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Journal of Private International Law
ISSN: 1744-1048 (Print) 1757-8418 (Online) Journal homepage: http://www.tandfonline.com/loi/rpil20
Mutual trust: in search of the future of European
Union private international law
To cite this article: Matthias Weller (2015) Mutual trust: in search of the future of European Union
private international law, Journal of Private International Law, 11:1, 64-102
To link to this article: http://dx.doi.org/10.1080/17536235.2015.1033203
Published online: 26 May 2015.
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Mutual trust: in search of the future of European Union private
“Mutual trust”has become one of the central buzzwords of the EU in its
search of the future of European Union private international law. The
following text unfolds possible meanings and functions of the omnipresent
but quite opaque notion of mutual trust in European policy-making. The
potential role of mutual trust in private international law in general will
brieﬂy be considered. Then the law of the European Union will be
analysed, ﬁrst on the level of primary law (what to trust in). Secondly the
functioning of the fundamental freedoms and their structural repercussions
on European choice of law thinking will be considered insofar as it
revolves around a mutual “recognition”of legal relationships. On the level
of secondary law the normative system of judicial co-operation in civil
matters will be considered in the light of mutual trust, the operation of that
normative system by the Court of Justice of the European Union in recent
and telling cases, challenges for this normative system from the European
Convention on Human Rights as well as challenges from the Commission’s
2014 proposal for reacting to systemic deﬁciencies in the administration of
justice in a Member State. Finally, suggestions will be submitted as to how
these challenges could be integrated into the normative system. The last
part will sum up insights from the deconstruction of the multifaceted term
of “mutual trust”.
Keywords: mutual trust; mutual recognition; mutual recognition of legal
relationships; mutual recognition of judicial acts; fundamental freedoms;
private international law; European civil procedure; Brussels I Regulation;
ordre public; public policy; justice; administration of justice; systemic
deﬁciencies; human rights; rule of law
What will EU justice policy look like in 2020? This is the question the European
Commission posed at the Assises de la Justice,“a forum to shape the future of EU
Justice Policy”held at Brussels on 21–22 November 2013, under the leitmotif of
© 2015 Taylor & Francis
*Prof Dr Matthias Weller, Mag.rer.publ., Chair for Civil Law, Civil Procedure and Private
International Law, EBS University for Economics and Law, Wiesbaden, Germany. This text
is dedicated to one of the greatest scholars worldwide in private international law on the
occasion of his 80th birthday last year, Erik Jayme, to whom so much is owed, in particular
by this author. Email: Matthias.Weller@ebs.edu
Journal of Private International Law, 2015
Vol. 11, No. 1, 64–102, http://dx.doi.org/10.1080/17536235.2015.1033203
“building trust in justice systems in Europe”.
The Commission presented ﬁve dis-
cussion papers as a starting point covering European civil, criminal and adminis-
trative law, as well as the rule of law and fundamental rights in the EU. “The aim is
to strengthen the foundations on which the European Union is built and complete
the European area of justice in the interest of Europe’s citizens and businesses”.
What are these foundations? The then EU Justice Commissioner Viviane Reding
explained that “a truly European Area of Justice can only work if there is trust in
each other’s justice systems”, and the Commission further declared that “the whole
EU legal system …is based on mutual trust”.
In its press release of 11 March
the Commission again referred to mutual trust as a cornerstone of judicial
co-operation in the EU, and submitted several statements and memoranda to the
European Council on 26 and 27 June 2014.
And indeed, the European Council
conﬁrmed that “the smooth functioning of a true European area of justice with
respect for the different legal systems and traditions of the Member States is
vital for the EU. In this regard, mutual trust in one another’s justice systems
should be further enhanced”.
Even the European Court of Human Rights has
recently acknowledged that the core instruments of judicial co-operation in the
European Union ground “sur le principe de ‘conﬁance réciproque dans la
justice’au sein de l’Union”.
European Commission, Press Release “Building Trust in Justice Systems in Europe:
‘Assises de la Justice’Forum to Shape the Future of EU Justice Policy”, 21 November
European Commission, “Towards a True European Area of Justice: Strengthening Trust,
Mobility and Growth”, Press Release IP/14/233 of 11 March 2014.
European Commission, “Framework to Safeguard the Rule of Law in the European
Union”, Press Release IP/14/237 of 11 March 2014; European Commission, “The Future
EU Justice and Home Affairs Agendas: Questions and Answers”, Memorandum MEMO/
14/174 of 11 March 2014; V Reding, “A New Rule of Law”, Speech 14/202 of 11
March 2014; European Commission, Communication from the Commission to the Euro-
pean Parliament and the Council, “A New Framework to Strengthen the Rule of Law”,
COM(2014) 158 ﬁnal of 11 March 2014, and, most importantly for the purposes pursued
here, European Commission, Communication from the Commission to the European Par-
liament, the Council, the European Economic and Social Committee and the Committee
of the Regions, “The EU Justice Agenda for 2020 –Strengthening Trust, Mobility and
Growth within the Union”, COM(2014) 144 ﬁnal of 11 March 2014; on this last document
see M Weller, “Enhancing Mutual Trust –Codiﬁcation of the European Conﬂict of Laws
Rules: Some of the EU Commission’s Visions for the Future of EU Justice Policy”,
(posted 19 March 2014; accessed 21 January 2015).
European Council of 26/27 June 2014, Conclusions, para 11.
ECHR, judgment of 25 February 2014, application no 17502/07, Avotinšv Latvia, para 49,
on the mutual recognition of judgments under the Brussels I Regulation.
Journal of Private International Law 65
However, according to the November 2013 Eurobarometer on “Justice in the
the majority of EU citizens believe that there are large differ-
ences between national judicial systems in terms of quality, efﬁciency and inde-
pendence, and a considerable number of EU citizens do not even trust their
own national justice system. In the context of the second Judicial Scoreboard of
the Commission found that the judicial independence in the Member
States of Hungary, Romania, Bulgaria and Slovakia as perceived by the people
is below 3 out of a maximum value of 7 with Slovakia at the lowest rank, and Slo-
vakia even turned out to have fallen further back, from nearly 3 to only 2.5.
the ﬁrst Judicial Scoreboard in 2013, the Council had already deﬁned country-
speciﬁc recommendations in the area of justice in respect of ten Member States
concerning deﬁciencies in independence, quality and efﬁciency of their justice
systems or to further strengthen the judiciary.
Apparently, trust –and in
European Commission, Flash Eurobarometer 385, “Justice in the EU”, Report conducted
by TNS Political & Social at the request of the European Commission, Directorate-General
for Justice (DG JUST), Survey co-ordinated by the European Commission, Directorate-
General for Communication (DG COMM “Strategy, Corporate Communication Actions
and Eurobarometer”Unit), November 2013.
Commission for the Evaluation of the Efﬁciency of Justice (CEPEJ), “Study on the func-
tioning of judicial systems in the EU Member States, Facts and ﬁgures from the CEPEJ
2012–2014 evaluation exercise”, CEPEJ(2014) 4 ﬁnal.
European Commission, “The 2014 EU Justice Scoreboard”, Communication from the
Commission to the European Parliament, the Council, the European Central Bank, the
European Economic and Social Committee and the Committee of the Regions, COM
(2014) 155 ﬁnal, 26, ﬁg. 29, based on a survey of the World Economic Forum; see also
European Commission, “The 2014 EU Justice Scoreboard: Towards More Effective
Justice Systems in the EU”, Press Release, IP/14/273 of 17 March 2014, Key Findings,
http://europa.eu/rapid/press-release_IP-14-273_en.htm (accessed 21 January 2015).
Council Recommendation 2013/C 217/03 of 9 July 2013 on the National Reform Pro-
gramme 2013 of Bulgaria and delivering a Council opinion on the Convergence Programme
of Bulgaria 2012–2016; Council Recommendation 2013/C 217/20 of 9 July 2013 on the
National Reform Programme 2013 of Spain and delivering a Council opinion on the Stab-
ility Programme of Spain 2012–2016; Council Recommendation 2013/C 217/10 of 9 July
2013 on the National Reform Programme 2013 of Hungary and delivering a Council
opinion on the Convergence Programme of Hungary 2012–2016; Council Recommen-
dation 2013/C 217/11 of 9 July 2013, on the National Reform Programme 2013 of Italy
and delivering a Council opinion on the Stability Programme of Italy 2012–2017;
Council Recommendation 2013/C 217/12 of 9 July 2013 on the National Reform Pro-
gramme 2013 of Latvia and delivering a Council opinion on the Convergence Programme
of Latvia 2012–2016; Council Recommendation 2013/C 217/15 of 9 July 2013 on the
National Reform Programme 2013 of Malta and delivering a Council opinion on the Stab-
ility Programme of Malta 2012–2016; Council Recommendation 2013/C 217/16 of 9 July
2013, on the National Reform Programme 2013 of Poland and delivering a Council opinion
on the Convergence Programme of Poland 2012–2016; Council Recommendation 2013/C
217/17 of 9 July 2013 on the National Reform Programme 2013 of Romania and delivering
a Council opinion on the Convergence Programme of Romania 2012–2016; Council Rec-
ommendation 2013/C 217/19 of 9 July 2013 on the National Reform Programme 2013 for
66 M. Weller
particular mutual trust –is reality only to a limited degree. Nevertheless, the Euro-
pean Union has built much on the myth of mutual trust in the past when it started
developing judicial co-operation in civil and criminal matters according to Articles
81 and 82 of the TFEU and the respective provisions preceding the TFEU “based
on the principle of mutual recognition”. It is only recently that the European Union
has publicly started reﬂecting on the status of mutual trust and monitoring its pre-
conditions, most prominently by the aforementioned Justice Scoreboards intro-
duced in 2013
and in particular in the ﬁeld of judicial co-operation for border
controls and in criminal matters.
