Fundamental Rights and Mutual Recognition in the Area of Freedom, Security and Justice: A Role for Proportionality?

The goal of the EU with respect to the AFSJ is the creation of an open and secure space in a Europe, without internal borders, but with an evolving justice agenda. Transnational cooperation in these areas is based on Member States mutually trusting each other on offering a sufficient level of fundamental rights protection, which allows the mutual recognition of decisions of national authorities (judicial or not). The existence of mutual trust is therefore the cornerstone in this area, without which the operation of mutual recognition becomes dysfunctional. My research is triggered by a crisis in this cornerstone of the AFSJ, as evidenced by the problematic operation of instruments issued by judicial authorities of various Member States based on the mutual recognition of decisions. Mutual recognition often operates in an imbalanced way, based on emphasising mutual trust, and to the detriment of the protection of fundamental rights. Mutual trust among Member States regarding the protection of fundamental rights is more often presumed or commanded by the Court rather than properly constructed, or even thoroughly checked. This crisis in the premise of mutual trust stemming from a compulsive presumption has acted to the detriment of the protection of fundamental rights.

It is here that this book contributes by examining the impact of the principle of proportionality to the crisis of mutual trust, and to the protection of fundamental rights. Proportionality is a principle of constitutionalism with regard to the limitation on rights in numerous national and international jurisdictions. According to the principle of proportionality, everything should be in proportion, and nothing should be in excess. Given the general sense of imbalance in the mutual recognition instruments of the AFSJ examined by the proposed book, the value of proportionality offers an attractive hypothesis. The principle seeks balance and rejects excessive choices, as it defines a balanced legal choice when two interests compete with each other. As a matter of EU law, the principle is enshrined in Article 52(1) of the Charter of Fundamental Rights of the European Union (the Charter). The book explores its impact on the operation of mutual recognition instruments in this fast-evolving area of EU law. The problematic imbalance between the presumption of mutual trust and the protection of fundamental rights, in the context of mutual recognition instruments, renders the exploration of the potential of proportionality-based analysis essential and topical. Therefore, the book asks whether and how the principle of proportionality could impact on bringing the interests involved, in the context of mutual trust, in proportion. It seeks for proportionality in the CJEU case law, submits a normative framework of analysis, applies it to two case-studies and questions whether a proportionality-based analysis is actually desirable and helpful for the protection of fundamental rights in this area.