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

✍ Scribed by Ermioni Xanthopoulou

• Publisher: Hart Publishing
• Year: 2020
• Tongue: English
• Leaves: 249
• Series: Modern Studies in European Law
• Category: Library

✦ Synopsis

This book explores the relationship of mutual trust and fundamental rights in the Area of Freedom, Security and Justice (AFSJ) of the European Union and asks whether there is any role for proportionality. Mutual trust among Member States has long been presumed by the Court in a manner that mutual recognition was prioritised in regard to, but to the detriment of, the protection of fundamental rights. After thoroughly reviewing this relationship, this book offers a comprehensive framework of proportionality and explores its impact on the protection of fundamental rights in a mutual trust environment. It applies a theoretical and a normative framework of proportionality to two case studies (EU criminal and asylum law) by reference to several fundamental rights, enabling a carefully constructed analysis with useful parallels. The book argues that such analysis, based on proportionality, is not always desirable and helpful for the protection of fundamental rights in this area and thoroughly explores its impact on the protection of fundamental rights vis-à-vis mutual trust.
Volume 98 in the Series Modern Studies in European Law

✦ Table of Contents

Foreword
Acknowledgements
Contents
Table of Cases
Table of Legislation
Introduction
Research Questions
Findings and Arguments
Scope
Choice of Instruments
Structure
1. Mutual Recognition: From Passive to Active Recognition
Introduction
Overview of the Area of Freedom, Security and Justice
Origins of Mutual Recognition
Transfer of Mutual Recognition to the Area of Freedom, Security and Justice
Typology and Operation of Mutual Recognition
Development of Mutual Recognition
Conclusion
2. Mutual Trust: From Blind to Gained Trust
Introduction
Evolution of Trust
Age of Distrust?
Grounds for Pragmatic Earned Trust
Conclusion
3. Deconstructing Proportionality
Introduction
Early Philosophical Foundations
Emergence of a Legal Doctrine
Structure of the Proportionality-based Analysis
Challenges and Limits
Proportionality in EU Law
Conclusion
4. The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack
Introduction
Protection of Victims in Criminal Proceedings Case Law
European Arrest Warrant Case Law
Dublin System Case Law
Conclusion
5. Constructing Proportionality for the Area of Freedom, Security
and Justice
Introduction
Deconstructing EU Fundamental Rights
Constructing Proportionality for the AFSJ
Variable Intensity
Conclusion
6. Case Study I: European Arrest Warrant Transfers
Introduction
EU Criminal Justice: Evolution and Framework in the Context of Mutual Recognition
Surrender Procedures and Fundamental Rights Breaches
Informing and Applying a Proportionality-based Analysis in the Context of the FDEAW
Conclusion: The Impact of Proportionality-based Analysis on Surrenders
7. Case Study II: Dublin Transfers
Introduction
Public Discourse and EU Asylum Law
The Common European Asylum System
Conclusion
Reflecting and Looking Ahead Summation of Arguments, the Way Forward and Conclusion
Summation of Arguments
The General Reach of the Argument and its Limits
Variable Impact of Proportionality-based Analysis
The Way Forward for Mutual Trust and Recognition
The Need for a Consistent Theory of Fundamental Rights for EU Law
Conclusion
Bibliography
Index