Two-step examination of potential violations of fundamental rights in the issuing Member State: towards “systemic or generalised” differences with Strasbourg?

The enclosed paper is a reaction to the recent Opinion by Advocate General de la Tour in the case of Puig Gordi and Others (C-158/21). This Opinion would indeed appear to touch on fundamental methodological issues with serious implications for the consistency of the protection of fundamental rights in the field of European arrest warrants.

The problem arises in connection with the so-called two-step examination prescribed by the CJEU in the context of the execution of European arrest warrants, when risks of violations of fundamental rights in the issuing Member State are being claimed to exist. This two-step examination basically consists of a general test followed by an individual test. Yet the Advocate General’s Opinion now suggests that in the absence of evidence under the general test of any “systemic or generalised” deficiencies in the protection of the right to a fair trial in the issuing Member State, an individual test should no longer be carried out. This, it is argued, would come down to autonomising the general test and letting it replace the individual test altogether, a development which would indeed raise some Convention-based concerns. These concerns and their implications are explained in greater detail in the enclosed paper.