Gáspár-Szilágyi, S.

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UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Mutual Trust before the Court of Justice - a view from CJEU Judge SachaPrechalGáspár-Szilágyi, S.Publication date2015Document VersionFinal published versionLink to publicationCitation for published version (APA):Gáspár-Szilágyi, S. (Author). (2015). Mutual Trust before the Court of Justice - a view fromCJEU Judge Sacha Prechal. Web publication or website, BlogActiv.http://acelg.blogactiv.eu/2015/11/11/mutual-trust-before-the-court-of-justice-a-view-from-cjeu-judge-sacha-prechal/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:08 Mar 2023Mutual Trust before the Court of Justice – a view from CJEU Judge Sacha Prechal | ACELGhttp://acelg.blogactiv.eu/2015/11/11/mutual-trust-before-the-court-of-justice-a-view-from-cjeu-judge-sacha-prechal/[15-6-2016 17:30:42]About Newsletter Create your Blog Support LoginNovember 11, 2015Mutual Trust before the Court of Justice – a viewfrom CJEU Judge Sacha PrechalOn 6 November 2015 Judge and Professor Sacha Prechal from the Court of Justice of the European Union(CJEU) delivered a presentation on the concept of ‘mutual trust’ before the CJEU at Vrije UniversiteitAmsterdam. According to her the biggest challenge for the principle of mutual trust lies in providinglimitations to it without upsetting the integrity of the Area of Freedom Security and Justice (AFSJ).Mutual trust is closely related to mutual recognition in the AFSJ. Under mutual recognition one MemberState will accept and enforce decisions from another Member State as if they were its own. Such examplescan be found not only in the areas of civil cooperation and cooperation in matters of criminal justice (for e.g.the Brussels 1 and 2 Regulations or the Framework Decision on the European Arrest Warrant) but, as caseN.S. and M.E. (Joined Cases C 411/10 and C-493/10) illustrates, it is also applicable in the commonasylum policy area. Even so, mutual recognition presumes the trust that the Member State (MS), whosedecisions have to be acknowledged by another MS, has applied the rules adequately and correctly, and hasprovided equivalent protection.Examples of mutual trust in the CJEU’s case-lawAccording to Judge Prechal, mutual trust is not restricted to the AFSJ and has been used by the CJEU inOpinion 2/13 on the Draft Accession Agreement of the EU to the ECHR. This principle requires, particularlywith regard to the AFSJ, that MSs consider all other MSs to be complying with EU law and “particularly” withEU fundamental rights, save for “exceptional circumstances” (Opinion 2/13, para. 191). Mutual trust, as laiddown in Gözütok and Brügge (C-187/01), does not require equal protection, but equivalent protection, evenif the outcome of the same case might be different in two MSs.Even so, mutual trust often involves sensitive issues and it does not only exist in the letters of specific EUMutual Trust before the Court of Justice – a view from CJEU Judge Sacha Prechal | ACELGhttp://acelg.blogactiv.eu/2015/11/11/mutual-trust-before-the-court-of-justice-a-view-from-cjeu-judge-sacha-prechal/[15-6-2016 17:30:42]legal instruments, but encompasses a wider notion of trust which often finds a difficult application in practice.In the pending Child and Family Agency (C-428/15) an Irish court questioned the quality of the evidenceprovided by UK authorities, in a case under the Brussels II Regulation in which a UK mother suffering fromdrug addiction gave birth to her second child in Ireland in order to avoid having her child taken away by theUK child services. In the recently decided Lanigan (C-237/15 PP) the Irish authorities failed to surrender aformer member of the Irish Republican Army (IRA) to the UK authorities within the time limits prescribed bythe FD on the EAW (No. 2002/584/JHA), arguing that it had to be investigated whether a fear existed thatthe requested person’s life would be endangered in the UK.How is the principle applied?According to the Judge, the principle of mutual trust is not applied as a self-standing principle but it isapplied in tandem with a piece of EU legislation. It is used to guide the interpretation of the legal text and isalso important when Member States have a certain degree of discretion under a legal act.Limits to the application of the principle of mutual trustThe most delicate issue concerns