Cyprus Supreme Court 1515 B. National Courts Cyprus Supreme

B. National courts

Cyprus Supreme Court (Ανώτατο Δικαστήριο Κύπρου), Judgment of 7 No- vember 2005 (Civil Appeal no. 294/2005) on the Cypriot European Arrest Warrant Law.

1. Introduction

On 7 November 2005 the Cyprus Supreme Court declared the inapplicabil- ity of the European Arrest Warrant (hereinafter EAW) in Cyprus. The Court found the domestic legislative measure internalizing the EU Framework De- cision on the European Arrest Warrant1 (hereinafter EAW Framework De- cision) to be inconsistent with the Constitution and avoided taking a clear stance on the supraconstitutional nature of the third pillar provisions. The judgment not only provides a valuable addition to the ongoing judicial and academic discourse pertaining to the complexities of the symbiotic relation- ship between the EU law and the national legal orders, but also sets out the contextual backdrop against which recent developments of principal significance for the Cypriot constitutional setting should be read.

2. Legal and factual background to the case

Following its accession to the European Union on 1 May 2004, Cyprus came under the obligation to bring its legislation into line with the EAW Frame- work Decision, whose stated objective was the simplification and the resulting acceleration of the extradition process between the competent authorities of the Member States. That third pillar piece of legislation was transposed into the Cypriot legal order by Law 133(I)/2004, which faithfully reproduced the textual content of its European parent act.2 The first application made under Law 133(I)/2004 concerned the surrender to the British authorities of a national holding dual citizenship, both British

1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. 2002, L 190/1. 2. O περί Ευρωπαϊκού Εντάλματος Σύλληψης και των Διαδικασιών Παράδοσης Εκζητουμέ- νων Μεταξύ των Κρατών Μελών της Ευρωπαϊκής Ένωσης Νόμος του 2004, Official Gazette of the Republic of Cyprus, Issue no 3850, Appendix I, Part I, page 2750. 1516 Case law CML Rev. 2007 and Cypriot, on charges of fraud. The person facing extradition challenged the warrant on the ground that its legal basis was inconsistent with the Cy- prus Constitution. More precisely, Article 11.2.(f) of the Cyprus Constitution only envisages the possibility of deporting or extraditing non-Cypriots. A contrario, it was inferred that Cypriot nationals enjoyed absolute immunity against any such measures. The District Court of Limassol acknowledged the apparent incompatibility of Law 133(I)/2004, and by extension the EAW Framework Decision, with the Cyprus Constitution, gave hierarchical precedence to the latter and declined to approve the execution of the arrest warrant. The case was brought before the Cyprus Supreme Court upon appeal lodged by the Attorney General against the decision of the District Court. Given the constitutional significance of the issues involved and the broader institutional ramifications likely to result, the Supreme Court sat in full bench.

3. The judgment of the Cyprus Supreme Court

The Supreme Court, heaving heard the parties and considered their submis- sions, ruled that the pleas in law raised by the Attorney General could not be upheld and dismissed the appeal in its entirety. The court’s reasoning was structured in three stages which could be concisely presented as follows. First, the court sketched the jurisprudential background against which its own deliberations should be considered. There was a brief allusion to rulings of supreme courts of other Member States reviewing the constitutionality of the national legislative measure which incorporated into their respective legal setting the EAW Framework Decision.3 Reference was made to judgment 591/2005 of 8 March 2005 of the Hellenic Supreme Court of Civil and Penal Law (Άρειος Πάγος), where no incompatibility was seen to exist between the issued EAW and the Greek Constitution. Extracts were next cited from ruling P 1/05 of 27 April 2005 of the Polish Constitutional Tribunal (Trybunal Konstytucyjny) declaring the unconstitutionality of the domestic law internalizing the EAW Framework Decision.4 Judgment 2 BvR 2236/04 of 18 July 2005 of the German Constitutional Court (Bundesverfassungsgericht) was then referred to, in which the German EAW law was nullified by reason of

