Introduction
Article 49 TEU prescribes that respect for the values enshrined in Article 2 TEU constitutes a prerequisite for a state’s accession to the European Union – a requirement that states cannot neglect once they have joined the EU.Footnote 1 From this, it follows that EU law is based on the fundamental premise that all member states share common values, justifying mutual trust among the member states that every and any member state respects EU law and provides equivalent and effective protection of fundamental rights – unless and until rebutted.Footnote 2 Such mutual trust is considered to be of fundamental importance in the EU, particularly because it allows for the creation of an area without internal borders.Footnote 3 According to the Court of Justice of the EU (the Court), the principle of mutual trust ‘is based on the specific and essential characteristics of EU law, which stem from the very nature of EU law’.Footnote 4
By contrast, according to the Court in Opinion 1/17, the principle of mutual trust is not applicable in relations between the EU and non-EU member states.Footnote 5 Third countries do not necessarily subscribe to the values in Article 2 TEU and (all) the rights enshrined in the Charter of Fundamental Rights (Charter), nor are they part of the supervisory and enforcement system established in the EU legal order.Footnote 6 They are simply not part of the ‘constitutional framework that is unique to [the EU]’Footnote 7 with its specific and essential characteristics. Hence, it cannot automatically be presumed that they provide substantive and procedural rights equivalent to those provided under EU law. At first sight, the mutual trust that exists in the EU may therefore be described as a closed circle of trust, including all EU member states, to the exclusion of all third states. In this respect, the Court held in RO that mutual trust continued in full force and effect with respect to the United Kingdom ‘until the time of its actual withdrawal from the European Union’,Footnote 8 showing a clear link between EU membership and the existence of mutual trust.
Yet, contrary to its claim in Opinion 1/17 that mutual trust is exclusive to the relations between the EU member states, the case law of the Court generally indicates that the principle of mutual trust may nonetheless extend to certain third countries with a particularly close, or ‘special’,Footnote 9 relationship with the EU. The case law suggests that EU membership is in this regard not necessarily a precondition for membership of the circle of mutual trust that governs EU law. This begs the question: if mutual trust is based on specific and essential characteristics of EU law, stemming from the very nature of EU law and forming part of a unique constitutional framework, how can it possibly extend to relations with non-EU member states? And, in turn, how may this observation inform and affect our understanding of the principle of mutual trust within the EU? In spite of the Court’s seeming acceptance of the extension of mutual trust to certain third countries in contradiction with its absolutist-exclusionary discourse in Opinion 1/17, this article therefore critically challenges those findings in light of its own case law and opens the debate about their potential broader implications.
Given that the Court’s case law is not always as explicit nor consistent as regards the applicability and constitutive elements of mutual trust with respect to third countries, this article starts with a systematic and cross-cutting analysis of the Court’s case law on the applicability of mutual trust with respect to third countries across different fields of cooperation of the EU with third countries. Building on the findings of that analysis, the second part of this contribution examines whether and how the extension of mutual trust vis-à-vis third countries is justified by setting off the foundations of mutual trust within the EU against the (legal) reality of EU relations with third countries. Finally, some reflections are made and (open) questions are raised as regards the broader implications of these observations within the EU, for the EU legal order in general, and the principle of mutual trust in particular.
The non-exclusive nature of the principle of mutual trust
While the Court held in Opinion 1/17 that the principle of mutual trust is not applicable in relations between the EU and non-EU member states,Footnote 10 this apparently absolute principle of distrust must be nuanced. This is also clear from the Draft Accession Instruments on the EU’s accession to the European Convention on Human Rights (the Convention), insofar as it is stipulated that ‘[m]utual trust can also be relevant to non-EU member States in the context of bilateral agreements concluded with the EU’.Footnote 11 In this respect, Lenaerts and Gutiérrez-Fons have argued that, even though the principle of mutual trust does not apply to third countries as a matter of principle, ‘a third country may gain that trust, if it establishes a special relationship with the EU and is equally committed to upholding the values on which the EU is founded’.Footnote 12 This idea of an institutionalised mutual trust through the establishment of a ‘special relationship’ between the EU and a third country is reflected in the recent case of Alchaster. In Alchaster, the Court first insisted that the principle of mutual trust specifically characterises the relations between the member states, before admitting that ‘it cannot be ruled out that an international agreement may establish a high level of confidence between the Member States and certain third countries’.Footnote 13 In the following sections, the Court’s case law in various areas of cooperation with third countries is analysed with a view to establishing the contours and foundations of the (extended) circle of trust, addressing Schengen cooperation, surrender cooperation, and cooperation in the context of the Common European Asylum System, respectively.
Schengen cooperation
The Court’s reasoning in Vethanayagam is based on an implicit recognition of mutual trust in EU-Switzerland relations in the context of the EU Visa Code, extended to Switzerland through the Schengen Agreement. The agreement allows Switzerland to issue visas valid for the whole Schengen area. In the case leading to the main proceedings, a Sri Lankan couple applied for short-term visas for the Netherlands at the Swiss consulate in Sri Lanka under the representation agreement between Switzerland and the Netherlands. The Visa Code provides that appeals against refusal decisions shall be brought before the courts of the state that made the final decision. One of the questions that was raised was whether it is in line with the right to an effective remedy ex Article 47 of the Charter that appeals shall be brought against the representing state (Switzerland) and not against the represented state (the Netherlands), in particular since the representing state is a non-EU member state. The Court responded in the affirmative by finding that, although Switzerland is not an EU member state, it is not only a party to the Convention, it is ‘first and foremost’ an associated state by virtue of the association agreement, which provides that ‘Schengen cooperation is based on the principles of freedom, democracy, the rule of law and respect for human rights, as guaranteed in particular by the [Convention]’.Footnote 14 In addition, the agreement creates reciprocal rights and obligations, as a consequence of which Switzerland must implement the provisions of the Schengen acquis.Footnote 15 Hence, it could be trusted that Swiss courts provide effective judicial protection, consistent with Article 47 of the Charter.
