Mutual Trust, Essence and Federalism – Between Consolidating and Fragmenting the Area of Freedom, Security and Justice after LM

2019 ◽  
Vol 15 (1) ◽  
pp. 17-47 ◽  
Author(s):  
Mattias Wendel
Keyword(s):  
Rule Of Law ◽  
Judicial Independence ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
Arrest Warrant ◽  
European Arrest Warrant ◽  
Eu Fundamental Rights

Mutual trust – Essence of EU fundamental rights – Values under Article 2 TEU – Intrinsic link between essence and values – Federalism – LM judgment – Rule of law crisis in Poland – Right to fair trial – Judicial independence – Fundamental right to an independent tribunal – Prohibition on transfers – Obligation to presume compliance with fundamental rights – Condition of ‘systemic deficiencies’ as a federal safeguard – Area of Freedom, Security and Justice – European Arrest Warrant – Dublin system

scholarly journals The Rule of Law, Fair Trial and Human Dignity: The Protection of EU Values After LM

2021 ◽  
pp. 431-442
Author(s):  
Catherine Dupré
Keyword(s):  
Rule Of Law ◽  
Human Dignity ◽  
Judicial Independence ◽  
Fair Trial ◽  
Mutual Trust ◽  
The Rule Of Law ◽  
The Right ◽  
The Relationship ◽  
The Eu

AbstractThe 2018 CJEU ruling in LM highlighted the importance of judicial independence for the rule of law and protection of the right to fair trial. In so doing, the judgment raised problematic questions about the relationship between Article 2 values and the EU Charter rights, and their connection with mutual trust. This chapter considers these issues through the lens of human dignity, which is both the first foundational value under Article 2 and the first right in the EU Charter. By discussing how the LM judgment raises the constitutional status of the right to a fair trial, this chapter argues that a focus on human dignity could effectively link Article 2 values with EU Charter rights and facilitate assessment of their respective breach.

Resisting a European Arrest Warrant: A social rights perspective

2020 ◽  
Vol 11 (3) ◽  
pp. 299-312
Author(s):  
Neža Šubic
Keyword(s):  
Civil Rights ◽  
Fundamental Rights ◽  
High Threshold ◽  
Social Rights ◽  
Mutual Trust ◽  
Arrest Warrant ◽  
Real Risk ◽  
The Social ◽  
European Arrest Warrant ◽  
Degrading Treatment

This article starts from the premise that social rights should be taken seriously in the context of the European Arrest Warrant (EAW). Historically neglected, social rights have slowly gained recognition as legal entitlements. The article focuses on the protection of social rights – understood here as the rights to an adequate standard of living, healthcare and education – in regard to one aspect of the EAW: resisting its execution due to a real risk of a breach of social rights in detention in the issuing Member State. The social rights–based argument for resisting an EAW is premised on the Court of Justice of the European Union’s jurisprudence on ‘exceptional circumstances’ in which mutual trust can be rebutted, in particular Aranyosi and LM. The article identifies three ways for protecting social rights in the context of resisting an EAW. First, elements of social rights can be protected through resisting an EAW on the basis of a real risk of a breach of the prohibition of inhuman and degrading treatment. Second, social rights could be protected by resisting an EAW on the grounds of those non-absolute civil rights that indirectly protect elements of social rights. Third, the option of resisting an EAW by relying directly on social rights is also examined. Taking a social rights perspective expands the type of cases in which an individual can resist surrender due to a risk of facing poor detention conditions; this includes certain situations where the potential breach does not reach the high threshold of the prohibition of inhuman and degrading treatment. However, the article concludes that the rigid framework for balancing mutual trust and fundamental rights established by Aranyosi and LM ultimately creates a ceiling for the protection of social rights and prevents them from being fully respected and protected in the context of resisting an EAW.

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

2021 ◽  
Vol 22 (1) ◽  
pp. 45-64
Author(s):  
Suzanne Andrea Bloks ◽  
Ton van den Brink
Keyword(s):  
Mutual Recognition ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
The European Union ◽  
Judicial Cooperation ◽  
National Sovereignty ◽  
Arrest Warrant ◽  
European Arrest Warrant ◽  
Dynamic Perspective ◽  
The Impact

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.

scholarly journals Intermezzo in the Rule of Law Play: The Court of Justice’s LM Case

2021 ◽  
pp. 455-476
Author(s):  
Matteo Bonelli
Keyword(s):  
Rule Of Law ◽  
Judicial Independence ◽  
General Analysis ◽  
The Other ◽  
Specific Situation ◽  
Mutual Trust ◽  
Crucial Importance ◽  
The Rule Of Law ◽  
Individual Assessment ◽  
European Arrest Warrant

