Said affectation for trust did not spare European integration. Trust has long found its way into EU law and policy,
particularly into the EU's area of freedom, security and justice (AFSJ). In legal and political discourses, trust features
prominently as the normative glue for transnational cooperation between Member States.
According to the
European Council ‘[m]utual trust between authorities […] is the basis for efficient cooperation in this area.’
the entry into force of the LisbonTreaty and EU Charter of Fundamental Rights (Charter), the Court of Justice (CJEU)
has increasingly harnessed mutual trust to consolidate mutual recognition regimes. The European Arrest Warrant
(EAW) is a case in point. How the Court conceptualizes trust and its specific role regarding mutual recognition and
fundamental rights protection as opposed to how this legal principle of trust can withstand a critical and informed
assessment of trust is the topic of this paper.
The article consists of three parts. Section 2 gives an account of the trajectory of the ‘principle of mutual trust’in
the jurisprudence of the CJEU regarding mutual recognition regimes (MRRs)
in the AFSJ. Against this backdrop,
section 3 canvasses theories of trust to unpack its conceptual premises and their underlying problems in preparation
for an analysis and critique of mutual trust as a legal principle. Drawing on these insights, section 4 frames the concept
of recognition trust as an inter‐institutional form of trust, where public agents trust one another on behalf of individ-
uals. This fiduciary trust, I argue, wields power as it mediates the vulnerability of individuals and therefore requires
justification which imposes specific limits on trust. In law, said limits translate foremost into human rights grounds
for refusal devoid of the CJEU's systemic deficiency threshold. The ultimate section sheds light on the interplay of
trust, distrust and the law, criticizes the ideology of mutual trust as a legal principle and finally gestures toward a
new normative dimension of trust as a form of mutual recognition.
The following attempt to portray and comment on the trajectory of trust in the EU's AFSJ places an emphasis on the
adjudication of trust in the more recent case law of the CJEU regarding the EAW. As the archetypal MRR in criminal
matters, the EAW serves as a sheer inexhaustible source of constructive predicaments by exposing the fundamental
rights tensions underlying its functional rationale. Thus, the EAW acts as a cardinal driving force in the development of
the legal principle of mutual trust.
2.1 |Nascent trust: Advocaten voor de Wereld
The introduction of the EAW
marked a decisive turn precipitating a paradigm shift in the functioning of freedom
mediated by MRRs.
Previously, mutual recognition of diplomas, licenses, and market products, in general, enhanced
individual freedom across the EU to facilitate the free movement of persons, goods, services and capital in the internal
market. The materialization of a European criminal justice area in the guise of the EAW brought to the fore how
mutual recognition emanates inherently detrimental effects for those it affects by encroaching on their fundamental
Critique against the principle of mutual trust looms large, for a profound doctrinal criticism, see G. Vermeulen, ‘Flaws and Contradic-
tions in the Mutual Trust and Recognition Discourse’, in N. Persak (ed.), Legitimacy and Trust in Criminal Law, Policy and Justice (Ashgate,
2014), at 153–175.
The Stockholm Programme, OJ C 115, of 4 May 2010; Green Paper ‘Strengthening mutual trust in the European judicial area’, COM
(2011) 327 final.
On the structures and strictures of MRRs: K. Nicolaïdis and G. Shaffer, ‘Transnational Mutual Recognition Regimes –Governance
without Global Government’, (2005) 68 Law and Contemporary Problems, 263, 264–268, 277–279.
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures
between Member States (OJ L 190 of 18 July 2002).
See M. Möstl, ‘Preconditions and Limits of Mutual Recognition’, (2010) 47 Common Market Law Review, 405, 408–422; S. Lavenex,
‘Mutual Recognition and the Monopoly of Force: Limits to the Single Market Analogy’, (2007) 14 Journal of European Public Policy, 762.