The principal of mutual confidence does not appear in the Lisbon treaty but was enhanced by the European Court of Justice (ECJ). It was mostly used in international private law concerning relations between internal judges in the European Union (EU) and for penal matters within the area of freedom, security and justice.
However, the ECJ in its N.S. Decision (21stDecember 2011, C-411/10 and C-493/10) decided that Regulation No 343/2003, called Dublin 2, was adopted because of this principle of mutual confidence although it was again not mentioned in the text. This case-law handles the question of the transfer of asylum seekers to the Responsible Member State, the State where he first arrived.
In this matter, the principle of mutual confidence leads to an automatic transfer of asylum seekers to the Responsible Member State, as this principle includes thinking that Fundamental Rights are respected in all Member States. Therefore, the transferring State has no obligation to have a concrete look of the situation of asylum seekers inside the Responsible Member State.
That was questioned in this case-law as well as before the European Court of Human Rights (ECHR) where the Netherlands introduced what they called the principle of inter-State confidence as fundamental for the European asylum system.
The ECHR, who handed out its decision a few month before the ECJ (M.S.S. V Belgium and Greece, 21st January 2011), gave a conclusion that was followed by the ECJ. Both Courts declared that the transferring State has to concretely know how the Responsible State treats its asylum seekers in the matter of Fundamental rights and cannot automatically transfer the person concerned against the goal of the principle of mutual confidence. The ECJ said that the aim of this principle is « to rationalize the treatment of asylum claims and to avoid blockages in the system as a result of the obligation on State authorities to examine multiple claims by the same applicant (...) » (N.S. §79).
Those cases illustrate the limits of the concept of mutual confidence when it comes to Fundamental rights, specifically about Article 3 ECHR. The use of the Convention, even in the lack of effectiveness of the accession of the EU to the ECHR, gives an idea of how it might work after the accession. Although in this case the ECHR did not statute on the EU text itself but used the sovereignty clause in order to isolate the Member State and define its liability and not the EU's liability.
With those decisions come other questions: would the ECJ have taken the same position if the ECHR had not hand out its decision previously? What exactly is this principle and what are its limits? Does it still have a role to play in the matter of asylum seeking? Can decisions N.S and M.S.S have impacts on other EU texts such as the Aznar Protocol?
