Bridging the gap between facts and norms: mutual trust, the European Arrest Warrant and the rule of law in an interdisciplinary context

Abstract

The rule-of-law-backsliding in some Member States has subverted not only one of the EU fundamental values but also trust among national authorities when implementing European Arrest Warrants (EAW). However, when evaluating the execution of EAWs issued by countries experiencing rule-of-law crises, the Court of Justice of the EU (CJEU) sought to preserve judicial cooperation and imposed a rather “top-down” view on mutual trust among Member States. This approach seemingly disregards the (dis)trust which has emerged in the EU due to rule-of-law-backsliding and fails to acknowledge the psycho-sociological nature of trust. Drawing on the trust literature, the paper offers novel conceptual elements to rethink mutual trust in the EAW framework. Notably, it critically assesses some of the gaps in the CJEU's interpretation of mutual trust and advances suggestions to embed empirical considerations in the conceptualisation of this principle to bridge the gap between trust in practice and in principle.