AbstractIn the LM case, the CJEU was called to decide on whether systemic rule of law deficiencies in Poland could lead to the suspension of EU cooperation based on mutual trust, in particular under the European Arrest Warrant system. Building on its earlier decision in Aranyosi, the Court concluded that EAWs may be suspended only after the executing authority conducts a general analysis of the situation in the country concerned and an individual assessment of the specific situation of the applicant. For some, the decision was a disappointing one, as the Court failed to take a clear stance on the Polish constitutional crisis. This chapter argues, on the other hand, that the Court reached a balanced decision: while it is true that it confirmed the strict Aranyosi test, it also sent some key messages on the crucial importance of the rule of law and judicial independence for the EU and underlined the red lines of European constitutionalism. Furthermore, a different line of cases that originated from the groundbreaking decision of the Court in the ‘Portuguese judges’ case seems much more promising for the protection of EU values. Thus, rather than a constitutional moment for the Union, LM was ultimately an intermezzo between the two main acts of the rule of law play before the Court of Justice.

scholarly journals Countering the Judicial Silencing of Critics: Article 2 TEU Values, Reverse Solange, and the Responsibilities of National Judges

2019 ◽  
Vol 15 (3) ◽  
pp. 391-426
Author(s):  
Armin von Bogdandy ◽  
Luke Dimitrios Spieker
Keyword(s):  
Member State ◽  
Rule Of Law ◽  
Criminal Liability ◽  
Freedom Of Speech ◽  
Fundamental Rights ◽  
State Courts ◽  
Mutual Trust ◽  
Eu Law ◽  
Eu Fundamental Rights

EU Rule of law crisis – Article 2 TEU – EU values – EU fundamental rights – Freedom of speech – Member state courts – Interpretation of national law in conformity with Article 2 TEU values – Preliminary reference – Duty of referral – Criminal liability of judges – Reverse Solange – ASJP judgment – Judicial applicability of Article 2 TEU – Value-oriented interpretation of EU law – Mutual Amplification – Essence of EU fundamental rights – L.M. judgment – Aranyosi judgment – Federal balance – Red lines – Systemic deficiencies – Solange presumption – Mutual trust

Limiting mutual trust on fundamental rights grounds under the European arrest warrant and lessons learned from transfers under Dublin III

2020 ◽  
Vol 11 (2) ◽  
pp. 184-203
Author(s):  
Fenella M. W. Billing
Keyword(s):  
European Union ◽  
Lessons Learned ◽  
Fundamental Rights ◽  
Supplementary Information ◽  
Mutual Trust ◽  
The European Union ◽  
Arrest Warrant ◽  
Real Risk ◽  
European Arrest Warrant ◽  
The Right

The Court of Justice of the European Union (CJEU) has examined the limitation of the principle of mutual trust in European arrest warrant (EAW) cases in a number of recent decisions. The court has found that when the executing judicial authority possesses information demonstrating that the requested person is at a real risk of violation of the right to be free from inhuman or degrading treatment guaranteed in art 4 of the Charter of Fundamental Rights of the European Union, then the individual should not be automatically surrendered. Instead, the proceedings should be postponed to obtain supplementary information or discontinued if the risk cannot be discounted. The ‘real risk’ test has also been extended to non-absolute rights, such as the right to a fair trial. However, the CJEU’s reasoning about the limitation of mutual trust is not yet fully formed in relation to certain aspects concerning the nature of fundamental rights and the EAW procedure. This article explores these gaps of understanding about the scope of the limitation on mutual trust in surrender cases and, in doing so, assesses the consistency of similar developments in the area of transfers of asylum seekers under the Dublin Regulation III.

scholarly journals Joined Cases Aranyosi and Căldăraru: Converging Human Rights Standards, Mutual Trust and a New Ground for Postponing a European Arrest Warrant

2016 ◽  
Vol 24 (2-3) ◽  
pp. 197-219 ◽  
Author(s):  
Szilárd Gáspár-Szilágyi
Keyword(s):  
Case Note ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
Arrest Warrant ◽  
Real Risk ◽  
European Arrest Warrant ◽  
Scope Of Application ◽  
Degrading Treatment ◽  
Human Rights Standards ◽  
Critical Overview

This case-note provides a critical overview of Joined Cases C-404/15 and C-659/15 ppu, Aranyosi and Căldăraru. The cjeu tries to reconcile the principles of mutual trust and recognition with the protection of the fundamental rights of the requested person. Instead of introducing a new ground of refusal for a European Arrest Warrant based on the breach of fundamental rights, the cjeu opted for a ground of postponement. Furthermore, it brings its two-tier ‘systemic deficiencies’ test closer to the standards used by the ECtHR and encourages dialogue between the issuing and executing judicial authorities. Nevertheless, the scope of application of the new ground of postponement is not entirely clear and it is not yet sure what happens after the executing judicial authority postpones its decision due to evidence of a real risk that the requested person will be subjected to inhuman and degrading treatment in the issuing Member State.

scholarly journals Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States?

2020 ◽  
pp. 1-22
Author(s):  
Aida TORRES PÉREZ
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Scope Of Application ◽  
Judicial Protection ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.

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