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Book Review - Fundamental Rights and Mutual Trust in the AFSJ, Ermioni XanthopoulouAuthor Céline C. Cocq
In the recent years, the EU has had to face a number of security challenges ranging from ‘ordinary’ serious and organised crime to terrorist attacks on its soil, coupled with a record number of migrants and refugees, placing a hard stone on top of all. Ensuring the EU internal security while facing these risks have been the driving force behind the development of speedy cross-border cooperation in EU criminal justice. Similarly, the objective of migration control has had a high influence on the development of the Common European Asylum System (CEAS). The EU thus equipped itself with a set of principles meant to pave the way for more efficient cross-border cooperation while respecting fundamental rights. Nonetheless, the emphasis of the EU on security and migration control - often at the detriment of fundamental rights’ protection - constitutes the political and legal yardstick of the evolution of the AFSJ and, subsequently, one of the main reasons that motivated the author’s research.
Against this background, Dr. Xanthopoulou’s book discusses and connects together the principles of mutual trust and mutual recognition, the protection of fundamental rights and the impact of the principle of proportionality on the protection of fundamental rights in the AFSJ. These key principles are meant to tie up cross-border cooperation and protection of fundamental rights together, in order to fulfil the EU’s objectives, namely ensuring free movement of persons, a common migration policy fair to third country-nationals and a high level of security (Art. 67 TFEU). Thanks to her expertise in the AFSJ and particularly in EU criminal, migration and asylum law and human rights, Dr. Xanthopoulou contributes to the literature in this field, especially by correcting the low exposure of a proportionality-based reasoning in AFSJ case law..
The book starts from the premise that the relevant national and regional authorities are called upon to balance an efficient, speedy and automatic cooperation with the protection of fundamental rights. Dr. Xanthopoulou elaborates on the various parameters used in balancing these two essential aspects of the AFSJ, including the seriousness of the violation, the standard of proof, the degree of its remediability, the gravity of the offence and the nature and content of the right.
Going through the principles at stake in facilitating cross-border cooperation
After a thorough theoretical analysis of the principles of mutual recognition and mutual trust, the author unfolds their role and place in the case law developed by the Court of Justice of the EU (CJEU) in AFSJ matters. In so doing, this book clarifies the role of these principles play when the competent national authorities implement EU cooperation mechanisms. The author clearly recalls the central position of mutual recognition and mutual trust in cross-border cooperation and in the judicial reasoning of the CJEU. She shows how these concepts are intertwined with mutual trust being a prerequisite of mutual recognition. On this basis, she walks us through the successive steps of the evolution of mutual trust. The Court went from an undeniable presumption of mutual trust to the potential rebuttal of the presumption when there are systemic risks of inhuman or degrading treatments (absolute right) and to an individual assessment of the balance between the presumption of mutual trust and the respect of (non-absolute) fundamental rights in each case. The difference of treatment between cases involving absolute or non-absolute rights is constantly reminded throughout the book. The author particularly underlines the fact that the proportionality-based reasoning does not apply when absolute rights are in the balance, which makes the principle of proportionality only relevant when confronted with non-absolute rights. Its non-application in cases in which absolute rights are at stake is linked to the structural construction of these rights, under which no possible justification for their violation is provided for.
Diving into the core of her study, Dr. Xanthopoulou examines the place given to and the role of the principle of proportionality in the AFSJ-related cases brought to the CJEU, with a particular reference to cooperation mechanisms based on a presumption of mutual trust and mutual recognition of decisions between EU Member States. After drawing the lines of this principle in cases involving cooperation mechanisms, the book proposes a way to enhance the reasoning of the Court in this field. The author argues that the proportionality-based analysis must not be degraded to a tool for merely protecting principles, methods and presumptions of EU law, such as mutual recognition or mutual trust. Instead, it must be properly utilised as a watchdog to monitor any restriction on fundamental rights, which reflects the nature of the principle of proportionality. The book argues that a proportionality-based analysis should be inherent in the application of mutual recognition in all cases of breaches of relative fundamental rights; in particular when non-absolute rights are infringed or at risk. Eventually, this proportionality-based analysis shall provide food for thoughts for decision-makers when they are confronted with determining whether an interference with a fundamental right is justified.
