The Tail That Wags the Dog

In Opinion 2/13 the Court of Justice held that accession to the ECHR must not interfere with the operation of the principle of mutual trust as to do so would affect the autonomy of EU law. The link between mutual trust and autonomy has then been interpreted as an almost absolute bar to accession, as well as requiring national courts to give effect to EU law even when to do so would mean disregarding most alleged violations of fundamental rights in other Member States.

In this contribution, I offer a different reading of the relationship between autonomy and mutual trust: autonomy here means simply that since the EU is an autonomous legal system, the EU legislature has the discretion to enact legislation based upon mutual trust between Member States. But mutual trust is not a general principle capable of having autonomous legal effects – consequently it must be triggered through the free movement provisions or secondary legislation and can (and should) be limited by the constitutional principles of the EU, including fundamental rights. Furthermore, mutual trust is acquiring a novel value by strengthening the case for the progressive operationalisation of the foundational values of the EU ex Article 2 TEU. Read in this way, mutual trust has then the potential to enhance fundamental rights protection and is certainly no bar to accession to the ECHR – it is the dog of core values that wags the tail of mutual trust and not vice versa.

The doctrine of mutual trust

In the EU context, the doctrine of mutual trust is closely related to the doctrine of mutual recognition first developed in the context of the free movement provisions. There, as it is well known, the Court demanded that Member States recognise one another’s regulatory standards. Mutual recognition in turn required a high level of trust not only in relation to the soundness of the other Member States’ regulatory standards but also in relation to the effectiveness of national enforcement systems of those very standards. The doctrine of mutual recognition, and the underpinning mutual trust, however, was never absolute. Lacking EU rules, Member States remained free to refuse mutual recognition in order to protect a mandatory requirement of public interest.

Over time, EU law also demanded mutual recognition of certain legal products, such as certificates, official decisions, or judgments. Again, mutual recognition of legal products is only possible to the extent to which Member States trust one another. Furthermore, aside from the recognition of certain certificates required to facilitate the right to free movement, mutual recognition of legal products requires intervention by the EU legislature. Take for instance asylum decisions: since there is no EU legislation requiring mutual recognition, and even though there is harmonization of many aspects of decisions granting asylum, Member States are not obliged to recognise each-other’s decisions.

On the other hand, where there is co-ordinating legislation, such as in relation to the European Arrest Warrant and the Dublin system of returns, Member States might be obliged to recognise each-other’s decisions, or be empowered to return individuals to the port of first entry. In these fields then, the Court of Justice has been very dogmatic in imposing a near absolute mutual trust obligation. This, in turn, has created tensions with national courts, which have not always been willing to accept that fundamental rights are adequately protected in all Member States. After all, not only do standards differ widely, but the EU also lacks effective tools to enforce fundamental rights standards against Member States. Here it is sufficient to recall the EU’s inability to protect its foundational values in relation to rule of law backsliding. The doctrine of mutual trust then introduces a fracture in the EU fundamental rights space. On the one hand, national authorities are required by the Court to abide by an almost absolute presumption of compliance with fundamental rights across the Member States of the EU, whilst on the other hand there is no effective means of general fundamental rights enforcement at EU level. This fracture became especially problematic in those fields where individuals are most at risk of fundamental rights violations, in particular in relation to the European Arrest Warrant and the field of migration/asylum.

It is in this light that we should look at the Court’s Opinion 2/13: as mentioned, there the Court held that the draft Accession agreement was incompatible with the Treaty since it would interfere with the mutual trust obligation imposed on Member States. In other words, the Court of Justice was worried that upon Accession national courts would not be able to give effect to a decision based on mutual trust if to do so would entail a breach of the ECHR – this would upset the “underlying balance of the EU and undermine the autonomy of EU law” (para 194).

The evolution of the mutual trust obligation

The absolute approach to mutual trust espoused by the Court of Justice led to reservations by both national courts and the European Court of Human Rights. The latter, in Avotiņš, had the chance to clarify its own stance in relation to the extent to which the doctrine of mutual trust justified the forfeiture of fundamental rights scrutiny by the executing national court. In relation to a case concerning recognition of judgments under the Brussels I Regulation, the ECtHR clarified that the fact that the national court is giving effect to a mutual recognition instrument (based on mutual trust) is not sufficient to exclude, for that only reason, its jurisdiction. Rather, if there is no discretion of the national court in giving effect to the mutual recognition instrument, then the Bosphorus presumption of equivalent protection between EU law and the ECHR applies but so does the possibility for the claimant to rebut the presumption and argue that the protection in the requesting Member State had been deficient. Hence, the Avotiņš ruling imposes an external limit to the applicability of the mutual trust doctrine placing national courts in a difficult position. When a manifest deficiency is pleaded, they risk conflicting with EU law by examining the complaint, or with the ECHR by refusing to do so.

