El modelo en cuatro etapas

The importance of new policy concepts and symbols for the evolution of new legal and theoretical approaches runs like a common thread through the whole of European law. For example, when European citizenship was introduced by the Treaty of Maastricht, there was little agreement as to its content. It may be assumed that even its originators did not have a clear idea of what it might mean and what it should lead to.208 While it was originally dismissed by many as mere symbolic activism devoid of any real content209 - and maybe rightly so - it must now be regarded as a central notion of EU law that has acquired specific legal content and lead to far-reaching case law.210

This shows that in judicial cooperation in criminal matters, new terms are coined to create new concepts and forms and to bring about a new dynamic, more than for the sake of specific legal changes. The introduction of the “principle” of mutual recognition and the mutual recognition “regime” entailed a whole change of terminology for judicial cooperation.

First of all, the internal market parallel brought about many other parallels of the same kind. The idea of a free movement of evidence, of free circulation of judgements etc. all take up on this basic analogy. Similarly, the idea of mutual trust can partly be located here.

Secondly, the language is modelled to express a qualitatively new dimension of integration in criminal matters. Rather than continue with traditional concepts of judicial cooperation between sovereign states, the language tries to promote a European legal area dimension as a realisation of the Area of Freedom, Security and Justice. Thus, most measures implemented seem to introduce “European” acts.

Council Doc. 7307/05 of 12 April 2005.

211

Council fram ework decision 2008/909/JHA of 27 Novem ber 2008; a European Enforcem ent

212

Order, however, exists in cooperation in civil m atters; for the re-nam ing see also Morgenstern, ZIS 2008, p. 76.

Cf. the justification of the Draft European Parliam ent Legislative Resolution concerning

213

am endm ent 1 in the report of the Com m ittee on Civil Liberties, Justice and Hom e Affairs (Rapporteur: Ioannis Varvitsiotis) of 17 May 2006, A6-0187/2006 and the text subsequently adopted by Parliam ent, P6_TA(2006)0256. In Art. 1 of the original proposal, the enforcem ent order had been defined as “a decision delivered by a com petent authority of the issuing State for the purpose of enforcing a final sentence im posed on a natural person by a court of that State”.

As to the im plications of this change in term inology see also W eyembergh, in:

214

Kerchove/ead. (eds.), La reconnaissance m utuelle, p. 42 (“sym boliquem ent très im portant”). Or not even there, since m any Mem ber States chose to retain their classic language, cf.

215

e.g. Gless, in: Sieber et al. (eds.), Europäisches Strafrecht, § 39 para. 13.

The “European” Arrest Warrant is, of course, not a European warrant. Despite the standardized form on which it is transmitted, it is still a purely national decision, subject entirely to national law, without the least harmonisation or common requirements. The same is true for the “European” Evidence Order. The desire to create European orders went so far that the proposed framework decision on the European Enforcement Order211 twisted its intended meaning because of its conceptual ambitions. It was later adopted and had to be renamed as the Council framework decision “on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union”.212

The European Parliament had argued that recognition and enforcement should not take place on the basis of a European order, but on the basis of the original judgment and a certificate.213

The idea of a European legal area also let the “request regime” seem inadequate. It was replaced by the mutual recognition regime, which, apart from the juridification of the procedure, means that the requesting state is now called issuing state, while the requested state is called executing state.214 The goal that it envisages, the totally automatic recognition, or the genuine European validity of all decisions, is as yet only reached in the language.215

The renaming of existing methods of cooperation is also seen in the creation of new principles. The “principle of availability” is increasingly discussed as another basis for

Cf. Böse, Der Grundsatz der Verfügbarkeit, passim .

216

Cf. above under 3.2; para. 35 of the Presidency Conclusions.

217

Fram ework Decision 2002/584/JHA, recital 5 (“...abolishing extradition between Mem ber

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States and replacing it by a system of surrender between judicial authorities”) and throughout, but point 4.5 of the Explanatory Mem orandum to the proposal COM(2001) 522 fin./2 states that “it is to be treated as equivalent to it [i.e. extradition] for the interpretation of Article 5 of the European Convention of Hum an Rights relating to freedom and security”; see also Apap/Carrera, European Arrest W arrant, p. 6.

the Area of Freedom, Security and Justice.216 Taken in its widest meaning, it requires that data available to prosecuting authorities in one state should automatically be made available to prosecutions of all other Member States. It is mainly relevant to police cooperation. While the principle of availability might indeed have a rather specific content, it has become synonymous to cooperation in data exchange, which has more traditional intergovernmental connotations.

I will now discuss two specific examples on how the creation of new concepts that does not correspond with the creation of new content can actually nevertheless influence the interpretation of the law. First, I will look at extradition law where, among Member States, there is now the surrender procedure. After that, I will outline the relation of the principle of mutual recognition to mutual trust and its legal implications.