It is a great step forward that the European
Union is now acknowledging that something is rotten (not so much in the state
of Denmark since Denmark has been restricting its participation in judicial co-
) in the fundamentals of EU justice policy and that something must
be done in order to strengthen or even build mutual trust in the ﬁrst place.
Slovenia and delivering a Council opinion on the Stability Programme of Slovenia 2012–
2016; Council Recommendation 2013/C 217/18 of 9 July 2013 on the National Reform
Programme 2013 of Slovakia and delivering a Council opinion on the Stability Programme
of Slovakia 2012–2016.
See, eg, European Commission, Communication from the Commission to the European
Parliament, the Council, the European Central Bank, the European Economic and Social
Committee and the Committee of the Regions, “The EU Justice Scoreboard –A Tool to
Promote Effective Justice and Growth”, COM(2013) 160 of 27 March 2013.
Eg, Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation
and monitoring mechanism to verify the application of the Schengen acquis and repealing
the Decision of the Executive Committee of 16 September 1998 setting up a Standing Com-
mittee on the evaluation and implementation of Schengen,  OJ L295/27; see also
Regulation (EU) No 1051/2013 of the European Parliament and of the Council of 22
October 2013 amending Regulation (EC) No 562/2006 in order to provide for common
rules on the temporary reintroduction of border control at internal borders in exceptional
circumstances,  OJ L295/1; Directive 2013/48/EU of the European Parliament and
of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings
and in European arrest warrant proceedings, and on the right to have a third party informed
upon deprivation of liberty and to communicate with third persons and with consular auth-
orities while deprived of liberty,  OJ L294/1; Regulation (EU) No 610/2013 of the
European Parliament and of the Council of 26 June 2013 amending Regulation (EC) No
562/2006 of the European Parliament and of the Council establishing a Community
Code on the rules governing the movement of persons across borders (Schengen Borders
Code), the Convention implementing the Schengen Agreement, Council Regulations
(EC) No 1683/95 and (EC) No 539/2001 and Regulations (EC) No 767/2008 and (EC)
No 810/2009 of the European Parliament and of the Council,  OJ L182/1.
See in particular Protocols Nos 19 (Schengen acquis), 22 (Position of Denmark in respect
to Title V Part 3 TFEU –Judicial Co-operation in Civil Matters) to the TFEU. See also
Declaration no 48 concerning the Protocol on the Position of Denmark. However, even
though Denmark has not yet made use of Art 7 of Protocol no 22 which allows it to join
in at any time, Denmark agreed upon a parallel instrument to the Brussels I Regulation
in an Agreement with the EU of 19 October 2005, which entered into force on 1 July
2007,  OJ L299/62. This instrument extends the Brussels I Regulation to
Journal of Private International Law 67
The following text seeks to establish ﬁrmer ground in the search for the future
of European private international law as a cornerstone for the implementation of
the European Union’s vision of judicial co-operation in civil matters. It unfolds
possible meanings and functions of the rather opaque, yet almost omnipresent
buzzword of mutual trust in European policy making on private international
law. In a ﬁrst step, the potential role of mutual trust in private international law
in general will brieﬂy be considered in section B. The main focus, of course,
will be on European Union law (section C). The law of the European Union
will be analysed ﬁrst on the level of primary law (section C-1). On this level,
ﬁrst, the rather abstract question will be addressed: in what to trust? Secondly,
and more concretely, the functioning of the fundamental freedoms and their struc-
tural repercussions on European choice of law thinking will be considered insofar
as it revolves around a mutual “recognition”of legal relationships. On the level of
secondary law (section C-2), the following will be considered: (a) the normative
system of judicial co-operation in civil matters in light of mutual trust; (b) the oper-
ation of that normative system by the Court of Justice of the European Union
(CJEU) in recent and telling cases; (c) challenges for this normative system
from the European Convention on Human Rights; (d) challenges from the Com-
mission’s 2014 proposal for reacting to systemic deﬁciencies in the administration
of justice in a Member State;
and (e) suggestions will be submitted as to how
these challenges could be integrated into the normative system. The last part
(section D) will sum up insights from the deconstruction of the multifaceted
term of “mutual trust”.
B. Trust in the context of judicial co-operation in civil matters between
The eminent German sociologist Niklas Luhmann describes trust as “conﬁdence
in one’s own expectations to other persons’behaviour”, and this conﬁdence con-
stitutes “an elementary fact of social life”.
Trust in the reliance of one’s own
expectations reduces the complexity of life with all its incidents and possibili-
ties. Trust is a behaviour to reduce complexity to the degree where decisions
about present alternatives of actions can be taken with a view to the future.
However, “[w]here control is guaranteed, there is no need for trust”.
where the law comes in. Law provides for certainty by control. To the extent
Denmark. Under the terms of the Agreement Denmark has notiﬁed the EU that it intends to
give effect to the Brussels I recast for Denmark, see  OJ L79/4.
European CommissioņCommunication from the Commission to the European Parlia-
ment and the Council –“A new EU Framework to strengthen the Rule of Law”, COM
(2014) 158 ﬁnal of 11 March 2014.
N Luhmann, Vertrauen (Frankfurt, 4th ed, 2000) 1 (translations provided by the author of
68 M. Weller
the law is “strong”in the sense that it reliably stabilises expectations, trust is of
reduced relevance. Thus, from a sociological viewpoint, law and trust are func-
tionally equivalent. The policy decision for rule-makers therefore is how to
strike the balance between law and trust. And this is exactly one of the
central policy questions for rule making in judicial co-operation between
states as well. This question arises, ﬁrst and foremost, on the level of recog-
nition of foreign judicial acts, in particular of foreign judgments. Secondly, to
a certain degree the question plays a role in the conﬂict of laws.
1. Recognition of foreign judgments
Since the late 19th century, some states have slowly turned to recognising foreign
judgments in civil matters without a révision au fond on certain conditions mainly
agreed upon in state treaties, but also laid down in their national procedural law.
Other states still abstained from limiting the review of foreign judgments.
etically, it would conform with general public international law to fully review the
However, the application of the foreign law is much more
complex for the recognising court than it is for the foreign court. Therefore, one
might argue that the recognising court abstains from any review as a matter of
trust. The recognising state expresses its conﬁdence in the courts of the foreign
state to apply the foreign law correctly. Still, this argument cannot explain that
the révision au fond is likewise excluded if the foreign court applies the law of
a third state or even the law of the recognising state.
As a result, the trust afforded
to the foreign judgment cannot ground on any detailed expectation in relation to
the application of the substantive law. Rather, trust relates to the proper adminis-
tration of justice on an abstract level by the foreign court. In general, only
minimum standards of such proper administration of justice by the foreign court
are reviewed under a public policy control.
There is no review in law, not
even a review in case of manifest errors in law, as long as this error does not
amount to a violation of public policy.
For a short overview see, eg, the Jenard Report on the Brussels Convention,  OJ C
There is no obligation by a sovereign state under general public international law to recog-
nise judgments rendered by the courts of other states, eg, H Schack, Internationales Zivil-
verfahrensrecht (Munich, 6th ed, 2014), 325, para 865 with further references. A maiore ad
minus a State is allowed to fully review the foreign judgment prior to its recognition and
R Michaels, “Important Requirements and Exceptions for Recognition and Enforcement”
which are jurisdiction of the adjudicating court, validity and ﬁnality of the judgment, and
certain minimum procedural and substantive requirements, in Max-Planck-Institute for
Comparative Public and International Law (ed), Encyclopedia of Public International
Law (Heidelberg/Oxford 2009), paras 25 et seq.
Journal of Private International Law 69
To reduce legal control and to trust the foreign court to that far-reaching extent
is a policy decision by the recognising state. The reason for trusting the adminis-
tration of justice by foreign courts is not (so much anymore) comity amongst the
states but the individual’s right to access to justice in due time and without dispro-
portionate effort in international cases. This fundamental right could hardly be put
into effect under a full review of the foreign judgment.
Trust in other states’
administration of justice thus may be conceptualised as a practice for optimising
the individual’s effective access to justice in cross-border cases.