It is perhaps for this reason, that the Court of Justice has relaxed its stance in relation to the mandatory execution of European Arrest Warrants. In the very early stages, it had decided that no fundamental rights exception could limit the mutual trust obligation. However, the Court later accepted that national courts could refuse execution of a EAW if a double test was satisfied: the existence of systemic violations or generalised deficiencies in the issuing Member State, coupled with substantial grounds of a real risk for the individual concerned of breach of Article 4 Charter/3 ECHR (protection from torture and ill treatment) and/or Article 47 Charter (effective remedy/fair trial). More recently, in GN, the Court accepted that violations of the right to private life and the best interests of the child might justify a refusal to execution as well (subject to the dual test of systemic violations and individualised risk), although subsequent case law in the field of Dublin, might indicate a return to a more rigid approach. In any event, the Court has acknowledged that the mutual trust obligation is subject to constrains imposed by the constitutional principles (and obligations) of the EU.

Autonomy of EU law

Given the evolution of the Court of Justice’s approach to mutual trust, what should we make of Opinion 2/13, where the Court linked the doctrine of mutual trust to the principle of autonomy? It might be worth recalling the reasoning of the Court in that respect. The EU legal order is based on the premiss that Member States share “a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected” (para 168). If, and when, mutual trust is given effect through provisions of EU (secondary) law and if, and when, it presupposes that Member States abstain from fundamental rights scrutiny, then this lack of fundamental rights review must be reflected in the Accession Agreement, or else “accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law”. In Opinion 2/13 then the principle of mutual trust becomes conceptualised as being part of the “autonomy” of EU law, an elusive concept which embraces the key principles of the EU legal system as an autonomous legal order, which are not open to contestation either at national or at international level, and upon which international agreements cannot encroach (see to this effect also Case C-284/16 Achmea, Opinion 1/17 (CETA, para. 109), Odermatt, Shuibhne, and Contartese.). However, the link between autonomy and mutual trust is far from obvious.

After all, and as we have seen above, mutual trust is simply a presumption which operates either together with the free movement provisions, in which case it can be limited to protect any mandatory requirement of (State) public interest, or by virtue of express requirements in secondary legislation imposing mutual recognition. However, unlike other general principles such as proportionality, mutual trust does not operate independently just because the matter falls within the scope of EU law. Take for instance the lack of recognition of asylum decisions adopted in other Member States. In the absence of an explicit political decision in a legislative instrument, mutual trust does not require Member States to recognize each other’s asylum decisions, despite the fact that many criteria related to asylum and international protection are established by EU law. In areas not governed by free movement, mutual trust does not impose any requirement unless there is a political decision to that effect.

Taken at face value it is therefore difficult to understand how mutual trust can be conceptualised as forming part of the autonomy of EU law, when it is not capable of having an autonomous normative value. This notwithstanding, in Hungary v EP and Council, on the lawfulness of the conditionality Regulation, the Court again made the link between mutual trust and the autonomy of EU law (and in relation to Article 2 TEU, see also Case C-220/18 PPU ML, para 48), although in this case in a more nuanced way. With reference to the premiss that all Member States must abide by the values in Article 2 TEU, the Court held:

That premiss is based on the specific and essential characteristics of EU law, which stem from the very nature of EU law and the autonomy it enjoys in relation to the laws of the Member States and to international law. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the EU law that implements them will be respected (…) (Case C-126/21, para 125, see also Case C-127/21, para 143).

Two final remarks are necessary at this stage. In Opinion 2/13, the Court does not seem to be protecting mutual trust per se, which is not an independent general principle, but rather the EU’s legislature discretion in affecting given choices. Particularly, in providing (and sometimes imposing) mutual recognition of given legal products, instrumental for the creation of an area of freedom, security and justice. Henceforth, mutual recognition is instrumental to the “implementation of the process of integration that is the raison d’être of the EU itself” (Opinion 2/13, para 172).

In other words, Opinion 2/13 can be interpreted as demanding the recognition of the autonomy of the EU legislature in adopting co-ordinating legislation, even when that legislation does not provide for fundamental rights guarantees. That is because all fundamental rights, but Article 3 ECHR, can be limited by public interest considerations, albeit such limitations must be necessary and proportionate. But Opinion 2/13 does not say that those fundamental rights guarantees cannot be imposed by means of interpretation by the Court of Justice, which, as noted above, is progressively happening. This more nuanced approach to the relationship between autonomy and mutual trust is reflected in Article 6 of the revised Draft Accession Agreement which states:

Accession of the European Union to the Convention shall not affect the application of the principle of mutual trust within the European Union. In this context, the protection of human rights guaranteed by the Convention shall be ensured.

Finally, and this is a trend across the case law, the principle of mutual trust is acquiring new significance as a means to give effect to Article 2 TEU. Henceforth, at least to a certain extent, mutual trust remedies the lack of independent enforceability of EU fundamental rights. After all, it is not only the area of freedom, security, and justice which is affected by persistent violations of Article 2 TEU, but any area of EU law, not least the internal market, given that enforcement of EU law is an essential element for its operation.

Read this way, the dog has regained control of its tail – mutual trust could shift from being an obstacle to enforcing fundamental rights to a principle that enables better enforcement of the EU’s foundational values.