Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice: A Role for Proportionality? (Modern Studies in European Law)

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 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 "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 for long been presumed by the Court in a manner that mutual recognition was prioritised vis-à-vis and to the detriment of the protection of fundamental rights. After thoroughly reviewing this relationship, the book offers a comprehensive framework of proportionality and explores its impact to the protection of fundamental rights in a mutual trust environment. It provides a theoretical and a normative framework of proportionality which then applies to two case-studies by reference to several fundamental rights. EU criminal and asylum law serve as the case studies of this book which enable a carefully constructed analysis with useful parallels. It argues that such analysis, based on proportionality, is not actually always desirable and helpful for the protection of fundamental rights in this area and thoroughly explores the impact of it on the protection of fundamental rights vis-à-vis mutual trust"-- Provided by publisher Présentation de l'éditeur : "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." "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--̉vis mutual trust."-- Provided by publisher