Mutual Trust and the Future of Fundamental Rights Protection in the EU’s Compound Legal Order

Protecting fundamental rights within the EU’s compound legal order should be understood in the context of the power relations between EU institutions and Member States. On the one hand, respect for fundamental rights is the necessary basis for a legal order based on mutual trust. National courts accept and apply EU law only if it does not infringe national fundamental rights. EU constitutional principles of quasi-federal cooperation, such as mutual trust and sincere cooperation, only work if protection of rights is guaranteed. On the other hand, Member States do not want the EU to determine cultural and identity related questions under the banner of protecting EU fundamental rights, particularly outside of the scope of EU law. Fundamental rights requirements imposed by the EU have a harmonizing effect that is unwanted by Member States. This chapter highlights particular difficulties the EU faces in offering effective protection of fundamental rights. This becomes particularly apparent in the Area of Freedom, Security and Justice (AFSJ), which is based on judicial cooperation. The CJEU has developed a new constitutional principle of mutual trust as the central rule of cooperation in the AFSJ. This chapter discusses the organization of rights protection within the EU against the conceptual considerations of universal human rights and relative fundamental rights. It engages with the meaning of ‘trust’ and identifies a problematic ripple effect of rights violation when cooperation is based on mutual trust. Cooperation within the AFSJ requires some supranational elements of common rules, standards, monitoring, and consequences of non-compliance.