According to the principle of mutual trust, each Member State must presume that all other Member States are in compliance with EU law, promoting its values and respecting fundamental rights. As discussed above, the derivative of this presumption is that Member State can very closely cooperate with each other; specifically, each host State should assist each home State in executing norms and judicial decisions stemming from the latter. This presumption, however, can be rebutted in exceptional circumstances. Such exceptional circumstances warrant the departure from the mutual trust principle and would oblige the host State to refuse cooperating with the home State. As a matter of fact, cooperating with the home State, while these exceptional circumstances take place, would amount, in and of itself, to a violation of EU law by the host State. Therefore, defining more clearly these exceptional circumstances is crucial in order to understand the importance of the principle of mutual trust.
4.1 Political Versus Judicial Determination
In elaborating the content of the exceptions, the Court has made a distinction between situations where, one, the political institutions of the EU have taken a position in relation to the level of protection of the principles set in Article 2 TEU in a certain Member State, and, two, courts decide on the same matter. These two situations entail different legal consequences ranging from the suspension of the whole mechanism of mutual trust to the denial of individual requests for cooperation.
As far as the political institutions are concerned, the Court ruled that once a serious and persistent breach by one of the Member States of the principles set out in Article 2 TEU (including the rule of law) is determined by the European Council pursuant to Article 7(2) TEU, with the consequences set out in Article 7(3) TEU, at least regarding arrest warrant matters, the mechanism of mutual trust may be suspended in respect of that Member State without any need for further examination.Footnote 39 The executing judicial authority of the host State would be required to automatically refuse to execute any European arrest warrant issued by the home State, without having to carry out any specific assessment of whether, for the individual concerned, there is a real risk that the essence of his or her fundamental right to a fair trial will be affected.Footnote 40 Such a determination amounts to exceptional circumstances which will freeze the otherwise almost automatic cooperation.Footnote 41
Hence, a political determination by the Council pursuant to Article 7 TEU will have serious judicial horizontal implications on the cooperation between domestic courts. Such a political decision determines the suspension of the horizontal cooperation between the domestic courts. All the courts in potential host states will be required to stop assisting executing and enforcing the decisions of the home State’s courts. The home State court’s decisions might, therefore, remain largely ineffective to the extent that the execution of these decisions is sought outside the borders of the home State.
To the extent that these political determinations extend beyond the category of arrest warrant matters, they amount to a possible additional sanction to be imposed on the home State, not directly mentioned in, but nonetheless flowing from, Article 7 TEU. In this way, the suspension of the principle of mutual trust might assist in putting a supplementary pressure on the home Member State to mend its violations of the rule of law.Footnote 42
In the absence of such a political determination, the courts of the host State may judicially decide whether the home State is violating the values mentioned in Article 2 TEU, including the rule of law. In order to determine whether such a violation mandates setting aside the principle of mutual trust, the host State’s court must undertake a more detailed examination based on a two-prong test: first, it must establish whether the non-independence of the home State’s judiciary amounts to a systemic deficiency. Second, a specific and precise assessment is required, specifically, whether the individual concerned will be subject to the risk embodied in the systemic deficiency.Footnote 43
Establishing the existence of a systemic deficiency (the first prong of the test) ‘is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to the principle of mutual trust’.Footnote 44 In order to refrain from giving effect to the principle of mutual trust, it is requested additionally to determine whether the individual would be concretely subjected to the deficiency (the second prong of the test). A determination by the political institutions of the existence of serious and persistent breach of the rule of law can possibly entail a general suspension of the principle of mutual trust without further ado.Footnote 45 By contrast, the CJEU holds that for the courts to suspend mutual trust without such a political determination, further elements are needed. Only if both the systemic and the individual examinations by the host state’s court regarding the situation prevailing in the home State reveal problems, cooperation with the home State’s courts must be suspended. Otherwise, by continuing to give effect to the home State’s judgments in the host state, the latter will implicitly be helping the home State’s courts to spread their flawed judgments, which violate the fundamental rights of the affected person, throughout the EU. That would amount to a violation of EU law by the host state, in particular by assisting the home State to violate the fundamental rights of the affected person.
