Proportionality as a Resilient Principle; Fundamental Rights and Mutual Recognition in the Area of Freedom Security and Justice'

Ermioni Xanthopoulou

Research output: Contribution to conferencePaperpeer-review


The Member States of the EU have agreed to allow some forms of mutual recognition in the area of freedom, security and justice of the EU (AFSJ). For example, they recognise the judicial decisions of each other with the view to arrest and surrender a person, the so-called European Arrest Warrant (EAW). Moreover, in the Common European Asylum System (CEAS), the Member States recognise a single state’s responsibility to examine an application on the basis of mutual trust that fundamental rights standards are respected. However, the operation of the mutual recognition often clashes with observed violations of fundamental rights. The operational limits of mutual recognition in the two fields are arguably posed by the obligation to respect the fundamental rights of the individual. In particular, the founding presumption of mutually trusting each other to take charge of applications to international protection is delimitated by the principal obligation to respect rights. (See Joined Cases C-411/10 and C-493/10 N.S. and M.E. and others v Secretary of State for the Home Department, [2011] ECLI-865; Case C-394/12 Abdullahi [2013] ECLI-813) On the other hand, fundamental rights protection often seeks to delimitate the operation of mutual recognition in EAW but not as successfully as in the context of the Dublin III Regulation (see Case C-396/11 Radu [2013] ECLI-C 39). The limits are arguably in flux and a resilient way to construct a balanced equilibrium of the interests implicated is needed. The paper argues that ensuring respect to the principle of proportionality could have a major impact on the delimitation of mutual recognition by fundamental rights protection. It is therefore examined whether the crisis of imbalance in this area could be addressed with respect to the resilient principle of constitutional law that proportionality is. Following the definition of proportionality in a way that embraces a strong moral force of rights, the paper suggests certain criteria to be considered with regard to balancing competing considerations. The discussion is also pointing the basic differences and similarities of the two areas in relation to the question examined.
Original languageEnglish
Publication statusIn preparation - Apr 2015


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