Judicial Harmonisation Through Autonomous Concepts of European Union Law. The Example of the European Arrest Warrant Framework Decision

Abstract

The Court of Justice of the European Union (CJEU) has been a key institutional actor for the promotion of legal integration within the EU. On many occasions, such a function has been performed to fill or supplement the harmonisation gap – intentionally or not – left by the Union legislature, especially in the context of secondary law. In this sense, an important tool resorted to by the CJEU to achieve closer integration has been the attribution of the status of autonomous concept to provisions of EU law, so as to reduce the discretion of state authorities. Against this background, this article raises the following question: has the Court used autonomous concepts in order to pursue judicial harmonisation in areas where the main intention of the EU legislature was to preserve Member States’ autonomy? The answer put forward in this article is in the affirmative. The hypothesis is tested by analysing the use of the autonomous concepts in the context of the European Arrest Warrant Framework Decision (EAW FD), an instrument adopted in an area extremely sensitive for national sovereignty. By drawing on Tridimas’ distinction between outcome, guidance and deference cases, this article shows that the CJEU’s use of autonomous concepts in interpreting the EAW FD has had great potential in terms of having a harmonising effect.

Keywords: European Arrest Warrant; CJEU; Autonomous concept