The analysis of the case studies though the proportionality-based lens
Throughout her analysis, Dr. Xanthopoulou traces the reasoning of the Court and argues that it is mainly based on a security and migration control narrative. She questions the impact of the principle of proportionality on the CJEU reasoning and investigates the potential added value an enhanced implementation of this principle in AFSJ-related cases could have for fundamental rights’ protection.
Interestingly, the author decided to illustrate her argument with two case studies, namely the European Arrest Warrant and the Dublin Transfers, representative of different issues at stake and falling into two specific domains of the AFSJ (i.e. EU Criminal Law and EU Asylum Law).
As elaborated in the book, these two case-studies bring their own specificities. Among the most significant ones, the first cooperation mechanism involves the transfer of persons suspected of or convicted for committing a criminal offence, whereas the second concerns the transfer of persons who have not been convicted of any crime and may need international protection. Unfortunately, this discrepancy does not seem to have much bearing on the proportionality-based reasoning of the CJEU and/or the author, especially with regard to the level of protection of fundamental rights.
Moreover, the choice in the order of the cases analysed is a bit hazy. Analysing the Dublin Transfers could have been an interesting choice, since the concept of mutual trust and its attenuations, at the core of this study, have been primarily developed in the CJEU case law in the field of immigration and then transposed into criminal matters Taking this particular example, the author concludes that fundamental rights are not well protected in the context of the CEAS and that the Court has been slow at recognising exceptions in the presumption of mutual trust.
More generally, these cooperation mechanisms, based on a supposedly high level of confidence between Member States, are well-chosen to reveal the general applicability or highlight the limits of the proportionality-based reasoning to the benefit of fundamental rights’ protection. The analysis carried out highlights that the application of a proportionality-based reasoning is not necessarily to the advantage of fundamental rights. Yet the author does not offer a new analytic point of view on the pre-existing criteria of the proportionality-based reasoning, nor an alternative angle to the implementation of the principle. She unrolls these criteria pedagogically though.
Notably, because of the lack of comparison between the FDEAW and the Dublin Transfers and the strong similarities, the two separate chapters are better been taken independently from one another. Therefore, this book shall be of great interest to academics and students carrying out research either on the principles facilitating and governing cooperation mechanisms while seeing the two case studies as illustrations, or on one of these case studies.
As part of the argumentation, these case studies are interesting examples that allow the author to raise very topical questions, such as the lack of clear EU definitions of the criminal offences leading to the issuance of a European Arrest Warrant or the absence of a theory of rights. The principle of proportionality would indeed constitute a dangerous tool if associated with political bias, policy priorities and goals, and a theory of rights and moral choices would influence and change the theoretical and practical framing of the principle of proportionality. Although the author specifies at the end of her analysis that her purpose is not to provide an analysis of a theory of rights, it would have been of a significant added value to further facilitate cross-border cooperation and to offer a new orientation for the CJEU’s reasoning. Therefore, she opens the path for future reflections.
In definitive, this book adds an additional stone to the building up of a comprehensive literature on the AFSJ by successfully linking together the key principles facilitating cross-border cooperation and by articulating them within the relevant CJEU case law. Its added value resides in bridging two fields of the AFSJ that are too often analysed in silos. In this respect, the general structure of the book is clear and very engaging. Yet, going more into details, it may be wondered whether some arguments would have improved the clarity of the reasoning even further if they were developed before. For instance, the impact of absolute or non-absolute rights on the proportionality-based analysis falls at the end of the book whereas, placed before the case studies, it might have avoided many repetitions. The book may have indeed gained in clarity if the arguments were not drowned in a sea of facts and repetitions.
This project receives funding from the European Union's Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie Grant Agreement No 722826.