The Duty of Mutual Trust in EU Law and the Duty to Secure Human Rights: Can the EU's Accession to the ECHR Ease the Tension?

Abstract

ABSTRACTThe principle of mutual trust has been a central pillar of the European integration project, first as a tool for market integration, and as the European Economic Community became the European Union, as a mechanism for a more wide ranging integration of the legal orders of the member states. The EU now has legislation in place which imposes obligations on member states to trust each other's civil and criminal justice systems, immigration and asylum law, and family law. But these obligations of trust imposed by EU law may conflict with obligations that member states have to secure the rights under the ECHR. Accession by the EU to the ECHR was supposed to resolve this conflict, but in its Opinion 2/13, the Court of Justice appeared to have dealt a fatal blow to this solution. This article explains the tension between the EU principle of mutual trust and the duty to secure ECHR rights. The article examines the most recent case law of the CJEU and the ECtHR in order to assess whether a resolution of this tension has been found, and whether the EU's accession to the ECHR will be possible.