Mutual Recognition and Individual Rights
| DOI | 10.1177/203228441600700405 |
| Published date | 01 December 2016 |
| Author | Petra Bárd,Wouter Van Ballegooij |
| Date | 01 December 2016 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 4, 2016 439
MUTUAL RECOGNITION
AND INDIVIDUAL RIGHTS
Did the Court get it Right?
W V B* and P B**
ABSTR ACT***
is ar ticle focuses on the case-law of the Court of Justice an d the dialogue it conducted
with national apex courts when seeking to reconcile the ‘ free movement of judicial
decisions’, as facilitated by mutual recog nition, and individual rights in its inte rpretation
of the Framework Decision on the European Arrest Warrant. e present analysis shall
concentrate on the recent judgment in Aranyosi and Căldăraru .
e article concludes that for the sake of legal certainty, more guidance should be
provided under EU legislation to make sure that judicial cooperation does not lead to
disproportionate intrusions on individual rights or even violations of absolute rights.
is should be accompanied by a permanent mechanism for monitoring and ad dressing
Member State compliance with democracy, the rule of law and f undamental rights.
Ultimately, however, the courts will have to play a crucial role in carving out and
applying fundamental rights exceptions. In providing guidance to national courts, the
Court of Justice needs to f urther clarify that the application of mutual recognition and
fundamental rights exceptions are not in con ict and show proper deference to the
norms developed by the European C ourt of Human Rights and national (constitutional)
courts.
Keywords: European A rrest Warrant; fu ndamental rig hts; mutual recognition;
mutual trust ; primacy of EU law; proportionality
* Wouter Van Ballegooij PhD, Policy Analyst, European Parliamentary Research Service, European
Parliament.
** Petra Bárd LL M PhD, Associate Professor, Eötvös L óránd University, Faculty of Law, Depa rtment
of Criminolog y; Head of the Crimi nal Law Division, Nationa l Institute of Crim inology, Hungary.
*** e views expressed in t his article are s olely those of the authors.
Wouter Van Ballegooij and Petr a Bárd
440 Intersentia
1. INTRODUC TION1
e present article disc usses the mutual recognition of judicial decisions in c riminal
matters from an individual rights perspective2 with the aim of answering t he question:
what are its consequences for individua ls, in light of their r ights under primar y and
secondary EU law? It focuses on the judgments of t he Court of Justice in which it has
sought to reconcile the free movement of judicial decisions, as supported by mutual
recognition, with individual rights by interpreting the Framework Decision on the
European Arres t Warrant (FD EAW).3 Particula r emphasis shall be put on the recent
judgments in Aranyosi and Căldăraru.4 Has the C ourt found the right approach from
a doctrinal p erspective?5
2. MUTUAL RECOGNITION AND INDIVIDUAL RIGHTS
e principle of mutual recognition as la id down in Article82(1) TFEU6, was introduced
by the European Counci l in 1999 as a ‘cornerstone’ of judicial cooperation contributi ng
to the Union becoming an area of freedom, security a nd justice.7 In 2000 the
Commission further de ned t he concept as meaning that a judicia l decision once taken
in one Member State should automatically be acce pted in all other Member States, and
have the same or at least simi lar e ects there.8 Under the FD EAW, mutual recognition
is applied to extradition procedures between the Member St ates. is resulted in the
establishment of a surrender procedure based on a standard form (European Arrest
1 e authors would like to tha nk James MacGui ll and Peter McNamee for t heir insightf ul comments
from a practice or iented perspective.
2 For a more general discu ssion of mutual recognition in Eu ropean Law see Wouter van Ballego oij,
e Nature of Mutual Recognition in European Law, Re-ex amining the notion from an individual
rights persp ective with a view to it s further de velopment in the cr iminal justic e area, Intersent ia
Antwerp: 2015.
3 Council Frame work Decision 2002/584/JHA of 13 June 2002 on the European a rrest warrant and
the surrender proc edures between Member St ates, O. J. L 190, 18/07/2002, pp. 1–20.
4 Judgment of the Court (Gra nd Chamber) of 5 April 2016, Pál Aranyosi and Rob ert Căldărar u v
Generalstaatsanwaltscha Bremen, Requests for a pre liminar y ruli ng from the Hanseatisches
Oberlandesgericht in Bremen, Joined Cases C-40 4/15 and C-659/15 PPU, not yet published.
5 A variation on the que stion is whether the Cou ncil got it wrong in extend ing mutual recogn ition to
the crimi nal justice area wit hout requiring the compa rability of the unde rlying national law. See S.
Peers, ‘Mutual recog nition and crim inal law in the Eu ropean Union: Has the C ouncil got it wrong?’,
in Common Market Law Revi ew Vol. 41, pp. 5–36, 2004.
6 Article 82(1) TFEU: ‘Judicial cooperation i n criminal matters in t he Union shall be ba sed on the
principle of mutual re cognition of judg ments and judicial d ecisions and sha ll include the
approximation of t he laws and regulat ions of the Member State s in the areas refe rred to in parag raph
2 and in Art icle83.’
7 Presidency Conclusion s-Tampere Europea n Council, 15–16/10–1999, Bull. 10/1999, point 33.
8 Communication f rom the Commiss ion to the Council a nd the Europea n Parliament-Mutua l
recognition of Fin al Decisions in cri minal matters, COM (20 00) 0495 na l, p.2.
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