Matthias Weller*
Mutual trust within judicial cooperation in
civil matters: a normative cornerstone –
a factual chimera – a constitutional challenge
Abstract
Mutual trust has become a normative cornerstone of the EU’s area of freedom, security and justice, as
is being confirmed and reinforced by recent and fundamental decisions of the ECJ. At the same time,
some Member States are more than ever occupying low rankings in different surveys on the quality of
their administration of justice or are being challenged as not sufficiently implementing the rule of law.
Thus, a conflict appears to be currently culminating between norm and fact. This conflict puts in question
the fundaments of judicial cooperation and contributes to centrifugal tendencies within the European
Union. In order to counteract such tendencies, the text offers some deeper, including some historical,
thoughts on mutual trust, as well as its facets and functions in judicial cooperation amongst the Member
States in civil matters (Brussels Ia Regulation), in particular in relation to the return of abducted
children (Brussels IIa Regulation), in administrative matters dealing with asylum seekers (Dublin
Regulations) and criminal matters (Framework Decision on the European Arrest Warrant), i.e. in cases
where there is a transfer of persons from one Member State to another. In this context mutual trust has
become an element of the very identity of the European Union whereas from the perspective of (at least
German) constitutional and European human rights law mutual trust has become a true challenge. On
the basis of these considerations on the general framework of mutual trust, the question is posed whether
there should be some rebalancing of mutual trust in the cooperation in civil matters.
1.
Introduction
On 5 April 2016, the Grand Chamber of the European Court of Justice decided in the case of
Pál Aranyosi and Robert Căldăraru that ‘[b]oth the principle of mutual trust between the Member
States and the principle of mutual recognition are, in EU law, of fundamental importance given
that they allow an area without internal borders to be created and maintained’.1
On a normative level, this judgment leaves no doubt that mutual trust has become a cornerstone of the European Union’s area of freedom, security and justice.2 Mutual trust is now
*
1
2
Prof. Dr. Matthias Weller, Mag.rer.publ., Chair for Civil Law, Civil Procedure and Private International Law,
EBS University of Wiesbaden; Director of the Research Center for Transnational Commercial Dispute Resolution at EBS Law School; [email protected]. This text is based on a presentation by the author at the Universidad Autónoma de Madrid on 8 July 2016. The author is grateful for the valuable comments by the audience.
ECJ 5 April 2016, Case C-404/15, ECLI:EU:C:2016:198 (Pál Aranyosi and Robert Căldăraru), para. 78.
For a recent comprehensive and critical account see e.g. E. Brouwer/D. Gerard (eds.), Mapping Mutual Trust:
Understanding and Framing the Role of Mutual Trust in EU Law, EUI Working Papers, Max Weber Programme
2016/10, 88 pp.
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Mutual trust within judicial cooperation in civil matters
established as a leitmotif not only for judicial cooperation in criminal matters, for example on the
transfer of suspects under the European Arrest Warrant3 as in the case of Pál Aranyosi and Robert
Căldăraru or in administrative matters such as e.g. the transfer of asylum seekers under the ‘Dublin procedure’,4 but also, and of particular interest here, in civil matters5 – including all aspects
of the conflict of laws6 because, conceptually, judicial cooperation by the mutual recognition of
judgments in civil matters was the starting point of the European Union’s Private International
Law,7 at the time implemented by Treaties8 amongst the Member States of the European Economic Community in accordance with Article 220 EEC.9
A few days later, on 11 April 2016, the European Commission published for the fourth time
since 2013 its annual ‘Justice Scoreboard’ – a data-based tool for comparing the quality of the justice systems of EU Member States. ‘The quality, independence and efficiency of national justice
systems play a key role in restoring confidence (…), and are crucial for ensuring the effectiveness
of EU law’, as Viviane Reding put it in the introduction to the first Justice Scoreboard.10 One of
3
4
5
6
7
8
9
10
2
For further discussion of this aspect of judicial cooperation see below section 4.3.
For further discussion of this aspect of judicial cooperation see below section 4.2.
See e.g. E. Storskrubb, ‘Mutual Trust and the Limits of Abolishing Exequatur in Civil Justice’, in: Brouwer/
Gerard 2016, pp. 15 et seq. (supra note 2); X. Kramer, ‘Cross-Border Enforcement in the EU: Mutual Trust
versus Fair Trial? Towards Principles of European Civil Procedure’, International Journal of Procedural Law
(1) 2011, pp. 203 et seq.
See in particular M. Weller, ‘Mutual Trust: In Search of the Future of Private International Law’, Journal of
Private International Law (11) 2015, pp. 64 et seq.
For a generally broad understanding of private international law as comprising not only choice of law but also
the recognition and enforcement of judgments and other aspects of international civil procedure see Institut de
Droit International, Session de Genève 1874, Resolution ‘Utilité d’un accord commun des règles uniformes de
droit international privé’. This Resolution, one of the Institute’s first ever, underlines the ‘utilité et même, pour
certaines matières, la nécessité de traités, par lesquels les États civilisés adoptent d’un commun accord des règles
obligatoires et uniformes de droit international privé, d’après lesquelles les autorités publiques, et spécialement
les tribunaux des États contractants, devraient décider les questions concernant les personnes, les biens, les actes,
les successions, les procédures et les jugements étrangers’.
1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters,
OJ 1972, L 299/32.
Art. 220 EEC = Art. 293 EC (no succeeding provision in the TFEU): ‘Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals: (…) – the
simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or
tribunals and of arbitration awards’. See generally on this point of the genesis of EU Private International Law
M. Weller, ‘Allgemeine Lehren’, in: M. Weller (ed.), Europäisches Kollisionsrecht, Baden-Baden: Nomos 2016,
p. 41, para. 18; X. Kramer, Procedure Matters: Construction and Deconstructivism in European Civil Procedure,
Erasmus Law Lectures 33 (Inaugural Lecture), The Hague: Eleven International Publishing 2013, pp. 15 et
seq.; W. Wengler, ‘Regeln über die Anerkennung ausländischer Entscheidungen als verkapptes zweites Kollisionsnormensystem im Forumstaat’, in: W. Wengler/P. Picone (eds.), Internationales Privatrecht, Darmstadt:
Wissenschaftliche Buchgesellschaft 1974, pp. 435 et seq.
European Commission – Directorate-General for Justice, The EU Justice Scoreboard – A tool to promote effective justice and growth Communication from the Commission to the European Parliament, the Council, the
European Central Bank, the European Economic and Social Committee and the Committee of the Regions,
COM(2013) 160 final, p. 1; see also at p. 2: ‘Effective justice systems are also indispensable for strengthening
the mutual trust needed for the development and implementation of EU instruments based on mutual recog-
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the central quality standards in this survey is judicial independence.11 The Scoreboard contains
an entire section on this issue. The first table of this section shows the answers given in surveys
in each of the Member States to the following question: ‘How do you perceive the independence
of your country’s courts and judges?’. In Denmark, for example, over 90% answered ‘very good’ or
‘fairly good’. In Slovakia, over 60% answered ‘fairly bad’ or ‘very bad’, and 20% of those surveyed
did not answer at all. This means that a large majority of the Slovakian population do not express
confidence in their own judicial system. The same applies in principle but partly to a smaller extent to Estonia, Slovenia, Hungary, Italy and Bulgaria, ever since the Scoreboard’s first edition in
2013. In the World Economic Forum’s Global Competitiveness Report of 2016-201712 judicial
independence is understood as a location factor for doing business. In this Report, Bulgaria ranks
as no. 110 out of 138 countries, the same ranking as Cameroon and the Lebanon. Finland, by
contrast, is ranked in 1st place, Sweden in 5th place, and the Netherlands is ranked in 7th place.
In Transparency International’s Corruption Perceptions Index 2015,13 Denmark, Finland and
Sweden are ranked in 1st, 2nd and 3rd place out of 167, Bulgaria is ranked in 69th place together
with Jamaica, while Italy occupies 61st place together with Lesotho, Montenegro and Senegal.
Romania and Greece are ranked in 58th place and are thus lower than Ghana or Cuba; Slovakia,
Hungary and Croatia are ranked in 50th place, just like Bahrain, but lower than Namibia and
Rwanda. Of course, such rankings should be treated with caution, even more so when they are
based on self-assessments. Nevertheless, if certain Member States always appear to occupy a low
ranking over many years and in different surveys by different institutions, then the following
question must be posed: Is mutual trust not turning out to be too much of a chimera on a factual
level?
