The internal-external nexus : cross-border criminal justice.
Date: 2016-10-26
Institutions: European Union Institute for Security Studies
Subjects: European security, criminal law, cross-border cooperation, foreign policy, international relations, international security, judicial cooperation, judicial cooperation in criminal matters in the EU, regional security

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The internal-external nexus: 
Cross-border criminal justice
by Florian Trauner and Auke Willems

Criminal  justice  is  a  sensitive  area  for  transna-
tional and international cooperation. States have 
different  legal  traditions  and  court  systems,  and 
perceptions of what is ‘just’ differ widely. In light 
of  all  this,  the  extent  to  which  criminal  justice 
cooperation has deepened – both within Europe 
and  in  the  EU’s  external  relations  –  is  quite  re-
markable. The EU and the US, for instance, have 
found  ways  to  deal  with  potentially  conflictual 
issues (including capital punishment) and deep-
ened bilateral cooperation well beyond the initial 
focus on extradition and mutual legal assistance – 
into areas such as cybercrime, countering violent 
extremism and foreign fighters.

Inside: using the European Arrest Warrant

The EU has embarked on ever-closer cooperation 
in  criminal  justice  matters  as  a  response  to  the 
increase  in  cross-border  crime  facilitated  by  the 
borderless  Schengen  regime  and  single  market-
related  economic  freedoms.  With  the  introduc-
tion of the principle of mutual recognition as the 
core governance principle in the late 1990s, crim-
inal justice cooperation has since become one of 
the fastest growing fields of EU integration (it was 
notably  the  UK  that  initiated  the  transfer  of  the 
principle  of  mutual  recognition  from  the  inter-
nal  market  context  to  the  area  of  criminal  law). 

Put simply, mutual recognition requires member 
states to accept judicial decisions taken in other 
jurisdictions across the EU. It is widely assumed 
that the principle would not work without mutu-
al trust between the judicial authorities of mem-
ber states. 

Mutual recognition represents a compromise be-
tween  those  member  states  willing  to  engage  in 
deeper cooperation in this area and those reluc-
tant to do so. Integration-reluctant states consider 
mutual recognition as a way to enhance the effi-
ciency of criminal law cooperation while refrain-
ing from harmonising the different legal systems. 
By contrast, integration-willing member states ac-
cept it as an alternative to slow and cumbersome 
legislative  procedures.  Ultimately,  mutual  recog-
nition can lead – and has led – to some degree of 
harmonisation  in  both  procedural  and  substan-
tive criminal legislation. 

The principle of mutual recognition is now per-
vasive in EU criminal law. The Union has adopt-
ed instruments covering all stages of the criminal 
procedure, including pre- and post-trial (for ex-
ample,  the  recognition  of  supervision  measures, 
the  enforcement  of  financial  penalties,  and  the 
gathering  and  exchange  of  evidence).  Its  flag-
ship  instrument  is  the  European  Arrest  Warrant 

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European Union Institute for Security Studies (EUISS)October 2016(EAW),  which  applies  mutual  recognition  to 
extradition.  Additionally,  the  EU  has  developed 
infrastructure  in  support  of  the  Union’s  crimi-
nal justice activities: Eurojust and the European 
Police  Office  (Europol)  are  coordinating  bodies 
designed  to  assist  the  member  states  in  fighting 
cross-border  crime,  while  the  European  Anti-
Fraud  Office  (OLAF) 
has independent inves-
tigative  competence  in 
relation  to  the  fraudu-
lent use of EU funds.

However, the instrument also sparked a number 
of  controversies  relating  to  the  different  funda-
mental rights standards and practices of member 
states  vis-à-vis  criminal  suspects  and  the  auto-
maticity  with  which  an  extradition  request  was 
processed. One example is a so-called trial in ab-
sentia,  where  the  defendant  is  not  present.  This 
is  standard  practice  in 
some  member  states, 
but not in others. When 
a person is convicted in 
absentia,  some  states 
refuse  to  act  on  an 
extradition  request  – 
something that was not 
foreseen by the institu-
tional architects of this 
instrument and that ul-
timately required a leg-
islative amendment. 

‘With speedier procedures and more 
(successful) extradition requests, the 
European Arrest Warrant (EAW) was 
quickly hailed as a success. It was also 
enforced against terrorist suspects in 
2004 after the Madrid bombings, in 
2005 after the London attacks, as well 
as after the November 2015 atrocities 
in Paris.’ 

