The nature of mutual recognition in European Law : re-examining the notion from an individual rights perspective with a view to its further development in the criminal justice area
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Bibliographic Information
The nature of mutual recognition in European Law : re-examining the notion from an individual rights perspective with a view to its further development in the criminal justice area
（Ius commune, 138）
Intersentia, c2015
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Includes bibliographical references
Description and Table of Contents
Description
There is substantial disagreement in academic literature over how to address the tensions between the application of mutual recognition and the safeguarding of individual rights, particularly in the EU criminal justice area. This book investigates those tensions by re-examining the nature of mutual recognition in European law from an individual rights perspective. A key question is the role played by mutual recognition in the process of reconciling free movement and other interests.The book contains a comparative analysis of mutual recognition in the internal market and the Area of Freedom, Security and Justice. It assesses mutual recognition in the context of the aims of both areas, the principles of European law and norms laid down in primary and secondary EU law. The analysis follows mutual recognition in the fields of product requirements, professional qualifications and judicial decisions in criminal matters.The author concludes that the core function of mutual recognition has been obscured by assertions made by EU policy makers regarding its consequences, which fail to distinguish between policy objectives, integration methods and legal obligations. This has also lead to a debate among academics and an interpretation of mutual recognition by the Court of Justice which presents an unnecessary conflict between the application of mutual recognition and the safeguarding of individual rights. It is argued that for mutual recognition to have a stable future in the EU criminal justice area, clarity regarding its aims is urgently required and individual rights need to be enhanced both in judicial cooperation measures and through harmonisation of suspects' rights in criminal proceedings.
Table of Contents
- ACKNOWLEDGMENTS PREFACE CHAPTER 1: INTRODUCTION 1. The Legal Context of Mutual Recognition in European Integration 2. Academic Debate on Mutual Recognition: a (Limited) Focus on the Obligations It Imposes on Member States 2.1. Mutual Recognition and the Internal Market 2.2. Mutual Recognition and the Area of Freedom, Security and Justice 2.3. Limits of the Current Academic Debate on Mutual Recognition 3. What is the Nature of Mutual Recognition from an Individual Rights Perspective? Questions and Research Methodology 3.1. Sources on which the Study will be Based 3.2. Working Definitions 3.3. Relationship with Aims 3.4. Relationship with (Other) General Principles 3.4.1. Principles that Derive from the Rule of Law 3.4.2. Systemic Principles 3.4.3. Other Types of General Principles 3.5. Relationship of Mutual Recognition with Treaty Norms and Secondary Legislation CHAPTER 2: INTERNAL MARKET 1. Introduction 2. Aims and Policies of the Union as an Internal Market 2.1. Relationship with Mutual Recognition 2.2. Conclusion 3. Mutual Recognition of Product Requirements 3.1. Case Law Regarding Mutual Recognition and the Rule of Reason 3.2. Impact of the Cassis de Dijon Decision on the Commission's Harmonisation and Enforcement Policy Regarding the Free Movement of Goods 3.2.1. Legislative Consequences 3.2.2. Interim Conclusion 3.3. Academic Criticism Regarding the Commission's Interpretation of Cassis 3.3.1. Conclusion 3.4. General Academic Appraisal of Mutual Recognition 3.5. Conclusion 4. Mutual Recognition of Professional Qualifications 4.1. Foundational Case Law on the Mutual Recognition of Professional Qualifications 4.1.1. Interim Conclusion 4.2. Application of Mutual Recognition in Secondary EU Legislation onProfessional Qualifications 4.2.1. Vertical Approach 4.2.2. 'New' or 'Horizontal Approach' 4.2.3. Professional Qualifications Directive 4.2.4. A Special Case: Lawyers 4.3. Interaction between EU Secondary Legislation and the (Further) Development of the Case Law of the Court of Justice 4.4. Conclusion 5. Mutual Recognition in the Internal Market: Conclusion CHAPTER 3: THE AREA OF FREEDOM, SECURITY AND JUSTICE 1. Introduction 2. Historical Development of Judicial Cooperation in Criminal Matters in the EU 2.1. The Road towards Mutual Recognition 2.2. The Tampere European Council: The Founding of Mutual Recognition as a Policy Principle 2.2.1. Recognition Procedure 2.2.2. Dual Criminality 2.2.3. Jurisdiction 2.2.4. Fundamental Rights and Procedural Safeguards 2.3. Programme of Measures to Implement the Mutual Recognition Principle 2.4. Implementation of the Mutual Recognition Principle 2.5. The EU Justice Agenda for 2020 2.6. Comment 3. Academic Debate 3.1. Mutual Recognition is not Appropriate in the Area of Criminal Law3.2. Mutual Recognition can only Apply in a Limited Manner 3.3. Mutual Recognition needs to be Balanced by Harmonisation 3.4. Mutual Recognition is Appropriate and should Apply Fully 3.5. Assessment 4. Aims of the Union as an Area of Freedom, Security and Justice 4.1. The Notion of a European Area 4.2. Justice 4.3. Freedom vs. Security? 4.4. Role of the European Citizen 4.5. Relationship with Mutual Recognition 5. European Arrest Warrant 5.1. Mutual Recognition as Applied to Extradition Procedures in the Framework Decision on the European Arrest Warrant 5.1.1. Recognition Procedure 5.1.2. Dual Criminality 5.1.3. Jurisdiction 5.1.4. Nationals, Residents and those Staying in the Executing Member State 5.1.5. Ne Bis in Idem and in Absentia Decisions 5.2. Relationship with Additional Harmonisation Measures 5.2.1. Impact of Measures Adopted on the Rights of Suspects andAccused Persons in Criminal Proceedings 5.2.1.1. Road Map for Strengthening Procedural Rights of Suspected orAccused Persons in Criminal Proceedings 5.2.1.2. Interpretation and Translation 5.2.1.3. Right to Information 5.2.1.4. Access to a Lawyer and the Right to Communicate upon Arrest 5.2.2. Impact of 'Flanking' Mutual Recognition Measures
- Notably the European Investigation Order and the European Supervision Order 5.2.2.1. European Investigation Order 5.2.2.2. European Supervision Order5.3. Relationship with Principles of EU Law, Notably Fundamental Rights and Proportionality 5.3.1. Proportionality from an Individual Rights Perspective 5.3.2. Positions Council, Commission, European Parliament 5.3.2.1. Implementation in a Number of Member States, Interpretation by the Court of Justice5.3.2.2. Assessment 5.4. Conclusion 6. Ne Bis in Idem 6.1. Introduction 6.2. Court of Justice Case Law on Ne Bis in Idem6.2.1. 'Final Decision' 6.2.2. 'Same Acts' 6.2.3. 'Enforcement Condition' 6.3. Conclusion 7. Mutual Recognition in the Area of Freedom, Security and Justice CHAPTER 4: CONCLUSIONS REGARDING THE NATURE OF MUTUAL RECOGNITION IN EUROPEAN LAW 1. The Internal Market 2. The Area of Freedom, Security and Justice 3. The Nature of Mutual Recognition in European Law 3.1. The Role of the Principle of Mutual Recognition in Reconciling Free Movement and Individual Rights 3.2. The Importance of Distinguishing between Free Movement, Mutual Recognition and Home State Control 3.3. The Further Development of Mutual Recognition in the Criminal Justice Area ANNEX: NORMS STEMMING FROM THE APPLICATION OF MUTUAL RECOGNITION AND THEIR EFFECT IN THE FIELDS OF EUROPEANLAW COVERED BY THIS RESEARCH BIBLIOGRAPHY CASES VALORISATION ADDENDUM CURRICULUM VITAE
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