Weyembergh, ‘The Functions of Approximation
of Penal Legislation within the European Union’, Maastricht Journal of European and
Comparative Law, 12–2 (2005), 149–172.
18
R. Michaels, ‘Legal Culture’, in J. Basedow, K. J. Hoppt, and R. Zimmermann (eds.), The
Max Planck Encyclopedia of European Private Law, 2 vols. (Oxford University Press, 2012),
vol. 2, 1059.

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 Domesticating the European Arrest Warrant 203

share a common understanding of surrender within the Area of Freedom,

Security and Justice (AFSJ). Indeed, some have questioned the somehow
naïve vision of convergence through the transfer of regulations and insti-
tutions. According to them, beneath superficial harmonization, the deep
structure of domestic legal mentalities and legal epistemologies remains
unique and cannot be bridged.19 On the contrary, attempts at legal uni-
fication may paradoxically lead to further divergences as the adoption of
uniform legal forms requires a reinterpretation of practice in the light of
domestic legal culture, thus triggering evolutionary dynamics closely tied
to national legal systems.20
This is not the place to take sides in a debate fuelled to a large extent
by competing epistemological assumptions as to the nature of law (legal
historians seem more prone to see successful legal transplants than com-
paratists attached to the irreducible diversity of legal traditions).21 Indeed
the question cannot be determined on theoretical grounds. What seems
instead to be required at this point are empirical case studies, which adduce
evidence supporting or refuting the thesis at hand, and possibly refining
the terms of the debate. In this respect the EU governing project can pro-
vide useful data to further the discussion. The EAW offers a good test case
to challenge the ‘convergence thesis’ especially as the incorporation of the
EAW Framework Decision in the legal systems has been scrutinized by
various EU bodies. The stakes (both political and technical) are high and
the new surrender scheme offers a perfect case study to assess the progress
and the success of the AFSJ. No wonder then that special attention was

19
See esp. Pierre Legrand’s works, and esp. its oft quoted article ‘European Legal Systems Are
Not Converging’, International and Comparative Law Quaterly, 45–1 (1996), 52–81. To re-
place this provocative statement in its epistemological context, see from the same author Le
droit comparé (Paris: Presses universitaires de France, 1999), and his article ‘The Same and
the Different’, in P. Legrand and R. Munday (eds.), Comparative Legal Studies: Traditions
and Transitions (Cambridge University Press, 2011), 240–311.
20
G. Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in
New Divergences’, Modern Law Review, 61–1 (1998), 11–32. See also M. Langer, ‘From
Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the
Americanization Thesis in Criminal Procedure’, Harvard International Law Journal, 45–1
(2004), 1–64.
21
Comp. P. Legrand, ‘ The Impossibility of “Legal Transplants” ’, Maastricht Journal of
European and Comparative Law, 4–2 (1997), 111–124, and A. Watson, ‘Legal Transplants
and European Private Law’, Electronic Journal of Comparative Law, 4–4 (2000), www.ejcl
.org/44/art44-2.html (Last accessed: 13 May 2016). And for a discussion on the ‘compet-
ing approaches to the study of legal transfers’, see D. Nelken, ‘Towards a Sociology of Legal
Adaptation’, in D. Nelken and J. Feest (eds.), Adapting Legal Cultures (Oxford/Portland:
Hart, 2001), esp. 7–20.

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 204 Renaud Colson

devoted to the evaluation of its implementation. What does this evaluation

of the EAW provided by the European institutions tell us about the ‘con-
vergence thesis’? It shows that the new surrender scheme can be seen as
bringing greater efficiency throughout the AFSJ with respect to the trans-
fer of suspects and convicts. Surely the fast assimilation of an automatic
surrender scheme common to all Member States is evidence of a success-
ful legal approximation but is it evidence of a coming together? In this
chapter, it will be argued that the grey literature of the official bodies and
the case-law of the Union offer no definite answer (Part 1). Careful com-
parative observations of the domestic processes of transposition of the
Framework Decision suggest that the successful implementation of this
piece of legislation throughout the Union conceals entrenched differences
and remarkable divergences in the way Member States actually incorpo-
rate the EAW within their legal systems (Part 2). Yet this diversity in the
law of surrender does not refute the idea of a rapprochement of domestic
jurisdictions through European legal harmonization. Indeed, the develop-
ment of judicial cooperation tools such as the EAW is fostering a remark-
able cultural convergence, which is impacting national legal systems in a
much deeper way than one might think given the persistent plurality of
national procedures of surrender between Member States (Part 3).

European Evaluation of Member States’ Compliance

Evaluation Framework
The EU did not wait for the requirement of ‘objective and impartial evalu-
ation’ of the AFSJ to be engraved into the primary law of the EU22 to scru-
tinize the correct transposition of the EAW Council Framework Decision.
The symbolic importance of this first measure of mutual recognition at a
time of securitization of European politics23 explains the early attention
devoted to the proper implementation of the new surrender scheme in
the European national jurisdictions. As with all ‘third pillar’ instruments,
Member States were shielded until 1 December 201424 from any infringe-
ment proceedings brought by the Commission before the European Court

22
Art. 70 of the Treaty on the European Union, in force since 1 December 2009.
23
On the securitization of European politics in the first decade of the twentieth century, see
E. Guild, S. Carrera, and T. Balzacq, ‘The Changing Dynamics of Security in an Enlarged
European Union’, in D. Bigo, S. Carrera, E. Guild, and R. B. J. Walker (eds.), Europe’s 21st
Century Challenge: Delivering Liberty (Farnham/Burlington: Ashgate, 2010), 31–48.
24
Protocol n° 36 of the Lisbon Treaty (12008M/PRO/36) provides ‘as a transitional meas-
ure, and with respect to acts of the Union in the field of police cooperation and judicial

