From a conceptual perspective, the external dimension of the AFSJ has been providing some of the most fertile ground within transnational criminal law, particularly since 2016, when the CJEU held that EU law raises limits to the extradition of a national of a MS by another MS to a third State, if the latter MS would in similar circumstances refuse to extradite an own national, and insofar as impunity can be avoided within the EU. The structure of this development is crucial to understanding its potential as well as its limitations.

But the external dimension of the AFSJ, adding to the complexity already of its internal one, must yet interweave the international law norms that are drawn into the mesh by the fact of a third State being involved. These, in turn, may have erga omnes or inter partes efficacy, and they may stem from different sources, including interstate treaties and treaties concluded by the Union as such. This explains v.g. the assimilation of the principle aut dedere aut judicare, a general principle of international law which in that context has been called upon to mitigate the impact of that case law upon third States. And the intricacy increases with the fact that, in order to put that principle into practice, it is necessary to enable the MS with extraterritorial jurisdiction to obtain custody of the individual, which the CJEU proposed be accomplished through the very extradition system of the EU, the EAW. In the process, EU law itself is transformed, as the EAW, originally created for securitarian reasons, may now play a protective function, as a means to avoid exposing EU citizens to foreign criminal justice.

The process is more linear, more unconditional, when it comes to upholding principles and rules with deeper axiological roots than mere citizenship considerations, such as the prohibitions of torture/ill-treatment and capital punishment, and the principles non-refoulement and ne bis in idem. Here the process takes the character of a projection (though technically speaking not an imposition) of those norms, and of the values they enshrine, on third States. This projection and the case law that materialised it (most recently of which Demande d’extradition d’un réfugié vers la Turquie, C-352/22) complete the remarkable mesh into which the external dimension of the AFSJ has become.

The Aranyosi and Căldăraru test for the refusal of surrender of a person suspected of a crime and sought pursuant to a European Arrest Warrant (EAW) is perhaps the most clearly stated threshold for the existence of trust in the current framework of EU law. The EAW contains specific grounds for the legitimate refusal of a surrender request pursuant to an EAW, but the Court of Justice has established a threshold test restricting the invocation of human rights grounds by a requested Member State, requiring that that there be objective, reliable, specific and properly updated evidence about detention conditions in the issuing Member State that demonstrates deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, and that there are substantial grounds to believe that the personal whose surrender is sought faces a real risk of inhuman or degrading treatment under Article 4 of the Charter. This demanding threshold has the effect of restricting the non-application of EU law, but a similar approach in other areas of EU law might have the opposite effect of limiting the scope or reach of fundamental principles of EU law, especially in the application of Article 7 TEU on sanctioning Member States for breaches of EU fundamental values in Article 2 TEU. Variations in such threshold tests make the jurisprudence of the Court of Justice of central importance in determining the competence lines of EU and national legal systems. This paper evaluates different threshold tests that may be adopted by the Court of Justice in determining a level of trust to be accorded to national legal systems by EU law and considers what approach or approaches may be justified especially in the application of Articles 2 and 7 TEU in light of the constitutional framework of the EU.

While confiscation of assets related to criminal activity is an age-old legal institution, the question as to what its nature exactly is remains shrouded in doubt. Even today, multiple and rather diverging answers are provided to that question, which is an identification question that requires identifying what something is and is not. The question is highly consequential, for it is common sense that if one does not establish what something exactly is, then one can hardly utilise it conveniently. Thus, if one does not establish what confiscation exactly is, one will hardly be able to determine the legal regime – substantive as well as procedural – that should be attached thereto.

For decades has the European Court of Human Rights (ECtHR) been addressing this question through the well-known Engel criteria. An analysis of that case law suggests that the Court selects the criteria to be deployed on the basis of the legal consequence at issue in the case. Rather than adopting a ‘view from nowhere’ type of approach, it seemingly shuts itself to any conclusion that does not meet its (aprioristic) conviction of what the nature of a given type of confiscation is. The inevitable impression is that the ECtHR’s process of identification of the legal nature of a certain offence or legal consequence is overly subjective; that it is opaque, incoherent, inconsistent.

Albeit with some deviations, the ECtHR has overall upheld that the different modalities of confiscation (classic and modern) are not penal in character, with the consequence that the exceptionally intense guarantees of substantive and procedural criminal law must not be observed. The implication question thus becomes visible: ‘if (not) penal, then x’. However, Recital 18 of the Regulation (EU) 2018/1805, on the mutual recognition of freezing orders and confiscation orders runs in the opposite direction, for it suggests that the criminal safeguards set out in the Charter of Fundamental Rights of the EU should be applied. Recital 18 thus appears to conflict with prevailing law and practice, which is quite relevant, not least of all because it may impact the scope of the grounds for non-execution on fundamental rights enshrined in the Regulation.

This lack of definition, however, has not prevented the EU legislator from developing new modalities of confiscation that do not presuppose committing a conduct described as a criminal offence, such as the non-conviction-based confiscation provided for in Article 16 of the Directive (EU) 2024/1260.