the limits to the principle of mutual trust. Even though a presumptionexists that MSs act in compliance with EU law and EU fundamental rights, this presumption can be rebuttedon grounds of public policy or in certain cases a breach of fundamental rights.Such limitations might occur in EU legislation or the CJEU’s case-law. For example, several articles of theBrussels II Regulation (Articles 22(a) and 23(a)) allow a MS to refuse the recognition of certain judgments ofother MS if they are “manifestly contrary” to the former’s public policy. The FD on the EAW does not providefor public policy limitations and fundamental rights are not mentioned as mandatory or non-mandatorygrounds for refusal to execute an EAW. However, under its preamble and Article 1(3) nothing in the FD ismeant to affect the protection of fundamental rights.CJEU case-law is also relevant for using the breach of fundamental rights as a limitation to the principle ofmutual trust. For example, in N.S. and M.E. the CJEU found that mutual trust is breached where “systemicdeficiencies” (para. 89) exist and there is a real risk for the asylum seeker of being subjected to degradingand inhuman treatment. The notion of “systemic flaws” is now included in the Dublin III Regulation (No.604/2013) as a guarantee before sending somebody back to the first country of entry (Article 3(2)). Anotherpending case before the CJEU is Aranyosi (C-404/15) in which the CJEU is faced with the application ofArticle 1(3) of the FD on the EAW as a grounds to refuse the surrender of a Hungarian national by theAustrian authorities to their Hungarian counterparts, due to the poor prison conditions in the latter country.The key issue for the CJEU is to ascertain to what extent can these ‘limitations’ be applied. An interpretationwhich is too broad might jeopardize the functioning of the AFSJ as a whole, since MSs could find manyexcuses not to recognize the decisions of another MS. According to Judge Prechal, in case of allegedbreaches of fundamental rights, first there must be a ‘justified reason’ to doubt the functioning offundamental rights protection in a given MS and then the actual situation has to be looked at. However, thechallenge lies in knowing when a ‘justified doubt’ exists.Finishing the presentation on a fundamental rights noteJudge Prechal finished the presentation by emphasizing the role of the CJEU also as a fundamental rightscourt. However, the usage of breaches of fundamental rights as limitations to the principle of mutual trust isnot without its hurdles and future CJEU cases will need to tackle them. First, the safeguard of fundamentalrights has to be ensured both de jure and de facto. Second, it is not yet sure the breach of whichfundamental rights would amount to a limitation to the principle of mutual trust. Most certainly, the CJEUMutual Trust before the Court of Justice – a view from CJEU Judge Sacha Prechal | ACELGhttp://acelg.blogactiv.eu/2015/11/11/mutual-trust-before-the-court-of-justice-a-view-from-cjeu-judge-sacha-prechal/[15-6-2016 17:30:42]would have to look at this on a case-by-case basis. Third, the seriousness of the breach is also a majorissue, as well as the burden of proof and the evidence required to prove it.According to the Judge, mutual trust has a larger field of application than the AFSJ and is closely linked tothe duty of loyal cooperation. As the CJEU noted in Opinion 2/13, mutual trust is of “fundamentalimportance” (para. 191) to the workings of the EU. However, she cautioned about the consequences of itselevation to a constitutional principle of the EU legal order. By Szilárd Gáspár-Szilágyi, post-doctoral researcher at the Amsterdam Centre for European Law andGovernanceAuthor : acelg Print Case law, Institutions, Member States , AFSJ; mutual trust; CJEU No commentsLeave a ReplyYou must be logged in to post a comment.0 0 1ACELGProvides insights on European Law from an academic perspective. Discusses the latestdevelopments in the context of the surrounding legal and political systems as well as widerstructures of (global) governanceAdvertisementMutual Trustbefore the Court

Mutual Trust before the Court of Justice - a view from CJEU Judge Sacha Prechal

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Mutual Trust before the Court of Justice - a view from CJEU Judge Sacha Prechal

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