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 Domesticating the European Arrest Warrant 205

of Justice (ECJ) for failures to incorporate the Framework Decision in

their law.25 But the ECJ, mother of all enforcement bodies of the EU, is not
the only ‘compliance-promoting tool’ designed to tackle the ‘compliance
deficit’ of EU law.26
With the EU trying to reduce the recourse to infringement proce-
dures and to improve monitoring through a range of measures such as
‘correlation tables, conformity checking, scoreboards and barometers,
guidelines, implementation plans, networks and committees, inspec-
tion, package meetings, fitness checks, legal reviews, and reporting’,27 a
vast array of techniques are available to assess the compliance of Member
States. Drawing on this toolbox, two distinct non-judicial evaluations of
the EAW were launched successively.28 The first procedure was instigated
by the Commission under Art. 34(3) of the EAW Framework Decision29
and led to three successive reports in 2005,30 2007,31 and 2011.32 The se-
cond procedure was based on the Joint Action of 5 December 1997 ‘estab-
lishing a mechanism for evaluating the application and implementation
at national level of international undertakings in the fight against organ-
ized crime’.33 It took place under the aegis of the Council of the European

cooperation in criminal matters which have been adopted before the entry into force of
the Treaty’ that the powers of the Commission under Article 258 of the Treaty on the
Functioning of the European Union shall not be applicable until five years after the date of
entry into force of the Treaty of Lisbon. As a result, Member States were shielded from any
infringement proceedings until the end of 2014.
25
Even thus curtailed, the role of the ECJ has been crucial with respect to the Framework
Decision: several preliminary rulings have been issued at the request of national courts in
doubt about the interpretation and validity of the Framework Decision and the transposing
legislation.
26
On the variety of ‘compliance-promoting tools’, see M. Cremona (ed.), Compliance and the
Enforcement of EU Law (Oxford University Press, 2012), esp. the book’s introduction and
the chapter on ‘The Governance of Compliance’ by E. Chiti.
27
M. Ballesteros, R. Mehdi, M. Eliantonio, and D. Petrovic, Tools for Ensuring Implementation and
Application of EU Law and Evaluation of Their Effectiveness, European Parliament’s Committee
on Legal Affairs Study, Doc. PE 493.014 (Luxembourg: Publications Office, 2013), 18.
28
A. G. Zarza, ‘Evaluation of Member States in the Third Pillar of the European Union: The
Specific Case of the European Arrest Warrant’, in A. Weyembergh and S. de Biolley (eds.),
Comment évaluer le droit pénal européen? (Editions de l’Université de Bruxelles, 2006),
99–113.
29
According to this provision ‘the Commission shall (. . .) submit a report to the European
Parliament and to the Council on the operation of this Framework Decision accompanied,
where necessary, by legislative proposals’.
30
COM(2005) 63 final, followed by a revised version COM(2006) 8 final.
31
COM(2007) 407 final.
32
COM(2011) 175 final.
33
Joint Action 97/827/JAI, OJ L 344, 15.12.1997.

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 206 Renaud Colson

Union and involved all Member States in a process of ‘mutual evaluations’

which resulted in one national report per country followed by a final recap
document.

Evaluation Strategies
The evaluations of Member States carried out by the Commission and the
Council were based on distinct standards. Thus the criteria of assessment
adopted by the Commission – effectiveness and rapidity of the judicial in-
strument34 – were more precise than those adopted by the Council, which
emphasized more vaguely35 the need to determine ‘the extent of the prac-
tical successes’36 of the surrender scheme. As far as method is concerned,
the Commission mainly based its first two reports on statistical and legal
data communicated by Member States while the peer evaluation operated
by the Council relied instead on a sophisticated mix of questionnaire, on-
the-spot visits by experts of other Member States, and follow-up reports.
Yet the autonomy and the specificity of each evaluative process should not
be over-emphasized. Not only do the assessment of the Commission and
the mutual evaluation organized by the Council refer to each other,37 but
all of these institutions promote a common objective, namely to measure
the proper implementation and the effective application of the new sur-
render scheme throughout the AFSJ.
The assessment carried out by the EU bodies provides a wealth of infor-
mation on the use of EAW by Member States. Yet reservations have been
expressed in relation to the statistical data collected.38 The Commission

34
In addition to the general criteria used to evaluate the implementation of Framework
Decisions and Directives (i.e., ‘practical effectiveness, clarity and legal certainty, full appli-
cation and compliance with the time limit for transposal’), see COM(2005) 63 final, 2.
35
One weakness of the mutual evaluation system seems to be that ‘no particular param-
eter have been identified which would serve as a marking system (. . .) to assess whether a
Member State is compliant, partially compliant or not compliant’, H. G. Nilson, ‘Eight Years
of Experiences of Mutual Evaluation within the EU’, in Weyembergh and de Biolley (eds.),
Comment évaluer le droit pénal européen?, 123.
36
Council of the European Union, ‘Orientation debate on a proposed Mutual Evaluation exer-
cise concerning, in particular, the practical application of the provisions of the Framework
Decision on the European Arrest Warrant and corresponding surrender procedures be-
tween Member States’, Council doc. 9602/05, 3.06.2005.
37
In this respect it is telling that the last report from the Commission on the implementation
of the EAW draws heavily on the mutual evaluations carried out by the Council which in
turn refers to the evaluations carried out by the Commission.
38
S. Carrera, E. Guild, and N. Hernanz, Europe’s Most Wanted? Recalibrating Trust in the
European Arrest Warrant System, CEPS Papers in Liberty and Security in Europe, n°76
(Brussels: Centre for European Policy Studies, 2013), esp. annex 1, 29–33. According to the

