The challenges to trust‐based governance in the European Union: Assessing the use of mutual trust as a driver of EU integration

• Published date: 01 January 2019
• Date: 01 January 2019
• Author: Cecilia Rizcallah
• DOI: http://doi.org/10.1111/eulj.12303

ORIGINAL ARTICLE

The challenges to trust‐based governance in the

European Union: Assessing the use of mutual trust

as a driver of EU integration

Cecilia Rizcallah*

Abstract

The principle of mutual trust constitutes a vital parameter for integration within the EU. In allowing

Member States to open up to each other despite their legal diversities, this principle is an attractive

tool in governance for achieving a borderless European area without going through the unification

of the various national laws. The analysis of the consequences of mutual trust in the internal market

and in the AFSJ shows that it enables Member States to exercise, to a certain degree, their prescrip-

tive and enforcement powers extraterritorially throughout the whole European area. While the

objective of enabling integration without jeopardising national autonomy is beyond doubt legitimate,

this trust‐based governance raises several challenges. Integration by means of mutual trust may be

problematic with regard to concerns such as national sovereignty, democratic legitimacy, the protec-

tion of individual prerogatives, state liability and the duty of public authorities to protect the public

interest.

1|INTRODUCTION

The main goal of the European Union is to reduce, if not do away with altogether, physical and legal barriers between

Member States within the European area. First sought in the economic field, this goal of interlocking nationalspheres

was, in a second stage, also pursued in the area of freedom, security and justice (hereafter AFSJ) in order to avoid the

inefficiencies resulting from classic interstate cooperation in this domain. The abolition of legal barriers between EU

Member States is notably achieved by mechanisms based on mutual trust supplementing freedom of movement

rights by requiring Member States to open‐up each other's domestic legal orders.

This principle of mutual trust, undoubtedly present in the background from the very inception of the

European Common Market in the 1950s,

1

has indeed acquired a major functional role as a principle of

*

Research Fellow at the Belgian National Fund for Scientific Research (F.R.S. –FNRS), the Université libre de Bruxelles and the

Université Saint‐Louis Bruxelles. The author wishes to thank A. Bailleux, E. Bribosia, B. De Witte, S. Garben, S. Van Drooghenbroeck

and the reviewers for their constructive suggestions. The usual disclaimers apply.

1

J. Snell, ‘The Single Market: Does Mutual Trust Suffice?’, in D. Gerard and E. Brouwer (eds.), Mapping Mutual Trust: Understanding and

Informing the Role of Mutual Trust in EU Law (European University Institute, 2016), at 14.

Received: 13 January 2018 Revised: 1 November 2018 Accepted: 2 November 2018

DOI: 10.1111/eulj.12303

Eur Law J. 2019;25:37–56. © 2019 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 37

governance

2

in EU integration. Based on the “fundamental premiss that each Member State shares with all the

other Member States, and recognises that they share with it, a set of common values on which the EU is founded,

as stated in Article 2 [of the Treaty on the European Union]”,

3

this principle indeed aims to enable the effective

opening up of national spheres

4

for the purposes of achieving a European area without borders, while still preserv-

ing national specificities. By presuming that Member States respect these values and, more globally, EU law,

5

mutual trust eventually permits the erosion of internal borders by requiring swift and efficient cooperation between

national authorities through imposing, inter alia, the recognition of foreign laws and decisions and the prohibition of

mutual verification of compliance with EU law by Member States, save in exceptional circumstances. A duty of

mutual trust has therefore been imposed in many different areas of EU Law as a tool of integration, even though

trust intuitively refers to an “intersubjective phenomenon”

6

which cannot be a dictated. Niklas Luhmann, prominent

thinker in systems theory, describes in that sense trust as a phenomenon where an actor willingly surmounts a

deficit of information leading to uncertainty regarding the success of an operation.

7

The approach to integration founded on compulsory trust was developed in the area of the internal market,

through the case law of the Court of Justice in cases such as Cassis de Dijon

8

and Wurmser.

9

In order to ensure

the abolition of internal frontiers within the EU, a “qualified duty of mutual recognition based on qualified mutual

trust”

10

was inferred by the Court on the basis of a rebuttable presumption “of legal equality between the different

systems of the EU”

11

justifying the principle of mutual trust. The duty of mutual recognition, initiated by the Court

of Justice, was rapidly relied upon by the Commission to develop a new approach for completing the internal

market.

12

The principle of mutual trust was also used in the AFSJ both by the Court of Justice and the EU's political insti-

tutions. European Union private international law relies on mutual trust between Member States by aiming to con-

stitute “appropriate legislative tool [s] that may be used to preserve the inherent characteristics of the diverse

legal systems within the EU”,

13

while at the same time allowing the development of an integrated European judicial

area conducive to the business and private cross‐border activities that underpin the construction of Europe. To

assure rapidity and effectiveness in the administration of criminal justice within Europe,

14

despite the lack of substan-

tial harmonisation of criminal law and of a pan‐European criminal judiciary, the principle of mutual trust is also relied

upon in the field of criminal cooperation.

2

K. Lenaerts, ‘La vie après l'avis: Exploring the principle of mutual (yet not blind) trust’(2017) 54 Common Market Law Review, 805,

808.

3

Opinion 2/13, ECLI:EU:C:2014:2454, para. 168.

4

E. Dubout, ‘Une question de confiance: nature juridique de l'Union européenne et adhésion à la Convention européenne des droits

de l'Homme’(2015) 51 Cahiers de droit européen, 73, 94.

5

Opinion 2/13, above, n. 3, para. 168.

6

For an in‐depth study on the notion of trust in social sciences, see S. Schwarz, ‘Let's talk about trust, baby! Theorizing trust and

mutual recognition in the EU's area of freedom, security and justice’(2017) 24 European Law Journal,8.

7

N. Luhmann, Trust and Power (John Wiley & Sons, 1979), at 32.

8

Case C‐120/78, Rewe‐Zentrale v. Bundesmonopolverwaltung für Branntwein, ECLI:EU:C:1979:42.

9

Case C‐25/88, Wurmser, ECLI:EU:C:1989:187.

10

Snell, above, n. 1, at 15.

11

C. Janssens, The Principle of Mutual Recognition in EU Law (Oxford University Press, 2013), at 29.

12

K.J. Alter and S. Meunier‐Aitsahalia, ‘Judicial Politics in the European Community: European Integration and the Pathbreaking Cas-

sis de Dijon Decision’(1994) 26 Comparative Political Studies, 535, 541.

13

P.Beaumont and M. Danov, ‘TheEU Civil Justice Framework and Private Law: Integration through Private International Law’(2015)

22 Maastricht Journal of European and Comparative Law, 706, 707.

14

V. Mitsilegas, ‘Conceptualising Mutual Trust in European Criminal Law: The Evolving Relationship between Legal Pluralism and

Rights‐Based Justice in the European Union’, in Gerard and Brouwer (eds), above, n. 1, at 43.

38 RIZCALLAH