To put it differently, a conflict appears to be currently culminating between norm and facts: on
the one hand, the strongest affirmations by the European Court of Justice of mutual trust and its
fundamental importance for the European Union; on the other hand, increasingly contradictory
data. This conflict puts the fundaments of judicial cooperation into question and contributes to
centrifugal tendencies within the European Union. Obviously, this conflict does not bring about
disruptions to integration of a Brexit-type scale. Yet, it might have been a more subtle part of the
way towards Brexit.14 Since on the 28th and 29th of June 2016 the European Council announced
in its first political reaction to Brexit that it was time for ‘a reflection process to give an impulse
on the future of the EU’,15 we should include in this reflection process some deeper thoughts
11
12
13
14
15
nition and cooperation.’ See also V. Reding, ‘Strengthening Mutual Trust: Towards a True European Area of
Civil Justice’, Public Lecture, Max Planck Institute Luxembourg of 25 March 2014, http://www.mpi.lu/news
-and-events/latest-news/detail/detail/lecture-of-vice-president-viviane-reding.
See also Art. 47 of the Charter of Fundamental Rights of the European Union. In this context, judicial independence is seen as a precondition for effective access to justice. See in more detail M. Weller, ‘Richterliche
Unabhängigkeit’, in: C. Althammer/M. Weller (eds.), Europäische Mindeststandards für Spruchkörper, Tübingen:
Mohr Siebeck 2017, forthcoming.
http://reports.weforum.org/global-competitiveness-index/competitiveness-rankings/#series=EOSQ 144, visited November 2016.
http://www.transparency.org/cpi2015#results-table, visited November 2016.
In the UK, more than 70% perceive their judicial system as being ‘very good’ or ‘fairly good’ in terms of judicial
independence.
‘Remarks by President Donald Tusk after the European Council meeting on 28 June 2016’, http://www.consil
ium.europa.eu/en/press/press-releases/2016/06/28-tusk-remarks-after-euco, visited November 2016.
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on mutual trust, as well as its facets and functions in judicial cooperation amongst the Member
States, in particular whether there should be some rebalancing of mutual trust – all the more so
because, as will be explained below in more detail, mutual trust has become an element of the
very identity of the EU16 while from the perspective of (at least German17) constitutional and
European human rights law18 mutual trust has become a true challenge.
2.
Pre-history of mutual trust: a German perspective
Trust in foreign states and their administration of justice as a guiding principle for coordinating
and overcoming the differences between the legal systems of states in cross-border legal relations
is not an invention by the European Union. Early, yet quite subtle forms and expressions of trust
and mutual trust are traceable, for example, in the German legal orders of the 19th and early 20th
centuries, and these traces may be considered as part of a telling pre-history of the European
Union’s notion of mutual trust because the development in Germany towards a union of formerly
independent states starting to cooperate in civil matters amongst each other during the 19th
century resembles, to a surprising extent, the emergence of the European Union and its judicial
cooperation during the 20th century.
In a first phase after the end of the Holy Roman Empire in 1806, many of the new and all
of a sudden fully sovereign German states and their respective prominent legal scholars, for
example Karl Salomo Zachariä von Lingenthal at the University of Heidelberg, held that foreign
judgments from other German states, let alone ‘more’ foreign states, should not be recognised at
all as a matter of principle.19
Starting from 1812, Paul Johann Anselm Feuerbach proposed de lege ferenda regulating the recognition of foreign judgments by a ‘mirror principle’ according to which foreign judgments should
be recognised if – speaking in modern terms – the foreign court had international jurisdiction to
adjudicate the case under the rules of jurisdiction of the recognising state.20 The recognising state’s
16
17
18
19
20
4
See in particular ECJ 18 December 2014, Case Opinion 2/13, ECLI:EU:C:2014:2454. For further discussion
of this judgment in the context of mutual trust see below at section 5.1.
See German Federal Constitutional Court 15 December 2015, 2 BvR 2735/14, on new limits in the German
Constitution to judicial cooperation in criminal matters in the context of the transfer of suspects under the
European Arrest Warrant. For further discussion of this judgment in the context of mutual trust see below at
section 5.2.
See ECtHR 23 May 2016, Application No. 17502/07 (Avotiņš v. Latvia). For further discussion of this judgment in the context of mutual trust see below at section 5.3.
K.S. Zachariä, ‘Versuch über die Rechtskraft eines in einer Civilsache von einem auswärtigen Gerichte gesprochenen Urtheils; nach den Grundsätzen des Staatsrechts der Rheinischen Bundes-Staaten’, in: Germanien
(2) 1809 p. 221 = (compendious) K.S. Zachariä, Das Staatsrecht des Rheinischen Bundesstaates und des Rheinischen
Bundesrechts: erläutert in einer Reihe Abhandlungen, Heidelberg: Mohr and Zimmer 1810, pp. 43 et seq., esp. at
pp. 64-74; R. Graupner, ‘Zur Entstehungsgeschichte des § 328 ZPO’, in: A. Heldrich et al. (eds.), Konflikt und
Ordnung, Festschrift für Murad Ferid zum 70. Geburtstag, Munich: C.H. Beck Verlag 1978, p. 183 at p. 191.
P.J.A. Feuerbach, ‘Über die Rechtskraft und Vollstreckung eines von einem auswärtigen Gerichte gesprochenen
Erkenntnisses’, in: P.J.A. Feuerbach (ed.), Themis oder Beiträge zur Gesetzgebung, Landshut: Krüll 1812, p. 77.
This mirror principle seems to be widely accepted today as an instrument to protect the defendant, but other
solutions are sometimes chosen: for example, Art. 14 of the Agreement on the judicial cooperation between the
Member States of the CEMAC (Economic and Monetary Community of Central Africa) of 1994 prescribes:
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jurisdiction rules were to be projected onto the foreign court as a test for recognition. However, the
then many German states regulated the question in all their sovereignty in many different ways.21
Thus, the ‘Deutscher Bund ’, the ‘German Confederation’, a union of many but not all German
states that were later to become, in 1871, the Deutsches Reich, the German Empire, tried to unify
and harmonize the rules on recognition. Originally, the Member States of the German Union
planned to allow the recognition of judgments from third states outside the Union only on the
basis of bilateral treaties. The rationale for this restrictive approach was insufficient trust in foreign
judicial systems outside that Union22 whereas within the Union a system quite like the 1968
Brussels Convention23 was envisaged24 because amongst the Member States a sufficient level of
trust appeared to be present, as was made explicit in the legislative materials.25
At the end of the day, these drafts did not enter into force because the German Confederation
came to an end when the German Empire of 1871 was emerging. Yet, the proposals of the
German Confederation for unifying the law of recognition amongst the Member States show
that the EU did not adopt the notion of trust within judicial cooperation out of the blue.26 Rather,
trust and mutual trust is a fundamental question for each and every union of states, no matter
what the level of integration amongst the relations of these states may be, and the big challenge is
to create a convincing system of trust management which in principle should grant trust as much
as possible in order to facilitate the administration of justice in cross-border cases while retaining
control as much as necessary, both for external and internal relations.
The German Empire at the end of the 19th century, for example, created a surprisingly modern and open-minded rule in its new Civil Procedure Act unifying civil procedure on the imperial
level. This rule on the recognition of foreign judgments from outside the Empire27 prescribed an
21
22
23
24
25
26
27
‘In civil and commercial matters, decisions rendered by the courts of one of the Contracting States have, as a
matter of law, the same authority as decisions of the courts of the Contracting State where recognition and
enforcement is sought, provided that the following conditions are met: a. The decision emerges from a court
of a Contracting State which is competent according to the legislation of that State.’ (Translation by the author,
emphasis added).
C.J.A. Mittermaier, ‘Von der Vollstreckung eines von einem ausländischen Gerichte gefällten Urtheils’, Archiv
für die civilistische Praxis (AcP) (14) 1831, p. 84.
Protocolle der Commission zur Berathung einer allgemeinen Civilprozeßordnung für die deutschen Bundesstaaten,
Vol. 13 (Sitzung CCXLIX-CCLXXIV), Hannover: Kius 1865, Sitzung CCLXX, p. 4908.
