Chapter 7 asks how it took more than five years for one of the most pressing legislative projects, seen as essential to enable law enforcement authorities all over the EU to effectively investigate crimes, to be resolved. The European Commission put forward the legislative package concerning e-evidence in criminal matters in 2018, but the legislative process was not concluded until June 2023. What can explain the divergences and delays that occurred, despite all parties having acknowledged the importance of the project? This chapter provides an overview of the difficulties that marked the negotiation process, as well as the solutions finally found, and serves as a very useful guide to e-evidence. It outlines the pre-history of e-evidence and the different stages of the negotiating process, before laying out the positions of the various actors on several issues that had to be negotiated. Finally, it focuses on the most contentious issue, namely the notification to be given, in some cases, by the issuing state to other states involved, permitting them to review the requests to service providers in order to ensure that human rights are protected and that no abuse occurs.

This chapter explores the Member States’ use of EU private international family law in the protection of children with links abroad from abuse or neglect by their family. These measures include rules governing the assumption of jurisdiction over the parental responsibility of a child, including both private and public law measures. The chapter argues that the abused and neglected child was not a central focus when regulating the cross-border family and, as a consequence, legal borders between Member States’ family law systems retain considerable significance for these children. Whilst each Member State has provision in place for public law child protection measures, the methods and approach adopted vary significantly between legal systems, as do the potential substantive outcomes for children. The EU’s private international family law rules are designed to obscure these differences and this has presented difficulties in supporting cross-national cooperation over child protection. The political nature of these decisions has meant that focus on the welfare of the child may consequently be lost.

In this chapter economic aspects of constitutions are explored. Basically there are three. Constitutions, firstly, act as a condition for markets and the overall economy: they are, most of the time, criticial preconditions for economic development by the - predictable - laws they generate and the protection they offer for property and capital). Secondly constitutions act as a factor in markets and the economy. They, for instance, lower transaction costs. And. thirdly, constitutions act as a catalyst in economic relations, e.g. by boosting mutual trust.

This penultimate chapter shows how the story of the constitution is not only told by the written text of a constitution but (even predominantly so) by symbols, images, icons, gestures, behaviour, flags, rituals and so on. The constitutional story is conveyed directly and indirectly in very many (unstudied) ways.

Chapter 3 analyses the the broad-based and largely uniform judgments recognition and enforcement framework in place between a number of European States, referred to in this book as the ‘Brussels Model’. From a recognition and enforcement perspective, the chief success of the Brussels Model is in harmonising the laws of signatory States, so that each State, at least with respect to other signatory States, provides straightforward and expeditious recognition and enforcement of judgments.

Chapter 6 discusses the functioning of a regional system of competition law during a time of populism. This chapter is focused on the EU competition law system. Four topics are addressed. The first is the EU legislative initiative, which is aimed to empower national competition authorities, i.e. the ECN+ Directive.It is argued that this directive is not likely to resolve the problems faced by national competition law regimes subject to populists’ government’s pressure. Second, the chapter analyses what is the reaction of the EU competition law system to developments at the national level brought about by populists’ governments. Both the reactions of the EU institutions (the European Commission and the Court of Justice) and national institutions are analyzed. The insufficiency of these reactions is examined and explained. Third, the chapter outlines and examines the deficit of trust in the decentralized system of enforcement of EU competition law and shows how the rise of populism can have consequences for the EU competition law system, including the functioning of the European Competition Network. Fourth, the functioning of the central level of EU competition law system is examined.

Mutual recognition is not concerned in the first place with fundamental rights, but with the creation of an ‘area of freedom, security and justice’. By flanking mutual recognition with the new ‘principle’ of mutual trust, the CJEU and the EU legislator have endeavoured to foster mutual recognition through a virtuous, yet illusory claim that fundamental rights are equally safeguarded by all the Member States. However, a recent turn to realism has acknowledged that there may be grounds for ‘deactivating’ mutual recognition in exceptional circumstances related to a Member State’s failure to respect fundamental rights. Although that change may suggest that the protection of fundamental rights may actually be at variance with mutual recognition and mutual trust, it rather appears that a high level of protection of fundamental rights calls for (re)consideration of the function and content of mutual trust, which needs to be at the service of mutual recognition.