A more explicit recognition of mutual trust can be found in X (Mandat d’arrêt européen – Ne bis in idem). The Court first reiterated that the inter se relations between the member states are governed by the principle of mutual trust and, hence, they must put trust in the criminal justice systems of the other member states.Footnote 16 Notably, it added that ‘[s]uch mutual trust also exists between the States party to the [Convention Implementing the Schengen Agreement]’, however, ‘trust in the criminal justice system of third States which are not party to that agreement or of those States which do not have other privileged relations with the European Union cannot, in principle, be presumed’.Footnote 17 Conversely, this implies that mutual trust may extend to third states party to the Convention Implementing the Schengen Agreement or third states having other privileged relations with the EU. In this respect, all four states of the European Free Trade Association are integrated into the Schengen area,Footnote 18 and, hence, the presumption of mutual trust equally extends to the criminal justice systems of these non-EU member states. The Court considered their Schengen membership as the defining factor, yet without explaining how exactly this provides sufficient guarantees as regards the adequacy and equivalence of their criminal justice systems. Implicitly, this link between Schengen membership and mutual trust may also be derived from the Court’s statement in Ruska Federacija that Iceland’s participation in the Agreement on the European Economic Area and the Schengen acquis renders the situation of an Icelandic national ‘objectively comparable with that of an EU citizen to whom, in accordance with Article 3(2) TEU, the Union offers an area of freedom, security and justice without internal frontiers’.Footnote 19 After all, it is recurrent case law of the Court that it is the principle of mutual trust that allows an area without internal borders to be created and maintained,Footnote 20 and it was inter alia the lack of the United Kingdom’s participation in this area without internal borders that led the Court to conclude in Alchaster that the principle of mutual trust no longer extends to EU-UK relations post-Brexit.Footnote 21
Surrender cooperation
The approach adopted by the Court of Justice in X – no mutual trust vis-à-vis third states except if resulting from an international agreement or other privileged relations – resembles the stance of Advocate General Kokott in JR. In JR, the Lithuanian authorities issued a European Arrest Warrant based on a Norwegian judgment recognised by a Lithuanian court with respect to JR, who found himself in Ireland. Largely replicating the European Arrest Warrant Framework Decision, the EU has concluded with Norway and Iceland the Agreement on the Surrender Procedure, in which the parties expressed ‘their mutual confidence in the structure and functioning of their legal systems and their capacity to guarantee a fair trial’.Footnote 22 In her Opinion, Advocate General Kokott first underlined that the principle of mutual trust cannot ‘immediately’ be transferred to third states,Footnote 23 before holding that ‘the European Union has expressed confidence in the Kingdom of Norway which reaches to the mutual confidence between Member States’.Footnote 24
By contrast, according to the Norwegian Government in Ruska Federacija, the expression of mutual confidence in the agreement cannot be equated with EU-style mutual trust.Footnote 25 In EU law, the notions of ‘mutual confidence’ and ‘mutual trust’ are often employed interchangeably,Footnote 26 a practice most likely stemming from the fact that the Court’s judgments are drafted in French, using the term ‘confiance mutuelle’.Footnote 27 However, the mere use of the same concepts in EU law and international agreements does not necessarily mean that those concepts must be interpreted in the same manner.Footnote 28 While in earlier cases the Court’s findings were still somewhat ambiguous, an evolution is discernible, reaching its (for now) peak in the case of Alchaster, from which it follows that the surrender cooperation between the EU, Norway and Iceland is based on a high level of confidence equivalent to that among EU member states.
In JR, the Court first held that a member state issuing a European Arrest Warrant on the basis of a recognised judgment of a third state, in casu Norway, should verify (and not presume) whether the proceedings in the third state were conducted in compliance with fundamental rights.Footnote 29 Then, however, the Court underscored that Norway has a ‘special relationship’ with the EU, going beyond mere economic and commercial cooperation, given Norway’s participation in the European Economic Area Agreement, the Common European Asylum System, the Schengen acquis and the Agreement on the Surrender Procedure.Footnote 30 In the latter, the Court noted, the parties expressed their mutual confidence in the structure and functioning of their legal systems and their ability to guarantee a fair trial.Footnote 31 Yet, the Court did not draw any concrete implications from this and merely reiterated in its conclusions, in a general manner, that it must be guaranteed that fundamental rights were complied with in the proceedings in the third state.Footnote 32 The rather ambiguous reasoning of the Court may be interpreted in two ways. On the one hand, the expression of mutual confidence in the Agreement on the Surrender Procedure may only serve as an indication of fundamental rights compliance in the verification process, but not as an EU-style presumption obliging the issuing member state to forgo such verification, save in exceptional circumstances. On the other hand, the Court’s conclusions may be meant as general guidance on how to treat third-country judgments that form the basis for a European Arrest Warrant, with the considerations on Norway serving as specific clarification that that country’s fundamental rights protection should be trusted in a manner similar to those of EU member states. In any event, the Court’s reasoning was much less explicit than that of Advocate General Kokott, insofar as she found that ‘it is therefore to be presumed, subject to rebuttal, that fundamental rights have already been protected hitherto and will also be protected in the future [by Norway]’.Footnote 33 The Court’s follow-up case law indeed suggests that Norway (and Iceland) must be treated as member states for the purpose of the surrender rules, in accordance with the second interpretation presented above.Footnote 34
The Court had to interpret the Agreement on the Surrender Procedure again in Sofiyska gradska prokuratura.Footnote 35 Subject to criminal proceedings in Norway, the Norwegian authorities issued an arrest warrant against KT. After the Polish authorities refused the execution of the arrest warrant for potential fundamental rights violations, the Norwegian authorities issued another arrest warrant upon KT’s arrest in Bulgaria. The Court clarified that the issuing of an arrest warrant leading to an infringement of fundamental rights is incompatible with the principle of mutual confidence underpinning the agreement,Footnote 36 thereby referring to Puig Gordi and Others by analogy, in which the Court found the same situation to be incompatible with the EU principle of mutual trust.Footnote 37 Echoing its intra-EU mutual trust case law since LM,Footnote 38 the Court found, moreover, that executing authorities are only permitted, ‘exceptionally and following an appropriate examination’, to refuse the execution of an arrest warrant in case of a risk of fundamental rights infringements.Footnote 39 Implicitly justifying the streamlining of its case law on the Agreement on the Surrender Procedure with its intra-EU case law, the Court stressed the mutual confidence in each other’s legal systems as expressed in the Agreement, as well as the fact that the provisions of both instruments are ‘very similar’.Footnote 40
So far, a final step in the evolution is Alchaster. In Alchaster, the Court first insisted that the principle of mutual trust specifically characterises the relations between the member states, before admitting that Norway’s relationship with the EU is also characterised by ‘a high level of confidence’.Footnote 41 The Court pointed out that Norway finds itself in a particular situation as it has a special relationship with the EU, going beyond economic and commercial cooperation, their relationship being based on the European Economic Area Agreement, participation in the Common European Asylum System, implementation and application of the Schengen acquis, and the conclusion of the Agreement on the Surrender Procedure.Footnote 42 The Court distinguished Norway from the United Kingdom, which does not enjoy a ‘relationship as special as the one [Norway enjoys]’.Footnote 43 While the Court did not further expand on the consequences for the operation of the Agreement on the Surrender Procedure, since the case concerned surrender between a member state and the UK, the case nonetheless sheds light on how the Court perceives the nature of the relationship with Norway (and Iceland) within the context of surrender cooperation. While the English version of the judgment may still give the impression that the Court distinguishes between the inter se relations of the member states and the relations with Norway by using the term ‘trust’ for the former and ‘confidence’ for the latter, this difference seems negligible. In the French version, the Court notes that the European Arrest Warrant Framework Decision is based on ‘le degré de confiance élevé’ between the member states, and, similarly, EU-Norway relations under the Agreement on the Surrender Procedure are based on ‘un niveau de confiance élevé’.Footnote 44
Supporting this finding is the application of the two-step test by the Norwegian Supreme Court,Footnote 45 which requires the executing authority, first, to examine whether there are systemic deficiencies in the protection provided in the issuing member state and, second, whether there are substantial grounds for believing that the individual concerned runs a real risk of his or her rights being infringed.Footnote 46 This two-step test constitutes a concrete expression of the principle of mutual trust.Footnote 47 The Court has furthermore recognised that the provisions of the Agreement on the Surrender Procedure are ‘very similar’ to the corresponding provisions of the European Arrest Warrant Framework Decision,Footnote 48 and that the agreement pursues the same objectives.Footnote 49 It would furthermore be inconsistent to place trust in the criminal justice systems of Norway and Iceland within the framework of the Schengen acquis (see supra),Footnote 50 but not within the context of the Agreement on the Surrender Procedure, in particular since the latter explicitly underlines the existence of mutual confidence in the structure and functioning of each other’s legal systems and the capacity to guarantee a fair trial.Footnote 51 Hence, in the context of surrender cooperation, Norway and Iceland must be considered part of the circle of trust on which surrender cooperation is based within the EU.