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 Domesticating the European Arrest Warrant 207

itself acknowledges in its 2011 reports the existence of ‘considerable short-

comings in the statistical data available for analysis’ and highlighted the
absence of a ‘common statistical tool’ and the ‘different interpretations to
be found in the answers to the Council’s questionnaire’.39 Moreover, the
restriction of the evaluation to the application of the EAW meant that it did
not include the domestic structures into which it was incorporated.40 The
assessment carried out by the Council or the Commission was above all
a check on the conformity of national law with the Framework Decision.
The evaluation was centred on the implementation of the legal instrument
rather than its impact on the jurisdictions of the Member States. And even
when the assessment was practice oriented – the Council’s mutual evalu-
ation was intended to scrutinize ‘the practical processes operated and
encountered by Member States’41 – the extent of the fit between EU rules
and Member States’ law was not a subject of primary concern.42 What was
critical was to assess the effectiveness of the surrender scheme, to highlight
the situations in which the respective national implementing authorities
failed to fully satisfy their transposition duty, and to promote compliance
with the Framework Decision.

Evaluation Results
Relying on their respective assessment, the Commission and the Council
hailed the success of the EAW. Both institutions concluded that the new
surrender scheme was operating efficiently. The basis for this conclusion
was ‘the increasing volume of requests, the percentage of them that re-
sult in effective surrender and the fact that the surrender deadlines are
generally met’,43 an ‘operational success’, which ‘contrasts very favourably

authors, the indicators produced display important defects and methodological deficien-
cies and result in incomplete, inaccurate, and inconsistent data which led the Council of the
European Union to propose a revision of the evaluation process in 2012.
39
European Commission, COM(2011)175 final, 10.
40
P. Kortenhorst, ‘Evaluating the Framework Decision on the European Arrest Warrant and
the Surrender Procedures between Member States’, in Guild and Marin (eds.), Still not
Resolved?, 100.
41
Council of the EU, ‘Final report on the fourth round of mutual evaluations – The practi-
cal application of the European Arrest Warrant and corresponding surrender procedures
between Member States’, Council doc. 8302/4/09 REV4, 28.05.2009, 4.
42
On the narrow purpose of evaluation of European criminal law, see de Biolley and
Weyembergh’s conclusion in their edited collection, Comment évaluer le droit pénal euro-
péen?, esp. 223–224.
43
Council of the EU, 8302/4/09 REV4, 6.

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 208 Renaud Colson

with the pre-EAW position’.44 This positive judgement was also backed by
the analysis of formal compliance. Other positive indicators came from
the monitoring of domestic legislative changes to adapt to general or in-
dividual recommendations provided by evaluating bodies with respect to
administrative or legal issues (e.g. language flexibility in everyday practice,
proportionality test in the issuing of EAW. . .).
In spite of the sophisticated apparatus designed to measure the appli-
cation of the EAW throughout the EU, very little is known about the im-
pact of the Framework Decision on the deeply entrenched legal structure
of Member States. The approximation of the rules of surrender between
European Member States is a legal reality attested by the EAW evaluation.
Statistical and legalistic key indicators do provide information about the
efficiency of the new surrender scheme and the increasing degree of con-
formity of national legal systems with the Framework Decision. Reports
on the implementation of the Framework Decision in Member States shed
light on possible obstacles to the issuing and executing of EAW and offer
recommendation to resolve them. But without any thick description of the
transposition process in the Member States, these sectoral evaluations can
hardly cut short the academic debate about the forms of legal convergence
between European jurisdictions. The success of the EAW may well be the
sign of a coming together of European Member States, but it could also
conceal the fragmentation of European legislation, which was the result of
its visible domestication by Member States.

Domestic Fragmentation of European Legislation

Diversity of Constitutional Challenges
Many hints of a fragmentation of the EAW scheme were actually visible
from its inception.45 Compared to the quick adoption of the Framework
Decision, its national transposition did not always go smoothly.46 The last
country to introduce the EAW into its legal system, Italy provides a good

44
European Commission, COM(2011)175 final, 3.
45
For a general perspective on the fragmentation of the AFSJ, see the various contributions
gathered in Revue trimestrielle de droit européen, 47–4 (2012), 827–854.
46
For a pan-European perspective, see R. Calvano (ed.), Legalità costituzionale e mandato
d’arresto europeo (Naples: Jovene, 2007); Guild (ed.), Constitutional Challenges to the
European Arrest Warrant; Guild and Marin (eds.), Still not Resolved? See also J. Sivers, ‘Too
Different to Trust? First Experience with the Application of the European Arrest Warrant’,
in E. Guild and F. Geyer (eds.), Security versus Justice? Police and Judicial Cooperation in the
European Union (Aldershot/Burlington: Ashgate, 2008).

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 Domesticating the European Arrest Warrant 209

