December 09
2021
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The European Union’s ongoing efforts to stop the erosion of and restore mutual trust among its Member States (for example see the Council conclusions on alternative measures to detention of 16 December 2019 and Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget), and the current discussions on the principle of mutual trust as part of the negotiations on the accession of the EU to the European Convention on Human Rights), are evidence of the pertinence of the book Le principe de confiance mutuelle en droit de l’Union européenne. Un principe essentiel à l’épreuve d’une crise de valeurs.

The author starts her investigation by observing that the EU institutions’ willingness to promote integration objectives in different fields (for example, internal market and the area of freedom, security and justice) explains the scattered and not always coherent use of the principle of mutual trust in EU law. She then brings order to chaos.

For the first time, the principle of mutual trust is conceptualised in the legal literature. The presumption that the Member States share and respect common values on which the EU is founded lays down, according to Rizcallah, the obligation to deem norms, acts and practices adopted in areas covered by EU law, and originating from another Member State, compatible with the receiving Member State’s legal order. The premise on which the principle of mutual trust relies represents at the same time its greatest source of fragility. To prove the latter point, the author draws our attention to the absence of consensus on the meaning and scope of EU values (enshrined today in Article 2 TEU), to some Member States’ disaffection with, and even hostile attitude towards, those values (the rule of law in particular), the weak EU mechanisms in place to sanction Member States found in breach of EU values, and to repair the damage resulting therefrom.

Aware of the difficulties of putting an end to the threats to EU values, the author proposes instead a number of methodical corrections addressed to national authorities in charge of applying the mutual trust principles. Such changes would reduce the risk inherent to the principle of mutual trust: the potential violation of EU values resulting from the reception of norms and practices of a Member State into another Member State that do not conform to the above presumption.

On a positive note, the salience of the book reaches much wider than mutual trust and fuels the debate about the current crisis of EU values. However, only at the end of the book does the elephant in the room appear: whether the European project should rely on ‘common goods’ that could eventually run over diversity in the EU, or whether the EU normative foundations should be as shallow as possible to accommodate national differences. The author agrees with the latter proposal and believes that respect for justice principles (including respect for human rights, democracy and the rule of law) should be the sediment for the survival of mutual trust, and more importantly, the European project. Room for national traditions, in her opinion, should be made within the boundaries of the respect for such justice principles, and should simultaneously be enriched by exposure to a common European public culture.

On a critical note, excessive proceduralism as a response to a structural problem, as results from the book, may take us away from the underlying concern (Steffek, 2019). What is more, when a new crisis hits the EU again and its pillars stumble, ‘sticking plaster solutions’ may even exacerbate the effects of the crisis (Howarth & Quaglia, 2021). In conclusion, the journey to the centre of the Earth still lies ahead of us.

 

Maddalen Martin, PhD student and academic assistant at the University of Geneva.

 

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