The Common European Asylum System
Mutual trust is considered to be ‘of fundamental importance’Footnote 52 in the area of freedom, security and justice, in which the EU is to ensure a common policy on asylum, immigration and external border control – the Common European Asylum System. The European Free Trade Association states (Norway, Iceland, Liechtenstein and Switzerland) are associated with the Common European Asylum System through their participation in the Dublin mechanism for the allocation of the responsible state for the processing of asylum applications as well as the Eurodac fingerprint system.Footnote 53 In Ruska Federacija, the Court found that, in concluding on the extradition of an individual to his or her country of origin (in casu Russia), the existence of a decision of the Icelandic authorities granting that person asylum must in principle lead the Croatian authorities to refuse extradition if the asylum was granted on the ground that that person risked suffering inhuman or degrading treatment in his country of origin.Footnote 54 In later case law, the Court clarified that this does not result from an obligation of mutual recognition of asylum decisions between member states (and more broadly, Common European Asylum System states), given that the EU legislature has not yet fully achieved the objective of establishing a uniform asylum status for nationals of third countries, valid throughout the European Union.Footnote 55 Nonetheless, in Ruska Federacija, the Court clarified that the Common European Asylum System states are required to trust and fully take into account the asylum decisions taken by the Icelandic authorities as substantial pieces of evidence,Footnote 56 and must, in principle, refuse extradition to the country of origin of a third-country national granted refugee status by another Common European Asylum System state. This is because the Common European Asylum System is based on mutual trust and, as a consequence, member states can presume that, in principle, applicants for international protection are treated in accordance with the requirements of EU law by other member states.Footnote 57 This trust extends to third states participating in the Common European Asylum System insofar as the Court found in N. S. and Others that the System is based on the principle of mutual trust, allowing all the participating states to assume that the other participating states, ‘whether Member States or third States’, observe fundamental rights, including the rights stemming from the Geneva Convention relating to the Status of Refugees, its 1967 Protocol and the Human Rights Convention.Footnote 58 Hence, in the areas of asylum cooperation in which the European Free Trade Association states participate, they must be put on an equal footing with the member states.
By contrast, in L.R., the Court held that the authorities of an EU member state cannot recognise a decision by the Norwegian authorities as a ‘final decision’ for the purpose of applying Article 33(2)(d) of the Asylum Procedures Directive.Footnote 59 Article 33(2)(d) of that Directive allows the member states to declare an application for international protection inadmissible if another member state has already taken a final decision on a previous application and no new elements have arisen.Footnote 60 This provision forms an expression of mutual trust in the asylum procedures of the other member state(s).Footnote 61 Next to the explicit wording of the Directive, the reason for the non-applicability of Article 33(2)(d) in case of Norwegian asylum decisions is that Norway does not apply the Asylum Procedures Directive nor the Qualification Directive, and hence, that country cannot be treated in the same way as a member state.Footnote 62 This raises the question of how the Court’s findings in L.R. may be squared with its case law since N. S. and Others that mutual trust in the Common European Asylum System is based on the mere compliance of all participating member states and third states with the Geneva Convention, its 1967 Protocol and the Human Rights Convention.Footnote 63 Since, at present, no third state has undertaken to comply with the Asylum Procedures Directive or the Qualification Directive, making mutual trust with respect to third countries contingent upon their additional participation in these instruments would mean that L.R. raises the standard pronounced in N. S. and Others, effectively excluding third states from the trust-based Common European Asylum System.
However, that interpretation is unlikely. The Court’s observation must be read in the specific context of Article 33(2)(d). It is only because the Asylum Procedures Directive and the Qualification Directive have not been extended to Norway that that country cannot be treated as a member state for the purpose of Article 33(2)(d). Norwegian asylum decisions simply do not fall within the scope of that provision, and recognising Norwegian decisions as a ‘final decision’ for the purpose of Article 33(2)(d) would be contrary to its ‘unequivocal wording’.Footnote 64 Similar arguments have led the Court to the same conclusion with respect to Denmark.Footnote 65 Hence, the Court’s finding that Norway cannot be treated as a member state for the trust-based system of Article 33 since it does not apply the Asylum Procedures Directive and Qualification Directive does not mean that its participation in those Directives would form a precondition for the existence of mutual trust in the context of those instruments of the Common European Asylum System in which Norway does participate. By contrast, the Court implicitly acknowledged the existence of mutual trust in Ruska Federacija, insofar as it required the competent national authorities to conclude from the mere existence of an Icelandic decision granting asylum that an extradition should be refused,Footnote 66 thereby requiring the national authorities to trust the assessment made by the Icelandic authorities.Footnote 67 In even clearer wording, Advocate General Tanchev held in his Opinion in that case that the member states and Iceland are bound ‘to an obligation of mutual trust with respect to decisions taken within the ambit of the Common European Asylum Policy and in particular the Dublin III Regulation’.Footnote 68 Hence, the Court does not take issue with the fact that the European Free Trade Association states only participate in some instruments forming part of the Common European Asylum System, but instead takes their membership to the Geneva Convention, its 1967 Protocol and the Convention on Human Rights as a sufficient basis for recognising the existence of mutual trust within the context of those parts of the Common European Asylum System in which they do participate.
