Accessing EU fundamental rights before national courts: an analysis of Dutch, German and Belgian transfer decisions under the EAW and Dublin Regulation

Over the last decades, the European Union has become a prominent player in the field of fundamental rights. This impacts those litigating for fundamental rights, as the use of Union law and access to the Court of Justice is becoming a possibility and, in some circumstances, a necessity. Taking a legal mobilisation approach, this thesis studies the ability of litigators to put fundamental rights claims before the CJEU through the preliminary reference procedure. More specifically, the decision of national judges to refer a case on fundamental rights to the CJEU is examined. This decision is highly relevant, since the ability of litigators to access the CJEU depends on it. Moreover, it has not yet been studied how the fundamental rights context of a case may influence the decision of a judge to refer a question.

As a case study, the thesis studies litigation for fundamental rights in mutual trust cases (in relation to the European Arrest Warrant and the Dublin Regulation). In three jurisdictions (the Netherlands, Germany and Belgium), cases in which preliminary questions were posed and not posed are examined. In addition, interviews are conducted with the national judges involved in these cases. The results of the research will have practical relevance for litigators wanting to approach the decision to refer in a strategic manner. Moreover, it will give insight into the views of national judges on the role of EU law and the CJEU in the adjudication of fundamental rights cases.