The European Arrest Warrant in a context of distrust: Is the Court taking rights seriously?

Abstract

During a time of distrust towards some Member States, the position of fundamental rights when executing a European Arrest Warrant (EAW) has been strengthened. The article considers whether the European Court of Justice (ECJ) is now ‘taking rights seriously’ as regards the EAW. To this end, it employs a theoretical and contextual approach that supports a comprehensive analysis of case-law. First, the article borrows from a theory of rights as trumps and observes that rights are no longer treated as norms with no special force that are in the way of cooperation interests. Second, the article offers a contextual exegesis of this trajectory, by mapping drivers of distrust and evaluating their impact on the position of rights. Through contextualisation, it is argued that distrust, although limited by its circumstances, has offered a compelling opportunity for the ECJ to take rights seriously, paving the way forward for future case-law.