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The role of the principles of mutual trust and mutual recognition in EU law

Eugene Regan, Giudice presso la Corte di giustizia dell’Unione europea, Lussemburgo.

L’articolo tenta di ricostruire le origini storiche dei principi della reciproca fiducia e del mutuo riconoscimento nel diritto dell’Unione Europea al fine di meglio comprendere il funzionamento attuale di tali principi. Ripercorrendo il loro sviluppo attraverso le diverse manifestazioni, è possibile verificare come essi sono stati considerati necessari nel tempo per dare loro visibilità sia nel quadro giuridico dell’Unione che nella prassi della Corte. L’articolo studia il funzionamento dei principi in questione in aree in cui essi hanno giocato un ruolo rilevante, rilevando che sia nel diritto derivato dell’Unione che nella prassi della Corte c’è un riconoscimento della necessità di non partire dall’idea che la fiducia esiste in ogni caso e di consentire eccezioni al principio del mutuo riconoscimento in circostanze eccezionali. Questi sviluppi, insieme con la crescente articolazione di tali principi, provano che essi sono, e devono, essere di carattere dinamico e in continua evoluzione sotto il controllo della Corte e in cooperazione con le corti nazionali. L’articolo analizza altresì il ruolo di queste ultime corti nell’applicazione dei predetti principi, come pure l’influenza della pertinente prassi della Corte dei diritti dell’uomo.

The present contribution seeks to trace the historical origins of the principles of mutual trust and mutual recognition in EU law in order to come to a better understanding of the modern day functioning of those principles. By tracing their development right through to their current manifestations, it can be seen how it has been considered necessary, over time, to give these principles greater expression both in the EU legal framework and in the case law of the Court. The contribution assesses the functioning of these principles in areas where they have played a prominent role, observing that both in EU secondary law and in the Court’s case law there is recognition of a need not to automatically assume trust to exist in all cases and to allow exceptions to the principle of mutual recognition in exceptional circumstances. This development, along with the increasing articulation of those principles, bears testament to the fact that such principles are, and need, to be dynamic in nature, evolving, under the Court’s supervision and in cooperation with national courts. The contribution also considers the role of national courts in the operation of these principles as well as the influence of the case law of the European Court of Human Rights in this regard.

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Sommario:

I. Outline. - II. Mutual recognition and mutual trust: A brief history. - III. Areas where the principles of mutual trust and mutual recognition have played a key role: i) Criminal matters; ii) Civil matters; iii) Asylum; iv). Posted workers. - IV. Mutual recognition and mutual trust from the point of view of national courts: i) Mutual recognition and the Strasbourg Court; ii) Role of national courts in practice in the operation of the principles of mutual trust and mutual recognition: first “European judges”. - V. Concluding remarks. - NOTE


I. Outline.

This paper first provides some historical background by tracing the origins of the principles of mutual trust and mutual recognition and their interrelationship. Secondly, it presents an overview of the role that these principles have played in four key areas: criminal matters; civil matters; asylum, and the area of posted workers. Thirdly, the key role national courts play in relation to the workings of these principles will be considered, before making some concluding remarks.

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II. Mutual recognition and mutual trust: A brief history.

The notion of mutual trust is not mentioned in the EU Treaties but, as with any treaty or indeed any contract, each party expects the other to adhere to what is agreed; otherwise, they would not enter into it. Mutual trust is, therefore, implied. As with any treaty or contract, there are safeguards in the event of any party not complying with their obligations. In the case of the Treaty of Rome, the Commission, as guardian of the Treaty, could take infringement proceedings against Member States for non‑compliance and the Court could adjudicate on disputes as regards the fulfilment by Member States of their Treaty obligations in actions brought by either the Commission or Member States themselves. Over time, as the Communities became the Union, such safeguards had to be strengthened. Examples include the Copenhagen Principles on democracy, the rule of law and fundamental rights as conditions of entry to the EU (now reflected in Art. 2 and 49 TEU); the Art. 7 TEU procedure penalising a Member State who breaches the values on which the Union is founded (set out in Art. 2 TEU) and the introduction of financial penalties for non-respect of the Court’s judgments (Art. 260 TFEU). While there is a presumption that all Member States comply with their obligations to implement EU law correctly, all of the above safeguards attest to the recognition by the Union of the potential for non-compliance by Member States with their obligations under the EU Treaties. While the EU legal system was implicitly founded on trust between Member States, it took a number of years for the Court to articulate this expressly in its case law. Interestingly, the first such reference to be found arises in the context of a judgment from 1963, in which the Italian Government relied on the necessary trust between Member States in support of its argumentation. In that case, the Commission authorised a special tax on the importation from Italy to France of domestic electric refrigerators, compressor units and other accessories. In seeking the annulment of that decision, the Italian government argued, inter alia, that «an atmosphere of trust is necessary for cooperation and the campaign launched by the French press in 1962 against Italian products, which led to the disputed Decision, was not conducive to such an atmosphere». [1] It was not until 1975 that the Court itself made express reference to the mutual trust on which the Community was based, stating [continua ..]

