Do Luxembourg and Strasbourg trust each other? The CJEU’s engagement with the jurisprudence of the ECtHR in AFSJ cases concerning mutual trust

This paper takes stock of the way in which the CJEU has recently engaged with the ECHR and case law of the ECtHR in one of the most contentious areas in the relationship between both supranational courts. One of the reasons why the CJEU declared the agreement on the accession of the EU to the ECHR in Opinion 2/13 incompatible with EU law related to the Area of Freedom, Security and Justice (AFSJ). While the CJEU has to balance the uniformity, primacy and effectiveness of EU law, as well as upholding the system based on mutual trust and mutual recognition with fundamental rights concerns, the ECtHR’s sole objective is to guarantee the latter. During interviews performed in the context of an earlier research project, CJEU judges and référendaires expressed their concern that the ECtHR does not always take the particularities of EU law, such as mutual trust in the context of the Dublin system, sufficiently into account, because some Strasbourg judges are not familiar with them (1). This raises the question to what degree the CJEU has engaged with ECtHR case law concerning mutual trust, in particular noticing that the CJEU has referred to the principle as being of ‘fundamental importance in EU law’. Given the fact that negotiations between the EU and the Council of Europe have resumed in the fall of 2020, it is a timely moment to examine the way in which the dialogue between the two courts has evolved in this controversial field, following Opinion 2/13. This paper builds on earlier legal empirical work on the CJEU’s engagement with the case law of the ECtHR (2). It will carefully examine the case law of the CJEU in the AFSJ since 2017, especially focusing on cases dealing with the Dublin Regulation and the European Arrest Warrant (3). Noteworthy judgments in that regard are the Charter centric judgment in Openbaar Ministerie, but also cases such Celmer/LM and Jawo (4). (1) Jasper Krommendijk, ‘The use of ECtHR case law by the Court of Justice after Lisbon: the view of Luxembourg Insiders’, Maastricht Journal of European and Comparative Law 22(6) (2015), 812-835. (2) See especially Krommendijk 2015 and Jasper Krommendijk, ‘The CJEU’s Reliance on the Case Law of by the ECtHR since 2015: Opinion 2/13 as a Game Changer?’ In: E. Bribosia and I. Rorive, Human Rights Tectonics: Global Perspectives on Integration and Fragmentation (Antwerpen/ Oxford/ Portland: Intersentia: 2018), 243-269. (3) A search of Curia will be performed with the search terms ‘ECHR’, ‘European Convention’ and ‘European Court’ in the period since 1 January 2017. The reason for choosing this period is that an earlier publication examined the CJEU’s case law until 19 June 2017. (4) C-354/20 PPU, Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission), 17 December 2020, ECLI:EU:C:2020:1033; C-216/18 PPU, Minister for Justice and Equality (Deficiencies in the system of justice), 25 July 2018, ECLI:EU:C:2018:586; C-163/17, Jawo, 19 March 2019, ECLI:EU:C:2019:218.