See supra note 8.
M. Fricke, Die autonome Anerkennungszuständigkeitsregel im deutschen Recht des 19. Jahrhunderts – Zugleich ein
Beitrag zur Entstehungsgeschichte von § 328 Absatz 1 Nr. 1 ZPO, Tübingen: Mohr Siebeck 1993, p. 3.
Protocolle der Commission zur Berathung einer allgemeinen Civilprozeßordnung für die deutschen Bundesstaaten
1865, p. 4908 (supra note 22).
For a philosophically inspired account of the history of mutual trust as a principle of socio-political ordering
backwards until the 16th century see F.L. Fillafer, ‘Mutual Trust in the History of Ideas’, in: Brouwer/Gerard
2016, pp. 5 et seq. (supra note 2).
Within the Empire the question had become obsolete once both substantive private and procedural law were
fully unified on the imperial level with the effect that there was no longer any legal difference between a
judgment from e.g. Bavaria, Württemberg, Baden, Saxony or Prussia so that there was no longer any issue of
recognition. Thus, the German Empire, as well as later the Federal Republic of Germany reached a particularly
high level of integration compared to other federal states such as the United States, Canada and Australia that
also operate within their territory a structure of recognition and enforcement of sister state/province judgments.
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Mutual trust within judicial cooperation in civil matters
automatic, i.e. ex lege recognition of all foreign judgments regardless of their origin worldwide,
unless certain fairly limited grounds for refusal applied. These grounds were the following: the
foreign court had to be competent according to the German rules on jurisdiction,28 the defendant
must have received proper service of process, there had to be no conflicting German judgment,
no public policy violation, and there had to be reciprocity which means that the foreign state had
to recognize German judgments principally in the same way as the foreign judgment in question
was to be recognised within the German Empire.29
3.
From early history towards the full practical effect of mutual trust in EU law
Obviously, Article 27 of the 1968 Brussels Convention follows, very closely, these lines of trust
management in section 328 of the German Civilprozeßordnung (CPO).30 And, indeed, the Jenard Report emphasises that Articles 26 and 27 of the Brussels Convention, unlike in most
Member States at that time (except for Germany31), introduced ‘a presumption’ in favour of
recognition,32 which could only be rebutted if one of the conclusive grounds for refusal applied.
And the general exclusion of a révision au fond in Article 28 was expressly justified with ‘complete
confidence in the court of the State in which judgment was given’.33
Yet it took until 1991 for the narrative of mutual confidence or trust to find its way into the
jurisprudence of the European Court of Justice, initially only subliminally articulated in the
Advocate General’s Opinion in the case of Sonntag v. Waidmann, however, somewhat surprisingly,
without any recourse to the Jenard Report, but to French literature.34 And at the time, the Court
did not take up this point.
However, after the European Council of Tampere in 199935 had described mutual recognition
expressly as a ‘cornerstone’ of judicial cooperation in the area of freedom, security and justice
as introduced under the Treaty of Amsterdam,36 the European Council’s draft programme of
28
29
30
31
32
33
34
35
36
6
Feuerbach’s ‘mirror principle’, see supra note 20.
See § 328 CPO, introduced in 1898 with effect from 1 January 1900; D. Martiny, ‘Anerkennung ausländischer
Entscheidungen nach autonomem Recht’, in: Max Planck Institut (ed.), Handbuch des internationalen Zivilverfahrensrechts, Vol. III/1, Tübingen: Mohr Siebeck 1984, p. 24, paras. 50 et seq.; Graupner 1978, p. 183 (supra
note 19); see also § 661 CPO 1877.
Some of the grounds for refusal in section 328 CPO evidently become obsolete in a system of unified rules of
jurisdiction and recognition amongst sovereign states: the mirror principle and the principle of reciprocity are
both fulfilled ex lege amongst e.g. the Contracting Parties to the Brussels Convention.
See supra note 27.
P. Jenard, Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial
matters (signed at Brussels, 27 September 1968), OJ 1979, C 59/1, p. 43 at Art. 26 Brussels Convention.
Idem, p. 46 at Art. 28 Brussels Convention.
Opinion of Advocate General Darmon of 2 December 1992, Case C-172/91, ECLI:EU:C:1992:487 (Sonntag
v. Waidmann), para. 71: ‘The principle of the recognition of judgments is based on the Member States’ mutual
trust in their respective legal systems and judicial institutions’; reference for this proposition was made to
G. Pluyette, ‘La convention de Bruxelles et les droits de la défense’, in: Études offertes à Pierre Bellet, Paris: Litec
1991, p. 427.
Tampere European Council 15 and 16 October 1999, Presidency Conclusions, para. 33.
Treaty of Amsterdam of 2 October 1997 amending the Treaty on European Union, the Treaties establishing
the European Communities and certain related acts, OJ 1997, C 340/1.
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measures then proposed minimum procedural standards and procedural guarantees as ‘ancillary
measures’ for the ‘strengthening of mutual trust’,37 and, above all, on the Commission’s initiative,38 mutual trust appeared in recitals 16 and 17 of the Brussels I Regulation39 to legitimise a
facilitated recognition and enforcement mechanism of judgments from other Member States,
and so mutual trust as the core narrative for judicial cooperation unfolded almost explosively to
full practical effect in the case law,40 particularly in difficult decisions: Gasser,41 Turner,42 Owusu,43
West Tankers,44 Gothaer Versicherung,45 Trade Agency,46 Salzgitter,47 Nipponkoa,48 Nickel & Goeldner Spedition,49 Lithuanian Airlines,50 Gazprom,51 Diageo Brands,52 P v. Q,53 and, most recently,
Meroni.54
3.1 Trade Agency: the Member States accept the narrative of mutual trust
The decision in Trade Agency marks a turning point because in this case the courts of the Member
States themselves started expressly referring questions on the notion and scope of mutual trust
to the European Court of Justice.55 An English default judgment was to be enforced in Latvia,
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
Council, Draft programme of measures for implementation of the principle of mutual recognition of decisions
in civil and commercial matters, OJ 2001, C 12/1, p. 5.
Commission, Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters, COM(1999) 348 final, OJ 1999, C 376 E/1, at Art. 33 and recitals
17 and 18.
Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2001, L 12/1 (‘Brussels I Regulation’).
See also the historical account by e.g. Kramer 2013, pp. 17 et seq. (supra note 9).
ECJ 9 December 2003, Case C-116/02, ECLI:EU:C:2003:657, NIPR 2004, 36 (Gasser), paras. 70 et seq.
ECJ 27 April 2004, Case C-159/02, ECLI:EU:C:2004:228, NIPR 2004, 146 (Turner), para. 25; similarly, but
without recourse to mutual trust ECJ 27 June 1991, Case C-351/89, ECLI:EU:C:1991:279, NIPR 1993, 149
(Overseas Union Insurance Ltd), para. 23.
Explicitly mentioned only in the Opinion of Advocate General Léger of 14 December 2004, Case C-281/02,
ECLI:EU:C:2004:798 (Owusu), para. 146.
ECJ 10 February 2009, Case C-185/07, ECLI:EU:C:2009:69, NIPR 2009, 128 (West Tankers), para. 30.
ECJ 15 November 2012, Case C-456/11, ECLI:EU:C:2012:719, NIPR 2013, 49 (Gothaer Versicherung),
paras. 28 et seq.
ECJ 6 September 2012, Case C-619/10, ECLI:EU:C:2012:531, NIPR 2012, 465 (Trade Agency), paras. 40 et
seq.
ECJ 26 September 2013, Case C-157/12, ECLI:EU:C:2013:597, NIPR 2013, 364 (Salzgitter), para. 36.
ECJ 19 December 2013, Case C-452/12, ECLI:EU:C:2013:858, NIPR 2014, 49 (Nipponkoa), paras. 37 et seq.
ECJ 4 September 2014, Case C-157/13, ECLI:EU:C:2014:2145, NIPR 2014, 376 (Nickel & Goeldner Spedition), para. 41.
ECJ 23 October 2014, Case C-302/13, ECLI:EU:C:2014:2319, NIPR 2014, 379 (Lithuanian Airlines),
para. 45.
ECJ 13 May 2015, Case C-536/13, ECLI:EU:C:2015:316, NIPR 2015, 291 (Gazprom), para. 39.