example of how domestic context influenced the pace of the reform as

political ambiguity towards the new instrument met academic and prac-
titioner criticism.47 Far from being an exception, the Italian scenario is
only one among many others which saw national legal elites express res-
ervation towards the paradigm of mutual recognition and some of its con-
sequences, especially extraditing nationals or partial elimination of the
double criminality requirement.48 In some countries the incorporation
did not seem to pose any problem but in others doubts about the validity
of the scheme prompted ex ante constitutional reform (France).49 Where
the constitutionality of implementing statutes was contested in front of
the supreme courts,50 judges sometimes rejected the objecting arguments
(Belgium, Czech Republic). But in several cases, implementing statutes
were deemed contrary to the Constitution leading either to their annul-
ment and the adoption of new legislation (Germany) or to the amendment
of national constitutions (Poland, Cyprus).
In spite of these setbacks the transposition of the Framework Decision
was eventually achieved in all Member States. But the apparent pan
European consensus on the validity of the new surrender scheme is based
on a variety of constitutional understandings, which reveals the exist-
ence of seemingly irreconcilable perspectives between Member States.51
Thus confronted with a constitutional provision prohibiting the transfer
of nationals to foreign countries, the Czech supreme court gave the green
light to the EAW on the basis that traditional extradition and European
surrender are substantially different52 while Polish judges required an
47
L. Marin, ‘The European Arrest Warrant in the Italian Republic’, European Constitutional
Law Review, 4–2 (2008), 251–273.
48
The case of Germany is emblematic: see F. Gayer, ‘A Second Chance for the EAW in
Germany: The “System of Surrender” After the Constitutional Court’s Judgment of July
2005’, in Guild and Marin (eds.), Still Not Resolved?, 195–208, with good bibliographic
references.
49
R. Errera, ‘The Implementation of the EAW in France: Constitutional Issues and Scope of
Judicial Review’, in Guild and Marin (eds.), Still Not Resolved?, esp. 167–169.
50
For a comprehensive list of these constitutional challenges, see P. Zeman, ‘The European
Arrest Warrant: Practical Problems and Constitutional Challenges’, in Guild and Marin
(eds.), Still Not Resolved?, 107–111.
51
O. Pollicino, ‘European Arrest Warrant and Constitutional Principles of the Member
States: A Case Law-Based Outline in the Attempt to Strike the Right Balance between
Interacting Legal Systems’, German Law Journal, 9–10 (2008), 1313–1355. See also J.
Komárek, ‘European Constitutionalism and the European Arrest Warrant: In Search of the
Limits of “Contrapunctual Principles” ’, Common Market Law Review, 44 (2007), 9–40.
52
Czech Constitutional Court, Judgment of 3 May 2006, Pl. ÚS 66/04, English translation
available online, www.usoud.cz/en/decisions/?tx_ttnews%5Btt_news%5D=512&cHash=
94f2039f92b13843f3a3b93c6fcb237e (Last accessed: 13 May 2016).

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 210 Renaud Colson

appropriate amendment to the Constitution because the two categories

were not regarded as fundamentally distinct.53 Beyond this example,
European constitutional courts’ rulings on the implementation of the
Framework Decision dealt with the relationship between EU law and
Member States constitutional legal systems in very different ways, show-
ing growing differences between their readings of the respective constitu-
tional clauses on the interconnections between legal systems.54

Variety of Implementing Acts

Political and constitutional differences between national contexts played
a key role in the diversity of national laws putting into practice the EAW
Framework Decision. The very nature of this type of legal instrument
leaves considerable leeway to Member States as it is ‘binding upon the
Member States as to the result to be achieved but shall leave to the national
authorities the choice of form and methods’.55 But a close analysis of na-
tional legislation shows that the room for manoeuvre left to the States did
not just result in a multiplicity of methods of implementation. Regulatory
creep and gold-plating could be observed as some countries exceeded the
terms of the Framework Decision (‘over-implementation’) while substan-
tive requirements were sometimes lost in translation. Prompt in hailing
the transposition by all the Member States, the Commission also noticed
these shortcomings and it reported incorrect implementation of the sur-
render scheme in several jurisdictions.56
The way Member States incorporated the grounds for refusal to sur-
render provided by the Framework Decision57 offers a good example of
how over-implementation led to a fragmentation of the EAW scheme.

53
Polish Constitutional Tribunal, Judgment of 27 April 2005, P 1/2005, English translation
available online, trybunal.gov.pl/fileadmin/content/omowienia/P_1_05_full_GB.pdf (Last
accessed: 13 May 2016).
54
Pollicino, ‘European Arrest Warrant and Constitutional Principles of the Member
States’, 1353.
55
Art 34(2) of the Treaty on European Union, in force at the time of the adoption of the
Council Framework Decision 2002/584/JHA. Since then the Treaty on European Union has
been substantially amended by the Treaty of Nice and the Treaty of Lisbon.
56
In its last report the Commission still pointed out ‘shortcomings in the way some Member
States implement the Council Framework Decision’, COM(2011)175 final, 3.
57
On bars to surrender in the EAW scheme, see S. Alegre, ‘The European Arrest Warrant and
the Grounds for Non-Execution’, in G. Giudicelli-Delage, S. Manacorda, and J. Tricot (eds.),
L’intégration pénale indirecte: Interactions entre droit pénal et coopération judiciaire au sein
de l’Union européenne (Paris: Société de législation comparée, 2005), 127-153.

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 Domesticating the European Arrest Warrant 211

While some countries made some or all of the optional grounds for refusal
mandatory in their national legislation, others also added additional
bars to extradition relating to national security, to political offences, or
to human rights.58 Here the glass half-full perspective, which sees proper
transposition of a unified surrender scheme throughout Europe gives
way to the glass half-empty view of a multiplicity of national legislations,
some giving judges discretion as to whether or not to execute a warrant
that other jurisdictions consider either compulsory or inadmissible. The
‘disturbing’59 observation of a marked variability in the implementation
of bars to surrender applies to other features of the EAW. Referring to the
Council’s evaluation, the final Commission report highlights several cases
where the respective national implementing law fails to fully transpose the
Framework Decision60 with regard, for example, to time limits to issue or
execute a warrant, the condition of reciprocity in EAW procedures, the list
of offences not covered by the double criminality test, the seriousness of
the offence liable to surrender. . .

