Use and Abuse of the Concept of Fundamental Rights: an Obstacle for Judicial Cooperation?

Abstract

The focus of this article is on the challenge to which extent EU Member States cooperate. It describes the current landscape of judicial criminal cooperation in the EU, taking into account available data. Hence, one can state that cooperation tools are being increasingly used, but this creates imbalances, which naturally crop up in any cooperation system. This is the starting point for addressing a proper understanding of the various possible reactions in order to tackle these imbalances. One reaction relates to the breach of fundamental rights by the issuing Member State. The article outlines that the results of this strategy, however, could be negative in the long term. Merely mentioning fundamental rights will not make Member States more respectful of them. It is further argued that problems involving fundamental rights should be solved with already existing and tailor-made instruments for this purpose and not by altering the cooperation rationale. On the contrary, by taking the latter route, we risk destroying trust as the basis of mutual cooperation. This risk emerges because it is exclusively linked to the reaction of the authorities of executing Member States. This hypothesis is confirmed by examining the “fundamental rights clauses” in the different cooperation instruments as well as by analysing the CJEU’s recent judgment in the Aranyosi/Caldararu case. In conclusion, the author suggests other ways to arrive at a possible limitation of the abusive application of cooperation. Any solution to the abusive use of cooperation tools should involve the issuing Member States, which must be the first to be convinced of the beneficial effects of self-restraint in the application of cooperation tools