Protecting Fundamental Rights in the EU’s Compound Legal Order Mutual Trust against Better Judgment?

Protecting fundamental rights within the EU’s compound legal order should be understood in the context of the power relations between the EU institutions and the Member States. On the one hand, respect for fundamental rights is the necessary basis for a legal order based on mutual trust. National courts accept and apply EU law only if it does not infringe national fundamental rights. EU constitutional principles of quasi-federal cooperation, such as mutual trust and sincere cooperation, only work if a certain protection of rights is guaranteed. On the other hand, Member States do not want the EU to determine deeply cultural and identity related questions under the banner of protecting EU fundamental rights, particularly outside of the scope of EU law. Fundamental rights requirements imposed by the EU have a harmonising effect that is unwanted by Member States.

This paper highlights the particular difficulties that the EU faces in offering effective protection of fundamental rights. This becomes particularly apparent in the Area of Freedom, Security and Justice (AFSJ), which is based on judicial cooperation. The CJEU has developed a new constitutional principle of mutual trust as the central rule of cooperation amongst Member States in the AFSJ. This paper discusses the organisation of rights protection within the EU against the conceptual considerations of universal human rights and relative fundamental rights. It engages with the meaning of ‘trust’ and identifies a problematic ripple effect of fundamental rights violation, when cooperation is based on mutual trust. The functioning of a system of mutual recognition that respects fundamental rights should instead be based on an objective concept of mutual confidence that allows monitoring compliance with specific procedural rules that ensure compliance with agreed standards of rights protection. In other words, cooperation within the AFSJ requires some supranational elements of common rules, standards, monitoring, and consequences of non-compliance.