3. See in this respect Susie and Leaf, “Mutual Recognition in European Judicial Coopera- tion: A Step Too Far Too Soon? Case Study – the European Arrest Warrant”, 10 ELJ (2004), 200–217; Komárek, “European constitutionalism and the European arrest warrant: In search of the limits of ‘contrapunctual principles”, 44 CML Rev (2007), 9–40. 4. Commented by Leczykiewicz in 43 CML Rev. (2006), 1181–1191. See also Kowalik- Baρczyk, “Should we polish it up? The Polish Constitutional Tribunal and the idea of supremacy of EU law”, 6 German Law Journal (2005), 1355–1366. Cyprus Supreme Court 1517 its direct contradiction of specific provisions of the Basic Law.5 Finally, mention was made of decision 368–282 of the French Council of State (Conseil d’Etat) holding that the immunity of French nationals to extradition measures was not constitutionally contemplated and therefore the application of the EAW did not necessitate any amendments to the French Constitution in that respect.6 Subsequently, the Cyprus Supreme Court examined the first of the two alternative grounds of appeal. The Attorney General sought to save the constitutionality of the Cypriot EAW law by redefining the crucial constitutional provision against which the domestic implementing measure would be assessed. Pursuant to Article 11.2.(c) of the Cyprus Constitution, a person can be arrested or detained for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. The Attorney General argued that the execution of a EAW did not legally amount to extradition under Article 11.2.(f), but rather related to the surrender of an arrested person to the competent authorities as contemplated by Article 11.2.(c) of the Cyprus Constitu- tion. Interestingly enough, the personal scope of the latter provision, unlike that of the former, is not confined to non-Cypriots but also extends to Cypriot nationals. It followed that the application of a EAW against a Cypriot national did not upset domestic constitutional sensibilities. The Supreme Court did not subscribe to this reasoning. It stated that, irrespective of whether it could be brought under Article 11.2.(f), the EAW was not listed amongst the grounds justifying the arrest or detention of a person. Furthermore, arrest under Ar- ticle 11.2.(c) was carried out for certain purposes and through particular procedures that did not coincide with those of the EAW. It was finally added that Article 11.2.(f) precluded the extradition of Cypriot nationals. The second ground of appeal was reviewed next. The Attorney General argued that the EAW Framework Decision and by extension its national implementing measure enjoyed unconditional precedence over the Cypriot constitutional provisions by virtue of the distinctive ability of the European Union law as a whole to override any conflicting domestic law, whether constitutional or derivative. In response to this argument, the Supreme Court emphasized the framework decisions’ lack of direct effect and the resulting

5. Commented by Hinarejos Parga in 43 CML Rev. (2006), 583–595. See also Lavranos, “Judicial review of UN sanctions by the Court of First Instance”, 11 EFA Rev. (2006), 471–490, 486; Mölders, “European arrest warrant act is void – the decision of the German Federal Consti- tutional Court of 18 July 2005’, 7 German Law Journal (2006), 45–58. 6. Decision 368–282 of 26 Sept. 2002 available in French at www.senat.fr/rap/l02–126/l02– 12610.html. 1518 Case law CML Rev. 2007 need for proper implementing measures before any legal ramifications could be produced in the national context. Given that the Cypriot EAW law did not conform to the domestic constitutional requirements, the parent Framework Decision was not properly transposed into the Cypriot legal environment and could not therefore be relied upon in disputes arising before national courts. Consideration was next given to the ECJ’s Pupino ruling,7 which extended the duty of harmonious (or consistent) interpretation from the Community pillar, where it was originally conceived and developed, to the third pillar. The Su- preme Court acknowledged the importance of that judgment, but pointed out that the relevant obligation was conditional upon the national judge interpret- ing domestic law in conformity with the Framework Decision only to the extent possible. In the present case, Article 11.2.(f) of the Cyprus Constitution left no meaningful room for innovative readings of the domestic law through which the possibility to extradite Cypriot nationals could be interpretatively inferred.

4. Comment

The discussion will proceed in the following manner. First, the theoretical contours of the Pupino approach will be concisely delineated. This will be followed by a detailed examination and assessment of the Supreme Court’s legal reasoning. The focus will then turn to the constitutional ramifications of the judgment commented here. The analysis will conclude with a brief re- mark pertaining to the shared responsibility of the national judiciary and the ECJ in the promotion of a healthy legal culture for the Union.