As exceptions often help to understand the meaning of a rule, this two-prong test for the suspension of mutual trust will now be critically examined.
4.2 Judicial Determination of Systemic Deficiencies
4.2.1 Substantive Matters
First, the courts of the host State must assess whether in general there are deficiencies in respect for fundamental rights’ in the home State. These deficiencies have to be systemic.Footnote 46
The question is what will amount to a systemic deficiency, as far as violations of fundamental rights are concerned. The CJEU has ruled that a violation of absolute fundamental rights amounts to a systemic violation.Footnote 47 Since no limitation may be imposed upon fundamental rights that are absolute, such as human dignity, the right to life, the prohibition of torture, and the prohibition of inhuman and degrading treatment,Footnote 48 the principle of mutual trust may not be interpreted as requiring cooperation with home States which infringe these rights.
Yet, the Court goes beyond that. It rules that the breach of the essence of other fundamental rights may also amount to a systemic deficiency. For example, the Court has ruled that the principle of judicial independence is part of the ‘essence’ of the right to a fair trial enshrined in Article 47 of the Charter. This means that the right to an independent court may not be subject to any limitations, regardless of the public objectives put forward by the national legislature.Footnote 49
Lenaerts, while relying on the notion of the ‘essence’ of a right as stemming from Scherms, explains that ‘a measure that compromises the essence of a fundamental right may not be justified on any ground’.Footnote 50 Any attempt to compromise the essence of the right will call into question the fundamental right as such.Footnote 51 Lenaerts mainly refers to ne bis in idem enshrined in Article 50 of the Charter, the right to vote in elections to the European Parliament enshrined in Article 39(2) of the Charter and the principle of non-discrimination as fundamental rights stemming from the Charter the essence of which cannot be compromised. Hence, one might deduce that a violation of the essence of these fundamental rights may also amount to a systemic deficiency in the home State.
It is still unclear whether, according to the CJEU, the violation of the essence of a fundamental right will automatically amount to systemic violations. Given the ambitious postulation of the principle of mutual trust as a founding constitutional principle of the EU, which can be set aside only in exceptional situations, it seems to me that the CJEU should take a nuanced approach by further discerning among the different fundamental rights. The Court should identify the essence of those fundamental rights, the violation of which, one, imposes challenges to an existing legal order of a Member State, two, are not met with an adequate institutional reaction and, three, produces a problem to another Member State—an interrelated legal order—to cooperate with it.Footnote 52 Only a general infringement of the essence of those fundamental rights which cannot be processed as a matter of routine and which have an inter-systemic dimension should amount to a systemic deficiency, which then might justify setting aside the constitutional principle of mutual trust.
4.2.2 Institutional Aspects
By compelling a domestic judge of the host State to assess the possible existence of systemic (or generalized) deficiencies in the legal order of the home State, the Court expands the role of national judges beyond their traditional function of settling an individual dispute coming before them. Admittedly, nowadays, an approach in which a court performs only a single function seems implausibly narrow.Footnote 53 Alongside the role of deciding a single dispute, based on a single infringement of a certain fundamental right, there may be an additional role attributed to a national court, namely, its role in controlling another legal order, by examining its systemic approach to the protection of human rights.Footnote 54 In this way, a court of a host State may review, and hence legitimize or delegitimize, the home State’s legal order as a whole.
Within the EU legal order, judges are not alien anymore to the task of undertaking systemic examinations. This was, for example, a clear expression of the Solange model, offered by the German Constitutional Court in relation to the primacy of EU law. The German Constitutional Court undertook a systemic examination of the legal order of the European Communities regarding the protection of fundamental rights and ruled that ‘as long as the European Communities and in particular the case law of the European Court, generally ensure an effective protection of fundamental rights as against the sovereign powers of the Communities … and in so far as they generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German civil courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany, and it will no longer review such legislation by the standard of the fundamental rights contained in the Constitution’.Footnote 55
Yet, in my opinion, it is nevertheless questionable whether it is recommendable that the court of a host State should review the existence of systemic deficiencies of another (home) state. Obviously, all the Member States are equal and have the same footing. Therefore, it might be difficult for a home State’s judges to pass a judgment on a systemic deficiency of another national legal order.
