—Renáta Uitz, Central European University
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]
It is old news that Europe’s multi-layered constitutional governance regime has long had a strained relationship with constitutionalism. The EU’s half-hearted response to illiberal constitutional transformations in Hungary and Poland that violate the founding values of the Union is a more recent sign of serious trouble, as it signals to willing national political actors that previously unthinkable departures from the rule of law have become acceptable means of European governance. The sheer technicality of legal responses (including in the judgments of the Court of Justice of the European Union (CJEU)) exacerbates this sense of demise. Ironically, in this era the negotiated departure of the United Kingdom from the Union is proof that European bureaucracy functions fine.
It is against this background that in March 2018 the Irish High Court presented the CJEU with an unexpected opportunity to bridge the gap between founding principles and technical rules on account of handling an extradition request under a European Arrest Warrant (EAW). The CJEU’s pending response to the Irish judge may well turn into an accidental constitutional moment for Europe in the shadow of Brexit and the rise of illiberal political rulers.
The EAW is a tool of judicial cooperation, a judicial surrender procedure, to assist prosecution and detention of a particular person across member states for certain crimes. National Courts may refuse to execute an EAW on narrow grounds. Most recently the EAW made headlines when the Spanish judiciary used it to request the extradition of Catalan leaders residing in exile in several European countries. Spectacular mistakes in confused identities, delays in a foreign country’s justice system and detention conditions make the EAW into a handy illustration of what is wrong with EU member ship, and as such the EAW is a low-hanging fruit for Europhobes. As such, it is an unlikely vehicle of European integration par excellence.