The purpose of this article is to explore the principle of mutual recognition in the Area of Freedom, Security and Justice (the “AFSJ”). It is submitted that the successful operation of that principle implies that Member States must trust each other when it comes to complying with fundamental rights. However, the principle of mutual recognition in the AFSJ does not seek to establish an automatic regime of recognition and execution: mutual trust must not be confused with “blind trust”. That principle must be applied in compliance with the principle of proportionality, must respect the margin of discretion left by the EU legislator to national authorities, and must take into account national and European public-policy considerations.

SOMMARIO:

I. Introduction - II. Two versions of the same principle - III. Mutual recognition and mutual trust - IV. A) The Principle of Mutual Trust - V. B) In the Union we trust - VI. Limits to the principle of mutual recognition - VII. A). Mutual recognition and proportionality - VIII. B) Mutual recognition and the margin of discretion - IX. C) Mutual recognition and the national and European public-policy exceptions - X. Concluding remarks - NOTE

I. Introduction

The principle of mutual recognition in the Area of Freedom, Security and Justice (the “AFSJ”) illustrates the fact that EU law is no longer confined to economic matters relating to the establishment and functioning of the internal market. EU law has evolved with the adoption of successive Treaty reforms so that it now impacts upon rules which had traditionally been reserved to the nation-State [1]. As Title V of Part III of the TFEU shows, matters such as criminal law or family law are no longer the exclusive preserve of Member State law. This means that through the adoption of regulations or directives in the AFSJ, the EU legislator makes policy decisions that affect these matters and hence the everyday lives of European citizens [2]. Interestingly, in order to establish «an area of freedom, security and justice without internal frontiers», the European Council relied on the principle of mutual recognition which has, as we all know, played a pivotal role in the completion of the internal market. The application by analogy of that principle was a UK initiative. In 1998, the UK Presidency of the EU was successful in convincing the European Council to have recourse to that principle as a means of enhancing the ability of national legal systems to work closely together [3]. In its 1998 Cardiff Conclusions, the European Council stated that the Council should «identify – between Member States – the scope for greater mutual re­cognition of decisions of each other’s courts» [4]. In essence, that principle would seek to facilitate «the recognition by each Member State of decisions of courts from other Member States with a minimum of procedure and formality» [5]. Reliance on the principle of mutual recognition was thus seen as the right avenue to overcome the opposition of some Member States to the harmonization of substantive aspects of their criminal laws, as that principle would strike the right balance between “unity and diversity”. On the one hand, the principle of mutual recognition leaves the substantive criminal laws of the Member Sta­tes largely untouched. On the other hand, judicial cooperation prevents criminals from relying on free movement as a means of pursuing their activities with impunity. By facilitating the mutual recognition of judicial decisions in criminal matters, the establishment of the AFSJ does not [continua ..]

II. Two versions of the same principle

 From a theoretical standpoint, the successful application of the principle of mutual recognition to the internal market requires a fair balance between “individual freedom” and “public interests” [10]. This means, in essence, that neither the fundamental freedoms that protect economic operators nor legitimate objectives of public interest are absolute. Similarly, in the AFSJ, neither the free movement of judicial decisions nor the fundamental rights of the persons concerned by those decisions are absolute. In the EU legal order, individual freedom and public interest are both subject to limitations. However, whilst in the context of the internal market, the principle of mutual recognition supports individual freedom, in the AFSJ it is the other way around: that principle limits individual freedom [11]. In order to establish the internal market, the principle of mutual recognition was construed as a legal tool that enabled economic operators to exercise an economic activity in the host Member State in accordance with the more advantageous standards of the home Member State. By virtue of that principle, economic operators are thus freed from the double burden of having to comply with two different sets of standards [12]. Conversely, in favouring the extraterritorial application of judicial decisions in civil or criminal matters that may involve the application of coercive measures, such as a judicial decision ordering the return of a child or an arrest warrant, the principle of mutual recognition contributes to the effective exercise of public power by the Member States. In so doing, that principle limits individual freedom. That is why the principle of mutual recognition in the AFSJ is subject to stricter conditions and limits. Notably, limitations on fundamental rights must, in accordance with Art. 52(1) of the Charter of Fundamental Rights of the European Union (the “Charter”), be “provided for by law”. Whilst the principle of mutual recognition in the context of the internal market is enforced by national courts through the direct effect of the relevant Treaty provisions, the operation of the same principle in the AFSJ rests on legislative acts adopted at EU level. Legislative inaction at that level cannot be replaced by interest-driven litigation. It is thus for the EU legislator to adopt the acts needed to ensure that the principle of mutual recognition respects [continua ..]

