2 EuConst 1 (2006)

handle is hein.journals/euroclv2 and id is 1 raw text is: 








Editorial


MUTUAL   TRUST

Mutual  trust is at the heart of the European Union. Although the Union lacks a
general mechanism to enforce its rules and decisions, member states usually com-
ply with them. This remarkable fact can in part bc explained by self interest:
although individual rules and decisions may be found harmful and are ducked
from time to time, all member states know they win by sticking to the rules of the
game. The member  state that grudgingly applies a rule or a decision, trusts all the
others to do the same most of the time. If this were not so, the system would
break down, in spite of the European Court of Justice denying the rule of reci-
procity legal status in the Union.
   Mutual trust is also at the basis of the mutual recognition of national deci-
sions, which in the field of the free movement of goods and persons has served
the Union so well.
   In its Tampere meeting of 1999 the European Council made mutual recogni-
tion of judicial decisions and judgments the cornerstone of Union judicial co-
operation in criminal matters. One of the first concrete results of Tampere, the
Framework  Decision on the European Arrest Warrant of 13 June, 2002 is 'based
on a high level of confidence between Member States'. In actual fact it seems to
breathe mistrust of states having a liberal criminal law tradition.
   The Framework   Decision abolishes the principle of double criminality be-
tween member  states as the basis for extradition (or 'surrender', in the newspeak
of the Decision). However, states can opt to maintain it, except for 32 specified
crimes (Article 2). Implicitly, by not listing them as mandatory or optional grounds
for non-execution of arrest warrants (Articles 3 and 4), the Decision obliges mem-
ber states to surrender nationals. It also ends the political offences exception.
   From the beginning the Arrest Warrant Framework Decision has encountered
constitutional obstacles. The Italian government originally could not back the
Decision, holding it would jeopardise national sovereignty, but finally ceded,
warning however that implementation necessitated a constitutional amendment.
Berlusconi added that if the required majority for the amendment could not be
found, Italy would stay outside the system, 'just as England and others have
remained outside the euro, for example'. The constitutional amendment in France

European Constitutional Law Review, 2: 1-3, 2006
@ 2006 TM GASSER PREss and Contributors          DOI: 101017/S1574019606000010

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