Mutual Trust and Justice in the European Union
Dr. Silvia Marino
Associate Professor in EU Law, University of Insubria, Como, Italy
Web page: https://www.uninsubria.it/hpp/silvia.marino
1. The Strong Role of Mutual Trust within the European Union
Mutual trust among EU Member States is one of the cornerstones of the cooperation and integration process of the EU itself. Surprisingly, this expression does not appear in the Treaties, and a vague definition can be derived only from the case law of the Court of Justice of the European Union (thereafter: CJEU). Mutual trust is a psychological attitude: it means that each Member State is convinced that all other Member States and authorities are capable of correctly applying EU law in compliance with the framework of individuals’ human rights. Thus, it is a legally enforceable principle with a broad scope of application. The most striking example thereof is the CJEU’s Opinion 2/13 on the EU accession to the European Convention on Human Rights . Here, mutual trust is a specific characteristic arising “from the very nature” of EU law (para. 166) as a sort of natural consequence of the independence and the autonomy of EU jurisdiction. This feature, among others, is able to prevent EU accession to the ECHR, because the external supervision on the human rights’ respect would amount to a mutual control among EU Member States. Mutual trust is thus a “strong clause on good faith” .
Recent events show that mutual trust cannot be taken for granted in practice since Member States doubt the perfect compliance of the others with respect to EU law and to human rights law. Three recent examples are striking in this perspective and because of the involvement of the CJEU.
Firstly, Article 7 of the TEU provides for a procedure to control, and if necessary, to sanction, serious breaches by a Member State of the values referred to in Article 2 TEU, such as the respect for human dignity, the democracy, and the rule of law. This procedure has recently been activated against two Member States, Poland and Hungary. This means that there are strong suspicions about non-compliance with EU values and human rights. Due to the political nature of these proceedings , in the meantime the EU Commission has lodged various infringement proceedings against the two States for breach of the rule of law with the CJEU . Most of them have been (sadly) successful due to a lack of independence of the judiciary that lead to risks of infringement of the right of access to justice and the full application of EU law.
Secondly, within the context of criminal judicial cooperation and the European Arrest Warrant, some national courts have doubts over the need to surrender the requested person due to inadequacies of the procedural or penitentiary system of the requesting State . According to the CJEU, in exceptional cases, the executing court can verify the legal and factual situation in the requesting Member State if there stem previous suspicions of infringements of basic human rights. The notification of withdrawal from the EU and the start of the Article 7 TEU procedure do not allow one to presume that human rights are not going to be respected: mutual trust depends on the sole EU membership, notwithstanding any forecast for the recent future.
Thirdly, cooperation among Member States on immigration matters has proved weak for both political and organisational reasons. The relocation system has been challenged without success  and some Member States still refused to enforce it thus leading to infringement proceedings . This has caused political misunderstandings among some Member States that have weakened the cooperation in the immigration policy and a serious threat to mutual trust.
2. The Application of Mutual Trust in Cooperation between Member States
These events have put mutual trust to the test, almost leading to a crisis. However, we need to note that its apparent decline particularly affects policies within the Area of Freedom, Security and Justice (thereafter: AFSJ). This does not come as a surprise. Indeed, this area is highly sensitive. It focusses on human beings crossing national borders, who wish to benefit from an intangible set of rights wherever they are located. Member States are requested to grant these rights notwithstanding the origin and the specific situations of the person concerned. The suspicion that any of the Member States involved in the movement of the person might not grant such intangibility risks weakening the principle of mutual trust, and with this, the foundations of the EU.
As legal scholars have already clearly stated, mutual trust is not blind trust . This is easily demonstrated by the external control of the European Court of Human Rights, that continuously detects infringements of the ECHR by (EU) Member States. The mere ratification of this Convention does not assure its full respect in all its parts, in all the jurisdictions, EU Member States included.
However, the CJEU has limited the possibility to control the standards of protection of (human) rights in cross-border situations in the AFSJ. The balance is therefore in favour of the principle of mutual trust, since compliance is presumed. This approach helps the continual EU integration process grounded on a strong basis of cooperation. At the same time, it risks reducing the protection of the individual in the framework of his/her fundamental rights. This is a strong drawback that cannot be easily set aside as any side effect.
There is an important path to follow in order to promote human rights’ protection without undermining mutual trust. It resides in the use of the term justice in the policy seeking to secure an Area of Freedom, Security and Justice. Civil and criminal cooperation and the immigration policies are designed to “protect States’ interests” in terms of security (and in someway to sovereignty due, for example, to border controls). At the same time, these policies mean “protection of individual rights” too, in terms of justice. The balance between the two potentially conflicting interests (an individual's fundamental rights v. security of the state) cannot lie only with the principle of mutual trust but must be sought in the individual circumstances of each case. The body responsible for achieving this balance is not the CJEU because of its limited jurisdictional competences. This sensitive task resides with national courts, these being called upon to apply provisions of EU law . They should be ready to supersede mutual trust in order to grant effective fundamental rights to the individual where blind cooperation risks affecting justice in full favour of security. Once more, the protection of individuals’ rights is attributed to the exclusive competence of national judges that have the sole help and comfort of the CJEU through the requests of preliminary rulings. It is not an easy task for national courts to fulfil. They must show a high degree of sensitivity towards human rights so that the word justice can have its true meaning within the AFSJ.
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] CJEU, 18 December 2014, Opinion 2/13, ECLI:EU:C:2014:2454  Peers S., EU Justice and Home Affairs Law, 4th ed., vol. II, Oxford, 2016, p. 131.  Kochenov D., Busting the Myths Nuclear: a Commentary on Article 7 TEU, in EUI Working Paper Law 2017/10, p. 1.  See, for example, the recent judgment of the CJEU, 18 June 2020, case C-78/18, European Commission v. Hungary, ECLI:EU:C:2020:476.  See, for example, the judgments of the CJEU, 25 July 2018, case C-216/18PPU, LM, ECLI:EU:C:2018:586 and case C-220/18PPU, ML, ECLI:EU:C:2018:589.  CJEU, 6 September 2017, joined cases C‑643/15 and C‑647/15, Slovak Republic and Hungary v. Council, ECLI:EU:C:2017:631.  CJEU, 2 April 2020, Joined Cases C-715/17, C-718/17 and C-719/17, European Commission v. Republic of Poland and Others, ECLI:EU:C:2020:257.  Lenaerts K., La vie après l’avis: exploring the principle of mutual (yet not blind) trust, in Common Market Law Review, 2017, p. 805.  CJEU, 9 March 1978, case 106/77, Simmenthal, ECLI:EU:C:1978:49.