The  EAW  has  over-
intra-Eu-
hauled 
the 
ropean 
extradition 
regime.  Long  in  the 
pipeline,  its  eventual 
adoption  was  acceler-
ated  by  the  9/11  at-
tacks in the US, which 
led  to  an  agreement 
within  six  months.  In 
force 
January 
2004,  the  EAW  abolished  the  right  for  states  to 
exempt their own citizens from extradition – an 
important novelty as the handing over of nation-
als to other states used to be refused by most gov-
ernments. 

since 

Moreover,  due 
to  a 
lack  of  a  proportional-
ity  benchmark,  some 
national prosecutors have issued EAWs for petty 
crimes  and  caused  frustration  in  other  member 
states.  And  issues  such  as  the  abolition  of  the 
dual criminality rule and the end of the nation-
ality  exception  have  led  to  a  number  of  judicial 
challenges.  Although  the  Court  of  Justice  of  the 
European Union ultimately upheld the legality of 
the EAW when it was asked to adjudicate on the 
matter, there have been a string of cases in which 
the Court has slowly granted member states more 
leeway  in  deciding  on  extradition  requests,  par-
ticularly when fundamental rights are at stake. 

Moreover, it partially abolished the dual criminal-
ity rule, according to which an act shall not be ex-
traditable unless it constitutes a crime in both ju-
risdictions – i.e.  the requesting and the requested 
state. The EAW set strict and short time limits for 
extradition  requests,  which  ‘shall  be  dealt  with 
and executed as a matter of urgency’. Extradition 
proceedings under the EU regime are of a sum-
mary  nature,  implying  that  they  are  based  on  a 
standardised  form  and  not  on  the  evidence  un-
derlying an individual warrant. The executive has 
been removed from extradition proceedings, and 
judicial instead of political actors have been put 
in charge.  

With speedier procedures and more (successful) 
extradition requests, the EAW was quickly hailed 
as a success. It was also enforced against terror-
ist suspects in 2004 after the Madrid bombings, 
in 2005 after the London attacks, as well as after 
the  November  2015  atrocities  in  Paris.  A  recent 
example is the extradition of Salah Abdeslam, the 
prime suspect of the Paris attacks, from Belgium 
to  France.  His  lawyer’s  challenge  of  the  extradi-
tion  order  was  unsuccessful  as,  under  the  EAW, 
anyone who commits a serious crime in the EU 
can be sent back to the country where the crime 
took place in order to face trial there. 

The EU legislator has also sought to address these 
concerns, in particular since the entry into force 
of  the  Lisbon  Treaty  (2009).  Not  only  does  the 
Treaty define the ordinary legislative procedure as 
standard in EU criminal law, but it also provided 
new competences in the field of criminal proce-
dure. Accordingly, the EU has started to harmo-
nise  defence  rights.  This  has  led  to  directives, 
inter alia, on the right to interpretation and trans-
lation  in  criminal  proceedings,  the  right  of  ac-
cess to a lawyer and of communication with third 
persons  upon  arrest.  Harmonisation  of  criminal 
procedural  safeguards  is  believed  to  foster  trust 
between cooperating judicial authorities and im-
prove  the  functioning  of  the  EAW  –  and  of  the 
mutual recognition principle more generally. 

Outside: cooperating with Washington

Criminal law has also become an item in the EU’s 
external  relations,  and  cooperation  with  the  US 

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European Union Institute for Security Studies (EUISS)October 2016to refuse extradition in cases of special courts or 
where  they  have  concerns  about  the  right  to  a 
fair trial. 

The  US,  by  contrast,  was  keen  to  include  the 
double criminality rule in the extradition agree-
ment,  which  provides  a  safeguard  for  the  US 
whereby it does not have to extradite individuals 
for conduct that is not deemed particularly seri-
ous by its own standards. An area in which this is 
of relevance is hate speech, in particular online. 
Free-speech  laws  in  the  EU  are  generally  more 
restrictive  compared  to  the  US  (Germany’s  ban 
on  any  kind  of  Nazi  propaganda,  for  example). 
Therefore,  European  extradition  requests  relat-
ing  to  ‘cyberhate’  (hatred  or  incitement  to  vio-
lence expressed online) tend to be refused with 
a  reference  to  the  First  Amendment  of  the  US 
Constitution on free speech. 