ECJ 16 July 2015, Case C-681/13, ECLI:EU:C:2015:471, NIPR 2015, 398 (Diageo Brands), paras. 40 et seq.
ECJ 19 November 2015, Case C-455/15 PPU, ECLI:EU:C:2015:763, NIPR 2016, 1 (P v. Q), para. 35.
ECJ 25 May 2016, Case C-559/14, ECLI:EU:C:2016:349, NIPR 2017, 51 (Meroni), para. 47.
ECJ Trade Agency, para. 25, Question 1 Sentence 2 (supra note 46): ‘Is such wide jurisdiction [to review the
certificate] on the part of a court in the Member State in which enforcement is sought compatible with the
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and the question arose whether the requested Latvian court could verify for itself the defendant’s
submission that he had not been served with notice of the action brought in England. As follows
from Article 34 no. 2 Brussels I Regulation, in principle the requested court may and must
verify whether the defendant was properly served. In order to ensure the defendant’s fundamental
rights to be heard and to defend himself effectively, the Brussels system provides, as a matter of
exception, for a second review of this crucial question by the Member State where the enforcement takes place.
However, according to Article 54 Brussels I Regulation – now Article 53 Brussels Ibis Regulation56 – the first Member State where the judgment to be enforced was rendered shall, at the
request of the claimant, issue a certificate concerning its own judgment by using the standard
form in Annex V – now Annex I. And in the case of a default judgment the court indicates the
date of service of the document instituting the proceedings under no. 4.4. – now no. 4.3.2. – and
this is exactly what the English High Court in London did in the case at hand. The question57
that was raised by the Latvian court was therefore: Is the second Member State (Latvia) bound
as a matter of mutual trust by the information contained in the certificate – the service of process
effectuated on the date indicated?
The European Court of Justice held that the objective of an efficient and rapid recognition
and enforcement cannot ‘be attained by undermining in any way the right to a fair hearing’.58
To put it differently, the requested court is not bound by the certificate. The information contained in the certificate on the service of process does not fall under the prohibition of a révision
au fond 59 because this prohibition is limited to judgments.60 The information provided in the
standard form only has a factual character and does not legally bind the requested court.61 Thus,
the certificate has no binding effect on the second court regardless of whether service of process
was validly effectuated or not.62 It is noteworthy that the European Court of Justice did not opt
for maximising the principle of mutual trust, but rather for ‘a fair balance between, on the one
hand, mutual trust in the administration of justice in the Union, and, on the other, respect for the
rights of the defence’.63 In other words: the European Court of Justice interpreted the Brussels
I Regulation as a balanced system of trust management with far-reaching trust but also residual
56
57
58
59
60
61
62
63
8
principle of mutual trust in the administration of justice set out in recitals 16 and 17 to Regulation No 44/2001?’.
Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on
jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2012,
L 351/1 (‘Brussels Ibis Regulation’).
Possibly inspired by the rigidly binding force of a certificate under Arts. 42 et seq. of the Brussels IIbis Regulation (Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing
Regulation (EC) No. 1347/2000, OJ 2003, L 338/1) as interpreted by the ECJ on 1 July 2010, C-211/10 PPU,
ECLI:EU:C:2010:400, NIPR 2010, 384 (Povse). However, of course the normative structure, the system of
Brussels IIbis in relation to child abduction and the function of the certificate within this system differ fundamentally from both the system and the certificate in question here.
ECJ Trade Agency, para. 42 (supra note 46).
Idem, para. 35.
Idem.
Idem.
Idem, para. 38.
Idem, para. 43.
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double control where necessary. At the same time, the case shows that the Member States, at least
Latvia, accepted the great narrative of mutual trust.
3.2 P v. Q: mutual trust pushed beyond rational limits?
A particularly harsh facet of mutual trust under the Brussels IIbis Regulation is highlighted by
the decision of the European Court of Justice in P v. Q, decided at the end of 2015.64 In this
case Swedish-Lithuanian parents lived together with their children, first in Lithuania, later in
Sweden, even after their divorce. After some years, the Lithuanian mother suddenly went back
to Lithuania, and she took both of their common children with her. The Swedish father started
proceedings concerning the attribution of parental responsibility in Sweden, while the mother
did the same in Lithuania. The Swedish court had jurisdiction according to Article 8 of the
Brussels IIbis Regulation, but the Lithuanian court claimed to have jurisdiction under Article 15.
According to Article 15, the competent court of a Member State can exceptionally transfer
the case to a court of another Member State if the latter court appears to be better placed to
hear the case. In the case of P and Q, however, the competent Swedish court had certainly not
requested the Lithuanian court to take over the case, as Article 15 requires. The Lithuanian court
had therefore blatantly violated Article 15. And the Lithuanian court was the first to reach a
decision – and in favour of the Lithuanian mother. The Swedish father did not appeal against
the Lithuanian judgment, so the Swedish court wanted to know if the Lithuanian judgment had
to be recognised in Sweden despite the violation of Article 15 of the Brussel IIbis Regulation.
The European Court of Justice decided that the principle of mutual trust requires a strict
interpretation of the grounds on which the recognition of a judgment may be refused, as they are
‘an obstacle to the attainment of one of the fundamental objectives of that regulation’.65 Unlike in
Trade Agency,66 the Court no longer made any mention of a fair balance between mutual trust, on
the one hand, and, on the other, the protection of key rights of one of the parties by an exceptional
double review. And further: according to Article 24 sentence 1 Brussels IIbis Regulation, there is
a general prohibition of a révision au fond. But sentence 2 adds that additionally the test of public
policy may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14 – not 15.67
Of course the Swedish father now argued: the violation of Article 15 may, as an infringement of
public policy, justify the non-recognition of the decision. The European Court of Justice rejected
this argument: the reference to Articles 3 to 14 must be understood as a reference to the Regulation’s rules on jurisdiction as a whole, including, in light of the overall objective of the Regulation,
Article 15. In the logic behind the Regulation, this is correct because the Lithuanian court did
not so much violate Article 15, but first and foremost simply Article 8 and, therefore, the core of
the jurisdictional system to attribute competence to the Member States’ courts. And jurisdiction
as decided by a Member State’s court shall under no circumstances be subject to a double review
by another Member State’s court – mutual trust.
64
65
66
67
ECJ P v. Q (supra note 53).
ECJ P v. Q, para. 36 (supra note 53). Similarly, ECJ 9 October 2014, C-376/14 PPU, ECLI:EU:C:2014:2268,
NIPR 2015, 1 (C v. M), para. 66: in accordance with recital 21 Brussels IIbis Regulation, a narrow interpretation
of grounds for non-recognition is required.
See above note 46.
See also Art. 45 (3) Sentence 2 Brussels Ibis Regulation.
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Yet, something still irritates. The Lithuanian court violated the judicial cooperation’s jurisdictional order in favour of the Lithuanian mother in an evidently arbitrary way. The Lithuanian
court thereby fundamentally let down the trust placed in it. Nevertheless, the resulting judgment
has to be recognised in accordance with the principles of mutual trust, and the Swedish father
has either to challenge the Lithuanian court’s blatant error of law in Lithuania – in the European
Commission’s ranking of the quality of EU Member States’ justice systems Lithuania is not in
such a bad position, but still ranks relatively low and far behind Sweden68 – or the father has to
accept this manifest error of law for the sake of the common area of freedom, security and justice.
Do we not find the Swedish father unproportionately and individually burdened for the general
and public interest of judicial integration and cooperation within the EU? Would it not be more
convincing to conceive of a manifest error of law in applying the rules of jurisdiction or other
fundamental principles of judicial cooperation as an infringement of public policy?69 Of course,
this step would relativise a traditional dogma of judicial cooperation in civil matters that helped
to build judicial cooperation in the first place, namely that in principle70 no Member State court
should review another Member State court’s decision of its own volition, but a rebalancing of
this principle and its exceptions might in fact support mutual trust better than a more and more
vigorously formulated normative claim covering more and more lingering factual concerns and
doubts.
4.
The constitutional context for mutual trust
Beyond the foregoing highlights of mutual trust in secondary Union law concerning cooperation in civil matters, cases on the transfer of persons from one Member State to another have
generated a specific constitutional context for applying the principle of mutual trust. This may be
observed not so much in the fairly particular area of child abduction (4.1), but rather in the fields
of asylum (4.2) and criminal law (4.3).