Plurality of National Frameworks

Making clear the variability of the implementing Acts of Member States
and their failure to comply with EU legislation does not provide a com-
plete picture of the degree of fragmentation of the new surrender scheme.
The multilingual nature of EU law also plays its part in reinforcing diver-
sity and creating possible discrepancies between national texts and domes-
tic practices. The EAW Framework Decision has been published in the
twenty-four official languages of the EU, each text being authentic.61 In
the twenty-eight Member States, legislators have transposed one of these
versions into their own legal system according to epistemic conventions
peculiar to their respective jurisdiction. Following on from this, the judges
of Member States, in implementing the EAW scheme on a case by case

58
For a general overview, see ‘Commission Staff Working Document’, SEC(2011) 430 final,
esp. 3–8.
59
COM(2006) 8 final, 5.
60
COM(2011) 175 final, 5, and accompanying ‘Staff Working Document’, SEC(2011) 430
final, esp. 3–8.
61
With regard to European secondary legislation, the European Court of Justice established
that ‘all the language versions must, in principle, be recognised as having the same weight’,
Case C-296/95, Commissioners of Customs and Excise, ex-parte EMU Tabac SARL, The Man
in Black Ltd, John Cunningham, 2 April 1998, para. 36. For a thorough examination of the
EU linguistic regime, see J.-C. Barbato, Fascicule 2390: ‘Régime linguistique de l’Union
européenne’, JurisClasseur Europe Traité, 2011.

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 212 Renaud Colson

basis, have interpreted this national legislation in the light of their own
national understanding of the law.62 Such an interpretive mise en abyme,
from translation to application via transposition in each jurisdiction, gives
rise to conceptual confusion and possible divergences between them. Even
if textual concordance of multilingual legislation can be created through
meta- jurilinguistic mechanisms,63 the multiplicity of legal cultures
brought together under the AFSJ adds to the difficulty in transplanting the
EAW uniformly in all Member States.
The focus on formal transposition of the Framework Decision plays
down the fact that the rules transposed find themselves ‘indigenized on
account of the host culture’s inherent integrative capacity’.64 This domes-
ticating process is influenced by the national interpreters’ epistemological
assumptions and their legal practices, which are culturally conditioned. In
this respect the EAW offers a good illustration of the way legal rules and
techniques – conceived in their textual dimension – change as they cross
boundaries. In Italy, for example, the entrenched political conception of
civil liberties protection (garantismo) justified a version of the EAW ‘much
more restrictive than traditional extradition was’65 but the judges consist-
ently adopted an interpretation of the requirements of national legislation,
which avoided frustrating cooperation between judicial authorities.66 In
contrast, most Member States’ legislators have designed the EAW as a sim-
plified procedure but national judges sometimes interpret it so strictly that
its application slips back to a quasi-extradition process.67 Beyond these
expressions of legal particularism, another striking feature of variation
between Member States lies in the use of the EAW: figures provided by
the Commission show that the number of European warrants issued and
executed varies greatly between Member States and is not at all correlated

62
On the variability of the national rules of statutory interpretation, see S. Vogenauer,
‘Statutory Interpretation’, in J. M. Smits (ed.), Elgar Encyclopedia of Comparative Law, 2nd
edn. (Cheltenham/Northampton: Edward Elgar, 2012), 826–838.
63
For evidence supporting this thesis, see K. K. Sin, ‘Out of the Fly-Bottle: Conceptual
Confusions in Multilingual Legislation’, International Journal for the Semiotics of Law –
Revue internationale de sémiotique juridique, 26–4 (2013), 927–951.
64
Legrand, ‘The Impossibility of “Legal Transplants” ’, 118.
65
M. Fichera, The Implementation of the European Arrest Warrant in the European Union:
Law, Policy and Practice (Antwerp/Cambridge: Intersentia, 2011), 146.
66
Marin, ‘Like after a Strange Fall: Constitutional Micro-fractures and the EAW. Some
Lessons from the “Emerging” European Constitutional Law Suggested by the Italian Case’,
in Guild and Marin (eds.), Still Not Resolved?, 239.
67
See the French example: P. Lemoine, ‘La coopération judiciaire entre Etats: L’exemple
de l’extradition et du mandat d’arrêt européen à travers la jurisprudence de la Chambre
criminelle’, Revue de science criminelle et de droit pénal comparé, 64–2 (2009), 297–316.

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 Domesticating the European Arrest Warrant 213

with their population,68 thus raising suspicion of diverging national atti-

tudes and judicial practices in respect of this instrument.

European Acculturation of National Legal Systems

Transnational Practices
Even if we admit the theoretical impossibility of uniform application of
EU law throughout the Union and in spite of significant divergences in
the application of the EAW Framework Decision, one should not jump
too hastily to the conclusion that no convergence is taking place. The
illusion of a technical rapprochement fuelled by a narrow focus on State
compliance is clearly revealed by awareness of the political and linguistic
processes maintaining and reinforcing diversity in spite of legal approxi-
mation. Yet if we widen the lens even more to take into consideration
specific institutional developments and broad cultural trends, which
have accompanied the implementation of the surrender scheme, it must
be noted that other factors are playing in favour of convergence. Specific
tools have been established to manage, contain, and reduce legal diver-
sity, such as the evaluation procedures set up by the Commission and the
Council (see supra). The European legislature has also created horizontal
networks bringing together judges and officials from all Member States to
facilitate judicial cooperation and improve coordination between compe-
tent authorities responsible for investigation and prosecution of organized
and cross-border crime (see especially the European Judicial Network and
Eurojust).69
What these various instruments all have in common is the promotion
of convergence between criminal justice systems through monitoring
techniques, which are not legally binding but are nevertheless normative.
Thus, the evaluation carried out by the Commission and the Council of
the implementation by Member States of the EAW Framework Decision
does not have a merely descriptive purpose. It is also prescriptive in that
it develops recommendations, which build up further expectations: the
extent to which national practice conforms to those expectations is then
itself subject to future checks either in the form of follow-up reports or
domestic judicial interpretation of EU law. In a similar way, the European
Judicial Network (EJN) and Eurojust do not have any regulatory power
68
‘Commission Staff Working Document’, SEC(2011) 430 final, 185–189.
69
On Eurojust, see in this volume Chapter 5 by A. Megie: ‘Eurojust in Action: An
Institutionalisation of European Legal Culture?’