This chapter offers a broad reflection on the difficulties and challenges that the notion of trust presents for judges. After a historical excursion, it demonstrates how basing the operation of an area of law on trust is likely to clash with a rich and powerful bundle of ideas and historical experience at national level. This epilogue invites us to consider a shift in paradigm from law based on trust to trust based on law: ‘Seen this way, trust is not a pre-requisite for the law, but rather something that the law and social interaction generate. Trust becomes the end destination, not the starting point.’

The aim of this chapter is to cast light on the interplay between mutual recognition and fundamental rights in Europe’s area of criminal justice. Focusing particularly on the framework decision on the European arrest warrant, the chapter begins by placing the application of the principle of mutual recognition within the context of the objective of effective interstate cooperation in criminal matters. The chapter then examines the extent to which fundamental rights have emerged as a limit on automatic mutual recognition both in secondary EU law and in the case law of the CJEU. The chapter analyses the extent to which harmonisation of fundamental rights in EU secondary law can provide a basis for enhancing mutual trust and thus facilitate the operation of mutual recognition in criminal matters. In this manner, the chapter assesses the extent to which EU law has moved from ‘blind’ to 'earned' trust in Europe’s area of criminal justice.

This chapter deals with the functioning of ‘mutual trust’ as the organising principle of mechanisms of (implicit) mutual recognition in the fields of migration and asylum within the AFSJ, looking both at rights-conferring and rights-restricting measures, comparing their treatment. The chapter uncovers a contradictory dynamic whereby the mutual recognition of rights-restricting measures across the EU is quasi-automatic and practically unconditional, but the mutual recognition of rights-conferring measures virtually non-existent. The reason for this is claimed to be the interplay between presumed (abstract) trust, as required by the case law of the CJEU, and the real (practical) distrust, professed at horizontal and vertical levels in day-to-day EU migration and asylum governance. Such interplay produces insidious effects on third-country nationals, particularly in the case of asylum applicants, leading to the arbitrary ‘exceptionalisation’ of their fundamental rights.

The nature and specific operation of the system of judicial recognition and enforcement within the Union is based on mutual trust in the judicial systems of other Member States. Within this framework, recognition and enforcement operate with formalised quasi-automaticity. This chapter outlines the major phases through which that system developed to reach its current shape and examines case law developments regarding the substantive and formal requirements that, albeit minimally, condition the free circulation of judgments within the Union. It concludes with remarks inspired by recent developments concerning judicial independence as a fundamental pre-requisite for the mutual trust upon which the functioning of judicial cooperation within the Union relies.

This chapter provides an insight into how certain rights of the child – the definition of child, the best interests and the hearing of the child – have been incorporated in the recently revised Brussels II bis Regulation. The focus is on the 'overriding mechanism' in child abduction cases. The article points out major flaws in the current regulation’s scheme as illustrated in relevant CJEU case law. These shortcomings may affect the level of protection of the rights of the child, as well as the fundamental right to respect for family life under the ECHR. The chapter offers a critical view on the current regulatory scheme, particularly in the light of relevant CJEU case law. With a passing reference to the Commission’s 2016 Proposal, it details how the recently revised regulation (Brussels II bis Recast) deals with the weaknesses of the current framework and assesses the appropriateness and effectiveness of the amendments, critically examining whether the revised regulation is likely to overcome the difficulties encountered.

Within the Area of Freedom, Security and Justice (AFSJ), different mechanisms have been set up to collect, store and exchange personal data for the purpose of law enforcement and border and immigration control. These instruments provide for the exchange of information between judicial and law enforcement authorities, transfer of data to third states, and the setting-up of large-scale databases such as the Schengen Information System, Eurodac, and the Visa Information System. This chapter analyses the use of these databases, the involvement of third parties, and the principle of interoperability from the perspective of the right to privacy and data protection. Focusing on general principles such as purpose limitation, prohibition of automated decision-making, and the right to effective judicial protection, it is argued that a large number of legal rules does not necessarily result in a high level of protection.