The European Arrest Warrant, Constitutional Rights and the Changing Legal Thinking: Values Once Recognised Lost in Transition to the EU Level?

This chapter builds on an observation by Ester Herlin-Karnell that in EU criminal law co-operation, ‘important values once recognised within the nation state are lost in the transition to the European level’, and that ‘even basic concepts such as fair trial and legality, which traditionally are recognised in national criminal law, seem to be forgotten’. The paper shows that such concerns are widely shared amongst scholars and lawyers who represent the more classic legal thinking in constitutional law and criminal law. At the same time, the above concerns have largely been overlooked by scholars of autonomous EU constitutional law and criminal law, who tend to operate in the mindset of effectiveness, uniform application, teleological interpretation, trust by courts and loyal co-operation; they tend to simplistically reduce national concerns to Euroscepticism and old-fashioned protection of sovereignty. The paper draws attention to structural issues in the EU discourse, whereby the latter approach has had much greater visibility, leading to an alarming change in the European legal thinking. The paper explores the above developments with regard to two areas. The main part of the paper documents concerns in relation to the European Arrest Warrant system, and explores how it could be recalibrated towards a greater responsiveness to classic fundamental rights. The final part of the paper explores the future development of the EU’s Area of Freedom, Security and Justice (AFSJ), pointing out reasons against harmonisation of criminal law. These include scholarly concerns about the hitherto repressive nature of EU criminal law, as well as the democratic and cultural reasons for regulating this area at the level of the state. The paper also invites discussion about the EU orthodox ‘integration-through-law’ approach, which ‘fosters the expansion of European law as an end in itself’ (Joerges).