4.1. The Pupino principle: The theory

The story of the Pupino ruling has been told so many times and its blurring impact on the institutional divide between the first and the third pillars of the European Union construct has been discussed so extensively as to obviate the need for detailed description and analysis.8 It suffices here to recall that

7. Case C-105/03, Criminal proceedings against Maria Pupino, [2005] ECR I-5285. 8. For informative discussions of the ruling see Chalmers, “The Court of Justice and the third pillar” (editorial comment), 30 EL Rev. (2005), 773–774; Fletcher, “Extending ‘Indirect Effect’ to the Third Pillar: The significance of Pupino”, 30 EL Rev. (2005), 862–877; Spencer, “Child witnesses and the European Union”, 64 CLJ (2005), 569–572; Skouris, “Effet Utile Versus Legal Certainty: The Case-law of the Court of Justice on the Direct Effect of Directives”, 17 EBLR (2006), 241–255; Lenaerts and Corthaut, “Of birds and hedges: The role of primacy in invoking norms of EU law”, 31 EL Rev. (2006), 287–315; Ross, “Effectiveness in the European legal Cyprus Supreme Court 1519 the ECJ transferred its jurisprudence on the “indirect effect” of directives to framework decisions in the field of police and judicial cooperation in criminal matters. The rationale for that jurisprudential development was based on the duty of loyal cooperation derived from the second and third paragraphs of Article 1 of the Treaty on European Union,9 the need to safeguard the useful effect of framework decisions,10 and their structural proximity with directives.11 The application of the indirect effect doctrine to framework decisions leads to the imposition on national courts of the obligation to read domestic provisions, whether constitutional or derivative, in the light of the wording and the purpose of the framework decision in order to achieve an outcome consistent with the objective it pursues. That obligation does not exclusively concern national law enacted in order to implement the framework decision in question, but applies to the whole body of domestic rules whose interpretation is crucial in resolving the matter in dispute.12 In that context, national courts should in principle strive to construe a provision of domestic law in such a way as to avoid conflict with another rule of domestic law or restrict the scope of the former provision by applying it only in so far as it is compatible with the latter rule.13 The question of the precise interpretative method employed remains one which will be answered by domestic law. The introduction of the duty of consistent interpretation undoubtedly con- stitutes a legal development of significant institutional importance; however it is effectively its extent that will ultimately determine its real impact on affected cases. The ECJ has limited the duty of consistent interpretation in two ways. First, national courts are obliged to construe domestic law in conformity with a framework decision only in so far as it is possible to do so. The interpretative obligation of the national judiciary ceases therefore to exist when its discharge would lead to contra legem reading, namely distortion of any reasonable meaning of the relevant national provisions. Secondly, the

order(s): Beyond supremacy to Constitutional proportionality”, 31 EL Rev. (2006), 476–498; Mitsilegas, “The constitutional implications of mutual recognition in criminal matters in the EU”, 43 CML Rev (2006), 1277–1311; Douglas Scott, “A tale of two courts: Luxembourg, Strasbourg and the growing European human rights acquis”, 43 CML Rev. (2006), 629–665; Bi- ondi and Harmer, “2005 in Luxembourg: Recent developments in the case law of the Community courts”, 13 EPL (2007), 33–46, 35. 9. Pupino, supra note 7, paras. 41–43. 10. Pupino, supra note 7, para 38. 11. Pupino, supra note 7, paras. 33–37. 12. Case C-106/89, Marleasing SA v. La Comercial Internacional de Alimentacion SA., [1990] ECR I-4135; Case C-131/97, Annalisa Carbonari and Others v. Università degli studi di Bologna et al., [1999] ECR I-1103. 13. Joined cases C-397–403/01, Bernhard Pfeiffer et al., [2004] ECR I-8835, para 116. 1520 Case law CML Rev. 2007 construction of domestic law in harmony with a framework decision must not contravene the general principles of law, including legal certainty and non-ret- roactivity. A framework decision therefore cannot of itself and in the absence of implementing measures determine or aggravate the liability in criminal law of persons infringing its provisions.14 It is apparent that the aforementioned limits to the interpretative influence that an EC/EU piece of legislation may produce on domestic provisions contribute to the respect of the interpretative peculiarities of the national legal orders while stimulating the effective enforcement of European law, be it Community or Union.

