Abstract
AbstractNational sovereignty has been the key consideration for basing judicial cooperation in the European Union on mutual recognition. More than one decade after the creation of the Area of Freedom Security and Justice (AFSJ), this contribution assesses whether mutual recognition-based EU legislation in civil and criminal law indeed respects national sovereignty. To this end, it studies the Framework decision on the European Arrest Warrant (EAW), the EU’s flagship instrument in the AFSJ. We distinguish two elements of national sovereignty: (a) the protection of the State and its basic structures (its statehood); (b) the State’s values, principles and fundamental rights (its statehood principles), and assess the EAW from a dynamic perspective: from its initial inception, in which mutual trust primarily implied little interferences with the laws and practices of issuing states, to the current state of affairs which is marked by what could be called a ‘mutual trust supported by harmonization’- approach. Especially in the judge-driven harmonization of the EAW and the dialogue between judicial authorities we witness important (and oftentimes overlooked) elements that impact national sovereignty. At the end, the findings of the article are put in the context of the current rule of law crisis in the EU.
Highlights
The question is whether mutual recognition has enabled the achievement of EU criminal law objectives whilst respecting national autonomy and——national sovereignty? This is, in part, a political question, and for another part, it requires an assessment of empirical data as well as an analysis of how the various policy objectives of EU criminal law interrelate and must be balanced
In this Article we focus on another element, which is the relation between mutual recognition and national sovereignty
To develop and apply a concept of national sovereignty that allows us to assess the impact of the European Arrest Warrant (EAW) on national legal orders in a way that aligns with the underlying reasons for the Member States to be hesitant about the transfer of competences in the field
Summary
Mutual recognition originates as a principle of cooperation in the Internal Market. During the EU Presidency in 1998, the UK had initiated “borrowing” the principle from the framework of cooperation in the Internal Market, where it was perceived to be successful in creating a single area of cooperation while keeping national legal systems intact,[16] and transplanting it to the AFSJ. Mutual recognition was perceived as a regulatory strategy that would keep national legal systems intact and avoid European harmonization This protective attitude of the EU Member States towards national sovereignty in the already sovereignty sensitive area of criminal law was fueled by the European Commission’s failed attempts to take more comprehensive measures towards enhancing European cooperation in criminal matters. For the purposes of the current inquiry, it suffices to note that the lock demonstrates the difficulty of balancing fundamental rights concerns, national autonomy, and the effectiveness of mutual recognition arrangements.[36]
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