The European Court of Justice as a Game Changer: Fiduciary Obligations in the Area of 'Freedom, Security and Justice'

Abstract

There are few areas in EU integration law and policy in which the Court of Justice of the European Union (“the EU Court”) has not played a major role as a vehicle of integration and the “Area of Freedom, Security and Justice” (AFSJ) is no exception. One could even go so far as to say that the AFSJ represents a field of law in which the EU Court has been a particularly important player and in which the judicial process has helped to constitutionalize and transform this area to a central EU integration site. Hence, this chapter will focus on what I consider to be the most important judicial developments in AFSJ law and the role played by the Court of Justice in this European process, and as a “game changer” in this area of former third pillar law. The specific focus of this paper is the role of the Court as a guardian of constitutional rights and as an integrationist Court. The chapter is structured as follows. Section Two charts the trajectory of the AFSJ and the function of the Court in this story. Section Three focuses on the tactics of mutual recognition and how this has been a particularly successful method in the AFSJ as an expression of negative integration through the Court’s case law. In doing so, I will zoom in on a number of pertinent cases for the development of, in particular, EU criminal law and EU asylum law. Thereafter, I will discuss the relationship between the EU Court of Justice and other courts. Finally, I will tentatively ask to what degree the Court is acting as a trustee court for establishing and maintaining the AFSJ and streamlining it with the Charter of Fundamental Rights.