4.2. The Pupino principle: The practice

The imposition of the Pupino duty on the Cyprus Supreme Court meant that it was required to have recourse to all interpretative methods recognized by Cypriot law and construe domestic law to the extent possible in the light of the wording and the purpose of the EAW Framework Decision so as to achieve an outcome consistent with the binding objective it pursued. It follows that the Supreme Court was obliged to employ all the techniques of its accepted interpretative toolkit in order to attain a reading of both the Cyprus Constitution and Law 133(I)/2004 which would make the extradition of Cy- priot nationals possible. Given that the obstacle to the validity of such an extradition was the alleged incompatibility of the legislative instrument internalizing the EAW Framework Decision with the Cyprus Constitution, the Supreme Court was faced with two alternative ways to cut the knot. Firstly, while acknowledging that Article 11.2.(f) of the Cyprus Constitution prohibited the extradition of Cypriot nationals, the domestic court could have striv- en to bring the EAW under the scope of a different constitutional provision in order to preserve the ability of Law 133(I)/2004 to sustain the issuance of a valid arrest warrant against Cypriot nationals. Alternatively, the national court could have construed Article 11.2.(f) of the Cyprus Constitution in a manner that would make the fulfilment of the binding objective of the EAW Frame- work Decision possible and would therefore permit the extradition of Cypriot nationals. The interpretative caveats of non contra legem reading and respect for general principles of law applied to both cases with equal vigour. The way in which the Cyprus Supreme Court discharged its Pupino interpretative du- ties and treated the case will next be assessed.

14. Case 80/86, Criminal proceedings against Kolpinghuis Nijmegen BV, [1987] ECR 3969, Joined Cases C-74 & 129/95, Criminal Proceedings v. X., [1996] ECR I-6609; Joined Cases C- 387, 391 & 403/02, Silvio Berlusconi et al., [2005] ECR I-3565. Cyprus Supreme Court 1521

4.2.1. The constitutionality of the Cypriot EAW law It is worth recalling that the Attorney General sought to establish the constitutionality of Law 133(I)/2004 by relabelling the EAW against a Cypriot national from extradition to arrest; extradition would be prohibited under Article 11.2.(f), but arrest would be permitted under Article 11.2.(c) of the Cyprus Constitution. The Cyprus Supreme Court rejected his approach put- ting forward one basic argument supported by two ancillary ones. The basic argument was that the EAW did not appear on the exhaustive list of reasons justifying arrest or detention under Article 11.2.(f). The two ancillary arguments were (i) that the EAW’s purpose and procedures were distinct from those of an arrest under Article 11.2.(c) and (ii) pursuant to Article 11.2.(f) extradition was only allowed for non-Cypriot nationals. A moment’s reflec- tion reveals that what the Cyprus Supreme Court was doing through that line of reasoning was essentially exploring the outer boundaries of the non contra legem interpretative limit. The domestic court engaged in a semantic clas- sification task with a view to ascertaining whether the reconciliation of the Cypriot EAW law with the national constitutional provisions would inevitably involve unacceptable departure from the ordinary and well-established spec- trum of reasonable interpretations given to legal terms crucial for the delib- eration of the pending case, such as “arrest”, “surrender” and “extradition”. There are two main findings pertaining to this hermeneutic exercise of the Cyprus Supreme Court. The first finding is of a procedural nature and concerns the basic features of the interpretative process. An examination of the judgment gives the impression that the Supreme Court’s interpretative effort is austere and brief, an impression based on three elements in particular. First, the substantive significance of the issues under investigation is inversely proportional to the extent their analysis occupies in the whole body of the ruling; the court’s position on the cardinal question of the EAW’s constitutionality is articulated in two terse paragraphs half a page long. Secondly, while the Pupino ruling was men- tioned in a previous section of the judgment, the Supreme Court did not indi- cate its disposition and understanding of the duty of consistent interpretation nor the impact that duty was capable of producing on its hermeneutic effort to establish the EAW compatibility with the domestic constitutional dictates. Finally, no reference was made to the second interpretative limit pertaining to the safeguarding of the general principles of law and its possible infringement by any constitution-friendly reading of the national EAW law. The second finding is of a substantive nature and relates to the legal reasoning developed in the course of the interpretative process. A careful assessment of the grounds advanced by the Cyprus Supreme Court to strike down the constitutionality of EAWs reveals that undue weight might have been given to an argument of controversial validity. The Court stated: 1522 Case law CML Rev. 2007