A crucial condition for reducing the control of law in favour of trusting the
foreign administration of justice typically is that the foreign court has jurisdic-
tion to adjudicate either under the jurisdictional rules of the recognising court
or under jurisdictional rules agreed upon between the involved states and thus
again (now harmonised) rules of the recognising court. States typically do not
go so far as to trust in other states’rules on international jurisdiction because
they want to protect their own individuals’rights of access to justice. Exorbitant
jurisdiction jeopardises this right on the defendant’s part. In regional integration
communities, states may go further and agree, for example, on mutually trusting
at least each other’s judgments on jurisdiction on the basis of harmonised rules,
as it is the case to a certain extent under the current Brussels I regime
an even more limited extent under the recast of that regime.
Under this reason-
ing it becomes quite apparent that extending mutual trust to judgments of
Member State courts against third state defendants on the basis of non-harmo-
nised jurisdiction rules is a conceptual ﬂaw.
In addition to the requirement of (indirect) jurisdiction,
are recurrent such as, in particular, due service of process on the defendant in
H Schack, Internationales Zivilverfahrensrecht (Munich, 6th ed, 2014), 325, para 876 et
seq; D Martiny, Handbuch Internationales Zivilverfahrensrecht Vol. III/1 (Tübingen, 1984),
Art 35(1) and (3) of the Brussels I Regulation, even though minimum standards of inter-
national jurisdiction would qualify as elements of the public policy of the recognising
forum, see, eg, S Corneloup and M Weller, unalex Kommentar Brüssel I (Munich,
2012), Art 35, paras 36 et seq.
According to Art 45(1)(e) of the Brussels I Regulation (Recast), a judgment shall be
refused if it conﬂicts not only with the jurisdictional rules for the protection of consumers
and insured parties but additionally with those for the protection of workers. However, this
limitation of trust does not express a conceptual change. Rather, the recast removes a lacuna
in the current Brussels I Regulation, see Corneloup and Weller, ibid, para 20. Yet, both ver-
sions of the Brussels I Regulation show that no mutual trust is granted in respect of the
application of the most essential rules on international jurisdiction.
See, eg, A von Mehren, “Recognition and Enforcement of Sister State Judgments, Reﬂec-
tions on General Theory and Current Practice in the European Economic Community”
(1981) 81 Columbia Law Review 1044, 1059: “shock becomes outrage”,“parochial and
self-serving attitude”; see also FK Juenger, “La Convention de Bruxelles du 27 septembre
1968 et la courtoisie international”(1983) Revue critique de droit international privé 37.
Jenard Report on the Brussels Convention,  OJ C 59/1, 3 et seq.
70 M. Weller
the foreign proceedings as an element of the procedural ordre public, but also, for
the existence of earlier judgments, awards or lis pendens of
proceedings that conﬂict with the foreign judgment to be recognised
former times, the fact that the foreign court applied for certain issues another sub-
stantive law from that the recognising court would have applied.
illustrate the tools that a state may use for balancing control and trust. Whereas
principally foreign judgments are recognised, certain minimum standards serve
as measure for control, be it minimum standards falling within the scope of a
general public policy clause, be it minimum standards singled out from that
general public policy clause into an independent ground for non-recognition, be
it minimum standards that do not qualify as elements of the public policy of the
recognising state but are nevertheless sufﬁciently important to introduce a control.
A follow-on question for institutionalised bilateral or multilateral judicial co-
operation is whether and to what extent the court deciding on the subject-matter
should be exclusively entrusted with controlling compliance with the minimum
standards the states agreed upon or whether the state that has been requested to
recognise a foreign judgment should additionally control these minimum stan-
dards before allowing recognition and enforcement of that judgment within its
In principle, control is only effective if exercised by
someone other than the one to be controlled.
2. Choice of law
On the level of choice of law, the application of foreign law by domestic courts has
been compared with “jumping into the dark”
because under universal conﬂict of
Eg, section 328(1) no 5 German Code of Civil Procedure: Recognition of foreign judg-
ments only from those jurisdictions that in turn recognise German judgments.
Eg, Art 34(3) and (4) Brussels I Regulation; ss 328(3) and (4) German Code of Civil
Eg, Art 27 Brussels Convention: “A judgment shall not be recognised if the court of the
State in which the judgment was given, in order to arrive at its judgment, has decided a pre-
liminary question concerning the status or legal capacity of natural persons, rights in prop-
erty arising out of a matrimonial relationship, wills or succession in a way that conﬂicts with
a rule of the private international law of the State in which the recognition is sought, unless
the same result would have been reached by the application of the rules of private inter-
national law of that State”.
See, eg, Art 45 of the European Commission’s Proposal for a Regulation of the European
Parliament and of the Council on jurisdiction and the recognition and enforcement of judg-
ments in civil and commercial matters (Recast), COM(2010) 748 ﬁnal of 14 December
2010. For a critique of this Proposal see eg M Weller, “Der Kommissionsentwurf zur
Reform der Brüssel I-VO”,Gemeinschaftsprivatrecht (GPR) 2012, 34 et seq.
L Raape, Internationales Privatrecht Vol. I –Anwendung fremden Rechts (Berlin 1938),
p. 59; German Constitutional Court, judgment of 4 May 1971, docket no 1 BvR 636/68,
BVerfGE 31, 58, 73: protection by fundamental rights must be guaranteed while
“jumping into the dark”.
Journal of Private International Law 71
law rules of a Savignian type the law of any state may be selected according to the
respective connecting factor, and the connecting factor does not take account of the
contents of the selected substantive rules.
Under this approach, choice-of-law
rules remain indifferent and neutral vis-à-vis the objectives and outcome of the
selected law, thereby allowing a multilateral, universal selection of rules.
lying Savigny’s vision was “decisional harmony”on the international level (inter-
nationaler Entscheidungseinklang), an ideal under which any legal relationship is
decided identically, no matter which court adjudicates the case. This holds because
the connecting factor for selecting the applicable law is “neutral”and thus –in a
perfect world –convincing to all states, and therefore used by the courts of all
states. Thus, all courts decide on the legal relationship under the same applicable
law. This ideal requires trust in the substantive laws of the states participating in
this kind of judicial co-operation. Designing neutral connecting factors is only con-
ceivable if the respective legal orders from all states involved may be considered
equivalent in producing justice. Only on this condition of equivalence is it legiti-
mate to exclusively focus on the closest spatial connection of the legal relationship
in question to one of the legal orders involved. Equivalence does not mean that any
of the potentially selected legal orders produces exactly the same result for the
relationship in question but only –as a matter of trust, one may suggest –the
expectation that different results under different legal orders will be in an accepta-
ble range of plausibility under a common standard of justice. Savigny’s justiﬁca-
tion for affording trust to the legal orders of other states was the common values
underlying the legal orders of all states participating:
“The standpoint to which we are routed by the foregoing considerations is one of a
community of states under public international law co-operating with each other, and
this standpoint has in the course of time received more and more approval, partly
under the inﬂuence of common Christian values, partly due to the true beneﬁts result-
ing therefrom for all parts.”
Thus, on an abstract level, the legal orders on private law are considered equival-
Today, all states –even semi- or non-democratic ones –count as eligible for
The uncertainty about the contents of the foreign law is increased in the case that the
choice of law rule selects the foreign law including its choice-of-law rules (renvoi)
because thereby the legislator even transfers to a foreign legislator the decision on how
and to whom to grant trust. This may raise constitutional implications touching upon funda-
mental issues of competence and democratic representation, for a critical account see, eg, B
Schinkels, Normsatzstruktur des Internationalen Privatrechts (Tübingen 2008) 247 et seq.
See, eg, J-J Kuipers, EU Law and Private International Law: The Interrelationship in
Contractual Obligations (Leiden 2011) 38.
Friedrich Carl v Savigny, System des heutigen römischen Rechts Vol. VIII (Berlin 1849)
Eg, B von Hoffmann and K Thorn, Internationales Privatrecht (Munich, 9th ed, 2007) 4
(§1 Rz. 13) –equivalence based on universally applicable human rights; H Weber, Die
Theorie der Qualiﬁkation: Franz Kahn, Etienne Bartin und die Entwicklung ihrer Lehre
72 M. Weller
this type of judicial co-operation, no matter what values of what source and
concept they are promoting by their laws. On the other hand, states sometimes
restrict this co-operation to their peers and exclude the rules formulated by even
highly esteemed non-state bodies.
At the same time trust via neutral connecting
factors is never granted without control. The result of the application of foreign
law in each and every single case is subject to a public policy control.
foreign legal order selected by a neutral connecting factor will be ignored once
its result in the particular case at hand violates the core values of the legal order
of the court adjudicating upon the legal relationship.
In summary, traditional concepts and structures of private international law can
be translated into or explained by trust to a certain extent. Thus, “mutual trust”
may be seen as an element of private international law before the EU came into
play. However, trust is more relevant for the recognition of foreign judgments
than for choice of law. If the European Union’s policy for judicial co-operation
sails under the ﬂag of mutual trust, it thereby signals that one of the fundamental
concepts of this co-operation, if not its core concept, is the recognition of foreign
judicial (and other public) acts. At the same time, on both the level of recognition
and enforcement as well as on the level of choice of law, control mechanisms are
put in place, in particular public policy control clauses.
