In Member States, We Trust? Alternative Qualified Mutual Trust

A speedy (judicial) cooperation among Member States coupled with abolishing additional checks and guarantees is a common way of formulating most policy areas in the area of freedom, security and justice (AFSJ). The transnational cooperation in these areas of EU law is based on mutual trust among Member States, which leads to mutual recognition of judgments and decisions of the national authorities (judicial or not). Mutual trust here has certainly caused lots of controversy regarding its nature, its role and its footing in the constitutional sphere in relation to other values and most importantly with regard to its elasticity. A rigid approach has been formulated so far, in light of an absolute mutual recognition only with extreme exceptions. Mutual trust is more often presumed rather than properly constructed to the detriment of fundamental rights. In particular, Member States have to trust each other, unless Article 4 of the Charter is systemically violated. So, the paper argues that mutual trust and subsequently mutual recognition are based on misconceptions, which are thus manifested by an ‘all or nothing’ dilemma. Further, the paper submits a model of mutual recognition based on real mutual trust, which is reflective on other areas where mutual recognition operates, providing room for a discursive exercise between the trusting and trusted parties.