III. Mutual recognition and mutual trust

In the AFSJ, the successful operation of the principle of mutual recognition implies that Member States must trust each other when it comes to complying with fundamental rights. This means that the principle of mutual recognition presupposes mutual trust and comity among the national judiciaries [13]. At this stage, two interrelated questions arise. First, what does the principle of mutual trust actually convey? Is it a judicially enforceable principle or just a programmatic norm of constitutional importance? Second, is it possible for EU law to build mutual trust?

IV. A) The Principle of Mutual Trust

A) The Principle of Mutual Trust. The principle of ‘mutual trust’is not defined in the Treaties. Some scholars have posited that that principle is not amenable to judicial review[14]. In their view, it is a constitutional axiom that must inspire legislative action at EU level, but does not give rise to judicially enforceable standards. That being said, Opinion 2/13 might, in my view, suggest otherwise [15]. As we all know, in that case the ECJ was asked to examine whether the agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “accession agreement to the ECHR”) was compatible with the Treaties. The ECJ replied in the negative. For the purpose of this contribution, I shall limit my observations to the part of the Opinion that relates to «the specific characteristics and the autonomy of EU law» [16]. In this regard, the ECJ noted that the accession agreement to the ECHR suffered from three shortcomings that could imperil the “intrinsic nature” of the EU. First, no provision of that agreement ensured coordination between Art. 53 ECHR and Art. 53 of the Charter [17]. Second, no provision of that agreement ensured coordination between the preliminary ruling procedure and prot. n. 16 of the ECHR [18]. Third and last, the accession agreement to the ECHR made no reference to the principle of mutual trust. As to the principle of mutual trust, the ECJ started by stressing the fundamental importance of that principle since «it allows an area without internal borders to be created and maintained» [19]. The fact that the ECJ highlighted the importance of mutual trust in the AFSJ is not, however, something new. For example, in Brügge, the ECJ held that the operation of the ne bis in idem principle enshrined in Art. 54 CISA required «the Member States [to] have mutual trust in their criminal justice systems» [20]. Likewise, in Rinau, a child abduction case relating to the interpretation of the Brussels II bis Regulation [21], the ECJ held that «[that] Regulation is based on the idea that the recognition and enforcement of judgments given in a Member State must be based on the principle of mutual trust and the grounds for non-recognition must be kept to the minimum required» [22]. Most importantly, [continua ..]

