Insight
Catch me if you can: The European Arrest Warrant and the end of mutual trust by Camino Mortera-Martinez 1 April 2019
EU countries trust each other less than they used to, making them less willing to co-operate. Brexit, violations of the rule of law and Catalan separatism have put the European Arrest Warrant (EAW), which is founded upon trust, to the test. Even judges sitting in the Luxembourg-based European Court of Justice (ECJ), one of the EU’s most technocratic institutions, cannot escape the heat of European politics these days. A string of recent responses by the court to technical questions about the EAW has highlighted the limits of judicial co-operation in the EU. More crucially, submissions to the court display a lack of trust between member-states that is new and worrying. The EAW governs extradition between EU member-states. It is noteworthy because it breaks with the legal tradition of sovereign state control over extradition: in most cases, the EAW mandates the immediate arrest and repatriation of criminals and suspects, so long as the requesting state complies with some basic conditions. There is no other multilateral extradition treaty in the world that allows for this degree of automaticity. The reason is ‘mutual recognition’: EU member-states are supposed to treat each other’s decisions as if they were their own, whether rules governing the sale of alcohol or prosecution. This principle of mutual trust underpins both the EU’s internal market and its area of freedom, security and justice (ASFJ). But trust is a rare commodity in the EU these days. The ECJ does not issue warrants. But it can solve disputes between member-states when they are unhappy or unsure about a decision to extradite somebody. National authorities can ask the Luxembourg court to block or grant a surrender request through a so-called preliminary ruling. Such rulings often require the court to examine obscure paragraphs of the law. It is not often that politics intrudes – precisely because the EAW, by giving more power to the courts than to governments, was designed to avoid political rows between countries over extradition cases. And yet the ECJ has recently had to rule, indirectly, on Brexit and on Poland’s alleged attacks on the rule of law. In the coming months, the Luxembourg judges will probably also have to consider Spain’s Catalan separatism issue. CER INSIGHT: Catch me if you can: The European Arrest Warrant and the end of mutual trust 1 April 2019
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