68
69
70
10
According to the Commission’s ‘Justice Scoreboard’, 80% of the Swedish population trust in their judicial
system’s independence. In Lithuania, on the other hand, less than half of the people surveyed express this confidence and 40% expressly say that they perceive the independence of the Lithuanian courts as being ‘fairly bad’
or ‘very bad’. In the World Economic Forum’s Global Competiveness Report Lithuania’s judicial independence
is ranked in 58th place, Sweden is ranked in 5th place and in Transparency International’s Corruption Perception Index Sweden is ranked in 3rd place, whereas Lithuania is ranked in 32nd place.
De lege lata this is expressly excluded as a matter of principle, see e.g. Art. 45(3) Brussels Ibis Regulation;
Art. 24 Brussels IIbis Regulation.
On this principle see e.g. S. Franq, in: U. Magnus/P. Mankowski, European Commentaries on Private International Law, Vol. I: Brussels Ibis Regulation, Munich: Sellier European Law Publishers 2016, Art. 45 Brussels
Ibis Regulation, paras. 78 et seq. See also Jenard Report, Art. 28, p. 46: ‘The absence of any review of the substance of the case implies complete confidence in the court of the State in which judgment was given; it is similarly to be assumed, that that court correctly applied the rules of jurisdiction of the Convention. The absence
of any review as whether the court in which the judgment was given had jurisdiction avoids the possibility that
an alleged failure to comply with those rules might again be raised as an issue at the enforcement stage.’ But
compare also the erosion of this principle by e.g. Art. 45(1)(e)(i) Brussels Ibis Regulation introducing a new
ground for the refusal of recognition in case of a violation of provisions to protect weaker parties in Chapter II
Sections 3, 4 and 5.
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4.1 Return of the child under the Brussels IIbis Regulation
According to Article 42 of the Brussels IIbis Regulation a judgment requiring the return of an
abducted child pursuant to Article 11 subsection 8 of the Regulation is directly enforceable ex
lege, and other Member States have to recognise the judgment without any reservation.
The requirements for this obligation are, firstly, a judgment of non-return pursuant to Article
13 of the Hague Child Abduction Convention71 in the state where the child is currently located;
secondly, a subsequent judgment which requires the return of the child to the state of its habitual
residence issued by a court in the Member State of the child’s habitual residence; and thirdly,
the court that rendered the judgment in the state of the child’s habitual residence must issue a
certificate pursuant to Article 42 subsection 2 Brussels IIbis Regulation. The certificate confirms
that the parties were given an opportunity to be heard and that the court has taken into account
the reasons for and the evidence underlying the judgment of non-return issued in the state where
the child is currently located. If these requirements are met, a declaration of enforceability is not
required and there is no possibility of opposing the recognition. Unlike in the case of the certificate issued pursuant to Article 54 Brussels I Regulation,72 the certificate cannot be reviewed, for
example according to the submission that contrary to the information contained in the certificate
the child was not given an opportunity to be heard.
This was decided by the European Court of Justice in the well-known case of Aguirre Zarraga
v. Simone Pelz.73 Ratio decidendi: mutual trust.74 To make it crystal clear: no reduction of the
wording in light of primary EU law, no implicit public policy reservation for cases of evident
fundamental or human rights violations but rather maximum mutual trust.75
Of course, this decision deals with a very specific situation concerning the international protection of children at the end of a long-lasting legal controversy.76 And it was a deliberate policy
choice by the EU legislator to give the last word to the state of the child’s habitual residence.77
At the end of the day, the Member State where the child is currently located will have the very
last word anyway, as in the course of enforcement proceedings it will take its own public policy
71
72
73
74
75
76
77
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Hague Child Abduction Convention).
See on this case supra at note 55 and the accompanying text.
ECJ 22 December 2010, Case C-491/10 PPU, ECLI:EU:C:2010:828, NIPR 2011, 4 (Aguirre Zarraga v. Simone
Pelz), paras. 46 et seq.; see also ECtHR 12 July 2011, Application No. 14737/09 (Šneersone and Kampanella v.
Italy); ECJ Povse, para. 70 (supra note 57): ‘no possibility of opposing (…) recognition’; the appeal of Sofia and
Doris Povse against Austria was held inadmissible, ECtHR 18 June 2013, Application No. 3890/11 (Sofia Povse
and Doris Povse v. Austria); see also ECJ 11 July 2008, Case C-195/08 PPU, ECLI:EU:C:2008:406, NIPR 2008
159 (Inga Rinau), para. 85. For a critical assessment of this case law see e.g. T. Rauscher, Europäisches Zivilprozess- und Kollisionsrecht, Vol. IV, 4th edn., Cologne: Otto Schmidt 2015, Art. 42 Brussels IIbis Regulation,
para. 5(c).
ECJ Aguirre Zarraga v. Simone Pelz, para. 49 (supra note 73).
The same applies to a penalty payment which was imposed in a judgment, given in another Member State,
concerning rights of custody and rights of access in order to ensure that the holder of the rights of custody
complies with those rights of access, ECJ 9 September 2015, Case C-4/14, ECLI:EU:C:2015:563, NIPR 2015,
399 (Christophe Bohez v. Ingrid Wiertz).
Rauscher 2015, Art. 42 Brussels IIbis Regulation, para. 5 (supra note 73).
B. Hess, Europäisches Zivilprozessrecht, Heidelberg: C.F. Müller 2010, p. 424, para. 95.
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into account – even though this will only be its own public policy under enforcement law and as
such – theoretically – it will be very limited in scope.78 Thus, the conclusion must be that this very
specific form of judicial multistage cooperation under a strict enforcement of mutual trust does
not contribute so much to a general constitutional context for mutual trust.
4.2 Transfer of asylum seekers under the ‘Dublin procedure’
In contrast, the cooperation in asylum matters makes this emerging constitutional context much
more visible, even though, of course, the entire set-up of mainly administrative cooperation differs fundamentally from cooperation in civil matters.79
The Common European Asylum System, the ‘Dublin procedure’, provides a mechanism for
determining which Member State is responsible for examining and deciding on an application
for asylum by a third-country national.80 The responsible Member State is likewise responsible
for the applicant’s reception and accommodation. Member States other than the responsible
Member State may, as a matter of EU secondary law,81 transfer the applicant to the responsible
Member State because the Dublin system operates under the presumption that all Member
States are ‘safe’ for applicants and adhere to and correctly implement EU secondary asylum law.82
However, and this is an important peculiarity of this form of cooperation, each Member State has
a discretion to examine an application for asylum itself and thus ultimately to take responsibility
for the asylum seeker (‘sovereignty clause’).83
78
79
80
81
82
83
12
Rauscher 2015, Art. 42 Brussels IIbis Regulation, para. 5 (supra note 73).
For an overview see e.g. V. Chetail, ‘The Common European Asylum System: Bric-à-brac or System?’, in: V.
Chetail et al. (eds.), Reforming the Common European Asylum System, Leiden: Brill Nijhoff 2016, pp. 3 et seq.
See e.g. M. Garlick, ‘The Dublin System, Solidarity and Individual Rights’, in: Chetail et al. 2016, pp. 159 et
seq., at p. 161 (supra note 79).
Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for
determining the Member State responsible for examining an asylum application lodged in one of the Member
States by a third-country national, OJ 2003, L 50/1 (Dublin II Regulation); Regulation (EU) No. 604/2013
of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for
determining the Member State responsible for examining an application for international protection lodged in
one of the Member States by a third-country national or a stateless person (recast), OJ 2013, L 180/31 (Dublin
III Regulation).
ECtHR 21 January 2011, Application No. 30696/09 (M.S.S. v. Belgium and Greece), para. 343; see also C.
Hruschka/F. Maiani, in: K. Hailbronner et al. (eds.), EU Immigration and Asylum Law, Munich: C.H. Beck
2016, Art. 3 Dublin III Regulation, para. 7.
Art. 3 subsection 2 Dublin II Regulation: ‘By way of derogation from paragraph 1, each Member State may
examine an application for asylum lodged with it by a third-country national, even if such examination is not
its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall
become the Member State responsible within the meaning of this Regulation and shall assume the obligations
associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible,
the Member State conducting a procedure for determining the Member State responsible or the Member
State which has been requested to take charge of or take back the applicant.’ Compare now Art. 17 Dublin III
Regulation.