C. Mutual trust as a legal principle of European Union private
Since the entire European Union is a form of co-operation between its Member
States, mutual trust as a concept describing, legitimising and ordering this co-oper-
ation plays a role on various levels of European Union law.
bis zur universalen Anerkennung der Qualiﬁkation als allgemeines Problem des internatio-
nalen Privatrechts (1890–1945) (Tübingen 1986) p. 9: “grundsätzliche Gleichwertigkeit
der Privatrechtsordnungen“; E Vitta,“Il principio dell’uguaglianza tra ‘lex fori’e diritto
straniero“(1947) Rivista trimestrale di diritto e procedura civile 1578, 1585 et seq.
See Art 3 of the Rome I Regulation. In light of Recital 13 it appears settled that the parties
to a contract may incorporate non-state rules into their contract but may not choose that non-
state law as a matter of choice of law. Such choice of law is reserved for the law of states,
see, eg, S Leible in R Hüßtege and H-P Mansel (eds), BGB, Rom-Verordnungen (Baden-
Baden 2014), Art 3 Rome I Regulation para 34; G-P Calliess in Calliess (ed.), Rome Regu-
lations (Alphen aan den Rhjin, 2011), Art 3 Rome I Regulations para 20. Compare Art 5 (2)
of the Commission’s Proposal COM(2005) 650 ﬁnal for a Rome I Regulation expressly sti-
pulating that “the parties may also choose as the applicable law the principles and rules of
the substantive law of contract recognised internationally or in the Community”. Arguably,
excluding the choice of internationally agreed non-state law unduly or even unconstitution-
ally restricts the parties freedom, see, eg, Calliess, ibid.; B Schinkels, “Die (Un-) Zulässig-
keit einer kollisionsrechtlichen Wahl der UNIDROIT Principles nach Rom I: Wirklich nur
eine Frage der Rechtspolitik?”(2007) Gemeinschaftsprivatrecht 106.
M Gebauer, “Ordre public”in Max Planck Encyclopedia of Public International Law
Journal of Private International Law 73
1. Primary Union Law
On the level of primary Union law, section (a) addresses the question: in what can
Member States and citizens trust? In addition, in section (b), mutual trust plays a
role in the functioning of the fundamental freedoms in a way that has inﬂuenced
the thinking by the European Commission on the structure of European choice-of-
law rules. This inﬂuence resulted in propositions for the “recognition”of legal
relationships as an alternative method of the resolution of conﬂicts of laws
(section (c)). Most recently, the Commission has suggested codifying the rules
on choice of law in order to enhance mutual trust (section (d)).
(a) In what to trust?
According to Article 2 of the TEU, the European Union is founded “on the values
of respect for human dignity, freedom, democracy, equality, the rule of law and
respect for human rights, including the rights of persons belonging to minorities”
and these values are “common to the Member States in a society in which plural-
ism, non-discrimination, tolerance, justice, solidarity and equality between women
and men prevail.”On its face, the provision –in conjunction with Article 6(3) of
–simply describes and identiﬁes the existing common values of the
Member States which form the basis and source of the values of the European
Union, reiterated and reinforced according to Article 6(1) by the Charter of Fun-
damental Rights of the European Union.
Working from the assumption that all
Member States share the value of “justice”and enforce “the rule of law”, it is poss-
ible for the EU to fulﬁl its promise in Article 3(2) of the TEU to “offer its citizens
an area of freedom, security and justice without internal frontiers, in which the free
movement of persons is ensured”. This is achievable by building this area on the
mutual trust of the Member States in each other’s administration of justice and
enforcement of the rule of law. One may infer that (only) such mutual trust
allows and justiﬁes mutual recognition to the extent necessary to implement the
Union’s vision of an area of freedom, security and justice.
Interestingly, according to Article I-42(1)(b) of the (never ratiﬁed) Treaty
establishing a Constitution for Europe,
the Union was to constitute an area of
freedom, security and justice by promoting “mutual conﬁdence”between the com-
petent authorities of the Member States, in particular on the basis of the mutual
recognition of judicial and extrajudicial decisions. Mutual conﬁdence appeared
Art 6(3) TEU: “Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms and as they result from the consti-
tutional traditions common to the Member States, shall constitute general principles of the
Art 6(1) TEU: “The Union recognizes the rights, freedoms and principles set out in the
Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted
at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.”
 OJ C310/47.
74 M. Weller
as the result of mutual recognition rather than the justiﬁcation for such mutual rec-
ognition. In contrast, Article 81 of the TFEU merely provides that “the European
Union shall develop judicial co-operation in civil matters having cross-border
implications, based on the principle of mutual recognition of judgments and of
decisions in extrajudicial cases”. Express statements no longer exist concerning
the underlying ratio, nor the telos of such mutual recognition. Yet, the European
Commission undoubtedly recognises mutual trust as a key component in establish-
ing the area of freedom, security and justice of the EU
and that mutual recog-
nition appears as the predominant practice of granting such trust.
(b) Mutual recognition as an expression of mutual trust in the context of the
On a more concrete level, primary European Union law largely requires mutual
recognition of the exercise of regulatory power when it comes to the function-
ing of the fundamental freedoms as developed in the case law by the European
Court of Justice
and accompanied by the Commission on the policy level,
ﬁrst for the freedom of goods,
later for other freedoms.
cases concerning the freedom of establishment
and the free movement of
A-K Kaufhold, “Wirksamkeitsbedingungen und Rechtsprinzip der justiziellen Zusamme-
narbeit im Raum der Freiheit, der Sicherheit und des Rechts“(2012) Zeitschrift für Euro-
parecht 408, 411.
Case120/78 –REWE-Zentral AG v Bundesmonopolverwaltung für Branntwein (“Cassis
de Dijon”) ECR 649.
Commission of the European Communities, “Completing the Internal Market”, COM(85)
310 ﬁnal, 22, paras 77 et seq.
Case 120/78 supra n 42; for an analysis of the principle of mutual recognition see, eg, M
Möstl, “Preconditions and Limits of Mutual Recognition”(2010) 47 Common Market Law
Review 405, with reference to mutual recognition in the Area of Freedom, Security and
Justice at 418 et seq; SK Schmidt, “Mutual Recognition as a New Mode of Governance”
(2007) 14 Journal of European Public Policy 687; K Nicolaidis, “Trusting the Poles? Con-
structing Europe through Mutual Recognition”(2007) 14 Journal of European Public
Policy 682, proposing a better balance between trust and control by an approach that he
calls “managed mutual recognition”;from a global and economic perspective see, eg, K
Nicolaidis and G Shaffer, “Transnational Mutual Recognition Regimes: Governance
without Global Government”(2005) 68 Law and Contemporary Problems 263.
Eg, Case C-19/92 –Dieter Kraus v Land Baden-Württemberg  ECR I-1663 in
relation to the free movement of workers; Case C-106/91 –Claus Ramrath v Ministre de
la Justice  ECR I-3351 in relation to the freedom of services.
Case 81/87 –The Queen v Daily Mail and General Trust PLC  ECR 5483; Case C-
212/97–Centros Ltd v Erhvervs-og Selskabsstyrelsen  ECR I-1459; Case C-208/00
–Überseering BV v Nordic Construction Company Baumanagement GmbH  ECR I-
9199; Case C-167/01 –Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire
Art Ltd. ECR I-10155; Case C-411/03 –SEVIC Systems AG  ECR I-10805;
Case C-210/06 –Cartesio Oktató és Szolgáltató bt  ECR I-9641; Case C-371/10
Journal of Private International Law 75
persons as a result of EU citizenship
have reached the European Court of
Justice. In relation to the role of mutual trust in European private international
law, the following two aspects of this case law are relevant.
Starting with Cassis de Dijon, mutual recognition has become the central
strategy for removing barriers to the fundamental freedoms. In brief, this
“new approach”of completing the Internal Market relied on harmonisation by
directives of the quality and standard of goods, in particular in respect to
health and safety. Where harmonisation by directives is not considered essential
for the protection of health and safety or other policy reasons of comparable
importance, “immediate and full recognition of differing quality standards …
must be the rule”,
unless a Member State’s own policy regulation is justiﬁed
for reasons expressly laid down in the provisions on the respective fundamental
freedom or by mandatory requirements developed by case law. Under this
country-of-origin principle, all Member States are required to trust in the protec-
tive measures in the Member State of origin unless these measures are not
equivalent to the level of protection granted in the Member State of destination
in sensitive ﬁelds of policy of that Member State. This mechanism structurally
resembles a public policy control of the application of foreign law by domestic
courts under classical applicable law rules but its scope goes far beyond a
typical public policy control because the grounds for rejecting the regulation
of the Member State of origin as inadequate are much broader. Therefore,
mutual trust is indeed an element of reasoning that underlies mutual recognition
and the country-of-origin principle in the context of the fundamental freedoms.
