European Integration or Democracy Disintegration in Measures concerning Police and Judicial Cooperation?

Abstract

In recent cases on the European Arrest Warrant, the Court of Justice of the European Union has made decisions which are incompatible with the requirements of national Constitutions on the protection of fundamental rights such as the right to freedom from imprisonment. National Constitutions are acts of national Parliaments which often require the completion of a very difficult procedure in order to be amended. Unfortunately, the Court of Justice has not taken these procedures into consideration when it has ruled that, in order to enhance mutual trust between national judicial authorities, the European Arrest Warrant can be issued even at the sacrifice of freedoms of individuals protected by national Constitutions. Similar judgements are incompatible with decisions made by Constitutional Courts such as the Italian Constitutional Court which states that the Union’s supremacy and the application of the European Arrest Warrant cannot encroach upon the fundamental principles of Constitutions. Elected bodies such as the European Parliament and national Parliaments should decide whether fundamental principles protected by national Constitutions should be set aside. The entry into force of the Lisbon Treaty could have made the difference as it increased the respective powers of national Parliaments and the European Parliament in the EU decision making procedure. Unfortunately, these changes have not led to more democracy in the criminal area. The result is that the Court of Justice case-law on the European Arrest Warrant is incompatible with the judgments of national Constitutional Courts. This article will show how incompatibility between the different courts and lack of democracy in the criminal area could lead to the failure of police and judicial cooperation between Member States. In order to avoid this failure, it is imperative that measures in the criminal area are adopted by the democratic institutions: the European Parliament and national Parliaments in cooperation with each other. Indeed, these institutions alone, not unelected bodies such as the Court of Justice, should evaluate whether national Constitutions should be set aside in order to fight against criminal organisations.