The EU-US framework agreements

stands out in terms of importance. Criminal law 
entered the transatlantic agenda as part of the in-
tensified cooperation on justice and home affairs 
after the terrorist attacks of 9/11. At its centre are 
two framework agreements, one on mutual legal 
assistance and another on extradition – the first 
international  criminal  justice  agreements  ever 
concluded by the EU. They were initially framed 
as being part of the transatlantic security agenda 
to fight terrorism, but the criminal justice man-
date eventually moved beyond its initial focus. 

During the negotiation of these agreements, some 
of  the  fundamental  differences  between  the  EU 
and  the  US  came  to  the  fore,  namely  the  death 
penalty. The EU had to deal with the implications 
of  Soering  v.  United  Kingdom,  a  1989  landmark 
ruling of the European Court of Human Rights. 
It  maintained  that  the  extradition  of  a  German 
suspect who was at risk of facing the death pen-
alty in the US would imply a flagrant violation of 
Article 3 of the European Convention on Human 
Rights,  ensuring  the  right  against  inhuman  and 
degrading treatment. In order to facilitate nego-
tiations,  the  Commission  referred  the  responsi-
bility for death penalty cases to the member state 
level  and  ‘informed’  the  US  that  some  member 
states  may  wish  to  have  specific  guarantees  in 
this regard. 

that 

Both framework agreements are not intended to 
substitute existing bilateral arrangements. Rather, 
they  are  designed  to  add  value  to  the  member 
states’  existing  treaty  relationships  with  the  US 
by setting the minimum standards required for a 
functioning extradition regime. Both parties – the 
US and the member state concerned – are free to 
set  more  detailed  rules  in  bilateral  negotiations 
(including  greater  hu-
man  rights  protection 
or  higher  thresholds). 
In  fact,  the  EU-US  ex-
tradition agreement re-
quires  an  accompany-
ing document between 
each member state and 
the US, indicating how 
the agreement has been 
applied in practice. 

‘In terms of substance, the EU-US 
agreements have streamlined and 
modernised the existing cooperation 
regime: the extradition agreement has 
defined – and widened – the scope of 
extraditable offences; it specifies how 
to exchange information, documents 
and transit rules; and the mutual legal 
assistance agreement provides the legal 
backing for a joint EU-US task force to 
combat terrorism and serious crimes...’

The  extradition  agree-
ment  allows  for  the 
condition 
the 
death  penalty,  if  im-
posed, will not be car-
ried  out  (article  13). 
states 
The  member 
this 
considered 
that 
the 
safeguard  meets 
require-
necessary 
ments  outlined  in  the 
Soering  ruling.  Human 
rights organisations re-
mained  critical,  how-
ever,  and  pointed  to 
the fact that there is no 
obligation  for  member 
states to set conditions 
or  refuse  extradition 
in death penalty cases. 
Although an extradited 
person may not be executed, he or she can still 
be sentenced to death. Another sensitive issue in 
the negotiations was the question of how to deal 
with terrorist suspects potentially brought for de-
tention in Guantanamo Bay. The EU insisted that 
a  human  rights  and  fair  trial  clause  be  inserted 
in  the  preamble,  which  enables  member  states 

Hence,  the  US  con-
cluded  22  bilateral 
deals  with  individual 
member  states,  which 
amended 
sup-
plemented  their  exist-
ing  extradition 
trea-
ties.  Bulgaria,  Estonia, 
and 
Latvia,  Malta 
Romania  –  the  remaining  five  EU  members  – 
signed new stand-alone extradition treaties in ac-
cordance with the EU-US extradition agreement, 
which  replaced  their  older  bilateral  ones.  With 
the signature of both framework agreements on 
25  June  2003,  the  process  had  lasted  several 
years. The agreement on mutual legal assistance 

and 

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European Union Institute for Security Studies (EUISS)October 2016entered into force in October 2009, and the one 
on extradition in February 2010. The 28th mem-
ber state, Croatia, joined the agreements after its 
accession to the Union in 2013.