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 214 Renaud Colson

but they promote increased cooperation through peer learning and ex-
perience sharing throughout Europe.70 To achieve this aim, these trans-
national networks created by the European institutions rely, on the one
hand, on regular face-to-face meetings between governments’ legal agents,
and, on the other hand, on the use of sophisticated IT facilities. Thus the
EJN website provides online apps to assist national judicial authorities to
identify their competent counterparts and the legal requirements in the
executing Member State,71 and to help to draft an EAW form.72 In addition,
the EJN online library not only provides practical information concerning
the EAW (the full text of the legal instrument, forms, notifications, case
law, national legislation, etc.) but also makes guidelines for the adoption of
good practices easily accessible (see especially the European handbook on
how to issue a European Arrest Warrant, translated in all EU languages).73
Irrespective of the degree of legal fragmentation of the EAW scheme and
whatever the success may be of these compliance tools in streamlining
surrender and nurturing mutual trust between Member States, they
foster common practices and transnational interactions between judges
throughout the Union.

Judicial Dialogue
In addition to transnational practices in surrender, which contribute to the
creation of some kind of EU legal culture (conceived as ‘EU law in action’
distinct from ‘EU law in books’), other legal processes reinforce conver-
gence between the law of Member States. The role of the ECJ is crucial in
this respect even though its jurisdiction was restricted with regard to ‘third
pillar’ measures until the end of 2014 (see supra). Despite the reluctance
of some domestic courts to initiate a ‘judicial dialogue’ with the ECJ,74 it
70
M. Claes and M. de Visser, ‘Are You Networked Yet? On Dialogues in European Judicial
Networks’, Utrecht Law Review, 8–2 (2012), 100–114. From the same authors, see also,
‘Courts United? On European Judicial Networks’, in A. Vauchez and B. de Witte (eds.),
Lawyering Europe: European Law as a Transnational Social Field (Oxford/Portland: Hart,
2013), 75–100. See also J. Thomas, ‘Networks of the Judiciary and the Development of the
Common Judicial Area’, New Journal of European Criminal Law, 2–1(2011), 5–8.
71
See the EAW atlas, www.ejn- crimjust.europa.eu/ ejn/ AtlasChooseCountry
.aspx?Type=1 (Last accessed: 13 May 2016).
72
See the EAW Compendium Wizard, www.ejn-crimjust.europa.eu/ejn/EJN_EAWWizard
.aspx (Last accessed: 13 May 2016).
73
www.ejn-crimjust.europa.eu/ejn/libdocumentproperties.aspx?Id=13 (Last accessed: 13
May 2016).
74
A. Weyembergh and V. Ricci, ‘Les interactions dans le secteur de la coopération judiciaire:
Le mandat d’arrêt européen’, in G. Giudicelli-Delage, S. Manacorda, and J. Tricot (eds.),

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 Domesticating the European Arrest Warrant 215

has had the opportunity to release preliminary rulings on the interpret-

ation (and validity) of the EAW Framework Decision on eleven occasions
between 2007 and 2013.75 These decisions – made at the requests of na-
tional judges – lay down how the EAW must be understood and applied in
Member State jurisdictions. Through declaratory rulings, which bind all
Member States with respect to the meaning of EU law, the Court promotes
uniform interpretation of the Framework Decision.76 The Court does not
just clarify the content of its rules and give an autonomous meaning to its
concepts (e.g. ‘residents’ entitled to request the non-execution of a EAW to
undergo a custodial sentence in the country of execution).77 The ECJ also
requires national courts to interpret EAW domestic legislation as far as
possible ‘with a view to ensuring that (the) Framework Decision is fully ef-
fective and to achieving an outcome consistent with the objective pursued
by it’.78
The ECJ preliminary rulings rein in the fragmentation of the surrender
scheme by limiting the margin of interpretation of national courts in the
application of domestic legislation. But the work on the meaning and the
significance of EU legislation carried out by the Court goes further in that
it leads to the Europeanization of legal concepts.79 With the number of
preliminary references relating to the EAW expected to grow, especially
with the introduction of an urgent procedure to decide preliminary rul-
ings within shorter time frames in disputes relating to persons detained
or deprived of their liberty,80 one can reasonably expect this process of
conceptual Europeanization of the EAW to develop in the future.81 The

Cour de justice et justice pénale en Europe (Paris: Société de législation comparée, 2010),
203–244.
75
H. Patricio, ‘ The European Arrest Warrant in the Case Law of the Court of Justice’,
UNIO – EU Law Journal, 0(2014), 62–82, www.unio.cedu.direito.uminho.pt/Uploads/
UNIO%20ENG/ UNIO%200%20- %20Helena%20Patricio_ eng.pdf (Last accessed: 13
May 2016).
76
On the effect of the preliminary rulings, see M. Broberg and N. Fenger, Preliminary References
to the European Court of Justice, 2nd edn (Oxford University Press, 2014), esp. 441–469.
77
Case C-66/08, Koslowski, 17 July 2008; see also Case C-123/08, Wolzenburg, 5 October 2009.
78
Case C-42/11, Lopes da Silva, 5 September 2012.
79
L. Azoulai, ‘The Europeanisation of Legal Concepts’, in U. Neergaard and R. Nielsen (eds.),
European Legal Method in a Multi-Level Legal Order (Copenhagen: DJØF Publishing, 2012),
165–182. See also, in this volume, Chapter 7 by V. Mitsilegas: ‘Managing Legal Diversity in
Europe’s Area of Criminal Justice: The Role of Autonomous Concepts’.
80
Art. 107–114 of the Rules of Procedure of the Court of Justice (consolidated version of 25
September 2012) establishing an ‘urgent preliminary ruling procedure’ in the areas covered
by Title V of Part Three of the Treaty on the Functioning of the European Union.
81
See nonetheless Advocate General E. Sharpston, who notes that ‘in a difficult case, speed
may come at the expense of quality’, ‘Transparency and Clear Language in the European

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 216 Renaud Colson

creation of these pan-European judicial standards by the ECJ is crucial

to the development of a distinct EU legal culture in its own right.82 But
in the Union context, where interpreters are dispersed and legal meaning
vulnerable to many alterations, the stability and the integrity of the surren-
der scheme throughout Member States legal systems requires more. The
national interlocutors of the Court, Member States officials and national
judiciaries, must be committed to the same claims, beliefs, and actions. In
the case of the EAW, the sharing of normative commitment does not limit
itself to multilevel cooperation in legal reasoning. It includes the sharing
of political values and ideological beliefs underpinning the enterprise of
building an AFSJ.