“We are of the opinion that irrespective of whether or not the extradition of a person, as contemplated in Article 11.2.(f) of our Constitution, has the same legal meaning as the surrender provided for by the Framework Decision and the Law [Law 133(I)/2004], the position of the Attorney General is false for a basic reason. The aforementioned article sets out exhaustively the grounds justifying arrest, or arrest for extradition purposes. Arrest, for the purposes of the EAW is not included in the cases foreseen by the Article.”15

If the reference to “the aforementioned article” is taken to mean Article 11.2.(f) of the Cyprus Constitution, the statement of the Supreme Court about its exclusivity with respect to the grounds for arrest is not accurate to the extent that other provisions such as Articles 11.2.(b) and 11.2.(c) allow for the same measure. The Court’s statement can be upheld if it is construed to mean that arrest for extradition purposes is allowed only under Article 11.2.(f). With that reading however the Supreme Court’s reasoning becomes problematic. First, the absence of an explicit reference to the EAW in a constitutional text which is by definition abstract and whose adoption predates the promul- gation of the EAW legislation is not in and of itself conclusive in resolving the compatibility question. The Supreme Court might usefully have examined whether the EAW could have been brought under Article 11.2.(f) through the medium of consistent interpretation and explained the reasons that rendered such a construction impossible. Second, if the EAW is not a constitutionally recognized ground justifying extradition as the Supreme Court claims, then extradition measures taken on the basis of EAWs against non-Cypriot nationals should also be prohibited as incompatible with the Cyprus Constitution. That conclusion however contradicts the second auxiliary argument of the Supreme Court, which acknowledged the constitutionality of extradition of non-Cypriot nationals. Third, even if the Supreme Court’s statement that the EAW could not be considered an accepted reason for extradition under Ar- ticle 11.2.(f) is correct, it does not rebut the Attorney’s General argument that EAWs against Cypriot nationals might be permitted under Article 11.2.(c). Our first and second reservations apply with equal force even if the reference to “the aforementioned article” in the cited extract was taken to mean Article 11.2 as a whole. The auxiliary arguments of the Supreme Court are of particular interest and merit close attention. The first auxiliary argument was premised on Ar- ticle 11.2.(c) of the Cyprus Constitution, which permitted the adoption of arrest measures only for specific purposes and through a precisely defined process. The Supreme Court emphasized that neither the stated objectives

15. This translation and those which follow are unofficial and provided by the author. Cyprus Supreme Court 1523 nor the designated procedure under the constitutional provision in question coincided with those of Law 133(I)/2004. It followed that the EAW could not be labelled as a measure falling within the material scope of application of Article 11.2.(c). The second auxiliary argument was based on Article 11.2.(f) of the Cyprus Constitution, which, the Supreme Court stressed, had been in- terpreted by the Cypriot judiciary to mean that extradition could be effected only against non-Cypriot nationals. The combined implication of these state- ments is that the EAW could not be classified as a permissible, non-extradition measure nor could the constitutional bar on the extradition of Cypriot nationals be interpretatively lifted. The importance of this conclusion for the question of the constitutionality of Law 133(I)/2004 can hardly be overstated. The Supreme Court effectively concluded that the reconciliation of the Cy- priot EAW law with the domestic constitutional dictates inescapably necessitated a reading of the national law that would go beyond any reasonable interpretation thereof and would distort the natural and ordinary meaning of the pertinent domestic provisions. In Pupino terms, the constitutionality of the national statute implementing the EAW Framework Decision within the Cypriot legal order required a construction of the domestic law that disre- garded the non contra legem interpretative limit. Under these circumstances, the court’s duty to read the Cyprus Constitution and Law 133(I)/2004 in a way that would align the latter with the requirements of the former ceased to exist. This reasoning undoubtedly presents structural consistency and a considerable degree of persuasiveness. It could therefore have been employed as the basic argument against the Attorney’s General attempt to save the EAW’s constitutionality by placing it under the scope of Article 11.2.(c).

