The article aims to analyse the extent to which mutual recognition and mutual trust in the criminal law area are developing in the EU in the context of the implementation of the European Arrest Warrant (EAW). First, an overview of the decisions of the Constitutional Courts in Germany, Poland, Cyprus and Czech Republic will be given. These decisions are evidence of a tension, on the one hand, between mutual recognition and state sovereignty and, on the other hand, between the powers of the European institutions in criminal matters and the fundamental rights of the individual. Second, national case-law in the UK, Belgium, Spain and Italy will be examined. Third, an analysis of the recent decision of the European Court of Justice of 3 May 2007 will be carried out. Finally, aglobal assessment of the EAW will be made. Is this instrument effectively promoting normative mutual trust among the judicial authorities in the EU? Should it be amended or is it the wrong response at the wrong time? Some suggestions will be put forward, in light of what is considered to be the nature of the EAW and the birth of this instrument as part of the mutual recognition agenda.

This Article revisits the role and function of constitutional identity and common constitutional traditions and claims that the latter have had an increasingly stronger influence on the process of European integration—more than may appear at first sight. In addition, the relevance of common constitutional traditions has not been undermined but, on the contrary, strengthened by the emergence of fundamental rights in EU law and the subsequent conferral of binding force on the Charter of Fundamental Rights. Constitutional identity and common constitutional traditions are part of two discourses—security and fundamental rights—which are an expression of the security of the European project as an overarching frame characterizing the EU as a polity and legal system. After an overview of some of the most important rulings of the Court of Justice of the European Union, this Article concludes by emphasizing the importance of the recent conciliatory attitude recently adopted by the Court of Justice, although the more ambivalent attitude of the Italian Constitutional Court indicates how conflictual features are becoming increasingly important and can no longer be concealed as the EU reaches a more advanced stage of integration.

Security is the meta-constitutional rationale of the European liberal project and is expressed by two tendentially self-justificatory discourses of power, which are two sides of the same coin: security and rights. The political, inherently conflictual nature of EU constitutional claims has been variously disguised through such discourses. Yet, as the process of constitutionalisation reaches a more advanced stage, in which the probability of high-intensity legal-political conflict as regards key issues of EU integration is growing, the moment has come to address conflict directly, rather than conceal it behind a veil of neutrality. Being ready for actual confrontation means dismissing the straitjacket imposed by the European liberal project. A move from self-referential to heterarchical security is thus advocated. As a result, the constellation of nation states should not be sidelined too easily and the needs and claims of the local level should be considered more carefully. In other words, the principles of primacy, autonomy, uniformity, and effectiveness of EU law ought to be conceived in relative, rather than in absolute terms. One possible way of addressing conflict is to simultaneously permit the CJEU (as well as other EU institutions) to engage more proactively with national courts and identify a common epistemic core, which ought to be upheld whenever the liberal-democratic premises of the European project are threatened.

This Article has a twofold aim. First, it focuses on a particular case study, which has attracted the interest of several scholars from an interdisciplinary perspective: the legalization of same-sex marriage. The Article aims to show how changes in one specific socio-cultural landscape may spill into other contexts as a result of a ripple effect. The idea is to demonstrate how the emergence of a social fact—the increasing demands made by homosexual couples for their union to be recognized in one way or another—may make the process of institutionalization natural. A legal system may sometimes be bound to recognize social facts, and transnational law may enhance this phenomenon. The second aim of the Article is to claim is that, when analyzing change, legal deterministic theories should be dismissed, as they are based upon easy assumptions that do not correspond to empirical observations. Instead, as shown by constructivist approaches, the combined effect of structure and agency in some specific circumstances contributes to social and legal change. However, constructivists perhaps underestimate the relevance of unpredictable events and the (positive or negative) influence that transnational frameworks may have in forming discourses of power. In particular, the EU and the ECtHR systems may facilitate the diffusion of ideas and norms deriving directly from the liberal paradigm that inspire them. However, the liberal paradigm is contradictory, as it does not necessarily provide an incentive for change.

On 23 -25 October 2006, ERA organised a conference on the principle of mutual recognition, and in particular on its legal implications for national judges. Based on the results of that conference, this article presents an overview of this form of cooperation in criminal matters from a legislative and a jurisprudential perspective. Firstly, it analyses the principle of mutual recognition in a broader context (internal market; judicial cooperation in civil matters) in order to better understand its contours. We also address the question whether this principle is as 'revolutionary' as many proclaim it to be. Secondly, (the progress of and obstacles to) the legislative programme of mutual recognition are discussed. Finally, after an excursus on a few key issues connected to the European Arrest Warrant, the article deals with the development of the above-mentioned principle and other aspects of criminal law in the case law of the European court of Justice.