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In this context, in the case of the Afghan refugee N.S. v. Secretary of State for the Home Department,84 the question arose whether a Member State (the UK) is allowed to transfer an asylum
seeker to the responsible Member State (Greece) regardless of the situation in that latter state,
in other words, in full trust that fundamental and human rights are respected there, or if the
Member State (the UK) might be obliged by primary EU law, i.e. by the constitutional context,
to take this into consideration when exercising its discretion to take extraordinary responsibility
for an asylum claim.
The European Court of Justice held that in principle it must be assumed that the treatment of
asylum seekers in all Member States complies with fundamental rights and EU law.85 Individual
case-by-case infringements of fundamental rights do not rebut this presumption of compliance.86
Because ‘[a]t issue here is the raison d’être of the European Union and the creation of an area of
freedom, security and justice and, in particular, the Common European Asylum System, based
on mutual confidence and a presumption of compliance, by other Member States, with European
Union law and, in particular, fundamental rights’.87 This means that all Member States must assume in their cooperation with other Member States that in principle all Member States comply
with EU law and fundamental rights.
However, and this is really the groundbreaking part, ‘if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum
applicants in the Member State responsible, (…) the transfer would be incompatible with that
provision’.88
And the European Court of Justice found that such systemic flaws did exist in Greece, because
in a situation similar to the case at hand the European Court of Human Rights had already
decided that Belgium had violated the European Convention on Human Rights when Belgian
authorities transferred an asylum seeker to Greece.89
Thus, shortly afterwards the European Court of Justice could conclude as follows in its own
case of N.S. v. Secretary of State for the Home Department: ‘It follows from all of the foregoing
considerations that (…) an application of [the Dublin system] on the basis of a conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State
84
85
86
87
88
89
ECJ 21 December 2011, Joined Case C 411/10 and C 493/10, ECLI:EU:C:2011:865 (N.S. v. Secretary of State
for the Home Department).
Idem, para. 80.
Idem, para. 82.
Idem, para. 83.
Idem, para. 86; compare now Art. 3(2) Sentence 2 and 3 Dublin III Regulation: ‘Where it is impossible to
transfer an applicant to the Member State primarily designated as responsible because there are substantial
grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for
applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of
Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall
continue to examine the criteria set out in Chapter III in order to establish whether another Member State can
be designated as responsible. Where the transfer cannot be made pursuant to this paragraph to any Member
State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the
application was lodged, the determining Member State shall become the Member State responsible.’
ECtHR M.S.S. v. Belgium and Greece (supra note 82).
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primarily responsible for his application is incompatible with the duty of the Member States to
interpret and apply [the Dublin II Regulation] in a manner consistent with fundamental rights’.90
To put it differently: the European Union’s primary law prohibits blind trust in other Member
States.91 But as long as there are no manifest signs of structural deficits in the protection of
fundamental rights, the Member States may – and must – trust other Member States as a matter
of EU law.92
This ‘as-long-as rule’ resembles structurally the famous Solange II decision by the German
Federal Constitutional Court on the supremacy of EU law in general: as long as there are no
structural deficits in the protection of fundamental laws by the EU as guaranteed by the German
Basic Law, the German Federal Constitutional Court will not exercise its powers to review each
and every single European act of legislation or measure.93
4.3 Transfer of suspects under the European Arrest Warrant
The European version of this ‘as-long-as rule’ has reached its latest stage in the ECJ’s judgment
of the 5th of April 2016 in the case of Pál Aranyosi and Robert Căldăraru, the case cited at the
beginning of this text.94 This case concerned the extradition of two persons arrested in Bremen,
Germany, on the basis of a European Arrest Warrant, to Hungary and Romania, respectively. This
form of cooperation is conceptually grounded on the principle of mutual trust as well.95
90
91
92
93
94
95
14
ECJ N.S. v. Secretary of State for the Home Department, para. 99 (supra note 84).
See also e.g. Garlick 2016, pp. 159 et seq., at p. 173 (supra note 80): ‘presumption that there is consistent compliance with the acquis and of the respect of fundamental rights cannot be made in an unqualified way’.
For implementation by Member State courts see e.g. Administrative Court of Appeal (Verwaltungsgerichtshof)
of Baden-Württemberg, Germany, judgment of 5 July 2016, docket no. A 11 S 974/16: systemic deficiencies
in Hungary exclude the transfer of Syrian asylum seekers under the Dublin procedure. As to the very different
understandings of ‘systemic deficiencies’ beyond these cases see e.g. Hruschka/Maiani 2016, Art. 3 Dublin III
Regulation, para. 11 (supra note 82), ranging from a complete failure of the entire asylum system in all parts, as
was the case in Greece when M.S.S. and N.S. were decided, to the mere risk of ill-treatment in the particular
case at hand due to some lacuna in the legal or organisational structure. See also A. Lübbe, ‘Systemic Flaws and
Dublin Transfers: Incompatible Tests before the CJEU and the ECtHR’, International Journal of Refugee Law
(27) 2015, pp. 135 et seq.; a real risk of inhuman or degrading treatment in the individual case is sufficient.
German Federal Constitutional Court 22 October 1986, 2 BvR 197/83 (Solange II), para. 132.
ECJ Pál Aranyosi and Robert Căldăraru, para. 78 (supra note 1); see also ECJ 29 January 2013, Case C-396/11,
ECLI:EU:C:2013:39 (Radu): judicial scrutiny is limited to those cases listed in the Council Framework
Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures
between Member States, OJ 2002, L 190/1, amended by Council Framework Decision 2009/299/JHA of 26
February 2009, OJ 2009, L 81/24.
ECJ Pál Aranyosi and Robert Căldăraru, paras. 76 et seq. (supra note 1); see recitals 6 and 10 of the Council
Framework Decision supra note 94. See also L. Klimek, European Arrest Warrant, Cham: Springer 2015, pp. 74
et seq. – ‘key notion underlying the system of cooperation in criminal matters’, as well as pp. 344 et seq. in
particular; A. Klip, European Criminal Law: An Integrative Approach, Antwerp: Intersentia 2016, pp. 100 et seq.
As to the – purportedly limited – effect of harmonisation and minimum standards for strengthening mutual
trust in criminal as well as civil cooperation see M. Requejo Isidro, ‘Do We Need Harmonisation to Achieve
Harmonious Cooperation – Judicial Cooperation for Criminal Matters As a Testing Field’, in: X. Kramer/B.
Hess (eds.), From Common Rules to Best Practices in European Civil Procedure, Baden-Baden: Nomos 2017,
forthcoming.
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However, limitations to this principle of mutual trust can be made in ‘exceptional circumstances’, namely if there is a serious risk of systemic deficiencies in the protection of fundamental
rights in the Member State to which the arrested person is to be transferred, which is the Member
State that had issued the European Arrest Warrant.96 Systemic deficiencies was the exception to
the obligation for the Member States to cooperate under mutual trust in asylum matters. The new
add-on is now the following: in order to ascertain whether such systemic deficiencies exist, the
Member State in question must extensively investigate the situation in the other Member State.97
And on top of that, the European Court of Justice now demands a further, specific and precise
assessment of whether there are substantial grounds to believe that the individual concerned will
personally be exposed to the risk of fundamental rights violations.98
By this last building block, the general constitutional context of mutual trust and cooperation
amongst Member States has now fully emerged.
5.
Mutual trust as a constitutional challenge
In parallel, the outer limits of mutual trust have become a challenge for the constitutional fundaments of the supranational structure of the EU.
5.1 European Court of Justice, Opinion 2/13 on the Accession of the EU to the ECHR
At the time of rendering its Opinion 2/13, mutual trust was so important for the European Court
of Justice that it stopped the EU from acceding to the European Convention on Human Rights
because such far-reaching presumptions of compliance as required by mutual trust would no
longer have been possible.99 Thus, mutual trust has now made it into the centre of the European
96
97
98
99
ECJ Pál Aranyosi and Robert Căldăraru, para. 82 (supra note 1).
Idem, para. 89: The necessary information may be, inter alia, obtained from ‘judgments of international courts,
such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports
and other documents produced by bodies of the Council of Europe or under the aegis of the UN’. Obviously,
this is a reference to the ECJ’s assessment of systemic deficiencies in the case of ECJ N.S. v. Secretary of State for
the Home Department (supra note 84) by relying on the previous judgment of the ECtHR in M.S.S. v. Belgium
and Greece (supra note 82).