4.2.2. The alleged supremacy of EU law over the Cyprus Constitution With the second ground of appeal the Attorney General sought to separate the validity of Law 133(I)/2004 from the question of its constitutionality by invoking the supraconstitutional force of its parent Union act. The underlying rationale was that, if the EAW Framework Decision was held hierarchically superior to the Cypriot constitutional provisions, its domestic implementing measure would not be required to comply with the Cyprus Constitution as the former by virtue of its “derivative supremacy” could easily override any conflicting dictates of the latter.16 It is apparent that the acceptance of this argument would mean liberating the domestic court from the Pupino con- straints of non contra legem interpretation, as no duty of consistent construc-

16. The “primary supremacy” rests with the EAW Framework Decision itself, which remains the ultimate source of authority of its national mirror act. 1524 Case law CML Rev. 2007 tion would exist in the first place. The Supreme Court rejected the Attorney’s General reasoning on two grounds, which will be assessed in turn. Firstly, the court emphasized the inherent inability of framework decisions to produce direct effects. Only through the appropriate internalizing process, whose structure and features differs between the Member States, could the binding objective of a framework decision be achieved in the domestic context. That transposition was not successfully accomplished in Cyprus through Law 133(I)/2004 given the incompatibility of its provisions with the domestic Constitution. The Supreme Court’s reasoning is questionable in two distinct ways. On the one hand, the Supreme Court appears to employ provisions of national law as the benchmark against which the success of the incorporation procedure is measured. Arguably, however, the appropriateness of a domestic implementing measure should be assessed by reference to the parent Euro- pean act it seeks to internalize and not to the national legal environment in which it will operate. The Supreme Court did not separate the question of proper implementation, which pertains to the internal relations between the parent Union measure and its domestic emanation, from that of compatibility, which concerns the external relations of the aforementioned acts with other legal texts. On the other hand, the persuasiveness of the court’s reasoning and its relevance to the Attorney’s General arguments could be improved. Even if the Supreme Court’s view on the inappropriateness of the implementing process was held to be valid, it is difficult to see how that could contribute to resolving the supremacy issue. If the court’s reasoning is that the precedence of a framework decision over the Cyprus Constitution is dependent upon its being constitutional, then the argument is self-contradictory. If, on the contrary, the inability of framework decisions to produce direct effect was resorted to in order to reject their supraconstitutional force, then the court should have made that clear and produce appropriate substantiating arguments. The second ground that caused the Court to reject the Attorney’s General claim to EU law supremacy over the Cypriot constitutional provisions related to the Pupino ruling. The Supreme Court acknowledged the “consistent and well-established case law of the ECJ according to which the EU law is superior to the law of the Member States”. It then made a reference to Pupino and, through the citation of a relevant extract thereof, emphasized the con- ditionality of the duty of consistent interpretation upon the national judge reading the national law in the light of framework decisions only to the extent possible. The Court concluded that in view of Article 11.2.(f) of the Cyprus Constitution, as consistently construed by the Cypriot judiciary, “[T]here is no suitable interpretation of the Law introduced by the House of Representa- tives [Law 133(I)/2004] so that its provisions prevail and are put into effect in relation to a citizen of the Republic [of Cyprus]”. Two objections could be Cyprus Supreme Court 1525 raised to the Court’s reasoning. The reference to “constant and well-established case law of the ECJ” acknowledging the supremacy of EU law over national law, whether constitutional or subordinate, is questionable. The doctrine of supremacy was introduced in the early 1960s and has since been developed in a systematic and consistent manner; it pertains however to the first Community pillar and there is no persuasive evidence, let alone “constant and well-established case law”, to the effect that its scope of application has been extended to the second and third pillars of the EU construct.17 The seniority of the Court and the subsequent mention of the Pupino ruling preclude the issue from simply originating in a terminological confusion between EC and EU law. The reference to the Pupino judgment and its input in the Court’s deliberations are also problematic. There are two ways to interpret the Supreme Court’s reasoning, neither of which is free from flaws. If the term “prevail” appearing in the cited extract is taken to mean “assume primacy”, then what the Court effectively says is that the domestic implementing measure can only be endowed with supraconstitutional force if it can be read in line with the provisions of the national Constitution. In that case, we would be faced again with the self-contradictory reasoning of making the precedence of a framework decision over the Cyprus Constitution dependent upon its being constitutional. If the term “prevail” is taken to mean “apply”, the argument would be that in view of Article 11.2.(f), the constitutionality of the Cypriot EAW law necessitated a reading of the pertinent domestic provisions in a way that would infringe the non contra legem interpretative limit acknowledged by the ECJ in Pupino. However, that argument pertains less to the supremacy of Law 133(I)/2004 and more to its constitutionality, an issue that had already been addressed in response to the Attorney’s General first plea. The Supreme Court’s overall treatment of the supremacy question is brief and leaves room for improvement. A certain degree of confusion appears to have permeated the deliberations of the Supreme Court at two levels. On the first level, the Court’s understanding of the distinction between the Commu- nity and the intergovernmental pillars of the EU structure was not sufficiently clear, as a result of which institutional features of the former were readily ex-

