3 - The Protection of Fundamental Rights within the AFSJ: Through or Against Mutual Trust and Mutual Recognition?

Summary

Mutual recognition is not concerned in the first place with fundamental rights, but with the creation of an ‘area of freedom, security and justice’. By flanking mutual recognition with the new ‘principle’ of mutual trust, the CJEU and the EU legislator have endeavoured to foster mutual recognition through a virtuous, yet illusory claim that fundamental rights are equally safeguarded by all the Member States. However, a recent turn to realism has acknowledged that there may be grounds for ‘deactivating’ mutual recognition in exceptional circumstances related to a Member State’s failure to respect fundamental rights. Although that change may suggest that the protection of fundamental rights may actually be at variance with mutual recognition and mutual trust, it rather appears that a high level of protection of fundamental rights calls for (re)consideration of the function and content of mutual trust, which needs to be at the service of mutual recognition.