Compared with other forms of judicial co-operation between the Member States,
however, the fundamental freedoms demand mutual trust only to a limited
Secondly, the country-of-origin principle that emerged from the functioning of
the fundamental freedoms has repeatedly been reconstructed in structures of clas-
sical applicable law rules. It has been argued, for example, that the fundamental
freedoms operate similarly to vested rights,
or that they operate as applicable
–National Grid Indus BV v Inspecteur van de Belastingdienst Rijnmond/kantoor Rotter-
dam  ECR I-12273;Case C-378/10 –VALE Építési kft ECLI:EU:C:2012:440.
Case C-168/91 –Konstantinidis v Stadt Altensteig  ECR I-1191; Case C-148/02 –
Carlos Garcia Avello v Belgien  ECR I-11613; Case C-353/06 –Grunkin Paul v
Standesamt Niebüll  ECR I-7639; Case C-208/09 –Ilonka Sayn-Wittgenstein v Land-
eshauptstadt von Wien  ECR I-13693; Case C-391/09 –Runevič-Vardyn & Wardyn v
Vilniaus miesto savivaldybès administacija et al  ECR I-3787.
Commission of the European Communities, Completing the Internal Market, COM(85)
310 ﬁnal, 22, para 77.
J-J Kuipers, “Cartesio and Grunkin-Paul: Mutual Recognition as a Vested Rights Theory
Based on Party Autonomy in Private Law”(2009) 2 European Journal of Legal Studies 66;
R Michaels, “EU Law as Private International Law? Re-Conceptualising the Country-of-
Origin Principle as Vested Rights Theory”(2006) 2 Journal of Private International Law
76 M. Weller
law rules that select the law of the Member State of origin as long as this law is
more favourable than the law of the Member State of destination. This structurally
resembles Article 6(2), sentence 2 of the Rome I Regulation (formerly Article 5(2)
of the Rome Convention).
On the level of secondary law implementing and con-
cretising fundamental freedoms for certain sectors,
the conceptual uncertainty as
to whether the fundamental freedoms and comparable rights under secondary law
amount to applicable law rules or not
culminated in extensive debates
which the CJEU has so far intervened only reluctantly,
although there is good
reason to argue that any country-of-origin principle merely requires a Member
State to achieve a certain result, no matter how, whereas applicable law rules
are one amongst several available tools for achieving this result.
And in explain-
ing the respective provisions on mutual recognition in its instruments of second-
ary law the European Union legislator used the idea of mutual trust in an
unconvincing manner: it diagnosed a lack of mutual trust and then imposed an
obligation on the Member States of mutual recognition as a cure.
It should be
the other way round.
195; see also R Michaels, “The New European Choice-of-Law Revolution”(2008) 82
Tulane Law Review 1607.
See, in particular, J Basedow, “Der kollisionsrechtliche Gehalt der Produktfreiheiten im
europäischen Binnenmarkt: favor offerentis“(1995) 59 Rabels Zeitschrift für internationals
Privatrecht 1, 12–25.
Eg, Directive 2006/123/EC of the European Parliament and of the Council of 12 Decem-
ber 2006 on services in the internal market,  OJ L376/36; Directive 2000/31/EC of
the European Parliament and of the Council of 8 June 2000 on certain legal aspects of infor-
mation society services, in particular electronic commerce, in the Internal Market (“Direc-
tive on electronic commerce”),  OJ L 178/1.
See, in particular, Art 1(4) of the Directive on electronic commerce: “This Directive does
not establish additional rules on private international law …”.
For an overview from a German perspective see M Weller, “Section 3 TMG (implement-
ing Article 3 E-Commerce-Directive)”, in H Gersdorf and BP Paal (eds), Informations- und
Medienrecht (Munich 2014) paras 8 et seq.; see also M Weller and C-F Nordmeier, “Rome
II-Regulation, Introduction”in G Spindler and F Schuster, Medienrecht (Munich 3rd ed,
Case C-509/09 –eDate Advertising  ECR I-10269,para 68: the country-of-origin
principle laid down in Art 3 of the E-Commerce-Directive does not require (but would in
turn not prohibit) implementation by an applicable rule.
M Grünberger, “Alles obsolet? –Anerkennungsprinzip vs. klassisches IPR“, in S Leible
and H Unberath (eds), Brauchen wir eine Rom 0-Verordnung? (Jena 2013) 82, 156. H-P
Mansel, “Anerkennung als Grundprinzip des Europäischen Rechtsraums –Zur Herausbil-
dung eines europäischen Anerkennungs-Kollisionsrechts: Anerkennung statt Verweisung
als neues Strukturprinzip des Europäischen internationalen Privatrechts?“(2006) 70
Rabels Zeitschrift für internationales Privatrecht 651, 681.
See Recital 3 of the Services Directive; see also Recital 22 of the Directive on
Journal of Private International Law 77
(c) Repercussions from the functioning of the fundamental freedoms on general
European choice of law thinking
Nevertheless, the functioning of the fundamental freedoms has informed the Euro-
pean Commission’s conceptual thinking about choice of law in general.
ticular in its Green Paper “Less bureaucracy for citizens”, the Commission
considered the mutual recognition of the effects of civil status records “in order
to guarantee the continuity and permanence of a civil status situation to all Euro-
pean citizens exercising their right to freedom of movement”.
Commission posed the question of whether “there is a need for EU action to
provide Europeans with greater legal certainty in relation to civil status
matters”. One option for achieving this aim considered by the Commission was
“automatic recognition”meaning “that each Member State would accept and
recognise, on the basis of mutual trust, the effects of a legal situation created in
another Member State”.
This approach has faced severe critiques. Erik Jayme
and Christian Kohler for example, while observing ﬁrst the tendencies of the Com-
mission to extend mutual recognition as known from the fundamental freedoms to
judicial co-operation in family matters,
protested that “civil status is treated like
On a conceptual level, automatic recognition of legal situ-
ations or relations creates numerous unsettled fundamental questions.
example addresses how far a public policy control by the Member State of desti-
nation should reach given that, so far, mutual recognition typically entails such a
residual control and does not demand full and unlimited trust.
H-P Mansel, “Anerkennung als Grundprinzip des Europäischen Rechtsraums –Zur Her-
ausbildung eines europäischen Anerkennungs-Kollisionsrechts: Anerkennung statt Verwei-
sung als neues Strukturprinzip des Europäischen internationalen Privatrechts?“(2006) 70
Rabels Zeitschrift für internationales Privatrecht 651, 682.
European Commission, Green Paper –Less bureaucracy for citizens: promoting free
movement of public documents and recognition of the effects of civil status records,
COM(2010) 747 ﬁnal of 15 December 2010, 11, sub 4.
See in particular the Draft Programme of measures for implementation of the principle of
mutual recognition of decisions in civil and commercial matters,  OJ C12/1 at 2
“areas of mutual recognition”.
E Jayme and C Kohler, “Europäisches Kollisionsrecht 2001: Anerkennungsprinzip statt
IPR?“(2001) Praxis des internationalen Privat- und Verfahrensrecht (IPRax) 501; see
also C Kohler, “Status als Ware: Bemerkungen zur europäischen Verordnung über das inter-
nationale Verfahrensrecht in Ehesachen“, in H-P Mansel (ed), Vergemeinschaftung des Kol-
lisionsrechts –Vorträge und Reden anlässlich der Feier des fünfzigjährigen Bestehens des
Instituts für internationales und ausländisches Privatrecht der Universität zu Köln
(Cologne, 2001) 41.
See, eg, M Weller, “Europäisches Kollisionsrecht“, in C Teichmann and M Gebauer,
Enzyklopädie für Europarecht Vol. VI (forthcoming) paras 137 et seq; H-P Mansel, D
Coester-Waltjen, D Henrich and C Kohler, “Stellungnahme Grünbuch Weniger Verwaltung-
saufwand”(2011) Praxis des internationalen Privat- und Verfahrensrecht (IPRax) 335.
78 M. Weller
recognition”, in the sense of recognising legal relationships that exist from the
viewpoint of a foreign court without exercising any control by the court requested
to recognise the existence of that relationship would be a choice-of-law approach
of an entirely new stripe in that it would shift the balance to total trust. Secondly,
the Member State from whose perspective the legal relationship in question is
determined as existing needs to provide for choice-of-law rules in case the
relationship has links to foreign jurisdictions. Thus, choice-of-law rules by no
means become obsolete. The Commission’s impression that “this solution
would be simple and transparent”
is certainly overly optimistic. Furthermore,
the Commission’s submission that “such recognition …would leave Member
States’legal systems unchanged”, is illusory.
For these reasons, “recognition”
of legal relationships cannot provide for a convincing general choice-of-law tech-
nique in the internal market.
And indeed, in its latest instruments and proposals,
the European Union shows less enthusiasm for that kind of recognition and turns
slightly back towards further harmonisation of classical choice-of-law rules.
This is good news.
(d) Codifying European private international law to enhance mutual trust?
As a counterpoint to the repercussions from mutual trust and recognition under the
fundamental freedoms on the thinking on European choice of law methodology –
or maybe even as an answer to these repercussions –the Commission has most
recently suggested codifying the European conﬂict of laws rules. In the Commis-
sion’s Communication on Strengthening Trust, Mobility and Growth,
European Commission, Green Paper –Less bureaucracy for citizens: promoting free
movement of public documents and recognition of the effects of civil status records,
COM(2010) 747 ﬁnal of 15 December 2010, 11, sub 4, 13.