First, generally, the home State does not usually have the possibility to join the proceedings before the host State and to submit its observations and to defend its position regarding a potential systemic violation of fundamental rights.Footnote 56 Indeed, it seems that the Court tries to mitigate this institutional defect by relying on the need to also carry out the examination of the second—individual—prong of the test. At this second stage, the Court instructs that the home State may provide the host State with objective evidence which may rule out the existence of that systemic risk for the individual concerned.Footnote 57
Yet, in my opinion, the home State should have the right to intervene and defend itself before the court which is called upon to decide whether a systemic deficiency occurred. The absence of right to be heard of the home State undermines the general legal principle for fair trial.Footnote 58
Second, the evidence, which the court of the host State may rely on when deciding whether there is a systemic deficiency, amounts, as a matter of fact, to ‘out of court’ materials. The CJEU expects the national courts to ‘assess, on the basis of material that is objective, reliable, specific and properly updated … whether there is a real risk … of systemic or generalised deficiencies …’.Footnote 59 Thus, the Court is stating that ‘that information may be obtained from, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN.’Footnote 60 This list goes beyond traditional evidence submitted to a court, namely, witnesses or testimonies being subject to examination. This procedure guarantees that the evidence is produced in an objective manner, free from political or other bias, without manipulation, and also gives the state involved the possibility to present its position regarding the evidence.
To take just one example, the CJEU has stated that ‘a reasoned proposal recently addressed by the Commission to the Council on the basis of Article 7(1) TEU is particularly relevant for the purposes of that assessment’.Footnote 61 With this statement, the CJEU aspires to give ‘bite’ to the political decision taken on the basis of Article 7(1) TEU, and indeed such a reasoned proposal is issued after hearing the relevant Member State, but the permission to the national court to rely on a reasoned proposal when determining whether a systemic deficiency occurred in the home State, can nevertheless be criticized: first, given the fact that such a reasoned proposal is solely subject to the CJEU’s review regarding the procedural stipulation of Article 7 TEU, but not regarding the substantive determinations;Footnote 62 and second, the reasoned opinion is probably not subject to judicial review by the courts of the host State. As a preparatory act without legal effects vis-à-vis third parties, it cannot be challenged neither before the court of the host State nor before the Court of Justice.Footnote 63
I suggest that, in response to these institutional flaws, systemic deficiencies in the home State should only be determined by the CJEU. Whenever a court of the host state suspects that there is a systemic deficiency in the home State, the host State court should seek a preliminary ruling from the CJEU.Footnote 64 Only the CJEU has the means to objectively conclude that there is a systemic deficiency at a home State. The CJEU, being a court of the EU as a whole, is able to take a broader perspective and can undertake a more comprehensive examination of the possible existence of a systemic deficiency. Hence, the CJEU can better assess whether the human rights violation which occurred in the home State is a minor one or a systemic one. Moreover, procedurally, the home State can join the proceedings before the CJEU and can argue its position regarding the allegedly systemic deficiency.Footnote 65 Finally, by receiving a preliminary ruling on behalf of the Court which will then serve as a precedent to all the courts of the potential hosting states,Footnote 66 it will be possible to isolate the judiciary of the home State, and therefore put pressure on the home State’s judges to find a manner to undo the systemic deficiencies.
Alternatively, a ruling about a systemic deficiency in a home State can be rendered by the CJEU via infringement proceedings that may be initiated by the Commission or another EU country.Footnote 67 Admittedly, there are differing views whether systemic problems can be addressed by the procedure of infringement proceedings, which is more focused on individual and concrete infringements.Footnote 68 Yet, when deciding about a specific infringement of the rule of law, the Court can also take a position regarding the possible systemic dimension of such a specific or individual violation in its ruling.
