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

Abstract

National sovereignty has been the key consideration for basing judicial cooperation in the European Unionon mutual recognition. More than one decade after the creation of the Area of Freedom Security andJustice (AFSJ), this contribution assesses whether mutual recognition-based EU legislation in civil andcriminal law indeed respects national sovereignty. To this end, it studies the Framework decision onthe European Arrest Warrant (EAW), the EU’s flagship instrument in the AFSJ. We distinguish twoelements of national sovereignty: (a) the protection of the State and its basic structures (itsstatehood);(b) the State’s values, principles and fundamental rights (itsstatehood principles), and assess the EAW froma dynamic perspective: from its initial inception, in which mutual trust primarily implied little interfer-ences with the laws and practices of issuing states, to the current state of affairs which is marked by whatcould be called a‘mutual trust supported by harmonization’- approach. Especially in the judge-drivenharmonization of the EAW and the dialogue between judicial authorities we witness important (and often-times overlooked) elements that impact national sovereignty. At the end, the findings of the article are putin the context of the current rule of law crisis in the EU.