Challenging the foundations of mutual trust outside and inside the EU
From the foregoing analysis, it follows that the (European Economic Area) European Free Trade Association states must, in the mutual trust-based areas of cooperation in which they participate, be treated and trusted on par with their EU counterparts. Yet, in Opinion 2/13, the Court put forward that the EU constitutes a legal order with ‘specific characteristics arising from the very nature of EU law’.Footnote 69 These characteristics – which include the fact that EU law stems from an independent source of law and encompasses the principles of primacy and direct effect – have in turn given rise to ‘a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other’.Footnote 70 The principle of mutual trust constitutes one of those principles governing the inter se relations between the member states and between the member states and the EU.Footnote 71 It forms part of a ‘constitutional framework that is unique to [the EU]’Footnote 72 and ‘is based on the specific and essential characteristics of EU law, which stem from the very nature of EU law’.Footnote 73 However, as the foregoing analysis has demonstrated, this principle cannot be considered entirely exclusive to the EU and its member states. This begs the question of how this observation informs and affects our understanding of the principle of mutual trust and the foundations underlying it. If mutual trust is based on specific and essential characteristics of EU law, stemming from the very nature of EU law and forming part of a unique constitutional framework, how can it possibly extend to relations with non-EU member states?
In its case law, the Court describes the principle of mutual trust and its implications as follows:
It must be recalled that EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the EU law that implements them will be respected, and that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised by the Charter.Footnote 74
From this, three elements may be derived as underpinning and characterising the principle of mutual trust. First, mutual trust is based on the sharing of and respect for the values in Article 2 TEU. Article 8 TEU forms in this regard a bridge between the values in Article 2 TEU and the EU’s neighbourhood policy,Footnote 75 introducing the finalité for the EU to establish a special relationship with its neighbouring countries ‘founded on the values of the Union’.Footnote 76 Second, mutual trust requires the member states to trust that the other member states respect the provisions of EU law that implement those values. Third, the member states must trust that the national legal systems of the other member states are capable of providing equivalent and effective protection. The link between those three elements has been aptly summarised by Mancano insofar as, ‘[f]or trust to survive, proximity – expressing a normative alignment in terms of values and interests – must be underpinned by compliance. Compliance, in turn, is inevitably influenced by proximity: the closer the latter, the higher the evidentiary threshold required to distrust the actor under scrutiny.’Footnote 77 The next sections go over these elements separately and question the extent to which (some of) these elements are present with respect to the third countries recognised by the Court as being within the EU’s circle of mutual trust, allowing further reflections on the meaning and nature of mutual trust within the EU.
Respect for common values as a foundation for mutual trust
The principle of mutual trust is based on the fundamental premise that each member state shares with all the other member states, and recognises that they share with them, the values enshrined in Article 2 TEU.Footnote 78 Respect for those values is a precondition for accession to the EU under Article 49 TEU, as reflected in the so-called ‘Copenhagen criteria’ which all candidate countries must meet before acceding to the EU and reaping the benefits of membership.Footnote 79 Accession negotiations and the delivery of reforms are generally known to be a lengthy process, subject to extensive scrutiny by the European Commission, so as to guarantee that, once candidate countries have acceded, all other member states can trust that they will respect the values on which the EU is founded.
More difficult and less straightforward is the situation of candidate countries within the new enlargement methodology, which proposes a gradual pre-accession integration of candidate countries in selected areas of EU law.Footnote 80 According to the Commission, during the accession process, negotiations on respect for the values in Article 2 TEU are opened first and closed last.Footnote 81 How then can candidate countries be successfully integrated into parts of the EU legal order before being fully in line with those values, given the intrinsic link between respect for these values, mutual trust, and the proper functioning of EU law? It has been held firmly by the Court that respect for the values contained in Article 2 TEU is a condition for the enjoyment of all the rights deriving from EU law.Footnote 82 It is questionable whether candidate countries still engaged in the continuous process of reforms will be able to credibly demonstrate such full respect already at this stage – either rendering the idea of gradual integration inherently unrealistic or, alternatively, eroding the requirement of respect for the values in Article 2 TEU as a precondition to enjoying the benefits stemming from EU law.Footnote 83
While the non-EU member states that are closely integrated into parts of the EU legal order and for which the Court has accepted the extension of mutual trust – i.e. the European Free Trade Association states (see supra) – have not been subjected to similarly extensive ex ante screening as candidate countries, it cannot be ignored that they subscribe to the same values as enshrined in Article 2 TEU,Footnote 84 are a party to the Convention and have no track record of systemic fundamental rights deficiencies. This was also reflected in the Commission’s opinion on Iceland’s (first) application for membership of the EU, in which it found from the very beginning that Iceland met the political criteria of respect for the values in Article 2 TEU set by the Copenhagen criteria.Footnote 85 Within the context of the European Economic Area Agreement, trust in fundamental rights protection is moreover reinforced by the case law of the EFTA Court, which serves as a counterpart to the Court of Justice with respect to Norway, Iceland and Liechtenstein. The EFTA Court has found that fundamental rights constitute general principles of European Economic Area law and that, consequently, the extended rules of EU law must be interpreted and applied in line with those fundamental rights by those third states.Footnote 86 More recently, the EFTA Court has furthermore explicitly acknowledged the relevance of the Charter of Fundamental Rights in the interpretation of European Economic Area law, even though the Charter is not formally binding on Norway, Iceland and Liechtenstein.Footnote 87 It furthermore recognised that ‘the Contracting Parties clearly presupposed that the [European Economic Area] Agreement would provide for adequate protection of fundamental rights’ and that, at least in the case before it, there were no compelling grounds justifying that fundamental rights protection provided in Norway, Iceland and Liechtenstein should not be equivalent to that in the EU.Footnote 88
In other fields of cooperation, this presumed equivalence seems to follow from the third states’ membership of the Convention. This played an important role in the Court’s recognition of mutual trust with respect to these countries within the field of the Common European Asylum System, as evidenced by N.S. and Others,Footnote 89 as well as with respect to Switzerland’s Schengen cooperation. In Vethanayagam, it was, inter alia, Switzerland’s membership of the Convention that played a decisive role in the Court’s decision that the judicial review of visa refusals by Switzerland on behalf of an EU member state complied with Article 47 of the Charter.Footnote 90 This stands in stark contrast, however, to the Court’s findings in Petruhhin and Alchaster that mere membership of the Convention cannot be conclusive as to third countries’ compliance with fundamental rights.Footnote 91 Hence, the mere sharing of values or a joint fundamental rights catalogue must be insufficient for the existence of mutual trust. This is clear from the Court’s Brexit case law. In RO, the Court held that ‘EU law, which encompasses … the principles of mutual trust and mutual recognition …, continues in full force and effect … until the time of [the UK’s] actual withdrawal from the European Union’.Footnote 92 However, it is not because the UK left the EU that from one day to the other it does not the share the values in Article 2 TEU anymore.Footnote 93 Hence, something more than a mere sharing of values is necessary for the existence of (continued) mutual trust.
