TY - JOUR

T1 - Mutual Trust and Rule of Law in the EU – An Uneasy Relationship

AU - Aasa, Birgit

PY - 2022

Y1 - 2022

N2 - This paper discusses the precarious relationship between the principles of mutual trust and therule of law in the EU. It illustrates a tense interaction between the two as, although the principle ofmutual trust has become a tool to tackle rule-of-law failures in Member States, it long before that also created serious rule-of-law problems in the EU itself. However, it has not always possessed the effect and potential to enforce the rule of law and Article 2 TEU values in the Member States. The paper first shows the case-law developments necessary for the instrumentalisation of mutual trust for ruleof-law purposes. It then asks the question whether a lawfulness presumption is at all an adequate principle from a rule-of-law perspective, as such a presumption frustrates effective judicial controls claimed to be of the essence of the rule of law in the EU. As the case-law examples show, mutual-trust presumptions have already had severe rule-of-law ramifications in recent years by allowing, upholding and extra-territorialising alleged manifest errors and non-compliances in practice. Besides the more well-known sensitive areas of fundamental rights pertaining to asylum and criminal law, the paper showcases the more overlooked area of civil-justice case-law. The case-law analysed suggests that it is doubtful whether a lawfulness presumption is an adequate judicial principle from a rule-oflaw standpoint – if compliance presumptions are not receptive to actual facts on the ground for overruling the presumption, they also bring about serious rule-of-law and legality issues. Thus, although it facilitates inter-State co-operation, the effectiveness of EU law and everyday judicial practice, the newly acquired instrumental usage of mutual trust as a vehicle for enforcing Article 2 TEU values andthe rule of law in Member States might be questionable and susceptible to criticism.

AB - This paper discusses the precarious relationship between the principles of mutual trust and therule of law in the EU. It illustrates a tense interaction between the two as, although the principle ofmutual trust has become a tool to tackle rule-of-law failures in Member States, it long before that also created serious rule-of-law problems in the EU itself. However, it has not always possessed the effect and potential to enforce the rule of law and Article 2 TEU values in the Member States. The paper first shows the case-law developments necessary for the instrumentalisation of mutual trust for ruleof-law purposes. It then asks the question whether a lawfulness presumption is at all an adequate principle from a rule-of-law perspective, as such a presumption frustrates effective judicial controls claimed to be of the essence of the rule of law in the EU. As the case-law examples show, mutual-trust presumptions have already had severe rule-of-law ramifications in recent years by allowing, upholding and extra-territorialising alleged manifest errors and non-compliances in practice. Besides the more well-known sensitive areas of fundamental rights pertaining to asylum and criminal law, the paper showcases the more overlooked area of civil-justice case-law. The case-law analysed suggests that it is doubtful whether a lawfulness presumption is an adequate judicial principle from a rule-oflaw standpoint – if compliance presumptions are not receptive to actual facts on the ground for overruling the presumption, they also bring about serious rule-of-law and legality issues. Thus, although it facilitates inter-State co-operation, the effectiveness of EU law and everyday judicial practice, the newly acquired instrumental usage of mutual trust as a vehicle for enforcing Article 2 TEU values andthe rule of law in Member States might be questionable and susceptible to criticism.

UR - http://www.storiacostituzionale.it/doc_44/Indice_GSC_44_2022.pdf

M3 - Journal article

VL - 2

SP - 111

EP - 130

JO - Giornale di Storia Costituzionale

JF - Giornale di Storia Costituzionale

SN - 1593-0793

IS - 44

ER -