A Balancing Act: Suspending Mutual Trust Without Upending the European Arrest Warrant

Mutual trust – the presumption that Member States comply with EU law, especially its fundamental rights – is not blind trust. In exceptional circumstances, this presumption can be suspended, and since the seminal LM case the European Court of Justice (“ECJ”), responding to pressure from national courts, has allowed mutual trust suspension in the European Arrest Warrant (EAW) context if a two-pronged test is satisfied. The test involves decentralized review conducted by a national court in the Member State hosting an alleged criminal (“host State)” – the executing judicial authority – regarding an EAW from an issuing judicial authority, that is, from a court in the State where the crime was committed (“home State”) This article engages with the criticism of the LM test to show that the two-pronged structure should be retained, and general suspension prohibited, but that the precise details of the review under each prong do indeed require honing. The article advances two core arguments. The first argument is that general suspension of mutual trust would lack a clear legal anchor. Building on the rich academic debate around the appropriate breadth of suspension, the article elaborates on various facets of the discussion as to whether the ECJ has the power to authorize general suspension, concluding that it likely does not. The second core argument is that general suspension fails the proportionality assessment. While admittedly providing the highest level of procedural protection to individuals, general suspension would do so at an unacceptable cost to the Union. The article brings to the fore several practical consequences of general suspension, some of which have been poorly discussed in prior literature, such as neglecting the remaining enforcement potential of a rogue Member State’s judiciary, ostracizing national judges who remain faithful to their EU law obligations, and risking impunity. As part of the proportionality assessment, the article argues for a revised LM test that (1) addresses some of the critics’ concerns that the existing test is too stringent and can lead to unjustified surrenders, and (2) shows that a less stringent measure than general suspension is possible to reasonably achieve the goal of protecting the right to a fair trial. Even though the existing LM test is already a middle ground and has been explicated over the years by the Court, several tweaks, such as sensitizing the test to politicized EAW cases and minimizing the importance of dialogue between the issuing and executing authority, are desirable.