17. It is worth noting that Lenaerts has recently suggested the application of the supremacy doctrine in the intergovernmental pillars on grounds, however, of questionable validity, see supra note 8. There also exist a number of scholarly contributions advancing the “unity thesis”, whereby the EC and EU merge to form an institutional singularity with the consequential implication being the transposition of central features of the EC legal order, including supremacy, to the resulting consolidated entity, see Herrmann, “Much Ado about Pluto? The ‘Unity of the Legal Order of the European Union’ Revisited” EUI Working Paper 2007, available at cadmus. iue.it/dspace/bitstream/1814/6710/3/RSCAS_2007_05.pdf. These views have not however made their way to the ECJ’s rulings. 1526 Case law CML Rev. 2007 tended to the latter. On the second level, the precise relation between the duty of consistent interpretation and the supremacy question was not adequately conceived, as evidenced by the invocation of the Pupino ruling to counter the claim of EU law precedence over the Cyprus Constitution rather than to examine the constitutionality of the Cypriot EAW law. As will shortly be seen, that two-dimensional state of confusion not only produced a perceivable impact on the Supreme Court’s reasoning but also affected the choices of the Cypriot constitution-amending legislature.

4.3. Constitutional ramifications

The judgment of the Cyprus Supreme Court produced considerable ramifications of both a legal and a political nature, and acted as the catalyst for a series of hotly-contested discussions amongst the relevant institutional actors that ultimately led to the Fifth Amendment of the Cyprus Constitution.18 Ar- ticle 11.2.(f) has been reworded to expressly permit the issuance and execution of a EAW against Cypriot nationals.19 A new Article 1(A) has also been inserted which, in conjunction with the revised Article 179, acknowledges the supremacy of EU law over the domestic provisions, be they constitutional or derivative. More precisely, the precedence of EU provisions of either primary or secondary nature over the derivative Cypriot law is contemplated by Arti- cle 179(2).20 The superiority of EU law over the Cypriot constitutional provisions derives from the combined reading of Article 1(A) and Article 179(1).21

18. Law 127(I)/2006, Ο περί της πέμπτης τροποποίησης του Συντάγματος νόμος του 2006, Official Gazette of the Republic of Cyprus, Issue no 4090, Appendix I, Part I, page 1372. 19. The provision reads now as follows: “[No person shall be deprived of his liberty save when and as provided by law in the following cases: …(f) … arrest or detention of a citizen of the Republic for extradition or surrender purposes, save that the following provisions are respected: (i) The arrest or detention of a citizen of the Republic for extradition purposes on the basis of a European arrest warrant is possible only with respect to facts that postdated or acts that were performed after the date of the Republic’s accession to the European Union”. 20. The text reads as follows: “No law or decision of the House of Representatives or of any of the Communal Chambers and no act or decision of any organ, authority or person in the Re- public exercising executive power or any administrative function shall in any way be repugnant to, or inconsistent with, any of the provisions of this Constitution or any obligation imposed on the Republic as a result of its participation as [a] Member State of the European Union”. 21. Art. 1(A) states that “[n]o provision of this Constitution will be held to annul laws that are enacted, acts that are carried out or measures that are introduced by the Republic which are necessary by reason of its obligations as a Member State of the European Union or hinder Regu- lations, Directives or other acts or binding measures of [a] legislative character that are adopted by the European Union or the European Communities or their institutions or their competent bodies on the basis of the Treaties establishing the European Communities or the European union from producing legal effect in the Republic”. Art. 179(1) adds that “[w]ithout disregarding Article 1(A), the Constitution shall be the supreme law of the Republic”. Cyprus Supreme Court 1527