Regulatory rapprochement as an expression of the common values
While the obligation of mutual trust within the context of EU cooperation follows from membership in the EU and the concomitant sharing of values,Footnote 94 a shared catalogue of values or fundamental rights obligations is insufficient to trust third states in a similar manner.Footnote 95 In this respect, Advocate General Kokott held in JR that ‘[a]lthough it is not enough that the Kingdom of Norway is a signatory of the [Convention], that State concluded the Agreement on the surrender procedure with the European Union’. Similarly, the Court held in Vethanayagam that Switzerland is ‘not only a party to the [Convention] but first and foremost an associated state by virtue of the Swiss Confederation Schengen acquis association agreement’.Footnote 96 The majority of the international agreements that integrate third states into parts of the EU legal order extend mutual trust-based EU legislation almost verbatim to those countries. Since the smooth operation of these instruments relies on the existence of mutual trust, their extension to the third countries concerned may be perceived as an implicit acknowledgement by the EU of their shared respect for the values in Article 2 TEU. In turn, the taking over of EU law acts as a catalyst for the creation of mutual trust between the member states and the integrated third countries,Footnote 97 those acts constituting a concrete expression of the values in Article 2 TEU themselves.Footnote 98
Next to a shared basis of common values, a particular level of regulatory alignment appears essential for extending mutual trust to third countries. This was particularly clear in Alchaster, in which the Court found that mutual trust applies between the member states and Norway for the purpose of the Surrender Procedure Agreement because the provisions of that agreement and the European Arrest Warrant Framework Decision are ‘very similar’, whereas the ‘substantial differences’ between the European Arrest Warrant Framework Decision and the relevant provisions of the EU-UK Trade and Cooperation Agreement illustrate the absence of mutual trust within the context of post-Brexit surrenders.Footnote 99 This is also evident from the Commission’s Communication on the UK’s application to join the Lugano Convention post-Brexit. The Lugano Convention extends the EU regime of mutual recognition of judgments in civil and commercial matters established by the Brussels I Regulation to Norway, Iceland, Switzerland and Denmark.Footnote 100 The Commission stressed that the Lugano Convention supports the EU’s relationship with third countries that have ‘a particularly close regulatory integration with the EU’, whereas the UK is merely ‘a third country with an “ordinary” Free Trade Agreement facilitating trade but not including any fundamental freedoms and policies of the internal market’.Footnote 101 It moreover underlined that the high level of mutual trust underpinning the Convention is ‘commensurate to the high degree of economic interconnection based on the applicability of the four freedoms’.Footnote 102
However, it cannot be ignored that the instruments extended to third countries through international agreements do not act in a legal vacuum within the EU. Take, for instance, the European Arrest Warrant Framework Decision. While the European Arrest Warrant system has been extended by and large to Norway and Iceland through the Surrender Procedure Agreement, this was not accompanied by the flanking measures that were adopted within the EU to boost mutual trust in each other’s criminal justice systems.Footnote 103 While initially the European Arrest Warrant was adopted without those flanking measures as well,Footnote 104 several directives that were later adopted indicate that, although all the member states are bound by the Charter and are party to the Convention and other international human rights conventions, ‘experience has shown that that alone does not always provide a sufficient degree of trust in the criminal justice systems of other Member States’.Footnote 105 Further development of the minimum standards set out in those conventions and the Charter was considered essential by means of harmonised rules. Admittedly, while the Surrender Procedure Agreement only entered into force in 2019, those harmonisation measures were not yet adopted within the EU at the time it was concluded in 2006. Yet, this still begs the question of how the European Arrest Warrant system, including the presumption of trust underpinning it, can be extended to third states that have not taken over those flanking measures if, within the EU, those measures were considered crucial for creating and strengthening the trust that is regarded as indispensable for its smooth operation? As is evident from the analysis in the first part, with respect to Norway and Iceland, the Court considered it sufficient that the Surrender Procedure Agreement is similar in provisions and objectives to the European Arrest Warrant Framework Decisions and that, in the Preamble of the Agreement, the parties have expressed ‘their mutual confidence in the structure and functioning of their legal systems and in the ability of all Contracting Parties to guarantee a fair trial’.Footnote 106 However, it is doubtful that a simple declaration by the EU and the third countries concerned that they trust each other is sufficient in this respect, and it adds to the existing critique that mutual trust is often merely a ‘(legal) fiction’.Footnote 107
Similar questions arise as regards the extension of the mechanisms of mutual recognition and enforcement of judgments in civil and commercial matters extended to Norway, Iceland and Switzerland through the Lugano Convention. Within the EU, conflict of laws rules (Rome I and II) were adopted to supplement the rules on recognition and enforcement in the Brussels I Regulation since ‘the removal of all intermediate measures [under the Brussels I Regulation] calls for a degree of mutual trust between Member States which is not conceivable if their courts do not all apply the same conflict rule in the same situation’.Footnote 108 Hence, the current Brussels Ibis Regulation ‘forms part of a context of strengthening mutual trust and of unifying the conflict-of-law rules’.Footnote 109 Nonetheless, the harmonised conflict of laws rules adopted within the EU were not extended to the third countries party to the Lugano Convention. While the Norwegian Supreme Court has recognised over the years several principles underlying Rome I and II,Footnote 110 it needs no explanation that the recognition of rules equivalent to those applicable within EU law on a case-by-case basis, and the concomitant legal uncertainty that this creates, does not constitute a solid basis for mutual trust in each other’s legal rules.
Does this mean that, despite what the EU legislator claims, those harmonising flanking measures are not essential for the good functioning of trust-based cooperation? Or, alternatively, and by contrast to the Court’s current case law, should, in accordance with the Polydor doctrine,Footnote 111 the extended EU instruments be interpreted and applied differently as regards their application vis-à-vis third countries due to the lack of such harmonising measures and the resulting different legal realities in which they operate?Footnote 112 And should a similar approach then be adopted regarding Denmark and Ireland in the areas of EU law for which they enjoy an opt-out if they have not agreed to the application of these flanking measures?Footnote 113
Arguably, certain areas of EU law are underpinned by mutual trust as well, even if no harmonisation at the EU level has taken place (yet).Footnote 114 In those cases, ‘while another State may not deal with a certain matter in the same or even a similar way as one’s own State, the outcome will be such that it is accepted as equivalent to a decision by one’s own State because it reflects the same principles and values’.Footnote 115 Hence, in some areas of cooperation, the differences in legal context may be mitigated by recognition of the equivalence of the national legislation of third countries with EU law. Such reasoning is, for instance, implicit in the operation of the Common European Asylum System. As discussed above, the Court has emphasised that the Common European Asylum System is based on mutual trust by virtue of the common minimum standard of protection that all participating states, whether EU member states or third states, share through their membership of the Geneva Convention, its 1967 Protocol and the Human Rights Convention.Footnote 116 Yet, it cannot be ignored that within the EU harmonisation measures have been adopted precisely to enhance that mutual trust,Footnote 117 which, by contrast, have not been extended to Norway, Iceland, Liechtenstein and Switzerland (and Denmark). In L.R., the Court underlined that EU law provides more extensive protection than the Geneva Convention since, in addition to refugee status, EU law also provides for subsidiary protection if a person is not eligible for refugee status.Footnote 118 From this perspective, mere membership of the Geneva Convention by the associated third states may not be sufficient to put as much trust in them regarding the level of (fundamental rights) protection afforded to asylum seekers compared to the EU member states. This concern is, in practice, remedied by the fact that, de facto, the national laws of those third states and Denmark also provide more far-reaching protection than the Geneva Convention, at least equivalent to the protection provided under EU law – albeit without taking over the relevant EU law instruments.Footnote 119 Hence, particularly in the EU’s external action, which is characterised by a considerable margin of discretion for the EU institutions given its inherently (geo)political nature,Footnote 120 it may be more appropriate to adopt a realistic rather than formalistic approach by recognising the functional equivalence of the third countries’ laws.
