Kan rättsstatsprincipen i EU skyddas genom de nationella domstolarnas granskning? - En analys av EU-domstolens dom i L och P och betydelsen av unionens gemensamma värden för den europeiska arresteringsordern

Sammanfattning: The rule of law backsliding in some EU Member States through deficiencies in the judiciary has led to a crisis impacting several dimensions of the European cooperation. Respect for the rule of law is a fundamental value for the Union and thus a pre-condition for accession to the Union according to Article 49 TEU. Pursuant to Article 2 TEU the rule of law is a common value between the Member States. In a situation when a Member State no longer observe the EU common values, Article 7 TEU, ‘the nuclear option’, provides a political mechanism by which the concerned Member State might lose authorities within the Union. The mechanism is political since the decision making lies within the authority of the Council. Furthermore, the decision requires unanimity, which in practice rules out the implementation of the mechanism in a situation where there are more than one Member State that disrespects the fundamental values of the EU. The European judicial cooperation in criminal matters, which is founded on the principles of mutual trust and mutual recognition, is one dimension that is affected by the dismantling of the judiciary’s independence. The principles of mutual trust and recognition introduced free movement for judgments and decisions in criminal matters, primarily on grounds of efficiency. The cooperation in criminal matters presupposes autonomous and functioning national courts that are able to ensure the fundamental rights of individuals, e.g. the right to an effective remedy and a fair trial in Article 47 of the Charter. The thesis examines the balance between the principles of mutual trust and recognition and the principle of rule of law within the case-law from the Court of Justice in the context of judicial cooperation, notably the system of extradition through the European arrest warrant. The main focus concerns the ECJ’s judgment from December 2020 in the L and P case. The Court ruling confirms that the national courts shall examine the independence of their European counterparts as part of the execution of a European arrest warrant. The thesis finds that the rule of law-scrutiny places a heavy burden on the national courts: the national assessment is characterized as complex and difficult to implement and does not fully assure rule of law compliance by the Member States.