One interesting feature of the amendment process is that the whole discussion of the recasting of Article 11.2.(f) with the aim of allowing the adoption of extradition measures against Cypriot nationals took place predominately in the context of the supremacy concept. A close examination of the preparatory reports and the political debate in the House of Representatives reveals that the rewording of the crucial constitutional provision was conceived as an obligation emanating from the supreme nature of EU law rather than an option whose exercise liberated the Cypriot judiciary from the non contra legem interpretative constraint of the Pupino ruling. That is evident from the invocation of the Supreme Court’s ruling, which was effectively decided on the basis of the Pupino interpretative limits, in order to stress the need for recognizing EU superiority over the Cyprus Constitution. That is however questionable, given that the Pupino doctrine called for a qualified interpretative faithfulness of national law to EU provisions and did not demand the absolute submission of the domestic legal order to the European will. As was the case with the supreme judges, the Cypriot legislature saw the duty of consistent interpretation as a constituent element of the supremacy concept. Another striking aspect of the amendment is that the inferior, or at least non-confrontational, character of the constitutional text was proclaimed not only vis-à-vis the first, Community pillar but was also extended in relation to the second and third, intergovernmental pillars of the Union institutional structure. The shrouding of the non-communautaire pillars with the cloak of supraconstitutionality does not exclusively derive from the willingness of the Cypriot legislature to burnish its pro-European credentials, but might also be premised on an inadequate understanding of the fundamental institutional distinction between EC and EU law. It is rather telling that in the Joint Report of the Parliamentary Committees on Legal Affairs and European Affairs on the Constitution amendments22 and in the discussions which it sparked the terms “EC” and “EU” are used indiscriminately. There are also several uncontested references to the recognition of the EAW’s validity as an acquis communautaire obligation. Once again, the Cypriot legislature seems to have followed his judicial counterpart by “depillarizing” the Union construct and treating the Community and intergovernmental spheres uniformly.

4.4. Conclusion

There will be no attempt to summarize the analysis presented above. The judgment of the Cyprus Supreme Court on the domestic European Arrest Warrant Law points to the view that institutional actors at national level are

22. Available in Greek at www.parliament.cy/parliamentgr/008_05b/008_05_2008.htm. 1528 Case law CML Rev. 2007

not always sufficiently familiar with intrinsic nuances as well as fundamental concepts pertaining to the operation of the EC law and the architecture of the EU construct. The relevance of that statement becomes stronger in the case of new Member States, whose recent accession to the European family precludes any extensive knowledge of and experience in the effective application of Union norms and concepts. It would however be unfair to lay the blame exclusively at the Member States’ door. The difficulty of national actors to conceive of the European impact on their respective legal setting in a clear and coherent manner does not always derive only from their lack of relevant experience or expertise but may also result from the ECJ’s failure to map precisely the contours of the concepts it employs and to premise firmly its interpretative inventions upon convincing legal reasoning. The extension of the duty of consistent interpretation to the third, intergovernmental pillar was effected in a way that leaves much to be desired both in terms of persuasiveness of legal argumentation and clarity of the imposed interpretative obligation. Improvements to the Pupino ruling in both of these directions are therefore warranted and welcome.

Alexandros Tsadiras*

* Head of the EU Law Department of Andreas Neocleous & Co, Cyprus. Thanks are due to the anonymous reviewers for their thoughtful comments on an earlier version of this manuscript and to Dr Nicola Countouris and Charalampos Papadopoulos for providing access to the secondary literature needed for the purposes of the present analysis. The usual disclaimer applies.