European Papers (Sep 2023)
The Ultimate (but not the Only) Remedy for Securing Fundamental Rights in the EAW System? Some Reflections on Puig Gordi and E. D. L.
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 547-559 | European Forum Insight of 22 September 2023 | (Table of Contents) I. Does the Aranyosi and Caldararu test represent the sole and unchanging solution to fundamental rights issues in the EAW system? - II. The Aranyosi and Caldararu test remains unchanged: the ECJ ruling in Puig Gordi - II.1. Facts of the case and preliminary questions - II.2. The Court’s reasoning - III. The Aranyosi and Caldararu test is not the only answer to fundamental rights issues in the EAW system: The ECJ ruling in E. D. L. - III.1. Facts of the case and preliminary question - III.2. The Court’s reasoning - IV. Commentary: towards a renewed understanding of the Aranyosi and Caldararu test - IV.1. Two cases, two approaches: why? - IV.2. The ultimate (but not the only) remedy for securing fundamental rights - V. Conclusions | (Abstract) This Insight offers a combined reading of the ECJ rulings in Puig Gordi and E. D. L., with a view to investi-gating their impact on the theorisation and place of the Aranyosi and Căldăraru test in the EAW frame-work. Notwithstanding multiple calls for overcoming that twofold assessment, the Court has strenu-ously upheld the test’s structure in subsequent case-law. Against this background, the Puig Gordi and E. D. L. rulings give further insight into the ECJ's approach towards securing fundamental rights in the EAW system. On the one hand, the Court in Puig Gordi has halted any aspiration to modify the Aranyosi and Căldăraru test; on the other hand, the E. D. L. ruling clarified that the test does not constitute the only avenue to protect the defendant’s fundamental rights. In this light, the Insight shows that the Aranyosi and Căldăraru test shall be construed as the ultimate remedy to that aim. Executing authorities shall undergo the two-step assessment only if the EAW Framework Decision does not afford any alternative legal avenue to avoid serious risks of violation of the defendant’s fundamental rights. This approach is likely to project the fundamental rights discourse in the EAW context to a new dimension. The ECJ’s ex-plicit refusal to modify the Aranyosi and Căldăraru test may dissuade further calls in that direction. Con-versely, the ECJ reasoning discloses that the EAW Framework Decision may afford valuable and under-estimated alternatives to the two-step test, whose potential still needs to be explored.
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