Mutual trust and the Rule of law - A study of the effect of the procedures under Article 7 TEU on the legal preconditions for the future application of the Framework Decision on the European arrest warrant

For the first time in the history of the European Union (EU), proceedings under Article 7(1) Treaty on the European Union (TEU) have been initiated, inviting the Council to determine the existence of a risk of violations of fundamental values enshrined in Article 2 TEU in Poland and Hungary. Even if such decisions would only have the function of a preventative measure with no sanctions, judgments from the Court of Justice indicate that national courts have shown doubts whether to execute requests for surrenders under the Framework Decision on the European arrest warrant (FD-EAW) to Member States criticised under Article 7(1) TEU. The purpose of this thesis is therefore to examine the effect of the procedures under Article 7(1) TEU on the legal preconditions for future application of the FD-EAW. The thesis is comprised of an analytical study of judgments from the Court of Justice on the European arrest warrant, using Article 7 TEU in its reasoning. The scope of study is limited to four judgments: C-220/18 PPU M.L; C-216/18 PPU L.M.; C-404/15 Aranyosi and C-695/15 Căldăraru. The conclusion of this thesis is that the procedure under Article 7(1) TEU has the effect of altering the notion of trust upon which the entire legal cooperation in the Area of Freedom, Security and Justice is based. The responsibility to assess the objective and individual real risk is a responsibility left for the national courts to carry out on a case-to-case-basis. It is argued in this thesis that the reasoned proposals under Article 7(1) TEU affects both prongs of the Aranyosi-test by creating a close to automatic fulfilment of the first prong and an almost obligation on the executing Member State to assess the individual real risk under the second prong. It is argued that the assessment on a case-to-case basis corrodes the principles of mutual trust and recognition. Consequently, this study questions that the FD-EAW can be considered a system based on a high level of trust in the future, if the Member States are obliged to double check each other’s capacity to ensure protection of fundamental rights before executing a surrender. By setting clear boundaries for the trust so that where there is mutual trust, the level of confidence in each other’s capacity to comply with fundamental values is both high and substantial, the corrosion of the principle of mutual trust can be prevented, which is essential for the future proper operation of the judicial cooperation in the Area of Freedom, Security and Justice