The principle of mutual trust and the protection of fundamental rights in the Area of Freedom, Security and Justice: A critical look at the Court of Justice's stone-by-stone approach

Published date01 June 2023
DOIhttp://doi.org/10.1177/1023263X231205826
AuthorCecilia Rizcallah
Date01 June 2023
The principle of mutual trust
and the protection of
fundamental rights in the Area
of Freedom, Security and
Justice: A critical look at the
Court of Justices stone-by-stone
approach
Cecilia Rizcallah
1,2
Abstract
The principle of mutual trust has become a structural principle of EU law that underpins many rules
of primary law as well as secondary legislation both in the f‌ield of internal market and in that of the
area, of freedom, security and justice. Several questions in relation to this principle have had to be
settled by the Court of Justice, particularly, with regard to the risks that it can pose for the protection
of, fundamental rights in the area of freedom, security and justice. In this regard, the Court of Justice
adopted a stone-by-stone approach, by progressively specifying the limits framing the principle of
mutual trust on the basis of the specif‌ic cases it had to handle. Building on recent the case law,
this paper offers a critical, examination of the balance struck by the Court of Justice between the,
principle of mutual trust and the protection of fundamental rights.
Keywords
Mutual trust, fundamental rights, systemic def‌iciencies, inhuman and degrading treatments, health
status
1
UCLouvain Saint-Louis Bruxelles, Brussels, Belgium
2
Research Associate at the Belgian National Fund for Scientif‌ic Research (F.R.S.-FNRS)
Corresponding author:
Cecilia Rizcallah, UCLouvain Saint-Louis Bruxelles, Bruxelles, Belgium; Research Associate at the Belgian National Fund
for Scientif‌ic Research (F.R.S.-FNRS).
Email: cecilia.rizcallah@uclouvain.be
Article
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(3) 255272
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231205826
maastrichtjournal.sagepub.com
1. Introduction
The importance of the principle of mutual trust in European Union (hereafter, EU) law is no longer
questionable. It is indeed a structural principle of EU law that underpins many rules of primary law
as well as secondary law instruments,
1
both in the internal market and in the area of freedom, secur-
ity and justice. It is therefore not surprising that numerous writings dedicate their content to the ana-
lysis of this principle.
2
Many questions in relation to its application have also had to be settled by the
Court of Justice, particularly with regard to the risks that it can pose for the protection of fundamen-
tal rights in the area of freedom, security and justice (hereafter AFSJ). In this regard, the Court of
Justice adopted a stone-by-stone approach,
3
by progressively specifying the limits framing the
principle of mutual trust, on the basis of the specif‌ic cases it had to handle. In order to fully com-
prehend the scope of the principle of mutual trust in the AFSJ, it is thus imperative to conduct an
intersectoral review of the most signif‌icant Courts judgments shaping this principle. Indeed,
although this principle is applicable in very different areas (among others in criminal matters, in
asylum matters, in the internal market), it constitutes a cross-cutting principle of EU law that
deserves a cross-sectoral analysis.
4
As underlined by Maiani and Migliori, the Court speaks of
one principle, so there has to be some core, generalizable content to it.
5
Given that the proposed analysis pertains to different domains, it does not, however, aim to
provide a comprehensive analysis of every particularity in all the relevant areas. Instead, it seeks
to highlight the general trends associated with the balance established by the Court of Justice
between the imperatives of protecting fundamental rights and the principle of mutual trust. In
this way, this article hopes to contribute to the overall understanding of this important principle
of EU law.
A recent judgment delivered by the Court of Justice presents us with an opportunity to engage in
such ref‌lection, as it adds another building block to the edif‌ice of mutual trust. The judgment deliv-
ered in the E.D.L. case
6
indeed conclusively addresses the issue of how to proceed with the imple-
mentation of a European arrest warrant in circumstances where the individuals health is being
threatened. Further details are provided on the diff‌icult issue of balancing mutual trust on the
one hand, and protection of fundamental rights on the other. Building on this recent development,
and through an analysis of the case law that preceded this ruling, this paper aims at offering a critical
examination of the balance struck by the Court of Justice between the principle of mutual trust and
the protection of fundamental rights, and suggests new avenues with regard to the limitation scheme.
1. For an in-depth analysis of the legislation implementing mutual trust, see F. Maiani and S. Migliori, One Principle to Rule
Them All? Anatomy of Mutual Trust in the Law of the Area of Freedom, Security and Justice,57CMLRev (2020).
2. See, among others, E. Xanthopoulou, Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice.
A Role for Proportionality (Hart, 2020) ; A. Migliori, and F. Maiani, 57 CMLRev (2020); K. Lenaerts, La vie après lavis:
Exploring the principle of mutual (yet not blind) trust,54CMLRev (2017); E. Bribosia and A. Weyembergh, Mutual
Trust and Fundamental Rights: Back to the Future”’,52Cahiers de droit européen (2016) and F. Tulkens and O. De
Schutter Conf‌iance mutuelle et droits de lhomme. La Convention européenne des droits de lhomme et la transformation
de lintégration européenne,inMélanges en hommage à Michel Melchior, (Anthemis, 2010).
3. On this approach, see K. Lenaerts, How the ECJ Thinks: A Study on Judicial Legitimacy,36Fordham International
Law Journal (2013) p. 13021307 and A. Sikora, Court of Justice of the European Union –“Stone-by-stone
Case-based Reasoning, in M. Florczak-Wątor, Constitutional Law and Precedent (Routledge, 2022).
4. Advocate General Eleanor Sharpston explicitly commanded this approach, see Foreword, in C. Rizcallah, The Principle
of Mutual Trust in European Union Law. An Essential Principle in the Face of a Crisis of Values (Bruylant, 2022), p. 16.
5. A. Migliori, and F. Maiani, 57 CMLRev (2020), p. 9.
6. Case 699/12, E.D.L., EU:C:2023:295.
256 Maastricht Journal of European and Comparative Law 30(3)

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