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III. Areas where the principles of mutual trust and mutual recognition have played a key role: i) Criminal matters; ii) Civil matters; iii) Asylum; iv). Posted workers.

Four areas in which the principles of mutual trust and mutual recognition have played an important role can be singled out, namely criminal matters, civil matters, asylum and the area of posted workers. i) European Arrest Warrant (EAW).The EAW[19] is arguably the best example of the operation of the principles of mutual trust and mutual recognition. As stated in recital 6 of EAW Framework Decision (hereinafter, The “FD”) 2002/584, «the European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation». The EAW FD itself is, as the Court recognised in its judgment in Tupikas, [20]one of the key elements of the system of judicial cooperation between the Member States in the area of freedom, security and justice. This is evidenced, in part, by the fact that it has accounted for a significant portion of all preliminary references sent to the Court since the Lisbon transitional period came to an end in December 2014. That principle is, in turn, founded on the mutual trust between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter of Fundamental Rights of the European Union (hereinafter, the “Charter”). Both principles are of fundamental importance, in EU law, in allowing the creation and maintenance of an area of freedom, security and justice without internal borders: – In West, the Court held that the objective of FD 2002/584 is «to facilitate and accelerate surrenders between the judicial authorities of the Member States in the light of the mutual confidence which must exist between them». [21] – In Advocaten voor de Wereld, the Court emphasised the «high degree of trust and solidarity» underling the 32 crimes listed in Art. 2(2) of FD 2002/584. [22] The Court’s recent decision in Aranyosi and Căldăraru, [23] is considered a landmark judgment in the area, insofar as it represents a turning point in relation to the operation of mutual recognition and mutual trust in the context of the EAW FD. In many cases, prior to and following Aranyosi and Căldăraru, [continua ..]

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IV. Mutual recognition and mutual trust from the point of view of national courts: i) Mutual recognition and the Strasbourg Court; ii) Role of national courts in practice in the operation of the principles of mutual trust and mutual recognition: first “European judges”.

i) National courts have an eye to Strasbourg, not only as courts of parties to the Convention but also in light of the importance given by the Court of Justice to ECtHR case law when interpreting EU law provisions. The Court of Justice expressly draws inspiration, not only from the constitutional traditions of the Member States, but also from the approach taken by the Strasbourg court. As provided in Art. 52(3) of the Charter, insofar as the Charter contains rights which correspond to those in the Convention, the meaning and scope of those rights shall be the same, without prejudice for the possibility for EU law to provide more extensive protection. This Court fully recognises that there must be coherence between its approach and that taken by the Strasbourg Court. The ECtHR case law can also be a reliable source of information for national courts in order to establish whether actual deficiencies exist as it has been recognised by the Court as constituting an objective and reliable source. The Strasbourg Court is also mindful of the particularities of EU law and the effective system of protection of fundamental rights it provides. – Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, ECtHR, judgment of 30 June 2005 (Irish case): The ECtHR recognised that, in principle, the EU legal order is presumed to offer equivalent protection for fundamental rights as that provided by the Convention and the case law of the Strasbourg Court. [52] – Avotinš v. Latvia, ECtHR, judgment of 23 May 2016 – The Grand Chamber of the ECtHR reaffirmed the Bosphorusprinciple and expressly stated that it is «mindful of the importance of the mutual recognition mechanisms for the construction of the AFSJ». However, even though the ECtHR recognised the importance of mutual recognition, it emphasised that it «would verify that [the principle] is not applied automatically and mechanically […] to the detriment of fundamental rights». [53]Thus, the Bosphorus principle, just like the principle of mutual trust itself, is a presumption and the ECtHR reserves itself the right to set it aside in appropriate cases so that it can itself examine whether there exists a violation of the Convention. The cross-fertilisation between ECtHR case law and that of our Court is best illustrated by a number of cases. – M.S.S. v. Belgium & Greece, ECtHR, judgment of 21 [continua ..]

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V. Concluding remarks.

While the principles of mutual trust and mutual recognition did not appear in the original Treaty, to a limited extent the latter principle now finds expression in the EU Treaties. Both principles have, however, been further developed in secondary legislation and the Court has not hesitated in making explicit how important those principles are to European integration. The Court has had to rely on general principles to ensure the protection of fundamental rights in the context of secondary legislation. In doing so, the challenge is to ensure that in crafting exceptions to existing secondary law instruments, the basic principle of mutual recognition and the effectiveness of the system as a whole are not undermined. It can be argued that the  testing of the system and the questioning of national standards (through, in particular, exchanges of information), whereby national courts enquire compliance by other Member States with fundamental rights, can ultimately enhance mutual trust rather than take from it, in that it furthers knowledge, awareness and understanding of each other’s national systems, assuming, of course, all parties act in a reasonable and fair manner as well as in a spirit of loyal cooperation.

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NOTE

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