There remains the question, of course, of what happens if those countries change their laws or fail to bring them into line with amendments to EU legislation or new harmonisation measures adopted for enhancing mutual trust among EU member states. While some agreements, particularly those providing for extensive harmonisation – such as the European Economic Area Agreement or the Schengen Agreement – provide for the (theoretical) possibility of a partial suspension or even termination of the whole agreement respectively,Footnote 121 those that rather rely on functional equivalence between EU standards and the third countries’ own standards, such as the Lugano Convention or the Surrender Procedure Agreement, do not provide for similar mechanisms. Precisely in such contexts, however, rigorous scrutiny and continued monitoring of the level of functional equivalence between the EU rules and the corresponding third-country laws prove essential to ensure that the extension of the principle of mutual trust to those countries remains founded on genuine and effective equivalence. In the absence of such safeguards, the Court’s recognition of mutual trust in relation to those countries may necessitate a more substantive level of judicial scrutiny compared to its current approach.
Enforcement procedures as an ultimate guarantee for mutual trust
Lastly, and perhaps most remarkably, is the Court’s acceptance that mutual trust may extend to third countries even though they are not subject to the same control mechanisms as the member states and their national judiciaries do not have access to the Court to ensure the uniform and correct interpretation and application of the extended EU rules.Footnote 122 The Court held in RO that the European Arrest Warrant Framework Decision continued to apply in relation to the United Kingdom ‘until the time of its actual withdrawal from the European Union’.Footnote 123 Still, the Court concluded that the executing authority could presume that the individual would continue enjoying the guarantees provided to that person by the European Arrest Warrant Framework Decision after Brexit, since the relevant rights were protected by national provisions of UK law and the UK would remain a party to the Human Rights Convention and the European Convention on Extradition.Footnote 124 That it would be impossible for UK courts to refer a preliminary question to the Court could not alter this conclusion, the Court argued, since, before 2014, the Court did not have jurisdiction with respect to the European Arrest Warrant Framework Decision either, and potential issues were dealt with by the national courts alone too back then.Footnote 125 Rather than recognising the continued existence of mutual trust after Brexit,Footnote 126 the presumption established by the Court operated as a rebuttable presumption that the substantive and procedural rights enjoyed by individuals would continue to be protected, thereby ensuring the smooth functioning of the European Arrest Warrant system at a time when no post-Brexit arrangements had yet been put in place.Footnote 127 It is, however, doubtful whether the Court’s previous lack of jurisdiction may be relied upon as evidence of the present or future equivalence of human rights protection between the EU and the UK, particularly given that the Court has since acquired jurisdiction in relation to the European Arrest Warrant mechanism.Footnote 128
This becomes particularly relevant in the case of surrender cooperation between the EU, Norway and Iceland, where, in contrast to surrender cooperation with the UK post-Brexit, the Court has found that such cooperation is based on a high level of trust equal to the trust between the member states.Footnote 129 Lacking access to the, or at least a, preliminary ruling procedure, such equivalence is at least questionable, particularly in light of the high number of preliminary rulings involving the European Arrest Warrant Framework Decision.Footnote 130 Under the principle of mutual trust, the states are required to trust that the other states are capable of providing effective and equivalent fundamental rights protection.Footnote 131 Although in relation to a different legal instrument, this was also one of the arguments based on which Advocate General Sharpston argued in the earlier discussed case of Vethanayagam that, for appeals against the refusal of a visa, the appropriate jurisdiction would be the represented state – in casu the Netherlands – and not the representing state – i.e. Switzerland. According to the Advocate General, Swiss courts do not have the possibility of referring a preliminary reference to the Court of Justice, and the mechanism for the uniform interpretation and application of the extended EU rules under the Schengen Association Agreement – which is, nota bene, fairly similar to that in the Surrender AgreementFootnote 132 – ‘is no equivalent to the procedure under Article 267 TFEU’.Footnote 133 This argument was not considered at all by the Court, which is remarkable in light of its recurrent case law that the preliminary reference procedure plays an essential part in the protection of individuals’ rights, as that procedure is intended to prevent the misapplication of EU law and allows for equivalent protection across the EU.Footnote 134 In Neves 77 Solutions, the Court even considered the preliminary ruling procedure as ‘essential’ to preserving the value of the rule of law,Footnote 135 which forms the basis of mutual trust. The Court has furthermore emphasised the link between mutual trust and the full employment of the EU judicial machinery, in particular the preliminary ruling procedure, insofar as:
[the] trust which the Member States accord to one another’s legal systems and judicial institutions … permits the inference that, in the event of the misapplication of national law or EU law, the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals.Footnote 136
Notably, this statement was made by the Court within the context of the Brussels I Regulation, but the Lugano Convention does not provide for similar access to the Court nor any other supranational court for the national courts of the relevant third states. Protocol 2 to the Lugano Convention only requires those national courts to pay due account to the rulings of the Court of Justice and the other courts of the states bound by that Convention but does not allow them to refer preliminary questions to the CourtFootnote 137 – providing no guarantees as to the correct and uniform interpretation of those rules, in particular in case no prior case law of the Court exists. By contrast, on several occasions, member state courts have asked the Court for its interpretation of the Lugano Convention.Footnote 138
In addition to the preliminary ruling procedure, the European Commission has at its disposal the procedure of the infringement action in Article 258 TFEU, which bestows upon the Commission the competence to enforce respect for EU law, and has been used to defend the values in Article 2 TEU.Footnote 139 Furthermore, other primary law provisions, such as Article 7 TEU, and instruments of secondary EU law, including the Rule of Law Conditionality Regulation,Footnote 140 allow the EU institutions to supervise respect for and enforce the values in Article 2 TEU vis-à-vis the member states. Those different enforcement avenues are an inherent consequence of the fact that respect for the values in Article 2 TEU, and for EU law more generally, cannot be disregarded once the country has acceded to the EUFootnote 141 – continued respect for those values being a precondition for the enjoyment of all rights deriving from EU law.Footnote 142 The Court has recognised that ‘the European Union must be able to defend those values’.Footnote 143 These procedures serve as a stick behind the door if member states backtrack on the commitments they made upon their accession, and serve to reinforce the trust that the member states are required to have in each other’s compliance with EU law.Footnote 144 This is particularly justified given that the principle of mutual trust does not bind the EU institutions insofar as they are, in principle, not required to presume that the member states respect EU law.Footnote 145