Thus, the CJEU will be able to assist the court of the host State if the latter is called upon to establish whether systemic deficiencies are present in the home State. Moreover, the courts of the host State, while freezing their cooperation with the home State will be able to potentially assist the CJEU in enforcing its ruling in the infringement proceedings. Such assistance will take place given the fact that, if the home State opted to avoid executing the Court’s infringement proceedings’ ruling, the host State would be obliged (if also the second prong of the test will also be fulfilled) to sanction the home State by suspending the cooperation with the home State. In this way, I maintain, the vertical ruling in an infringement proceeding by the CJEU is supported by the horizontal ruling of the host State by suspending the cooperation among the Member States.Footnote 69
Yet, even if the determination of systemic deficiencies in a home State is left to be made solely by the courts of the host States, this might entail advantages, too. Before making such a determination, each legal order will be required to take a deep look and complete a profound examination of the other Member State’s legal order. The Court is alluding to ‘a dialogue between the executing judicial authority and the issuing judicial authority’.Footnote 70 Such a dialogue might bring familiarity with the other legal orders and draw all the domestic courts closer together, which helps the aim of ‘an ever closer union’. Admittedly, it might be that, given the possible comity among the Member States, domestic courts will be reluctant to pass critical judgments over their counterparts. Indeed, a finding that there exists a systemic deficiency has the potential of stigmatization of the home State. This possibly implies that it will take a considerable amount of time until a uniform approach among the courts of potential host States will be created. This might lead to the result that, sooner or later, the CJEU will in any case be called upon to rule on the matter and settle possible conflicting views among domestic courts.
Against the approach, and against the horizontal Solange doctrine altogether, it has been argued that ‘a decentralized control by each Member State might put the functioning of the internal market, if not the very existence of the Union, in jeopardy’.Footnote 71 This criticism points also to the inadmissibility of ‘self-help’ in the context of EU law.Footnote 72 Yet, it seems to me that EU law has always advanced through its application by domestic courts. Domestic courts are the real enforcers of EU law. If a court of the host State decides wrongly or controversially in the context of a certain pending case that there are systemic deficiencies in a home State, and if the same matter reappeared before another host State, it is likely that, sooner or later, the matter will likely to be referred to the CJEU for a preliminarily ruling. The Court will then be able to voice itself whether there exists a systemic deficiency in this specific Member State. This ruling must then be followed by all national courts. Indeed, in my opinion, the principle of mutual trust transformed the EU and indirectly introduced into the European legal order the principle of self-help. Due to the systemic deficiency in the home State, the host State might be prevented from being able to perform its own obligations stemming from EU law (i.e., enforce the home State’s civil judgments or execution of a European Arrest Warrant, etc.). Therefore, the principle of mutual trust permits the court in the host State to take the law into its own hands and to independently decide to withhold its cooperation with this failing home State. Just like in other cases regarding the interpretation of EU law, a domestic court is not obliged to make a request for a preliminary ruling to the CJEU, except when it decides on the non-application of EU legislation.Footnote 73
4.3 Individual Examination
In the second prong of the two-prong test, the host judicial authority must determine, in the event that cooperation with the home State should take place, whether there are substantial grounds to believe that the person subject to the proceedings will be exposed to a real risk of his or her fundamental rights being violated due to the systemic deficiency.Footnote 74 Only if the risk of such an infringement is established, both in general and in the specific case, the cooperation with the home State must be suspended.
Yet, as already shown by others, this second prong makes the setting aside of mutual trust almost impossible, given that the burden to show how a systemic breach of the rule of law effects his or her case individually might be very high.Footnote 75 Hence it was proposed that once the first step of the test is satisfied, the burden of proof of the second prong should shift to the stronger party, namely the home State.Footnote 76
But, even beyond that, it seems to me that the second prong of the test should be put in correlation to the systemic deficit which has been established in the examination of the first prong. Specifically, the more the systemic deficit in the home State is about a serious violation of the rule of law, the less need (or even no need) there should be to insist on the additional fulfilment of the individual prong. The individual prong should only be relevant to systemic deficiencies for infringements of fundamental rights, while having almost no bearing (or even being altogether discarded) when the home State’s systemic deficiency relates to how the State is organized.Footnote 77
