Balancing Fundamental Rights in the Area of Freedom, Security and Justice with Mutual Trust in the Context of Transfers of Individuals Under the European Arrest Warrant and the Dublin Regulation

Imbalances between policy goals and fundamental rights' protection have been observed and critiqued in the area of freedom, security and justice (AFSJ) of the European Union (EU). Fundamental rights violations compete with the presumption of mutual trust in common European asylum system (CEAS) and the operation of mutual recognition in judicial cooperation in criminal matters (JCCM). As the founding presumption of mutually trusting each other to take charge of third-country nationals applications to international protection is in crisis (See Joined Cases C-411/10 and C-493/10 N.S. and M.E. and others v Secretary of State for the Home Department, [2011] ECLI-865; Case C-394/12 Abdullahi [2013] ECLI-813) and on the other hand the preservation of a blind mutual recognition is not allowing a fundamental rights ground for refusal to execute an European arrest warrant (EAW) (see Case C-396/11 Radu [2013] ECLI-C 39) a resilient way to construct a balanced equilibrium is needed.

The paper argues that ensuring respect to the principle of proportionality could have a major impact on the constitutional dimension of the area's evolution and the existing problem of imbalance. The sensitive character of fundamental rights in the AFSJ renders the observation of proportionality quite intriguing. It is therefore examined whether the crisis of imbalance in this area could be addressed with engagement with the resilient principle of global constitutionalism that proportionality is.