V. B) In the Union we trust

B) In the Union we trust. – In the AFSJ, the EU legislator not only has competence to facilitate the application of the principle of mutual recognition, but may also specify a common level of fundamental rights protection for the persons concerned by judicial cooperation between Member States. Notably, in the field of judicial cooperation in criminal matters, the Treaties expressly provide that judicial cooperation seeks to establish minimum rules concerning the mutual admissibility of evidence between Member States, the rights of individuals in criminal procedures, the rights of the victims of crime, and any other specific aspect of criminal procedure which the Council has identified in advance by a decision [35]. By establishing a “level playing field” of those aspects of criminal procedure, the authors of the Treaties sought to facilitate the free movement of judicial decisions. They rightly believed that a Member State would be more likely to recognize and enforce decisions issued in other Member States if the fundamental rights of the person(s) concerned were properly protected throughout the EU. I shall refer to those measures as “trust-enhancing” EU legislation. Directive 2013/48 on the right of access to a lawyer in criminal proceedings is a notable example [36]. Recital (8) of that Directive expressly links, on the one hand, the strengthening of mutual trust by means of laying down detailed rules on the protection of the procedural rights and guarantees arising from the Charter and, on the other hand, the effectiveness of mutual recognition. Allow me to quote a passage of that Recital that illustrates the point: «Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust and to the promotion of a fundamental rights culture in the Union». In this regard, I would like to make a brief comment regarding the position of the UK in the AFSJ. In accordance with Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the AFSJ, these Member States may each choose the post-Lisbon measures that pertain to the AFSJ in relation to which they wish to participate. Post-Lisbon measures also include pre-Lisbon measures that are amended. Protocol (No 22) provides for a similar arrangement for Denmark. It is worth noting that the UK, [continua ..]

VI. Limits to the principle of mutual recognition

One may distinguish three types of limits to the principle of mutual recognition [41]. First, the application of that principle may be limited to situations where the benefits of judicial cooperation outweigh the harm caused to the person concerned. Second, the margin of discretion that secondary EU legislation leaves to the Member States may limit the principle of mutual recognition. Third and last, primary and secondary EU law may identify situations where the principle of mutual recognition ceases to operate. I shall refer to that third type of limit as the national and European public-policy exceptions to mutual recognition.

VII. A). Mutual recognition and proportionality

A) Mutual recognition and proportionality. – As to the first type of limit, the EU legislator may decide to impose a threshold for the situations where judicial cooperation should apply, i.e. it may adopt ade minimis For example, in the field of judicial cooperation in criminal matters, the Framework Decision on the European Arrest Warrant (the “EAW Framework Decision”) does not apply to minor offences [42]. In excluding minor offences, the EU legislator sought to comply with fundamental rights. Indeed, the preventive detention and surrender of the requested person may, in relation to those offences, be seen as a disproportionate measure. That being said, in Radu, AG Sharpston opined that a EAW should not be issued for offences which, despite the fact that they fall within the scope of application of the EAW Framework Decision, are not serious enough to justify the preventive detention and surrender of the requested person [43]. Some Member States and the Commission appear to share that same view [44]. In that regard, it is worth noting that more recent instruments adopted in the field of judicial cooperation in criminal matters require the issuing judicial authority to carry out a proportionality check [45]. However, the fact remains that the EAW Framework Decision does not include any obligation for an issuing Member State to conduct such a check. This absence may explain why, in 2010, the Council decided to revise «the European handbook on how to issue a [EAW]» that now includes a number of non-binding guidelines that aim to secure compliance with that principle [46]. It is logical to ask, therefore, whether compliance with the Charter would militate in favour of interpreting the EAW Framework Decision so as to include such a check. Another aspect of proportionality that merits attention relates to Art. 49(3) of the Charter. This provision states that «[t]he severity of penalties must not be disproportionate to the criminal offence». May the judicial authority of the executing Member State refuse to execute a EAW issued for the purposes of executing a sentence which is, under the law of that Member State, disproportionate in light of the seriousness of the offence in question? The answer to that question should, in principle, be in the negative, given that «[t]he ratio­nale behind the principle of mutual recognition […] implies that the [continua ..]