What then of the Court’s insistence on the fact that those supervision and enforcement mechanisms facilitate and justify the trust that the member states are required to show in each other and the fact that those mechanisms are generally lacking within the context of cooperation with third countries? As aptly noted by Ott, ‘the closer a third country aligns to core EU policies such as internal market, currency or Schengen, the more closely-knit the system of effective rule-application and compliance control has to be’.Footnote 146 In this respect, whatever the enforcement model chosen, any solution must guarantee the integrity of the internal market and a level playing field whilst at the same time upholding the autonomy of the EU judicial system.Footnote 147 These imperatives appear to be a concern of the European Commission as well within the context of the gradual pre-accession integration of candidate countries in selected areas of EU law, insofar as it has pointed out that it needs to be decided which safeguards are to be foreseen to guarantee the uniform interpretation, application and enforcement of the EU acquis, as well as the possibilities for the Union to react in case a country does not comply with its obligations.Footnote 148 According to the Commission, ‘[t]his is key … to maintain trust in the respect of the rules’.Footnote 149 Similarly, in an earlier communication, the Commission emphasised that ‘[t]he EU has an interest in encouraging neighbouring states to adopt a legal framework compatible with that of the EU. In this connection, the importance of the correct transposition and enforcement of the acquis as a pre-requisite for the good functioning of the internal market cannot be underestimated.’Footnote 150 It is therefore remarkable that the General Court downplayed this issue within the context of the internal market extended by the European Economic Area Agreement by holding that differences in the interpretation between the EU, on the one hand, and Norway, Iceland and Liechtenstein, on the other, of the extended provisions of EU law is only ‘a potential drawback linked to the fact that EU rules apply by virtue of an international agreement outside the territory of the EU member states, in another judicial system’.Footnote 151 However, these rules do not merely apply outside EU territory; rather, Norway, Iceland and Liechtenstein are integrated into the EU internal market on an equal footing with the EU member states.Footnote 152 Hence, the imperative of uniformity governing the EU internal market necessarily extends to those states, as reflected by the central concept of ‘homogeneity’ underpinning the European Economic Area Agreement.Footnote 153
Yet, the European Economic Area Agreement still provides for independent oversight by the EFTA Surveillance Authority and the EFTA Court as counterparts to the European Commission and the Court of Justice respectively (the so-called ‘two-pillar model’). As Franklin has argued, ‘the EU for its part could obviously not accept a situation whereby the European Free Trade Association states would be free to monitor their own compliance’.Footnote 154 Yet, many of the current agreements extending EU law to third countries lack supervision and enforcement by independent and neutral bodies, which is mostly left to national institutions. While within the EU the national authorities and courts are the primary guarantors of the rights individuals derive from EU law as well, in case doubts arise as regards the correct interpretation and application of EU law, or if those authorities fail to fulfil their obligations, the European Commission acts as the guardian of the Treaties and the Court of Justice serves as the ultimate arbiter in this respect. This allows the member states to trust that the other member states will comply with their obligations under EU law since they are supervised by two independent supranational bodies.
Another option is the so-called ‘one-pillar model’, where the third countries concerned are brought under the surveillance of EU institutions. Some agreements extending EU law provide for the possibility of preliminary references by third-state courts to the Court,Footnote 155 although this option has either not been utilised or has not been activated by the relevant third countries. Given the Court’s emphasis on the use of the preliminary ruling procedure in justifying and allowing for mutual trust,Footnote 156 the actual use thereof by third-state courts has the potential of (partially) remedying the independent surveillance gap in many of these agreements, fostering but also justifying the mutual trust underpinning the cooperation. The same holds true for the extension, in some agreements, of the Commission’s surveillance role to the associated third countries.Footnote 157 In this respect, it is interesting to note that the envisaged association agreement with San Marino and Andorra will bring about the most extensive integration of third countries into the EU legal order so far, not only as regards its material scope but also by introducing an unprecedented level of supervision by the Commission and the Court.Footnote 158 According to the Preamble of the Agreement, this constellation was considered necessary ‘in order to ensure the proper functioning of this Agreement and full respect of the EU law’,Footnote 159 thereby providing unprecedented guarantees as regards the trust that member states can put in those third countries. By contrast, Blanchet has argued that ‘an efficient and independent oversight is a fundamental tool in order to build and protect mutual trust’ and, in this respect, the Schengen association agreements ‘lack the last, decisive element of having a mechanism that ensures that the correct application is overseen by independent institutions and that the rights of individuals are protected in the same way as in the EU and in the European Economic Area, with access to justice through preliminary ruling procedures’.Footnote 160 As an alternative to one-pillar oversight by EU institutions, she proposes the two-pillar idea of ‘docking’ – i.e. extending the surveillance powers of the EFTA Surveillance Authority and the EFTA Court to other agreements with the European Free Trade Association states, such as the Schengen or Dublin Agreements.Footnote 161
Finally, what could be called a ‘one-and-a-half-pillar model’Footnote 162 emerged a little over ten years ago, with the conclusion of the association agreements with Ukraine, Moldova and Georgia. A similar mechanism is included in the EU-UK Withdrawal Agreement and the envisaged EU-Switzerland ‘Bilaterals III’ treaty package. Initially, a system of two-pillared self-policing is in place, yet if a dispute arises between the EU and the associated third countries regarding the interpretation or application of the agreement and no solution can be found, arbitration proceedings may be instituted by either party. The arbitral tribunal is required to refer any question regarding the interpretation or application of extended EU rules to the Court of Justice, whose rulings shall be binding on the arbitral tribunal. Whether such arbitration proceedings and an indirect role for the Court of Justice prove sufficient to ensure the correct and uniform interpretation and application of extended Union law can at least be questioned, and it needs no explanation that indirect and uncertain access to justice through the involvement of the Court of Justice in potential arbitration proceedings initiated at the discretion of the EU or Switzerland falls far short of any direct access by national courts in individual cases to the Court of Justice or any other supranational court, such as the EFTA Court. Individuals may furthermore face significant difficulties in convincing, or even legally compelling, the EU to initiate such arbitration proceedings in the first place.Footnote 163
