Europese fundamentele rechten voor de nationale rechter: een analyse van Nederlandse, Duitse en Belgische rechtspraak in overleveringsbeslissingen onder het EAB en de Dublin Verordening

The vast majority of judicial decisions in European law are not taken by the Court of Justice of the European Union in Luxembourg or the European Court of Human Rights in Strasbourg but by national courts. The enlistment of national judges as European judges is considered one of the most successful features of the EU's legal architecture. Yet, European legal scholarship does not pay much attention to the national judicial decisions as acts of EU law. The systematic analysis of national court decisions is an academic endeavour reserved for national legal scholarship and comparisons between national judicial decision-making are rare. However, analyses and comparisons of national judicial decision-making on matters of EU law are very important, especially given the growing role of EU law in the determination of fundamental rights standards in Europe. Through the EU's Charter of Fundamental Rights, EU Regulations and Directives and through the case law of the Court of Justice, EU law is progressively becoming a source of fundamental rights law. As the main enforcers of EU law, national judges are at the forefront of protecting these fundamental rights. This is a very important but at times difficult position, especially when EU legal standards on fundamental rights must be juggled with other fundamental rights standards imposed by the European Convention of Human Rights or the national constitution. The process of determining which fundamental rights are applicable and how they should be enforced has become a highly complex legal exercise, especially in areas where there is a potential divergence between EU and ECHR standards. One area of law in which this judicial exercise has become particularly complex is the Area of Freedom, Security and Justice. Specifically, the balancing of the principle of mutual trust (on which this field of EU law is founded) with individual human rights guarantees in specific cases has become a demanding task for national judges. Particularly because of the differences in approach between the Court of Justice and the ECtHR and the inherent tension between the principle of mutual trust and carrying out a thorough fundamental rights review. This thesis examines how judges in the Netherlands, Germany and Belgium have approached this complex legal exercise in the last 10 years in cases concerning the transfer of a person under the European Arrest Warrant and the Dublin Regulation. Building on an analysis of more than 1000 national court judgments and interviews with lawyers and judges, the thesis gives a unique insight into EU fundamental rights law in practice. How have national judges juggled the differences in applicable laws (EU law, ECHR law, national law)? How have they applied the tests laid down by the Court of Justice? What problems have national judges run into when applying these legal standards and how have they, in all this, made use of the 'jewel in the crown' of EU law: the preliminary reference procedure?