Shared Narrative
The establishment and the implementation of the EAW is a good
example of the ways a legal instrument can serve the promotion of an
ideological purpose throughout the Union’s Member States. The new
surrender scheme is a flagship of EU criminal policy. It embodies the
shifting rationales of the Union in the field of crime control and it fleshes
out an integrationist project traceable in the treaties, which give the
Union new competences in the AFSJ. This is not the place to disentan-
gle the ideological bundle founding this project.83 Suffice it to say that it
relies on a set of explicit values and implied beliefs expressed in various
policy documents, which convey an unfolding narrative establishing the
European engagement in criminal matters. This new development was
first presented according to a functional logic of spillover, in terms of
a necessary reaction to the security deficit arising from the abolition of
internal borders within an integrated Union.84 It then gained momen-
tum with the advent of a ‘citizenship of the Union’, which empowered
the EU as a guarantor of the security and the freedom of the nationals of

Union: Ambiguous Legislative Texts, Laconic Pronouncements and the Credibility of the
Judicial System’, Cambridge Yearbook of European Legal Studies, 12 (2009–2010), 418.
82
C. Franklin, ‘The Melting Pot or the Salad Bowl Revisited (Again): The Meeting of Legal
Cultures at the European Court of Justice’, in J. Øyrehagen Sunde and K. Einar Skodvin
(eds.), Rendezvous of European Legal Cultures (Bergen: Fagbokforlaget, 2010), 61–75.
83
For an attempt, see F. Ferraro, Libertà e Sicurezza nell’Unione europea (Pisa University
Press, 2012).
84
On the spillover theory, see M. Fletcher, R. Lööf, and B. Gilmore, EU Criminal Law and
Justice (Cheltenham/Northampton: Edward Elgar, 2008), 22–31.

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 Domesticating the European Arrest Warrant 217

the Member States.85 This critical incremental step in the Union’s ration-
ale allowed wider intervention in the field of criminal justice based on
mutual trust and the diffusion of market-based mechanisms of integra-
tion (e.g. mutual recognition and free circulation of judicial decisions).
Whatever the reality of the security deficit and the degree of mutual
trust between Member States, one cannot but observe that these ideas feed
a certain vision of the EU and provide the building blocks of a political
myth about the Union’s past and future.86 This narrative is given material
expression in legal techniques, which in turn confirm the contemporary
relevance of the European project. Devices such as the EAW are not only
justified by the new powers of the EU but they also contribute to the devel-
opment of its constitutional identity as an actor which promotes the public
goods of security and justice in all Member States.87 Whatever the plural-
ity of the national frameworks implementing the EAW, all Member States
have incorporated in their legal system an instrument the raison d’être of
which is shaped by a story framed by European institutions. The narra-
tive may undergo various interpretations.88 It may be too weak to win the
assent of all stakeholders, be they politicians, professionals, or academics.
It is nonetheless taken up by them, if only for them to criticize it, and it
is thus circulated even among those who do not embrace it. As such the
establishment of the new surrender scheme contributes to the entrench-
ment of a political myth and its transplant into the legal cultures of all
Member States.

Conclusion
The establishment of the EAW scheme throughout the EU has been
hailed as a remarkable accomplishment by the European institutions. The
best evidence of this is provided by key indicators, which demonstrate
that suspects and convicts are now transferred between Member States

85
S. Coutts, ‘Citizenship of the European Union’, in D.A. Arcarazo and C.C. Murphy (eds.),
EU Security and Justice Law (Oxford/Portland: Hart, 2014), 92–109.
86
On the unavoidable mythical dimension of the European integration project, see V. Della
Sala, ‘Myth and the Postnational Polity’, in G. Bouchard (ed.), National Myths: Constructed
Pasts, Contested Presents (Oxon: Routledge, 2013), 157–172.
87
On this theme, see A. Howard Gibbs, Constitutional Life and Europe’s Area of Freedom,
Security and Justice, (Farnham: Ashgate, 2011).
88
See, for example, the European Parliament Resolution of 27 February 2014 with recom-
mendations to the Commission on the review of the European Arrest Warrant (2013/
2109(INL)), endorsing the narrative while pointing out at the failure of European legisla-
tion to explicitly include fundamental rights safeguards or a proportionality check.

