The Limits of Mutual Trust in Europe's Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual

Abstract

One of the key constitutional objectives of the European Union since the entry into force of the Amsterdam Treaty, and reaffirmed by the provisions of the Lisbon Treaty (Article 2(2) TEU and Article 67(1) heading Title V of the TFEU) has been the emergence of the European Union as an Area of Freedom, Security and Justice without internal frontiers. In all three policy fields constituting the Area of Freedom, Security and Justice (criminal law, civil law and immigration and asylum law), European integration has moved forward not only by attempts at harmonization of national law, but also, very prominently, by efforts to enhance inter-state cooperation with the aim of strengthening the enforcement capacity of Member States. The facilitation and speeding up of inter-state cooperation can be seen as compensatory to the abolition of internal border controls in the Area of Freedom, Security and Justice. A number of cooperative systems have thus been established in EU law, leading to automatic inter-state cooperation on the basis of the presumption of mutual trust: all EU Member States respect and protect fully fundamental rights. In a borderless Area of Freedom, Security and Justice, it is thus the interests of the State, and not of the affected individuals, which are paramount in the establishment of cooperative systems. This logic has led to the symbiosis in EU law between measures having the objective to facilitate the free movement of persons in a borderless Area of Freedom, Security and Justice on the one hand, and measures of inter-state cooperation aiming at the enforced movement or transfer of individuals from one Member State to another in the same Area of Freedom, Security and Justice. The enforced movement of individuals is the result of legislation in all three Area of Freedom, Security and Justice policy

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