January 27, 2021
More than one decade ago, mutual recognition was introduced in EU criminal law as an alternative to harmonization that would have less impact on national sovereignty. But what are the sovereignty implications? This is analysed in the paper ‘The Impact on National Sovereignty of Mutual Recognition in the AFSJ. Case-Study of the European Arrest Warrant‘ by Suzanne Bloks and Ton van den Brink, published in the German Law Journal.
In its initial inception, the mutual trust-based approach of mutual recognition implied little interferences with the laws and practices of EU Member States. However, with the rule of law crises in the EU, we have moved into an “eclipse of mutual trust,” as there is no longer an irrebuttable assumption that trust is always present. Consequently, the mutual trust-based approach to mutual recognition has developed into a ‘mutual trust supported by harmonization’- approach and the sovereignty implications have become much more diverse than expected. Especially in the judge-driven harmonization of mutual recognition and the dialogue between judicial authorities, important (and oftentimes overlooked) elements that impact national sovereignty can be witnessed. This insight is supported with specific reference to the Framework decision on the European Arrest Warrant (EAW) – the EU’s flagship mutual recognition instrument in EU criminal law.
Paradoxically, with mutual recognition based on the current notion of mutual trust, the EU has created a new instrument to ensure that the EU Member States adhere to European values and principles. Denying an EU Member State the right to issue EAWs when it fails to comply with EU basic structures could be a more effective ultimate solution to ensure adherence to European values than the deadlocked “Rule of law” procedure of Article 7 of the TEU. The EU Member States that fear the intrusion on their national sovereignty of the Article 7 procedure are probably not aware that the most pressing sovereignty implications are hidden in plain sight with mutual recognition in the AFSJ.