In  terms  of  substance,  the  EU-US  agreements 
have  streamlined  and  modernised  the  existing 
cooperation  regime:  the  extradition  agreement 
has defined – and widened – the scope of extra-
ditable offences; it specifies how to exchange in-
formation, documents and transit rules; and the 
mutual  legal  assistance  agreement  provides  the 
legal backing for a joint EU-US task force to com-
bat  terrorism  and  serious  crimes  –  for  instance 
through  easier  access  to  bank  account  informa-
tion  of  criminal  suspects.  It  also  provides  rules 
on how to protect personal data or request con-
fidentiality  provisions.  Moreover,  witnesses  no 
longer need to cross the Atlantic but may testify 
via video conferencing. 

The  way  in  which  the  EU-US  agreements  have 
impacted  on  bilateral  relations  differs  from  one 
EU member state to another. In the cases of some 
EU member states, which already had well-func-
tioning extradition treaties with the US for many 
years, the EU framework agreement has not sub-
stantially  altered  the  bilateral  patterns  of  coop-
eration and it has primarily streamlined and ex-
pedited the procedure. But in the cases of other 
member states, particularly those that negotiated 
new treaties, the agreement has had greater im-
pact.  Furthermore,  the  EU-US  agreements  have 
introduced  modern  techniques  of  communica-
tion and evidence gathering to transatlantic rela-
tions – an asset for all member states regardless 
of their history of bilateral criminal law relations 
with the US. 

The  framework  agreements  reflect  awareness  of 
the substantial differences between the European 
and  US  legal  systems.  Even  if  transatlantic  co-
operation is deepened, there is still a qualitative 
difference  between  what  each  of  the  two  part-
ners is willing to do internally and what they are 
prepared to do jointly. There is a different level 
of  trust  between  EU  member  states  and  between 
US states when compared with transatlantic rela-
tions. US law enforcement authorities cooperate 
more closely internally (both at state-state and at 
federal-state level) than they do externally (with 
EU member states). For example, in US interstate 
extradition, states are neither bound by a double 
criminality  requirement  nor  by  a  specialty  rule, 
as they are in transatlantic extradition. The EU-
US  agreements  are  also  less  ambitious  than  co-
operation within the EU on the basis of mutual 
recognition, as is the case with the EAW. 

Beyond Washington

The  EU-US  agreements  on  extradition  and  mu-
tual legal assistance have set a precedent for ex-
ternal  cooperation  in  criminal  justice  matters. 
The EU has now signed similar agreements with 
Japan,  Iceland  and  Norway  (the  last  two  have 
yet  to  be  ratified).  The  EU-Japan  agreement  on 
mutual legal assistance is of particular interest as 
it was not only negotiated in record time, but it 
is  also  the  EU’s  first  ‘self-standing’  mutual  legal 
assistance  agreement  between  the  Union  and  a 
third country. This means that no additional bi-
lateral agreements between Japan and individual 
EU  member  states  are  required.  Since  no  such 
agreements were in place between Japan and in-
dividual  EU  member  states,  the  added  value  of 
this agreement to the existing EU-Japan relations 
is therefore quite significant. Moreover, the agree-
ment introduces some modern cooperation tools 
including  the  possibility  to  provide  testimony 
through video conferencing, and the exchange of 
bank information. 

It  is  likely  that  the  list  of  countries  with  which 
the EU will conclude agreements on extradition 
and mutual legal assistance will further expand. 
In  addition,  the  success  of  such  agreements  has 
also  inspired  a  further  deepening  of  existing  re-
lations  in  criminal  justice  and  security  matters. 
With the US, for instance, two new Europol-US 
agreements were signed in 2015 to improve co-
operation  on  irregular  migration  and  foreign 
fighters. Preventing jihadists from returning from 
Syria  and  Iraq  has  become  an  area  of  particular 
interest: the EU and US law enforcement authori-
ties seek to identify those recruiting and facilitat-
ing the travel of foreign fighters and to cut their 
sources  of  income.  Cybercrime,  violent  extrem-
ism, victims’ rights and hate crime are now also 
other areas in which the EU and US are consider-
ing to extend cooperation. 

Florian Trauner is a Research Professor at 
the Vrije Universiteit Brussel and a Senior 
 Associate Analyst at the EUISS. 

Auke Willems is a doctoral candidate at the 
Vrije Universiteit Brussel and a member of the 
Fundamental Rights and Constitutionalism 
Research Group.  

© EU Institute for Security Studies, 2016. | QN-AK-16-029-2A-N | ISBN 978-92-9198-462-6 | ISSN 2315-1110 | doi:10.2815/584066

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European Union Institute for Security Studies (EUISS)October 2016