The chapter explains the principles of inter-state cooperation in criminal matters in connection with domestic proceedings. It sets out the international legal framework governing criminal law cooperation among states, including multilateral and bilateral agreements of general application and treaties specifically concerning international crimes, most notably the 2023 Ljubljana–The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes Against Humanity and War Crimes. The chapter sets out the differences between the traditional forms of assistance in criminal matters, which are associated with a higher degree of formality and subject to broader grounds for refusal and, on the other hand, the more advanced forms of cooperation (exemplified by mutual recognition in the European Union context) prioritizing effective enforcement while recognizing limited grounds to refuse requests. The chapter reviews the prerogatives of the requested states to refuse under these models with reference to double criminality, specialty, statutory limitations, ne bis in idem, and human rights concerns. It then takes a closer look at the traditional forms of cooperation and the issues which arise in that context, focusing on extradition, other mutual legal assistance, transfer of criminal proceedings, and enforcement of foreign penalties.

The Member States of the European Union have created an internal market where movement of goods, services, persons and capital should be as easy across borders as it is within a single Member State. This is achieved by Treaty Articles which prohibit restrictions on free movement and discrimination, and by harmonisation. The process of harmonisation is complex and contested because it goes to the heart of how much power the EU has, and how much uniformity between Member States is required. The creation of common standards, although done by legislation, is a technocratic process in which it is sometimes claimed that non-scientific interests such as culture and identity are not adequately represented. As well as this, a well-functioning internal market has side-effects, such as regulatory competition, which put pressure on national standards and may undermine national preferences.

This chapter outlines a conception of the body politic as an organised plurality of actors governed by ordering principles that aim to achieve ‘correct proportions’ between various levels of agency and thereby ensure viability of the system over time. Fundamental dispositions in the body politic are directed towards mutual recognition rather than the mere pursuit of ‘influence’ through political power or economic wealth. This implies that actors are relational beings, embedded in relationships enabling them to organise social, political, and economic associations. The chapter discusses contractualism in political economy, considering its separation of economics from the body politic and its reduction of political economy to instrumental rationality and maximising choice. The contractualist approach is contrasted with a relational perspective that emphasises interlocking institutions that channel within the body politic existing social dispositions and interdependencies. The chapter also explores the implications for political economy of the latter view, building on the work of political and economic theorists of the Enlightenment such as Paolo Mattia Doria and Antonio Genovesi. Their approach is consistent with a non-contractualist view of the evolution of civil life which emphasizes the primacy of plural levels of aggregation and intermediate affiliations in the development of the body politic.

This chapter explores the role of the European court system in establishing the foundations of European criminal law and influencing its subsequent development. It opens with an historical overview of the emergence of the various elements within the judicial system focusing on the Court of Justice of the EU (CJEU) and the European Court of Human Rights. Particular emphasis is placed in the discussion on the contribution of the CJEU to the field of EU criminal law as it evolved during the Union’s formative years. Through its case law, the Court acted at various times as ‘the motor of European integration’ and the arbitrator of disputes over EU competence and the primacy of EU law. The chapter then moves to the contemporary setting of judicial engagement with the principle of mutual recognition by exploring the implications of certain judgments on the European Arrest Warrant. Consideration is given in this discussion to the increasing and progressive emphasis within the jurisprudence on the essential role of the European court system in ensuring due process and safeguarding fundamental rights.

European Criminal Law has developed into a complex, jagged subject matter, which at the same time has become increasingly important for everyday criminal law practice. On the one hand, this work aims to do comprehensive justice to the complexity of the matter without sacrificing readability. In order to achieve this, the book’s structure enables legal scholars and experienced practitioners to access the information relevant to them in a targeted manner and, at the same time, enables less-oriented readers to gain access to European Criminal Law. Thus, the volume both answers basic questions and offers discussion in more specialised areas. Written by experts in the field, the book offers discussions that are both of the highest academic standards and accessibly readable.

