Photo: Patrick Tomasso | Unsplash
Originally published in Spanish. «‘Euroorden’: Apunte técnico, mirada política».
17th April 2018
The European arrest warrant (EAW) is an instrument of the Area of Freedom, Security and Justice (AFSJ). This is relatively new domain of European regulation. Its roots date from the 70s, with the first informal meetings of the ministers of justice and home affairs of the member states under the name of Trevi Group. Since then, the European cooperation in matters of Justice and Home Affairs has experienced an extraordinary development, explained by critical junctures such as the coming into force of the Maastricht (1992) and Amsterdam (1995) Treaties, or the adoption of the successive Tampere (1999-2004), Hague (2005-2009) and Stockholm (2010-2014) Programmes. Currently, as reflected in the text of the Lisbon Treaty itself, the matters of freedom, security and justice take a central role in the European policies.
The suppression of internal frontiers as a consequence of the full realization of the Single Market, as well as security considerations associated to the increasingly transnational nature of delinquency and organized crime or the fight against international terrorism are the main forces driving this change; a qualitative change in the European agenda which is expressed in three elements: legislative development, international deployment and extension of the radius of action, which have been extraordinary through the last 20 years. As an example, 85% of the directives (70 out of 82) and 97.5% of the regulations (117 out of 120) related to Justice and Home Affairs in force as of 31st December 2016 were issued after 1998. In the same way, 9 out of the 11 European agencies created to implement the AFSJ at European level were created between 2002 and 2011. Currently the Area of Freedom, Security and Justice spans from the guaranty of the fundamental rights (fight against discrimination and personal information protection) to the fight against cybercrime and violent radicalization, including immigration and asylum policy or the judicial cooperation in civil and penal cases. These data prove the political ambition of the member states and the European institutions in this area; an ambition that, indeed, reflects the concept itself of Area of Freedom, Security and Justice.
The creation of the European arrest warrant in 2002, under the Spanish Presidency of the EU Council (Council Framework Decision of 13 June 2002), in the context of the September 11 attacks, which acted as accelerants, must be interpreted in the light of this evolution. In the same way as other tools like Eurojust, Europol or Frontex, its origin is tied to the will of establishing a European public order.
Achieving this goal has consequences in several aspects:
In functional terms, it means the suppression of the internal frontiers of the Union and the integrated management of its external frontiers (Convention implementing the Schengen Agreement of 1985) or the reinforcement of police and judiciary cooperation in civil and penal matters between member states to the point of the inclusion in proper European dynamics as reflected in the notion of the European arrest warrant itself.
In juridical terms, it implies the progressive convergence and harmonization of the public order and Justice administration under the European umbrella, which means the acceptance of the principle of mutual recognition.
Last, as stated by the European Commission in its Green paper from 2011 on the European judicial area, in political terms the vertebration of a strong AFSJ requires some principles of government based on mutual trust. Be it supranational, intergovernmental or halfway between both logics of decision making, the rules of the game in Europe rely on this basic agreement. The premise ruling the vertebration of the Area of Freedom, Security and Justice is, after all, the relinquishment of a parcel of sovereignty such as control of the territory in exchange for the creation of a superior common good. The European arrest warrant is a vector of integration. Casting doubts about it can easily turn into questioning not only the set of rules, but also the principles and values ruling the functioning of the European common house.
