On a Collision Course! Mutual Recognition, Mutual Trust and the Protection of Fundamental Rights in the Recent Case-law of the Court of Justice

Abstract

This article focuses on the balance between mutual recognition in criminal matters, mutual trust and the protection of fundamental rights, in the light of the recent case-law of the Court of Justice. Mutual trust implies a presumption that the Member States adequately protect fundamental rights. However, this presumption is rebuttable. Mutual trust is not blind and mutual recognition is not automatic. Besides the grounds for refusal of a request for judicial cooperation codified in EU secondary law, the Court identifies a new general limit to mutual recognition and mutual trust. These principles are barred in exceptional situations, in the event a systemic flaw leads to a serious risk of a manifest violation of the Charter. The article contends that even individual serious infringements can amount to precluding the obligation to cooperate incumbent upon the Member States. This approach marks a twofold shift of paradigm. Firstly, it strengthens the European Union’s role as a fundamental rights promoter. Secondly, it empowers national authorities, that are entitled to verify whether other Member States properly respect their obligation to protect the rights enshrined in the Charter. Rather than focusing on theoretical containment of distrust, the EU strengthens mutual trust by the means of a more effective protection of fundamental rights.