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 218 Renaud Colson

much more effectively than before. Yet even if we endorse the evaluative
framework of EU bodies, one should not take success for granted on
the basis of mere quantitative figures. The meaning of success is never
straightforward in the case of legal adaptation.89 And if we take seriously
the ECJ statement according to which the purpose of the Framework
Decision is to approximate the rules relating to surrender between na-
tional authorities,90 we may question the achievement of this objective
on the basis that the efficiency of the new scheme does not preclude wide
variation in its national implementation. In other words, surrender be-
tween Member States may well be facilitated but it is far from certain that
their domestic rules are more similar now than what they used to be. It
is however undeniable that the introduction of the EAW follows the flow
of developing transnational practices, feeds the continuous dialogue be-
tween European and national courts, and contributes to the circulation of
shared beliefs as to the means and ends of the construction of a European
Area of Freedom, Security and Justice.
In the light of these seemingly contradictory trends, it is tempting
to dismiss the debate over the ‘convergence thesis’. Long lasting differ-
ences between Member States’ jurisdictions remain as the Framework
Decision is implemented by a variety of domestic Acts and national
practices which reaffirm and renew some national variations in the pro-
cess of surrender. Yet a remarkable rapprochement can be observed as
the transfer of suspects and convicts is streamlined and eased between
all European jurisdictions. While we observe homogenization through
the circulation of common practices and shared narrative, new national
differences emerge and old ones are upheld. In this respect the discus-
sion over the legal convergence taking place in Europe appears flawed by
what Gaston Bachelard has described as the ‘bipolarity of errors’, which
often characterizes scientific thought. According to this epistemological
law, the scientific mind tends to escape from one error by falling into its
opposite.91 Legal thinking is no exception to this movement92 of which
the controversy over the ‘convergence thesis’ provides another example.

89
On the meaning of success in the case of legal adaptation, see Nelken, ‘Towards a Sociology
of Legal Adaptation’, esp. 35–50.
90
Case C-303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad, 3 May 2007,
paras. 29–30.
91
G. Bachelard, La formation de l’esprit scientifique: Contribution à une psychanalyse de la con-
naissance objective, 5th edn (Paris: Vrin, 1965), 20.
92
F. Ost and M. Van de Kerchove, in ‘Constructing the Complexity of the Law: Towards a
Dialectic Theory’, in L. J. Wintgens (ed.), The Law in Philosophical Perspectives (Dordrecht:

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 Domesticating the European Arrest Warrant 219

If European legal systems are getting closer while diverging at the same
time, the ‘convergence thesis’ is neither true nor false and it is time for a
new analytical framework able to solve this paradox.
In order to better describe the reality of legal integration carried out
by judicial cooperation tools such as the EAW, a positive escape route
may well be to play the EU legal culture card. In an institutional frame-
work such as the EU, culture may appear elusive compared to national
settings, especially if we use it as a ‘term of art’ developed by sociolo-
gists of law.93 Geography and history, so important in the Westphalian
imagination to shape the contours of national legal cultures, are far less
meaningful in the case of the EU. As to the traditional dimensions of the
way the term legal culture has been used (practices and ideologies of legal
institution, public attitudes and beliefs toward the law, the process of legal
mobilisation. . .)94 they are more developed in domestic law than in rela-
tion to EU law due to its limited scope and its relative novelty. Yet looking
at the introduction of the EAW in the landscape of judicial cooperation
between Member States, one cannot help but observe a nascent EU legal
culture characterized by its sector specific-nature,95 its market-based
legitimacy,96 and the dynamism of its entrepreneurs.97 This transnational
legal culture in the making neither replaces nor unifies national legal cul-
tures but moulds them through a diffusion process which impacts differ-
ently on the various Member States. Very little scholarly attention98 has
been devoted to this EU legal culture ‘simultaneously distinct from and

Kluwer Academic Publishers, 1999), esp. 148–149. From the same authors, ‘De la “bipo-
larité des erreurs” ou de quelques paradigmes de la science du droit’, Archives de philosophie
du droit, 33 (1988), 177–206.
93
D. Nelken, `Legal Culture’, in J. M. Smits (ed.), Elgar Encyclopedia of Comparative Law, 2nd
edn. (Cheltenham/Northampton: Edward Elgar, 2012), 480-490.
94
On these various dimensions, see S. E. Merry, ‘What is Legal Culture? An Anthropological
Perspective’, in D. Nelken (ed.), Using Legal Culture (London: Wildy, Simmonds & Hill
Publishing, 2012), 52–85.
95
Michaels, ‘Legal Culture’, 1062.
96
A. Afilalo, D. Patterson, and K. Purnhagen, ‘Statecraft, the Market State and the Development
of European Legal Culture’, European University Institute Working Papers, 2012/10.
97
On the various transnational legal entrepreneurs promoting European polity-building, see
Vauchez and de Witte (eds.), Lawyering Europe. European Law as a Transnational Social Field.
98
An exception has to be made regarding the constitutional dimension of EU legal culture,
scrutinized by the supporters of constitutional pluralism, which has attracted slightly more
attention. Even then, the focus is on ‘elite legal culture’ and not on ‘general legal culture’ as
rightly notes F. Snyder, ‘European Constitutionalism in the 21st Century’, in T. Tridimas
and P. Nebbia (eds.), European Union Law for the Twenty-First Century, 2 vols. (Oxford/
Portland: Hart, 2004), vol. 1, 11.

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 220 Renaud Colson

mutually constitutive of the legal cultures of its Member States’.99 Yet in

an era of globalization, which forces comparativists to redefine the sub-
ject of their discipline away from a traditional focus on static compari-
son of rules emanating from national legal systems to a dynamic analysis
of emerging spaces of transnational normativity,100 EU legal culture may
well be a key to better understand the contemporary transformations of
the legal in the field of criminal justice.

99
D. Augenstein and J. Hendry, ‘The ‘Fertile Dilemma of Law’: Legal Integration and Legal
Cultures in the European Union’, Tilburg Institute of Comparative and Transnational Law
Working Paper, 2009/06, 11.
100
See inter alia D. A. Westbrook, ‘Theorizing the Diffusion of Law: Conceptual Difficulties,
Unstable Imaginations, and the Effort to Think Gracefully Nonetheless’, Harvard
International Law Journal, 47–2 (2006), 489–505, and the reply of W. Twining, ‘Diffusion
and Globalization Discourse’, Harvard International Law Journal, 47–2 (2006), 507–515.

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