The Impact on National Sovereignty of Mutual Recognition in the AFSJ. Case-Study of the European Arrest Warrant

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.