In order to exemplify this comment, I contrast the decisions of the court regarding the size of prison cells, with the decisions regarding the independence of the judiciary as part of the rule of law. In the decisions regarding the size of prison cells in the home State to which the individual is supposed to be surrendered, the Court acknowledges that, with respect to the individual prong of the test, there is no way that the host State will be able to assess the conditions of detention in all the prisons in which the individual concerned might be detained in the issuing Member State. This is perceived by the Court as an excessive task which would render the operation of the European arrest warrant system wholly ineffective.Footnote 78 But that leads the Court to the conclusion that the host State ‘will only need to assess the detention conditions in the prisons of the home State, in which according to the information available it is actually intended that the person concerned will be detained, and it is for the home State to guarantee the compatibility of the conditions of detention in the other prisons in which that person may possibly be held at a later state.’Footnote 79
The Court has been giving similar guidelines to the host State’s courts regarding the individual prong of the test when the systemic violation related to the breach of the rule of law. The examination requested from the host State’s court was relatively limited. It was called upon to examine whether the absence of the independence of the judiciary is ‘liable to have an impact at the level of that State’s courts with jurisdiction over the proceedings to which the requested person will be subject’.Footnote 80 And then, even more specifically, the Court ruled: ‘If that examination shows that those deficiencies are liable to affect those courts, the executing judicial authority must also assess, in the light of the specific concerns expressed by the individual concerned and any information provided by him, whether there are substantial grounds for believing that he will run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant.’Footnote 81 Hence, the Court demands that the court of the host State must conduct a detailed examination, but, at the same time, it insists on a very limited examination solely of the level of the state’s court with direct jurisdiction over the proceedings.Footnote 82 By analogy to the size of the prison cells, the Court might expect that if the individual concerned appealed even to the supreme instances of the home State’s courts, it would be for the home State to guarantee that the individual would not face a court which will expose him or her to a real risk of the breach of his or her fundamental right to an independent tribunal.
Yet, it seems to me that the Court should have reached the opposite conclusion. When the deficit is systemic, and the host State cannot guarantee the comprehensive protection of a fundamental right which is closely connected to the rule of law in the state, a finding that the state is suffering from a systemic deficiency should suffice for suspending cooperation out of mutual trust. There is no place for the individual test.Footnote 83 Accordingly, in LM, once it was established that there was a systemic deficiency regarding the independence of the judiciary in the home State (Poland) the host State (Ireland) should not have been required to examine whether the individual to be sent back to Poland would have been brought in front of a judge who would nevertheless be independent. This is because the home State will not be able to categorically guarantee that the individual’s fundamental right to an independent court will be protected throughout the court hierarchy, all the way up to the constitutional court, which has evidently been packed by the government.
Accordingly, I suggest a distinction should be drawn between systemic deficiency regarding the custodial conditions of prisoners and systemic deficiency regarding the non-independence of the judiciary. For the first case, examinations should be conducted on an individual basis, but, for the second case, such individual examinations should not be required. Therefore, at least in those systemic violations of fundamental rights which are closely connected to the organization of the State and affect the rule of law (like the independence of the judiciary), and which cannot be individually examined, the second prong of the test should not be relevant. Establishing a systemic deficiency in the home State regarding the rule of law should suffice in justifying the suspension of the mutual trust.
4.4 A Horizontal Solange Doctrine
This suggestion mirrors the Solange test. Under the Solange test, as long as the European system of protection of fundamental rights, as administered by the CJEU, functions to generally ensure an effective protection of fundamental rights, which is to be regarded as substantially similar to the protection offered by the German Constitution, then possible variations regarding the protection of fundamental rights are allowed.Footnote 84 In respect of mutual trust, the mirror test would stipulate that once a systemic deficit is established in the home State, even if the latter is willing to guarantee the individual’s fundamental rights protection by the court at hand, cooperation with the judiciary of the home State should, nevertheless, stop. There is no requirement to trust a Member State, which does not live up to the rule of law as defined by the Court for Article 2 TEU. The collective suspension of cooperation with the home State’s judiciary by the courts of all host States might put pressure on the home State to re-establish the rule of law. A comprehensive shaming effect which such a suspension will entail might also encourage home States’ judges to act in this direction and to regain their independence.
Such wide-ranging suspension of cooperation with the national judges of the home State might harm the judges who remain independent in the home State’s judicial system and might do them injustice and weaken them to the extent that they try to fight the authoritarian tendencies from within. Yet, in my opinion, the overall discrediting attitude towards the home State, by suspending any possible cooperation with its courts, will be an effective method to assist all those from inside of the home State who fight for the reestablishment of the rule of law.