Idem, para. 92.
ECJ 18 December 2014, Case Opinion 2/13, ECLI:EU:C:2014:2454, paras. 191 et seq: ‘[t]he principle of
mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area
without internal borders to be created and maintained. That principle requires, particularly with regard to the
area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the
other Member States to be complying with EU law and particularly with the fundamental rights recognised by
EU law (see, to that effect, judgments in N.S. and Others, C-411/10 and C-493/10, EU:C:2011:865, paras. 78
to 80, and Melloni, EU:C:2013:107, paras. 37 and 63). Thus, when implementing EU law, the Member States
may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights
from another Member State than that provided by EU law, but, save in exceptional cases, they may not check
whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed
by the EU. The approach adopted in the agreement envisaged, which is to treat the EU as a State and to give
it a role identical in every respect to that of any other Contracting Party, specifically disregards the intrinsic
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Union’s identity100 – an impressive career given the modest beginnings in 1968 – and such a steep
career that the Member States (at least Germany) and the European Court of Human Rights are
no longer willing to follow suit.
5.2 Federal Constitutional Court of Germany, decision of 15 December 2015
On 15 December 2015, the German Federal Constitutional Court decided in a case concerning
the European Arrest Warrant101 that in the case of an extradition to another Member State on
the basis of a European arrest warrant, the courts have to ensure in every individual case that at
least the guarantee of the ‘Menschenwürde’, i.e. ‘human dignity’ as enshrined in Article 1 German
Basic Law,102 the highest amongst all fundamental values laid down in the German Constitution,
is safeguarded.103 Ths is because the guarantee of human dignity is an integral part of Germany’s
constitutional identity.104 To put it differently, the German Federal Constitutional Court has
now limited its own ‘as-long-as’ jurisprudence105 in relation to the EU – a true revolution in the
cooperation between German courts and the European Court of Justice.
100
101
102
103
104
105
16
nature of the EU and, in particular, fails to take into consideration the fact that the Member States have, by
reason of their membership of the EU, accepted that relations between them as regards the matters covered
by the transfer of powers from the Member States to the EU are governed by EU law to the exclusion, if EU
law so requires, of any other law. In so far as the ECHR would, in requiring the EU and the Member States to
be considered Contracting Parties not only in their relations with Contracting Parties which are not Member
States of the EU but also in their relations with each other, including where such relations are governed by
EU law, require a Member State to check that another Member State has observed fundamental rights, even
though EU law imposes an obligation of mutual trust between those Member States, accession is liable to upset
the underlying balance of the EU and undermine the autonomy of EU law. However, the agreement envisaged
contains no provision to prevent such a development.’
On this aspect see e.g. T. Kingreen, in: C. Calliess/M. Ruffert, EUV/AEUV, Munich: C.H. Beck 2016, Art. 6
TEU paras. 31 et seq.; C. Halberstam, ‘“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU
Accession to the ECHR, and the Way Forward’, German Law Journal 2015, p. 105 at pp. 126 et seq.
German Federal Constitutional Court 15 December 2015, 2 BvR 2735/14, BVerfGE 140, 317 et seq. On
the ground breaking character of this decision see e.g. T. Reinbacher/M. Wendel, ‘Menschenwürde und
Europäischer Haftbefehl – Zum ebenenübergreifenden Schutz grundrechtlicher Elementargarantien im
europäischen Auslieferungsverfahren’, EuGRZ 2016, p. 333; H. Landau, ‘Verfassungsrecht und Strafrecht’,
EuGRZ 2016, pp. 505 et seq.; D. Burchardt, ‘Die Ausübung der Identitätskontrolle durch das Bundesverfassungsgericht’, ZaöRV (76) 2016, pp. 527 et seq.
Art. 1(1) German Basic Law: ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of
all state authority’ (official translation by the Federal Government of Germany).
Idem, para. 76.
Idem, para. 48. On the function of and the need for a further approximation on the law of criminal cooperation
in order to provide for a sufficient legal framework see Requejo Isidro 2017, forthcoming, sub A. III 2 (b) (supra
note 95).
See supra note 93.
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5.3 European Court of Human Rights, decision of 23 March 2016 – Avotiņš v. Latvia
Even clearer and further reaching is the resistance of the European Court of Human Rights
against the European Court of Justice in the decision of the Grand Chamber of the European Court of Human Rights on 23 May 2016, in the case of Avotiņš v. Latvia,106 a case that
concerned the recognition of a judgment under the Brussels I Regulation. This case involved a
default judgment from Cyprus, recognition and enforcement proceedings in Latvia, and in this
context a dispute over the proper service of process at the beginning of the proceedings.
The European Court of Human Rights held that as long as the EU does not show any structural deficiencies in the protection of fundamental rights, an EU Member State that is fully
obliged by EU law to cooperate with another EU Member State does not itself have to control
compliance with European Human Rights but may simply follow its EU obligations. This is the
European Court of Human Rights’ ‘as-long-as’ jurisprudence that aims at supporting integration
amongst Contracting Parties in Regional Integration Communities such as the EU. This jurisprudence by the European Court of Human Rights in favour of e.g. the EU is also known as the
‘Bosphorus presumption’.107
Nevertheless, as the European Court of Human Rights puts it, the methods and modes of European integration – its ‘recognition machinery’108 – must not infringe the individual fundamental
rights of the persons affected by them. Therefore, under the European Convention on Human
Rights each Contracting State, including each EU Member State, is obliged to examine its own
actions with respect to every other (EU Member) Contracting State, for example the recognition
of judgments in civil matters pursuant to the Brussels I and Ibis Regulations, without any exception, for manifest human rights violations109 – mutual trust within European Union law or not.
To put it differently, the European Court of Human Rights has explicitly and deliberately
entered into an open confrontation with the European Court of Justice concerning trust management amongst the EU Member States, concerning the outer limits of trust and concerning
the minimum level of residual control.110
6.
Conclusions
What conclusions may be drawn from the foregoing for rebalancing mutual trust in civil cooperation in order to achieve a more convincing integration and what repercussions might emerge
106 ECtHR Avotiņš v. Latvia (supra note 18).
107 ECtHR 30 June 2005, Application No. 45036/98 (Bosphorus Hava Yollari Turizm ve Ticaret Anonim Șirket v.
Ireland).
108 ECtHR Avotiņš v. Latvia, para. 91 (supra note 18).
109 Idem, para. 114.
110 See e.g. L. Glas/J. Krommendijk, ‘From Opinion 2/13 to Avotiņš: Recent Developments in the Relationship
between the Luxembourg and Strasbourg Court’, Human Rights Law Review (17) 2017, forthcoming, sub 5:
‘autonomy of EU law is not unlimited’; but compare e.g. G. Biagioni, ‘Avotinš v. Latvia. The Uneasy Balance
Between Mutual Recognition of Judgments and Protection of Fundamental Rights’, European Papers (1) 2016,
pp. 579 et seq., at p. 593, restricting the implications of the judgment to the ‘peculiar field of the recognition
and enforcement of decisions in civil and commercial matters within the European judicial area’.
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from the constitutional context and challenges for mutual trust within judicial cooperation in
civil matters?
6.1 Narrowing of public policy in civil cooperation to ‘systemic deficiencies’?
First of all, it might appear consistent with the ECJ’s own logic to extend its framework for
mutual trust in asylum and arrest warrant matters to judicial cooperation in civil matters. The
recognition of a judgment issued in another Member State may then only be refused under the
application of a public policy clause if systemic deficiencies are ascertained in this Member State
rather than ‘merely’ a singular concrete public policy violation in the case at hand. However,
the transfer of an asylum seeker to the responsible Member State and the extradition of the
arrested or convicted criminal to the requesting Member State – both are administrative procedures – require a prognosis of future fundamental and human rights violations by the receiving
Member State, whereas the recognition of a court judgment – the paradigmatic form of judicial
cooperation in civil matters – concerns another Member State’s compliance with human rights
and fundamental values in a concrete case in the past. This difference should be enough for the
European Court of Justice to operate public policy clauses as before, and the European Court
of Justice has in the meantime indeed operated public policy clauses as before.111 On the other
hand, the European Court of Justice has insistently and increasingly emphasised that the grounds
on which the recognition of a judgment may be refused are obstacles to the overall objective of
integration by cooperation and therefore have to be interpreted narrowly,112 and the Commission
had already tried to curtail the scope of public policy control on several occasions, for example
in its proposal for a recast of the Brussels I Regulation.113 Then again, another argument against
further narrowing the scope of public policy control by requiring the ascertainment of systemic
deficiencies is, of course, the long tradition of trust management concerning public policy clauses
in the context of the recognition of foreign judgments in the former areas of freedom, security
and justice in Germany reaching back to the 19th century.114 An even stronger argument against
this limitation is the recent case law of the German Federal Constitutional Court and of the
European Court of Human Rights. As mentioned, both courts demand – to a different extent – a
mandatory individual case-by-case assessment, and this can be perfectly implemented by public
policy clauses if operated as before.