Eg, M Weller, “Europäisches Kollisionsrecht“, in C Teichmann and M Gebauer (eds),
Enzyklopädie für Europarecht Vol. VI (forthcoming) para 144.
Compare, eg, Art 59 Regulation (EU) no 650/2012 of the European Parliament and of the
Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of
decisions and acceptance and enforcement of authentic instruments in matters of succession
and on the creation of a European Certiﬁcate of Succession,  OJ L201/107, with the
Commission’s Proposal for this provision; see in particular the Proposal for a Regulation of
the European Parliament and the Council on promoting the free movement of citizens and
businesses by simplifying the acceptance of certain public documents in the European
Union and amending Regulation (EU) No 1024/2012, COM(2013) 228 ﬁnal, without
any proposal for automatic recognition any more as opposed to the Commission’s previous
European Commission, Communication from the Commission to the European Parlia-
ment, the Council, the European Economic and Social Committee and the Committee of
the Regions –The EU Justice Agenda for 2020 –Strengthening Trust. Mobility and
Growth within the Union, COM(2014) 144 ﬁnal of 11 March 2014, sub 4.2 on
Journal of Private International Law 79
Commission states that “codiﬁcation of existing laws and practices can facilitate
the knowledge, understanding and the use of legislation, the enhancement of
mutual trust as well as consistency and legal certainty”. Therefore, “[t]he EU
should examine whether codiﬁcation of the existing instruments could be useful,
notably in the area of conﬂict of laws”.
It seems as if the Commission was pri-
marily interested in codifying the Regulations containing choice of law rules and
less so in codifying the implications of fundamental freedoms on choice of law. A
codiﬁcation would certainly consolidate the different existing rules expressed in
particular norms in a formal system. Such a formal consolidation would help to
reduce disharmonies in the regulation of identical issues in different instruments
such as, eg, rules on the consent of choice-of-law agreements, public policy excep-
tions or mandatory provisions. If the Commission takes the notion of codiﬁcation
seriously, such a codiﬁcation could even allow adjusting and ﬁne-tuning a norma-
tive system of conﬂict rules that would reduce inconsistencies on the level of
underlying principles and values. In addition, a true codiﬁcation could be comple-
mented by rules or at least recitals on recurring but unsettled methodological ques-
tions in the choice-of-law process such as the handling of preliminary questions or
the general aspects of characterisation. Thus, a comprehensive Regulation on
European Private International Law could not only address the discussions
about the need of a “Rome 0 Regulation”regulating general issues of choice of
law in European regulations,
but should ideally also include international juris-
diction and recognition and enforcement, as addressed in the Swiss Federal Act on
Private International Law.
Of course, such an ambitious agenda runs into techni-
cal problems in regard to “opt-out Member States”.
Yet, complementing the
codiﬁcation (as far as possible) would ﬁt perfectly with the second general tool
by which the Commission envisages the addressing of challenges for the EU
Justice Agenda and to enhance mutual trust which is “complementing”existing
EU law and policies on all levels and by recourse to all kinds of regulatory instru-
ments such as classical rules on the “identiﬁcation of the applicable law”,
as by “mutual recognition”,“traditional harmonisation, harmonised optional
See, eg, S Leible and M Müller, “The idea of a Rome 0-Regulation”(2012) XIV Yearbook
of Private International Law 137.
See Art 1(1) of the Federal Act on Private International Law of 18 December 1987: “This
Act governs, in international matters: a. the jurisdiction of Swiss judicial or administrative
authorities; b. applicable law; c. the prerequisites for the recognition and enforcement of
foreign decisions; d. bankruptcy and composition; e. arbitration.”
These problems may possibly be solved by deﬁnitions of the “Participating Member
States”according to the respective opt-outs such as, eg, by Art 3 no 1 Rome III Regulation.
European Commission, Communication from the Commission to the European Parlia-
ment, the Council, the European Economic and Social Committee and the Committee of
the Regions –The EU Justice Agenda for 2020 –Strengthening Trust. Mobility and
Growth within the Union, COM(2014) 144 ﬁnal of 11 March 2014, para 4.3, 7.
80 M. Weller
substantive, or procedural law regimes”.
And for further “facilitating citizens’
lives”in all areas “where mobile citizens still encounter problems”,
example “related to civil status records”, the Commission recommends that
“the EU should assess the need for further action such as rules on family names to
complement existing proposals to facilitate the acceptance of those public documents
which are of particular practical relevance when citizens or business make use of
their free movement rights.”
After all,the Commission is considering codifying the recent case law of the European
Court of Justice in Garcia Avello, Grunkin Paul and the following judgments.
any rate, codiﬁcations of any kind and in particular any kind of structure of choice
of law rules would certainly enhance mutual trust, but would only have an indirect
effect because choice of law conceptually deals with the application of foreign law
by domestic courts. This application, it should be noted, is typically subject to a
public policy control in each individual case –a control that has remained uncontested
so far by the European Commission in its policy making on the drafting of classical
choice-of-law rules as well as on the functioning of the fundamental freedoms. The
pivotal point of mutual trust lies in the recognition of foreign judicial acts in secondary
union law, not in either the application of foreign law by domestic courts under Euro-
pean choice-of-law rules, nor in any kind of more or less automatic recognition of legal
situations or relations (as long as such recognition does not become fully automatic, or,
to put it differently, dispenses entirely with any public policy control). This is why this
text will from now on focus exclusively on procedural co-operation under the topos of
2. Secondary Union law
On the level of secondary European Union law, mutual trust operates in various
sectors of civil procedure both as a justiﬁcation for rules on mutual recognition
as well as an imperative for the interpretation of these rules in a way that facilitates
mutual recognition. Many instruments expressly refer to mutual trust as a justiﬁ-
cation for their respective forms and modes of judicial co-operation between the
Member States (section (a)). The Court of Justice of the European Union has
increasingly relied on mutual trust between the Member States in interpreting
and developing these instruments (section (b)). At the same time, cases reach
the European Court of Human Rights that challenge the scope and operation of
the principle of mutual trust (section (c)). In addition, the Commission has pro-
posed the installation of a procedure for the assessment of systemic deﬁciencies
in the administration of justice in a Member State. Obviously, such an assessment
Journal of Private International Law 81
that the basis for mutual trust has been lost must challenge a normative system
based on mutual trust and recognition (section (d)). The key to integrate these chal-
lenges into the normative system is the public policy control or, to put it more gen-
erally, a convincing balance between (far-reaching) trust and (residual) control in
all constellations (section (e)).
(a) Normative system of mutual trust
First and perhaps foremost, Recitals 16 and 17 of the Brussels I Regulation
explain that mutual trust in the administration of justice within the European
Union justiﬁes judgments given in a Member State being recognised “automati-
cally without the need for any procedure except in cases of dispute”. By virtue
of the same principle of mutual trust, the procedure for making enforceable in
one Member State a judgment given in another Member State was designed to
be efﬁcient and rapid. Thus, the declaration that a judgment is enforceable is to
be issued “virtually automatically”after purely formal checks of the documents
supplied, without any possibility that the court could raise of its own motion
any of the grounds for non-enforcement provided for by this Regulation. Prior
to this regime, the Brussels I Convention provided for proceedings in the requested
Member State in which the grounds for the refusal of the recognition of a judgment
from another Member State were examined as a matter of principle before granting
Recital 26 of the Brussels I (Recast) Regulation equally relies on
mutual trust in order to justify a further step to intensify mutual recognition by
now removing any exequatur proceedings.
As a matter of mutual trust, judg-
ments rendered by the courts of other Member States are now fully equated
with domestic judgments, subject only to enumerated grounds for refusal of rec-
ognition to be examined no longer in a separate exequatur proceeding but directly
within the respective national enforcement proceeding.
In its proposal for the
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the rec-
ognition and enforcement of judgments in civil and commercial matters,  OJ L12/1.
See in particular Art 27 of the Convention on jurisdiction and the enforcement of judg-
ments in civil and commercial matters of 27 September 1968.
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12
December 2012 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters, OJ L351/1.; Recital 26 reads: “Mutual trust in the
administration of justice in the Union justiﬁes the principle that judgments given in a
Member State should be recognised in all Member States without the need for any
special procedure. In addition, the aim of making cross-border litigation less time-consum-
ing and costly justiﬁes the abolition of the declaration of enforceability prior to enforcement
in the Member State addressed. As a result, a judgment given by the courts of a Member
State should be treated as if it had been given in the Member State addressed.”
See also XE Kramer, “Cross-Border Enforcement and the Brussels I-bis Regulation:
Towards a New Balance between Mutual Trust and National Control over Fundamental
Rights”(2013) 60 Netherlands International Law Review 343, 364.