On a final note, it remains to be seen, moreover, to what extent the Court will be able to maintain its stance that, in certain areas of EU law, particularly integrated third countries can be treated and trusted in the same manner as member states as regards their level of fundamental rights protection. The case law of the European Court of Human Rights may, in this respect, require the Court to reconsider its case law on mutual trust and third countries. In Bosphorus, the European Court of Human Rights found that the EU offers human rights protection equivalent to that afforded under the Convention, and therefore it will only hold EU member states responsible for implementing their EU obligations if, in that specific case, the human rights protection is manifestly deficient.Footnote 164 However, in Konkurrenten.no v Norway and LO and NTF v Norway, the European Court of Human Rights held that ‘the basis for the presumption established by Bosphorus is in principle lacking’ within the context of Norway’s participation in the EU internal market through the European Economic Area Agreement, and this in particular because of the differences in judicial procedures and the effect of European Economic Area law in the national legal orders compared to the EU.Footnote 165 As noted by Petti, this signals the different natures of the EU and the European Economic Area regimes, despite the homogeneity objective.Footnote 166 It suggests that the fundamental rights protection provided by Norway, Iceland and Liechtenstein within the context of the European Economic Area Agreement may not be equivalent to that provided under the Convention, albeit that the European Court of Human Rights was inconclusive in this respect. That Court was granted another opportunity to provide further clarification in this respect as regards the EU’s cooperation with Norway and Iceland under the Agreement on the Surrender Procedure in the case of Knihinicki v Norway – yet the case has been struck out of the list.Footnote 167 It is only a matter of time, however, before a new case involving extended EU acquis will arise before the ECtHR. If the ECtHR did indeed confirm that the protection provided under the agreements between the EU and those associated third countries cannot be considered equivalent to that under the Convention, this would beg the question of how the Court of Justice would be able to maintain that those third states must be trusted to provide protection equivalent to that provided within the EU, in particular given that the Convention serves as the minimum standard of protection within the EU pursuant to Article 52(3) of the Charter, as well as in light of the envisaged accession of the EU to the Convention.Footnote 168
The broader implications: some final reflections and questions
Concludingly, and turning again to the question of how the foregoing observations inform and affect our understanding of the principle of mutual trust and the foundations underlying that principle, it has become clear that, although considered essential for the good functioning of EU law,Footnote 169 the principle of mutual trust is perhaps not as exclusive, unique or specific to the EU as the Court tends to claim throughout its case law. Moreover, the absence of certain constitutive elements – identified by both the Court and the EU legislator as underpinning the obligation and presumption of mutual trust – in relation to third states for which the Court nonetheless acknowledges mutual trust suggests that these constitutive elements are not necessarily cumulative but, at most, mutually reinforcing. This furthermore confirms the Court’s axiomatic understanding of the principle of mutual trust: shared values, confirmed by EU membership, justify trust in each other’s ability to respect and effectively enforce fundamental rights and EU law, notwithstanding the differences in legal systems. This is all the more true as regards third states, given that they do not necessarily apply the same harmonised standards, nor do they have access to the Court. This also illustrates the Court’s sometimes ‘utilitarian’Footnote 170 conception of the principle of mutual trust: to facilitate the process of integration as the raison d’être of the EU,Footnote 171 the Court has been criticised for sometimes favouring effective cooperation based on mutual trust over effective protection of individuals’ fundamental rights.Footnote 172 Despite the absence of such an ulterior end goal, this appears even more so in the context of cooperation with third countries due to the potential lack of harmonised standards and the absence of guarantees regarding independent supervision and enforcement. Furthermore, if member states are obliged to place the same level of trust in the capacity of associated third countries to ensure equivalent protection as they must in relation to other member states, without the former being able to consult the Court, this raises questions of how this might affect the central role that the Court sees for itself as the ultimate arbiter for ensuring the uniform and correct interpretation and application of EU law and preserving and justifying the idea of equivalence that underpins the principle of mutual trust. Arguably, acceptance by the Court of the extension of mutual trust to third countries, which lack access to the Court, may erode the Court’s authoritative role in this regard and may pose risks to the dialogue and relationship between the national courts of the member states and the Court. Lastly, accepting that third states may be put on the same footing as EU member states in selected policy areas – without requiring them to adopt the full range of harmonisation measures adopted at the EU level or subjecting them to the Union’s supervisory and enforcement mechanisms – may potentially weaken the attractiveness of EU membership, both for candidate countries and current member states.
Conclusion
Mutual trust in the EU is founded on the premise that all member states share with each other the values laid down in Article 2 TEU and that, as a consequence of this common understanding, they will respect EU law and provide equivalent and effective protection of fundamental rights.Footnote 173 However, in light of the Court’s recent case law, the circle of mutual trust that underpins the functioning of the EU does not appear to be entirely exclusive to the EU member states but is instead open to third countries closely associated with parts of the EU legal order. Although the Court ruled in Opinion 1/17 that mutual trust is not applicable to relations with third countries,Footnote 174 this general statement is therefore too reductive and absolutist and does not properly reflect the nature of the EU’s relationship with certain third countries. To some extent, this may be explained by the fact that Opinion 1/17 involved Canada, i.e. a country that is not particularly integrated in parts of the EU legal order. From that perspective, the Court’s findings in Opinion 1/17 can be reconciled with its case law recognising mutual trust with respect to some of the EU’s neighbouring countries. Yet, this also means that the Court’s generalised statement in Opinion 1/17 that the principle of mutual trust ‘is not applicable in relations between the Union and a non-Member State’ would have benefited from a more nuanced approach, in light of its earlier case law, and even more now in light of its more recent case law. It is telling then, and perhaps even regrettable, that more recent case law, such as Alchaster, lacks any reference to Opinion 1/17 at all, despite the case explicitly raising questions about the extendibility of mutual trust beyond the EU.
The extension of the principle of mutual trust to some of the most integrated third countries neighbouring the EU nonetheless raises questions as regards our understanding of the principle of mutual trust and its application within the EU, in particular since not all elements that the EU legislator and the Court identify as underpinning, supporting and justifying mutual trust among EU member states are present as regards those third countries. Although the clear benefits of maintaining close and trust-based cooperation with the EU’s closest neighbours cannot be ignored, this creates the impression that, at least with respect to third countries, the principle of mutual trust is built on less solid foundations. While in the EU too the application of the principle of mutual trust has sometimes been referred to as being a ‘(legal) fiction’,Footnote 175 this appears to be all the more true as regards its application vis-à-vis third countries. This observation bears the risk of further eroding the foundations of mutual trust within the EU – unless the Court is compelled to reconsider its stance on mutual trust in relation to third countries in light of the European Court of Human Right’s evolving case law on the level of fundamental rights protection in the context of cooperation between the EU and its closely associated neighbours. With the principle of mutual trust underpinning such cooperation, this may, in turn, pose significant challenges to the good functioning thereof, especially in light of the EU’s envisaged accession to the Convention.
Funding information
This contribution has been pursued within the context of the author’s doctoral research, funded by the Research Foundation – Flanders (Project No 11B9525N).
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