6.2 Systemic deficiencies as a last and only obstacle to the transfer of an abducted child under Article
42 Brussels IIbis Regulation?
However and secondly, wherever another Member State’s future compliance with fundamental
and human rights forms part of judicial cooperation, the constitutional context of mutual trust as
111 ECJ Diageo Brands (supra note 52).
112 ECJ P v. Q, para. 36 (supra note 53).
113 Commission Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and
the recognition and enforcement of judgments in civil and commercial matters (Recast) of 14 December 2010,
COM(2010) 748 final. However and for good reason this was not acceptable to the majority of the Member
States and the European Parliament.
114 See supra note 29.
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developed in asylum and arrest warrant matters will presumably apply. Therefore, before transferring a child to another Member State under Article 42 Brussels IIbis Regulation, the transferring
court will from now on have to examine whether there are manifest signs of systemic deficiencies
in the Member State of destination and whether there are substantial grounds to believe that the
child will be personally exposed to the risks of these deficiencies – albeit, of course, it is currently
unlikely that a Member State court will have reason to conclude that there is a serious risk of systemic deficiencies in fundamental rights protection in the civil justice system of a Member State.
6.3 Lower standards for ‘systemic deficiencies’ for mitigating constitutional challenges from mutual
trust?
Thirdly, the European Court of Justice could develop its two-step approach for trust management
under EU primary law in a way that mitigates the conflict with individual fundamental rights.
For example, the European Court of Justice could work on the threshold for systemic deficiencies. Certainly, the Court would not want to go so far as to conclude solely on the basis of a bad
result in the EU Justice Scoreboard that there is sufficient evidence for the existence of systemic
deficiencies in the judiciary of a Member State. On the other hand, the EU Scoreboard contains
the European Commission’s own survey and statistical data on the quality of each Member
State’s justice system to establish and enhance mutual trust, and it would appear somewhat inconsistent if notoriously poor results would be of no relevance on a normative level. Thus, it might
be suggested that results from the Scoreboard should at least be included in the list of criteria to
be taken into account.115
Further, a Member State court principally obliged to cooperate under EU secondary law
might consider assuming systemic deficiencies by a Member State once the European Commission launches its new ‘early warning tool’ for a serious breach of fundamental values of the
Union in the sense of Article 2 TEU.116 Such a breach by a Member State is determined pursuant
to the procedure laid down in Article 7 TEU. In 2014, following the Assises de la Justice, the
Commission introduced an informal, dialogue-based preliminary procedure – the ‘pre-Article 7
procedure’.117 On 13 January 2016, the European Commission launched this preliminary pre-Article 7 procedure for the very first time against Poland due to concerns regarding the judicial
independence of the Polish Constitutional Court.118 This procedure has been escalated in the
115 According to ECJ Pál Aranyosi and Robert Căldăraru, para. 89 (supra note 1), the necessary information is to be
assessed by the acting authority by recourse to ‘objective, reliable, specific and properly updated [information]
(…) that demonstrates that there are deficiencies, which may be systemic or generalised (…). That information
may be obtained from, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by
bodies of the Council of Europe or under the aegis of the UN.’ The Scoreboard would certainly count as being
‘objective, reliable, specific and properly updated’.
116 Consolidated Version of the Treaty on European Union, OJ 2012, C 326/13.
117 Communication from the Commission to the European Parliament and the Council – A new EU Framework
to strengthen the Rule of Law of 11.03.2014, COM(2014) 158 final.
118 ‘Rule of law in Poland: Commission starts dialogue’, http://ec.europa.eu/news/ 2016/01/20160113_en.htm,
visited November 2016.
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meantime via an Opinion119 to the last available stage of a Recommendation by the Commission
for Poland to eliminate the deficiency.120 One may argue that deficiencies in the rule of law
concerning the independence of the constitutional court of a Member State alone will not suffice
to establish general systemic deficiencies in such a Member State’s judiciary. Then again, the more
mutual trust includes seeking judicial redress solely before the courts of the Member State whose
courts have rendered the judgment in question, the more weight is put on the highest available
national instance.
6.4 Standard of proof for public policy violations lowered in case of systemic deficiencies?
Fourthly, as an additional legal consequence of systemic deficiencies one may consider an effect
on the standard of proof for a violation of public policy in the individual case. In principle, the
burden of proof for a violation of public policy appears to lie with the defendant relying on such
a violation as a ground for the refusal of recognition.121 However, once systemic deficiencies that
relate to the concrete public policy violation in question, e.g. a lack of independence by a judge
and, systemically, by the judiciary, are established, concrete indications for an infringement of
public policy and a preponderant probability should be sufficient.122
6.5 Manifest error of law as a public policy violation?
Last but not least, one could think about conceiving a manifest error in law in applying secondary
legislation implementing and making operative the principle of mutual trust as a violation of
public policy because such a manifest error attacks the EU’s raison d’être123 at its roots,124 just like
a nationalistic and parochial refusal of cooperation and too far-reaching double controls.125 And
now that mutual trust has become a part of the very identity of the EU,126 it would only be logical to understand manifest errors of law in the application of the ‘essential rules’ implementing
119 European Commission, Opinion of 1 June 2016 regarding the rule of law in Poland, http://europa.eu/rapid/
press-release_MEMO-16-2017_en.htm, visited December 2016.
120 European Commission, Recommendation of 27 July 2016 regarding the rule of law in Poland, C(2016) 5703
final.
121 There is no ECJ authority on this point. In general, commentators shift the burden of proof to the party who
contests the recognition, see e.g. Leible, in: T. Rauscher (ed.), Europäisches Zivilprozessrecht/Europäisches Internationales Privatrecht, Munich: Sellier European Law Publishers 2011, Art. 34 Brussels I Regulation, para. 3a
with further references.
122 Weller 2015, p. 64 at p. 98 (supra note 6).
123 ECJ N.S. v. Secretary of State for the Home Department, para. 83 (supra note 84).
124 Of course a teleological reduction of existing rules in secondary legislation that expressly exclude a public policy
control of rules, e.g. on jurisdiction, would be necessary, see once more Art. 45(3) Brussels Ibis Regulation;
Art. 24 Brussels IIbis Regulation and supra note 69.
125 See ECJ Diageo Brands, para. 50 (supra note 52): ‘The public-policy clause would apply only where that error of
law means that the recognition of the judgment concerned in the State in which recognition is sought would
result in the manifest breach of an essential rule of law in the EU legal order and therefore in the legal order of that
Member State’ (emphasis added; of course the ECJ did not have in mind central jurisdictional rules or other
core provisions of judicial cooperation).
126 See supra notes 99 et seq. and the accompanying text.
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mutual trust as a public policy violation. Not only would this be consistent with the European
Court of Justice’s own jurisprudence in the case of Diageo Brands but also with the European
Court of Human Right’s jurisprudence on the violation of Article 6 subsection 1 of the European
Convention on Human Rights in the case of a manifest error of law.127
127 See, for instance, ECtHR 5 February 2015, Application No. 22251/08 (Bochan v. Ukraine (No. 2)), para. 62:
‘The thinking underlying this notion of “erreur manifeste d’appréciation” (a concept of French administrative
law), as used in the context of Article 6 § 1 of the Convention, is doubtless that if the error of law or fact by
the national court is so evident as to be characterised as a “manifest error” – that is to say, is an error that no
reasonable court could ever have made –, it may be such as to disturb the fairness of the proceedings.’
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