VIII. B) Mutual recognition and the margin of discretion

B) Mutual recognition and the margin of discretion. – In the field of judicial cooperation in criminal matters, a Member State may exercise its margin of discretion at two different stages, i.e. first, when implementing in national law the grounds for non-execution and, second, when applying those grounds. 1. Implementing in national law the grounds for non-execution.As given expression in the EAW Framework Decision, the principle of mutual recognition implies that «the Member States are in principle obliged to act upon a [EAW]» [48]. In the same way, they must refuse to execute such a warrant only in the cases of mandatory non-execution provided for in Art. 3 of that Framework Decision and may do so only in the cases of optional non-execution listed in Art. 4 thereof [49]. In addition, the executing judicial authority may make the execution of a EAW subject solely to the conditions set out in Art. 5 of the EAW Framework Decision. Thus, a Member State may choose to implement Art. 4 of the EAW Framework Decision. However, if it decides to do so, it must comply with EU law, notably with the Charter. The rulings of the ECJ in I.B. and Lopes Da Silva Jorge illustrate this point. In I.B. [50], the Belgian Constitutional Court asked the ECJ to interpret Art. 4(6), 5(1) and 5(3) of the EAW Framework Decision. Art. 4(6) of the EAW Framework Decision states that the executing Member State may refuse to execute a EAW issued for the purposes of execution of a custodial sentence or detention order against a person who is staying in, or is a national or a resident of the executing Member State where that State undertakes to execute the sentence or detention order in accordance with its domestic law. In the same way, Art. 5(3) provides that the execution of a EAW issued for the purposes of prosecution against a national or resident of the executing Member State, may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State. However, Art. 5(1) of that Framework Decision, which was repealed by Framework Decision 2009/299 [51], stated that the execution of a EAW issued for the purposes of execution of a custodial sentence or detention order against a person convicted in absentia could be made conditional upon a retrial in the issuing Member [continua ..]

IX. C) Mutual recognition and the national and European public-policy exceptions

C) Mutual recognition and the national and European public-policy exceptions. – Third and last, in order to safeguard the essential features of the Member States’ civil and criminal justice systems, the EU legislator may define situations where the principle of mutual recognition does not apply. Notably, it may provide for grounds for non-recognition and/or non-exe­cution where the free movement of judgments may adversely affect delicate aspects of Member State justice systems. In defining these grounds, the EU le­gislator seeks to strike the right balance between an effective judicial cooperation and the non-interference with the basic tenets of the Member Sta­tes’ civil and criminal law systems [64]. Thus, those grounds are based on natio­nal public-policy considerations. I shall refer to them as the “national public-policy exception”. 1 . The national public-policy exception.In the field of judicial cooperation in civil matters, the EU legislator has provided for a public-policy exception to the recognition or enforcement of judgments [65]. In that regard, the ECJ has consistently held that «while it is not for the [ECJ] to define the content of the public-policy of a Member State, it is none the less required to review the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from another Member State» [66]. “Recourse to the public-policy [exception]”, the ECJ states, «can be envisaged only where re­cognition or enforcement of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it would infringe a fundamental principle. The infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order» [67]. In particular, the ECJ has observed that the right to be defended occupies a prominent position in the organisation and conduct of a fair trial and that it is one of the fundamental rights deriving from the constitutional traditions common to the Member States. For example, the ECJ has held that the refusal to hear the defence of an accused person who is not present at the hearing [continua ..]

X. Concluding remarks

In summary, the principle of mutual recognition is a constitutional principle that pervades the entire AFSJ. It is predicated on mutual trust between the Member States. It is only by sharing the same founding values of democracy, pluralism, respect for the rule of law and fundamental rights that EU citizens may move freely and securely in an area without internal frontiers. It is said that «[t]rust takes years to build, seconds to destroy and forever to repair». That is why I believe that both the EU and its Member States must be pro-active in strengthening mutual trust between national authorities, in particular, national judiciaries. This means that EU legislative measures that facilitate the application of the principle of mutual recognition must be accompanied by “trust-enhancing legislation”. In the same way, the EU must prevent the emergence of “systemic deficiencies”. To that effect, the new EU Framework to strengthen the Rule of Law put forward by the Commission appears to be an interesting initiative. Mutual trust must not be confused with “blind trust”. The principle of mutual recognition must be applied in compliance with the principle of proportionality, must respect the margin of discretion left by the EU legislator to national authorities, and must take into account national and European public-policy considerations.

NOTE