82 M. Weller
recast of that Regulation,
the Commission had suggested removing even these
grounds for refusal except for violations of procedural public policy. The Commis-
sion had intended, as a matter of enhanced mutual trust, to replace the control in
the requested Member State by a very limited control in the Member State of
origin excluding any general public policy test in respect to issues of substantive
However, the Commission’s evocation of mutual trust could not push the
Member States that far,
even though the European Union had previously
enacted instruments that prescribe automatic recognition without any public
policy control by the requested Member State once the Member State of origin
has produced the judicial act in question in a speciﬁc procedure
or has controlled
that act as shown by a speciﬁc certiﬁcate.
For example, Recital 27 of the
European Payment Order Regulation explains that a European order for
payment issued in one Member State which has become enforceable should be
regarded for the purposes of enforcement as if it had been issued in the
Member State in which enforcement is sought. The Recital refers to a key
element for building and reinforcing mutual trust in cases of automatic recognition
without any control on the part of the requested Member State –common
See Arts 38 et seq., in particular Arts 45 and 46 of the Proposal. Even consumers and other
weak parties would have been required to defend their jurisdictional protection against
errors in law in the Member State of origin.
See, eg, M Weller, “Der Kommissionsentwurf zur Reform der Brüssel I-VO”(2012)
Gemeinschaftsprivatrecht (GPR) 34; A Dickinson, “The Proposal for a Regulation of the
European Parliament and of the Council on Jurisdiction and the Recognition and Enforce-
ment of Judgments in Civil and Commercial Matters (Recast) (‘Brussels I bis’Regulation)”,
Sydney Law School, Legal Studies Research Paper no 11/58, September 2011; P Beaumont
and E Johnston, “Abolition of the Exequatur in Brussels I: Is a Public Policy Defence
Necessary for the Protection of Human Rights?”(2010) Praxis des internationalen
Privat- und Verfahrensrechts (IPRax) 105; P Beaumont and E Johnston, “Can Exequatur
be Abolished in Brussels I whilst Retaining a Public Policy Defence?”(2010) Journal of
Private International Law 249; but compare B Hess and T Pfeiffer, “Interpretation of the
Public Policy Exception as referred to in EU Instruments of Private International Law”,
Study requested by the European Parliament’s Committee on Legal Affairs, June 2011, 169.
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12
December 2006 creating a European order for payment procedure, Ofﬁcial Journal L 399
of 30 December 2006, 1 et seq; Regulation (EC) 861/2007 of the European Parliament
and of the Council of 11 July 2007 establishing a European small claims procedure, O.J.
L 199 of 31 July 2007, 1 et seq.
Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April
2004 creating a European Enforcement Order for uncontested claims, O.J. L 143 of 30 June
2004, 15 et seq.
See also XE Kramer, “Cross-Border Enforcement in the EU: Mutual Trust versus Fair
Trial? Towards Principles of European Civil Procedure”(2011) 1 International Journal
of Procedural Law 202.
Journal of Private International Law 83
“Mutual trust in the administration of justice in the Member States justiﬁes the
assessment by the court of one Member State that all conditions for issuing a Euro-
pean order for payment are fulﬁlled to enable the order to be enforced in all other
Member States without judicial review of the proper application of minimum pro-
cedural standards in the Member State where the order is to be enforced.”
Likewise, Recital 18 of the Regulation on a European Enforcement Order states
that mutual trust in the administration of justice in the Member States justiﬁes
the assessment by the court of one Member State that all conditions for certiﬁca-
tion as a European Enforcement Order are fulﬁlled. This assessment is to enable a
judgment to be enforced in all other Member States without judicial review of the
proper application of the minimum procedural standards in the requested Member
State. Mutual trust is understood to be so intense that the control of minimum stan-
dards is attributed to the courts of the same Member State whose courts have ren-
dered the judgment. Finally, Recital 21 of Brussels II-bis Regulation
22 of the Insolvency Regulation
expressly attribute to their evocations of mutual
trust not only the function of justifying mutual recognition but also the function of
guiding the interpretation of the key provisions implementing mutual recog-
This function will have to be generalised and applied to all instruments
that base their obligations for mutual recognition on mutual trust. Finally,
Recital 4 of the recent Regulation on Protection Measures
explains in terms
quite similar to those of the Recast of the Brussels I Regulation that mutual
trust in the administration of justice in the Union and the aim of ensuring
quicker and less costly circulation of protection measures within the Union jus-
tiﬁes that protection measures ordered in one Member State are recognised in
all other Member States without any exequatur proceeding. As a result, a
Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the rec-
ognition and enforcement of judgments in matrimonial matters and the matters of parental
responsibility, repealing Regulation (EC) No 1347/2000,  OJ L338/1; Recital 21
reads: “The recognition and enforcement of judgments given in a Member State should
be based on the principle of mutual trust and the grounds for non-recognition should be
kept to the minimum required.”
Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings,  OJ
L160/1; Recital 22 reads: “Recognition of judgments delivered by the courts of the
Member States should be based on the principle of mutual trust. To that end, grounds for
non-recognition should be reduced to the minimum necessary. This is also the basis on
which any dispute should be resolved where the courts of two Member States both claim
competence to open the main insolvency proceedings. The decision of the ﬁrst court to
open proceedings should be recognized in the other Member States without those
Member States having the power to scrutinize the court’s decision.”
Recital 21 Brussels IIa Regulation reads: “The recognition and enforcement of judgments
given in a Member State should be based on the principle of mutual trust and the grounds
for non-recognition should be kept to the minimum required.”
Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June
2013 on mutual recognition of protection measures in civil matters,  OJ L181/4.
84 M. Weller
protection measure ordered in one Member State will be treated as if it had been
ordered in the requested Member State. In sum, the normative system of mutual
trust in civil matters appears quite demanding. In criminal matters, the European
legislator is far more careful and acknowledges quite frankly that mutual trust is a
sensitive long-term objective that has still to be worked on.
It appears that the
justiﬁcatory force of mutual trust is limited and that using mutual trust as a
legal ﬁction does not work,
at least not beyond the point reached in the
system. The Commission should respect these limits, also in civil matters.
(b) Operating mutual trust within the normative system
The CJEU has repeatedly availed itself of the notion of mutual trust for interpret-
ing key provisions on mutual recognition, prominently for the ﬁrst time in the
seminal judgment in Gasser.
(i) Gasser.InGasser, the Court held that a court second seised whose jurisdic-
tion has been claimed under a jurisdiction agreement must nevertheless stay pro-
ceedings according to Article 27 (29 of the Recast) of the Brussels I Regulation
until the court ﬁrst seised has declared that it has no jurisdiction. In addition,
the court made clear that the Regulation does not allow any derogation from
See, eg, Recital 3 Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing
an evaluation and monitoring mechanism to verify the application of the Schengen acquis
and repealing the Decision of the Executive Committee of 16 September 1998 setting up a
Standing Committee on the evaluation and implementation of Schengen,  OJ L295/
27; see also Recital 6 Directive 2013/48/EU of the European Parliament and of the Council
of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in Euro-
pean arrest warrant proceedings, and on the right to have a third party informed upon depri-
vation of liberty and to communicate with third persons and with consular authorities while
deprived of liberty,  OJ L294/1; see also J Thomas, “The Principle of mutual recog-
nition –success or failure?”(2013) ERA Forum 595; A Erbežnik, “The Principle of Mutual
Recognition as a Utilitarian Solution, and the Way Forward”(2012) European Competition
Law Review 3; see also, for the area of general public administrative law, H Wenander,
“Recognition of Foreign Administrative Decisions –Balancing International Co-operation,
National Self-Determination and Individual Rights”(2011) Zeitschrift für ausländisches
und öffentliches Recht und Völkerrecht (ZaöRV) 755; A Suominen, The Principle of
Mutual Recognition in Co-operation in Criminal Matters A Study of the Principle in
Four Framework Decisions and in the Implementation Legislation in the Nordic Member
States (Intersentia, 2011).
For an in-depth account of the role of legal ﬁctions, in particular as a necessary tool to
make a legal system run, see, eg, N Knauer, “Legal Fictions and Juristic Truth”(2010)
St Thomas Law Review 1, 19.
Case C-116/02 –Erich Gasser GmbH v Misat Srl.  ECR I-14693; for an earlier
authority to that effect see Case C-351/89 –Overseas Union Insurance and Others
 ECR I-3317 para 23, however without speciﬁc reference to the concept of mutual
trust: “in no case is the court second seised in a better position than the court ﬁrst seised
to determine whether the latter has jurisdiction”.
Journal of Private International Law 85
this rule where the proceedings in the Member State of the court ﬁrst seised may be
excessively long. The justiﬁcation for the strict interpretation of the priority rule
under Article 27 of Brussels I was that this Regulation “is necessarily based on
the trust”which the Member States accord to each other’s legal system and
“It is that mutual trust which has enabled a compulsory system of jurisdiction to be
established, which all the courts within the purview of the Convention are required
to respect, and as a corollary the waiver by those States of the right to apply their
internal rules on recognition and enforcement of foreign judgments in favour of a sim-
pliﬁed mechanism for the recognition and enforcement of judgments.”
