Abstract
The value decline in the EU has manyfold consequences. It jeopardizes the very essence of Europe as a community of values. At the same time it endangers legal principles, such as mutual recognition, which is based on mutual trust presuming that all Member States are based on the rule of law and protect fundamental rights. Once trust is rebutted, Member States' judicial authorities will refuse to cooperate and recognise each other's judgments in order not to become complicit in individual rights violations and not to contradict the European Convention for the Protection of Human Rights and Fundamental Freedoms. This paper argues that EU law must allow for such considerations and suspend mutual recognition-based laws not only on a case-by-case basis, as it happens today in practice, but in general with regard to Member States undergoing rule of law decline, in order to uphold the EU's fundamental rights culture, and EU law's equivalency with the Convention's human rights regime.
Highlights
The rule of law, democracy and fundamental rights, all enshrined in Article 2 of the Treaty on the European Union along some other values, have a special place in EU law
This paper argues that EU law must allow for such considerations and suspend mutual recognition-based laws on a case-by-case basis, as it happens today in practice, but in general with regard to Member States undergoing rule of law decline, in order to uphold the EU’s fundamental rights culture, and EU law’s equivalency with the Convention’s human rights regime
Placing member states between a rock and a hard place, where they are forced to choose between their EU law and ECHR obligations may lead to disregard and non-enforcement of Strasbourg judgments, which again – given the soft nature of the Strasbourg mechanism, which to a large extent depends on the voluntary compliance of states – may have devastating consequences for European human rights
Summary
Even though the mentioned Article 2 TEU values including but not limited to the independence of the judiciary had been taken for granted for a long time in the EU, a solid decline started a decade ago in Hungary and other Member States are following suit. Once a systemic problem with regard to Article 2 TEU values is determined, judges have to move to the second, individual prong of the test, and the executing judicial authority must determine, and precisely, whether there are substantial grounds to believe that the person concerned by a European Arrest Warrant, will be exposed to a real risk of a human rights violation.[37]. This prong of the test is extremely burdensome for the individual, because it is close to impossible for them to prove how they would be affected by systemic problems in a Member State. The CJEU will have ample opportunities to make this finding, as several domestic courts have pending preliminary references with regard to the LM test, by the Irish Supreme Court,[46] and the Amsterdam District Court.[47]
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