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Table of Contents: I. Introduction. – II. Protection of fundamental rights in the EU: opinion 2/13 of the CJEU. – III. Case-law of the CJEU and the European Court of Human Rights. – III.1. Civil and commercial cooperation. – III.2. Child abduction: The Hague Convention on Child Abduction and Regulation 2201/2003. – III.3. Common European Asylum System: the Dublin Regulation. – III.4. Criminal law: the European arrest warrant. – IV. Conclusions. – IV.1. Thresholds for rebuttal: different approaches by the European Courts? – VI.2. Effective judicial protection v. the use of the “better placed argument”.
Abstract: Several academics, this author included, have criticized the CJEU when dealing with the question of “rebuttal of trust” for the application of the principle of mutual trust between Member States in the Area of Freedom, Security, and Justice (AFSJ). Both the case-law dealing with the Dublin mechanism in asylum matters, as per the opinion 2/13 of the CJEU in 2014, seemed to result in a battle with the Strasbourg Court on the hegemony to interpret the scope of mutual trust, rather than offering clear guidelines for national courts. This contribution questions whether a comparison of judgments in different fields of the AFSJ and recent case-law of both European Courts justifies a new approach. Instead of focussing on the differences in decision-making of the European Courts, the goal of this contribution is to deduce common criteria from the European case-law to be applied by national courts when addressing claims of rebuttal of trust. Providing a general overview of the case-law of the CJEU and the Strasbourg Court in the field of civil and commercial law, criminal law, migration law and matrimonial affairs, this contribution questions which criteria may be applied by the national court of the enforcing or executing State when considering trust as rebutted.
Keywords: mutual trust – mutual recognition – area of freedom, security and justice – human rights – effective judicial protection.
European Papers, Vol. 1, 2016, No 3, pp. 893-920
ISSN 2499-8249 - doi: 10.15166/2499-8249/110
* Senior researcher/lecturer at the section migration law of the Vrije Universiteit Amsterdam, email@example.com.