HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

of EU law, which could arise if an external supervisory or judicial body (such as the ECtHR) were granted the right to interpret or apply EU law. 29 The format of my work does not allow for addressing all the reasons cited by the CJEU individually. However, I am particularly interested in one, namely, the potential threat to the principle of mutual trust among Member States. Regarding this principle, the CJEU is concerned that it would be undermined if EU Member States were considered Contracting Parties to the ECHR, not only in relations with non-EU states but also in relations among themselves where EU law is applicable. If the ECHR required a Member State to verify whether another Member State complies with fundamental rights, even though EU law prescribes that mutual trust must exist between these states, accession could threaten the balance on which the Union is based. I personally believe that this argument is untenable because EU Member States are already in the position of Contracting Parties to the ECHR. We could absurdly conclude that the participation of EU Member States in the ECHR creates a contradiction with EU law, as it threatens mutual trust between Member States if verification of one state’s compliance with fundamental human rights occurs through the ECHR mechanism. I think the CJEU interpreted the principle of mutual trust between Member States too broadly. In my opinion, the principle of mutual trust among Member States stems from their participation in the Union and their interactions within the European Union framework. It is a principle inherent to virtually any international grouping. In my opinion, the principle of mutual trust should be more narrowly construed, limited to situations where Member States act dishonestly, with hostility, or unlawfully towards each other. I do not perceive a threat to the principle between Member States when a procedurally rooted, sanctioned, and predictable process is employed – such as verifying compliance with commitments arising from the protection of human rights, which these states have themselves undertaken. The dividing line indicating a potential threat to trust, in my view, lies where no legally foreseeable process exists. For instance, if one Member State were to “accuse” another of human rights violations without presenting relevant evidence or utilizing an established mechanism, that would constitute a threat to trust. If the ECHR becomes a component of European Union law, several potential friction points may emerge. One significant issue will be determining which court will serve as the authoritative interpreter of the ECHR within the EU legal framework: will it be the CJEU, which traditionally holds primary responsibility for interpreting 29 The CJEU considered that the threat to the autonomy of EU law is also represented by the lack of coordination between Article 53 of the ECHR and Article 53 of the Charter, the failure to prevent the risk to the principle of mutual trust of Member States in EU law, and the lack of proper regulation of the relationship between the mechanism introduced by Protocol No. 16 and the preliminary ruling procedure under Article 267 TFEU (see para. 258 of the CJEU Opinion No. 2/13).

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