With the principle of mutual recognition, the EU facilitates effective and efficient law enforcement cooperation among its Member States. Foreign judicial decisions are treated like domestic decisions, while differences in the national criminal justice systems are maintained. Prolonged examinations are no longer necessary and “safe havens” for criminals are closed. The basis of this cooperation, however, is mutual trust in the rule of law. The author uses, inter alia, the current example of Encrochat to show concrete possibilities for application. There, the French criminal authorities achieved a considerable cross-border investigative success by decrypting crypto-mobile devices of that company, which were frequently used by criminals. Through the recognition and execution of European Investigation Orders in France, those findings could also be used in other Member States and considerable prosecution successes achieved. However, the scope and variety of such measures can lead to problems: Only corresponding measures can be recognised. Violations of the Charter of Fundamental Rights EU must not be enforced. Inhumane treatment of detainees may prevent the enforcement of a European Arrest Warrant in individual cases. The loss of trust in the rule of law in some Member States, the EUs reaction to this danger and the control function of CJEU decisions are currently determining legal policy.

The chapter begins by examining why the EU regulates, beginning with how the EU attempts to justify its regulatory power before exploring the main principles underlying EU regulation. We will then focus on who regulates in the EU, that is, the institutions, such as agencies and committees, that assist the EU in achieving its regulatory goals. The remaining sections will focus on the questions of how the EU regulates, distinguishing between the main legal and non-legal tools by which the EU regulates, and the judicial routes available to enforce or challenge the validity of such regulatory choices. Throughout, the focus will lie on the tension between efficiency and diversity that drives EU regulatory choices.

The creation of an internal market that transcends all Member States has without doubt been the EU’s priority in the last sixty years. Conceptualising Europe as a market, however, requires a careful appreciation of how its economic objectives and its political objectives intersect. This chapter will focus on exactly this. We analyse what the different available methods of market integration, and their subsequent implications, tell us about the nature of the EU’s market. Which institutions have power, and why? What is the balance between economic interests and other values, and is that balance appropriate? In this chapter, we analyse the many parts to the puzzle that is the internal market. We will then focus on the two main regulatory techniques of the internal market: positive integration, through which the EU re-regulates the European market by the creation of new legislation and negative integration, which takes place where national rules governing the market are declared inapplicable as they impede the functioning of the internal market. Each of these regulatory techniques, as we will see, comes with its own assumptions, problems and implications.

A central charge against T. H. Green’s conception of positive freedom is that it confuses freedom and social justice. Rather than illuminating and elucidating the meaning of liberty, Green, so the criticism goes, under the disguise of a definition, recommends social ideals and principles such as social justice. The validity of such arguments is not the focus of my concern. I argue, instead, that contemporary efforts to defend social legislation, the welfare state, and socialism from the claims of negative freedom overlook the important interplay between context, conceptual mutability, and conceptual relationality in the construction of normative political arguments. Green’s conceptualization of positive freedom unveils just such interplay. To reclaim the vital conceptual-normative role of positive freedom in the tradition of liberalism and its contemporary discourse is the task of this paper.

Mutual recognition is not concerned in the first place with fundamental rights, but with the creation of an ‘area of freedom, security and justice’. By flanking mutual recognition with the new ‘principle’ of mutual trust, the CJEU and the EU legislator have endeavoured to foster mutual recognition through a virtuous, yet illusory claim that fundamental rights are equally safeguarded by all the Member States. However, a recent turn to realism has acknowledged that there may be grounds for ‘deactivating’ mutual recognition in exceptional circumstances related to a Member State’s failure to respect fundamental rights. Although that change may suggest that the protection of fundamental rights may actually be at variance with mutual recognition and mutual trust, it rather appears that a high level of protection of fundamental rights calls for (re)consideration of the function and content of mutual trust, which needs to be at the service of mutual recognition.

