Let's talk about trust, baby! Theorizing trust and mutual recognition in the EU's area of freedom, security and justice

• DOI: http://doi.org/10.1111/eulj.12268
• Published date: 01 May 2018
• Date: 01 May 2018
• Author: Michael Schwarz

ORIGINAL ARTICLE

Let's talk about trust, baby! Theorizing trust and

mutual recognition in the EU's area of freedom,

security and justice

Michael Schwarz*

Abstract

If mutual recognition is to be the ‘cornerstone of judicial co‐operation’in the area of freedom, security and justice,

mutual trust, on the other hand, must take a lead role as the normative glue that grounds and facilitates legal prac-

tices of recognition. Despite its topicality and practical relevance, the theoreticalunderpinnings of trust have been

largely left untouched by legal scholarship. This article seeks to fill that void by unpacking trust's conceptual pre-

mises to prepare a critique of the legal principle of mutual trust and its underlying ideology as it emerged in the

jurisprudence of the CJEU. It presents an enriched conceptualization of recognition trust, inquires into the poten-

tial and risks of trust‐based judicial cooperation and sheds light on the interplay of trust, distrust and the law. In

drawing policy conclusions from the theoretical discussion, it also points to a new normative dimension of trust

asking whether trust could feature as a form of mutual recognition.

1|INTRODUCTION

Trust is on everyone's lips. Not only do we trust ourselves and others, we trust the market,

1

the internet, or the gov-

ernment. The parlance of trust is so ubiquitous and en vogue in the sense that late modernity ‘greatly increases and

generalises the demand for trust’that it has prompted some observers to attribute to us and our contemporaries

an obsession with it.

2

This obsession does not omit a generalized sense of decline in trust or trustworthiness caused

by pathologies of trust as when public indignation following the discovery of mass surveillance programmes provoked

the question whether we can trust internet governance.

3

Other long‐term observers argue that the lamented decline

of trust in the face of its currency indicates a ‘classic case of Minerva taking flight at dusk’.

4

*

Asistente Postdoctoral, Facultad de Derecho, Universidad de los Andes, Bogotá. I want to express my sincere gratitude to the

Universidad de los Andes, in particular Isabel Cristina Jaramillo Sierra and Helena María Alviar García, for giving me the time to work

on this paper during my stay in Bogotá as Asistente Postdoctoral. Warm thanks are also due to Samo Bardutzky, Gráinne de Búrca,

Daniel Halberstam, Mascha Hesse, Blaze Marpet, Valsamis Mitsilegas and Mattias Wendel for their valuable comments on earlier drafts.

1

On trust and the financial crisis, see L. Herzog, ‘Persönliches Vertrauen, Rechtsvertrauen, Systemvertrauen’, (2013) 61 Deutsche

Zeitschrift für Philosophie, 529.

2

U. Frevert, ‘Does Trust have a History?’, EUI Max Weber Lecture Series No. 2009/01, http://hdl.handle.net/1814/11258.

3

J. Hofmann, ‘Constellations of Trust and Distrust in Internet Governance’, http://ssrn.com/abstract=2608414.

4

B. Misztal, ‘Trust and Cooperation: The Democratic Public Sphere’, (2001) 37 Journal of Sociology, 371.

Received: 29 August 2016 Accepted: 25 October 2017

DOI: 10.1111/eulj.12268

124 © 2018 John Wiley & Sons Ltd. Eur Law J. 2018;24:124–141.wileyonlinelibrary.com/journal/eulj

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.

5

According to the

European Council ‘[m]utual trust between authorities […] is the basis for efficient cooperation in this area.’

6

After

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)

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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.

2|ADJUDICATING TRUST

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

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marked a decisive turn precipitating a paradigm shift in the functioning of freedom

mediated by MRRs.

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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

rights.

5

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.

6

The Stockholm Programme, OJ C 115, of 4 May 2010; Green Paper ‘Strengthening mutual trust in the European judicial area’, COM

(2011) 327 final.

7

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.

8

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).

9

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.

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