National authorities are thus compelled to remain vigilant when conceding extraterritoriality by the execution of an EAW. Barnard and S. Indeed, individuals can in certain circumstances choose to which authority they will be subject. Indeed, market players can choose to produce their goods in a country which has low requirements before entering the goods into another Member State, whose faculty to refuse these goods is strictly framed by the duty of mutual trust.
As underlined here above, it carries the risk of totally undermining democratic choices, by enabling some market players to rely upon the principle of mutual recognition in order to encourage further convergence around preferred standards. Aware of this phenomenon, the EU has nonetheless introduced some safeguards in sensitive areas, such as the pharmaceutical market. Three different procedures exist in order to obtain a marketing authorisation for a medicinal product within the EU: the centralised procedure, carried on by the European Medicines Agency and the Commission, Regulation EC No.
In the latter case, Member States are required to recognise national authorisations previously conceded by other Member States. Due to the principle of mutual trust, the requested Member State assumes a limited role in verifying the completeness of the file submitted to it; it can thus not carry out a new examination on the merits of the application. Distrust nevertheless defeated this system in practice. The centralised procedure was therefore established in parallel.
Moreover, a particular conflict resolution mechanism is provided for in case of conflict between national authorities regarding mutual recognition: the regulation sets up a centralised committee which can step in if a Member State has doubts about the validity of a marketing authorisation. Trust can thus be limited trough this coordination procedure L.
In the domain of private international law, the existence of competing judicial systems can also sometimes lead to unexpected results.
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For example, relying on mutual trust, the Court of Justice obliged a domestic court, elected by a forum selection clause, to stay proceedings and strictly apply the lis pendens principle, according to which any court other than the court first seized must stay its proceedings until the latter has examined its jurisdiction to deal with the proceedings.
This judgment of the court enabled the parties to deploy a stalling tactic. Here as well, the principle of mutual trust and the presumption of equivalence of the Member States' different judicial systems lead to possibilities that could be used in the wrong way. Fortunately, this misuse is now prevented by the recasting of the Brussels system operated by Regulation Brussels I bis which now gives priority to the court that received exclusive jurisdiction by a forum selection clause rather than to the court first petitioned to rule on the matter. In the field of the EAW, the system based on mutual trust as construed by the Court of Justice can also be seen to encourage regulatory arbitrage by individuals using freedom of movement in order to avoid being subject to a national criminal system.
Sellier and A. Here, the exception to the principle of mutual trust combined with the principle of freedom of movement could result in a space in which prosecuted or convicted persons are able in certain circumstances to seek impunity, somewhat legitimately however, to avoid serious violations of their fundamental rights. The coexistence, enabled by the principle of mutual trust, of diverse legal systems hand in hand with integration therefore sometimes results in regulatory arbitrage.
Although this phenomenon could potentially be used in order to effectively protect fundamental rights, it may also enable individuals to benefit from unintended advantages. By leading an unbundling of the exercise of national prerogatives and territoriality, the principle of mutual trust as principle of governance partially entails the interlocking of national systems. Trust in one another … yes, by all means, but not blind trust.
If distrust can, in this sense, justify the reassertion of national territorial jurisdiction within the EU, this paper has nevertheless demonstrated that not every breach of trust can be relied upon to prevent the exercise by Member States of their powers beyond their national borders.
This principle indeed ensures the removal of internal partitions within the European area Dubout, above, n. However, some fundamental questions arise from this model of integration. The first challenge arises from the impact of the horizontal integration that mutual trust entails on Member States' sovereignty.
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Indeed, the assumption that the use of instruments underpinned by mutual trust rather than the harmonisation of the laws at EU level better safeguards Member States' sovereignty can be challenged. As demonstrated in this paper, EU instruments implementing mutual trust require Member States to either recognise or enforce foreign regulations and decisions in which they had no say. Moreover, this observation can also be seen as jeopardising a fundamental democratic precept, according to which citizens must have the right to participate, directly or indirectly, in the regulations to which they are subject.
The decentralisation of the exercise of national prerogatives throughout the European Union space also entails a dilution of liabilities. It can be extremely difficult to determine who is responsible for an action in the model described. This situation can sometimes lead to an absence of remedies for victims of damages caused by the different players in the European area.
Some cases have already been filled with the ECtHR on that issue, but the conditions under which the indirect liability of a Contracting Party could be engaged remain unclear. These observations become even more striking where they are linked to the third main issue highlighted by this article, which calls into question the consequences of EU horizontal integration for individual rights. A fundamental difference can exist between the nature of the flows based on mutual trust that can sometimes benefit private individuals, but in other circumstances is rather to the advantage of the public authorities.
As demonstrated in this paper, mutual trust may enhance States' powers without necessarily providing safeguards for essential individual prerogatives. In other circumstances, however, the extraterritoriality of States' jurisdiction promotes individual freedom by restricting Member States' regulatory scope. Nonetheless, the regulatory or forum shopping by private parties that can result from this restriction of Member States' territorial jurisdiction can also have detrimental consequences, notably in the race to the bottom arising from the regulations implementing mutual trust.
This entails a fourth challenge. Economic competition in the internal market may even enable market players to force the spreading of their preferred standards throughout the whole European area.
Accordingly, EU horizontal integration based on mutual trust threatens to undermine Member States' sovereignty and various principles, ranging from the legitimacy of the exercise of power, the principle of state liability, the protection of fundamental rights, to the duty of national authorities to protect the public interest. These safeguards could possibly range from the enshrining of public policy exceptions, minimum EU substantive rules, the control and sanction of the effective respect of fundamental rights and EU values in all Member States.
More research on the empirical consequences of mutual trust as a driver of integration and the possible solutions to the issues raised would therefore be more than welcome.
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European Law Journal Volume 25, Issue 1. Cecilia Rizcallah Corresponding Author E-mail address: cecilia. The author wishes to thank A. Bailleux, E. Bribosia, B. De Witte, S.https://fontdetadce.cf
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