The principle of legality (Article 49 Charter) is a cornerstone of criminal justice systems and has a long history in the European legal order. It has four aspects: it prohibits retroactivity, analogical interpretation, vagueness and reliance on custom in criminal law. Many of its functions find application in European law. Concomitantly, several inconsistencies and shortcomings are observed. Its application to mutual recognition is effectively excluded and the same goes for rules on jurisdiction. These two lacunae cause uncertainty in the cross-border application of criminal law. Moreover, the CJEU has sought to restrict its application to limitation rules, but with contradicting reasoning. Three significant challenges are identified in this chapter: the multilevel criminal justice created by the institutional arrangements of the European legal order; the everlasting conflict between due process and crime control observed in European criminal policy; and the lack of defined theoretical rationales and values justifying the principle of legality.

This chapter offers a broad reflection on the difficulties and challenges that the notion of trust presents for judges. After a historical excursion, it demonstrates how basing the operation of an area of law on trust is likely to clash with a rich and powerful bundle of ideas and historical experience at national level. This epilogue invites us to consider a shift in paradigm from law based on trust to trust based on law: ‘Seen this way, trust is not a pre-requisite for the law, but rather something that the law and social interaction generate. Trust becomes the end destination, not the starting point.’

The aim of this chapter is to cast light on the interplay between mutual recognition and fundamental rights in Europe’s area of criminal justice. Focusing particularly on the framework decision on the European arrest warrant, the chapter begins by placing the application of the principle of mutual recognition within the context of the objective of effective interstate cooperation in criminal matters. The chapter then examines the extent to which fundamental rights have emerged as a limit on automatic mutual recognition both in secondary EU law and in the case law of the CJEU. The chapter analyses the extent to which harmonisation of fundamental rights in EU secondary law can provide a basis for enhancing mutual trust and thus facilitate the operation of mutual recognition in criminal matters. In this manner, the chapter assesses the extent to which EU law has moved from ‘blind’ to 'earned' trust in Europe’s area of criminal justice.

The need to make progress in the harmonisation of the rights of suspects and accused persons in criminal proceedings has become essential for the appropriate functioning of the principle of mutual recognition, laid down in Article 82 TFEU as the basis of judicial cooperation in criminal matters. This principle is founded on mutual confidence between the judicial authorities of Member States, according to which national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter. Among these fundamental rights, the EU had to establish a common core of minimum standards protecting rights of suspects and accused persons in criminal proceedings. To this end and to implement the Stockholm Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, six directives have been adopted. They represent a reference point for procedural guarantees and should be regarded as an integral part of the protection afforded by Article 48(2) of the Charter. This chapter analyses the six directives, including the consequences of their adoption by EU institutions, the possible shortcomings experienced during their implementation in Member States, and the difficulties involved in their application by judicial authorities.

The chapter provides an overview of the complex and vast legal framework that the EU has adopted in recent decades to protect victims of crime in the Area of Freedom, Security and Justice, especially from the point of view of procedural rights. Particular attention is paid to both relevant CJEU case law and the stance taken by national legal systems at the time of implementing EU minimum standards. The chapter also examines the impact of the Charter of Fundamental Rights of the EU on the standard and scope of the rights of victims. The final part of the chapter looks to the future, evoking some developments that will hopefully be introduced in the next few years to compensate for the lack of effectiveness that, in many cases, still characterises the rights of victims within the AFSJ.

The nature and specific operation of the system of judicial recognition and enforcement within the Union is based on mutual trust in the judicial systems of other Member States. Within this framework, recognition and enforcement operate with formalised quasi-automaticity. This chapter outlines the major phases through which that system developed to reach its current shape and examines case law developments regarding the substantive and formal requirements that, albeit minimally, condition the free circulation of judgments within the Union. It concludes with remarks inspired by recent developments concerning judicial independence as a fundamental pre-requisite for the mutual trust upon which the functioning of judicial cooperation within the Union relies.