(ii) Turner. On this premise, the court shortly thereafter held in Turner
injunction restraining a party from commencing or continuing proceedings in a
court of a Member State cannot be compatible with the jurisdictional system estab-
lished by the Brussels I Regulation, even where it is granted by the court having
jurisdiction under that regulation because the regulation provides a complete set of
uniform rules on the allocation of jurisdiction between the courts of the Member
States which are supposed to trust each other to apply those rules correctly.
(iii) West Tankers.InWest Tankers,
the court further developed this reasoning
in holding that it is incompatible with the Brussels I Regulation for a court of a
Member State to make an order to restrain a person from commencing or continu-
ing proceedings before the courts of another Member State on the ground that such
proceedings would be contrary to an arbitration agreement. The court rejected the
(then) House of Lord’s proposition that in the ﬁeld of arbitration, excluded from
the scope of the Regulation, there was no set of uniform Community rules and
thus no ground for mutual trust because anti-suit injunctions by one Member
State court issued in view of proceedings before the court of another Member
State touch upon the relation between Member State courts and thus upon their
mutual trust in each other’s administration of justice, even if these proceedings
before state courts relate to arbitral proceedings.
(iv) Salzgitter. Further and directly on the key provisions implementing the
Member States’obligation of mutual recognition of each others’judgments, the
CJEU decided in Salzgitter that Article 34(4) of the Brussels I Regulation must
be interpreted as not covering irreconcilable judgments given by courts of the
same Member State
because Article 34(4) of the Brussels I Regulation is to
Gasser,ibid, para 72.
Case C-159/02 –Turner v Grovit  ECR I-3565.
Case C-185/07 –Allianz SpA et al v West Tankers Inc  ECR I-663.
Case C-157/12 –Salzgitter Mannesmann Handel GmbH v SC Laminorul SA, ECLI:EU:
C:2013:597, para 40.
86 M. Weller
be interpreted “in the light, not only of the wording of that provision, but also of
the system established by the regulation and the objectives it pursues”,
or, to put
it differently, narrowly in case of doubt.
For, such narrow “interpretation is sup-
ported by the principle of mutual trust on which the rules on recognition and enfor-
cement of judgments given in another Member State are based”. And in the case at
hand “the sound operation of those rules which are based on mutual trust implies
that the courts of the Member State of origin retain jurisdiction to assess, in the
context of the legal remedies established by the legal system of that Member
State, the lawfulness of the judgment to be enforced, to the exclusion, in principle,
of the court of the Member State in which enforcement is sought, and that the ﬁnal
outcome of the assessment of the lawfulness of that judgment will not be called
(v) Gothaer Versicherung.InGothaer Versicherung,
the CJEU held that a
judgment by which a court of a Member State declines jurisdiction on the basis
of a jurisdiction clause, even though that judgment is classiﬁed as a “procedural
judgment”by the law of another Member State, is a “judgment”in the sense of
Article 32 of the Brussels I Regulation in order to support the general objective
of the free movement of judgments as spelled out in Recital 6. In particular,
“recitals 16 and 17 in the preamble …underline the importance of the principle of
mutual trust between the courts of the Member States in the recognition and enforce-
ment of judgments, which also implies that that concept is not to be interpreted
restrictively, in order to avoid, inter alia, disputes as to what constitutes a
The court further held that, as a matter of mutual trust, the requested court is bound
by the ﬁnding of the court in the Member State of origin in respect to the validity of
“If a court of the Member State of origin, in the assessment of its own jurisdiction,
has held such a jurisdiction clause to be valid, it would in principle be contrary to the
principle of mutual trust between the courts of the European Union to allow a court of
the Member State in which recognition is sought to review that very same issue of
See also Case C-619/10 –Trade Agency, ECLI:EU:C:2012:531, para 27.
See also Case C-420/07 –Apostolides v Orams  ECR I-3571, para 55; Case C-139/
10 –Prism Investments BV v Jaap Anne van der Meer  ECR I-9511, para 33.
Case C-456/11 –Gothaer Versicherung et al. v Samskip GmbH ECLI:EU:C:2012:719.
See E Torralba-Mendiola and E Rodríguez-Pineau, “Two’s Company, Three’s a Crowd: Jur-
isdiction, Recognition and Res Judicata in the European Union”(2014) Journal of Private
International Law 403.
Ibid, paras 32 et seq.
Journal of Private International Law 87
The court ﬁnally explained in general terms and with the authority of the Jenard
that the exclusion of a révision au fond by Article 36 relies on and is
justiﬁed by the principle of mutual trust. Thus, mutual trust serves as a reason
for unifying the scope of res judicata in a particular point of law, although the
notion and extent of res judicata in principle is a matter of the procedural laws
of the respective Member States.
(vi) Nipponkoa. Most recently, in Nipponkoa,
the Court of Justice of the
European Union held in respect of Article 71 of the Brussels I Regulation,
which allows the application of international treaties to which the Members
States are parties on particular matters relating to jurisdiction and/or recognition
and enforcement like the CMR,
that the application of such an international
convention “cannot compromise the principles which underlie judicial co-oper-
ation in civil and commercial matters in the European Union, such as [amongst
others] …minimisation of the risk of concurrent proceedings, and mutual trust
in the administration of justice in the European Union”. The European Court of
Justice concludes from this premise that the relevant provisions of the CMR can
be applied in the European Union only if they enable the objectives of (1) the
free movement of judgments in civil and commercial matters, and (2) mutual
trust in the administration of justice in the European Union to be achieved
Jenard Report on the Brussels Convention,  OJ C 59/1 at 46: “The absence of any
review of the substance of the case implies complete conﬁdence in the court of the State in
which judgment was given; it is similarly to be assumed, that that court correctly applied the
rules of jurisdiction of the Convention.”
See also Advocate General Yves Bot, Opinion of 6 September 2012 in Case C-456/11 –
Gothaer supra n 99, para 79.
Case C-452/12 –Nipponkoa Insurance Co. (Europe) Ltd v Interzuid Transport BV,
ECLI:EU:C:2013:858, para 36; see also Case C-533/08 –TNT Express Nederland v AXA
Versicherungs- AG, ECLI:EU:C:2010:243, para 49.
Art 71 Brussels I Regulation: “This Regulation shall not affect any conventions to which
the Member States are parties and which in relation to particular matters, govern jurisdiction
or the recognition or enforcement of judgments.”
Convention on the Contract for the International Carriage of Goods by Road, signed in
Geneva on 19 May 1956, as amended by the Protocol signed in Geneva on 5 July 1978 (“the
CMR”). This Convention applies, according to its Art 1(1), “to every contract for the car-
riage of goods by road in vehicles for reward, when the place of taking over of the goods
and the place designated for delivery …are situated in two different countries, of which at
least one is a contracting country, …irrespective of the place of residence and the nation-
ality of the parties”. Art 31 of the CMR contains the jurisdiction rule and provides as basic
rule in subsection (1): “In legal proceedings arising out of carriage under this Convention,
the plaintiff may bring an action in any court or tribunal of a contracting country designated
by agreement between the parties and, in addition, in the courts or tribunals of a country
within whose territory: (a) The defendant is ordinarily resident, or has his principal place
of business, or the branch or agency through which the contract of carriage was made, or
(b) The place where the goods were taken over by the carrier or the place designated for
delivery is situated, and in no other courts or tribunals.”
88 M. Weller
under conditions at least as favourable as those resulting from the application of
the Regulation. In the case at hand, the question arose whether an action for
indemnity and an action for negative declaratory judgment on non-indemnity con-
stitute the same cause of action for the purposes of the lis pendens rule in Article
31(2) of the CMR.
The court held that the Regulation must be interpreted as
meaning that it precludes an interpretation of Article 31(2) of the CMR according
to which an action for a negative declaration or a negative declaratory judgment in
one Member State does not have the same cause of action as an action for indem-
nity between the same parties in another Member State.
(vii) Seramico. Finally, the courts of the Member States themselves have started
referring questions concerning the notion and scope of mutual trust to the Court of
Justice of the European Union. In Seramico,
the Augstākās tiesas Senāts of
Latvia asked whether it is compatible with the principle of mutual trust that the
requested court of a Member State veriﬁes for itself the information contained
in a certiﬁcate issued by a court in the Member State of origin as provided for
in Article 54 of the Brussels I Regulation in order to facilitate evidence of the judg-
ment to be enforced in the requested Member State. This question arose after the
defendant submitted to the requested court that despite the information given in the
he was not served with notice of the action brought in the Member
State of origin. The CJEU reiterated with reference to Recitals 16 and 17 that
(1) the rules on recognition and enforcement are based on mutual trust, (2) that
such trust requires that judicial decisions delivered in one Member State are recog-
nised automatically in another Member State, and (3) that the procedure for
making those decisions enforceable in that Member State is efﬁcient and
However, the court made crystal clear that this objective cannot be
attained by undermining in any way the right to a fair hearing.
requested court is entitled to verify by itself in the appeal proceedings against
the automatic declaration of enforcement whether there is reason to refuse recog-
nition on the grounds of Article 34 (2). To put it on an abstract level, the system of
appeals for which the Regulation provides against the recognition or enforcement
Art 31 (2) CMR: “Where in respect of a claim referred to in paragraph 1 of this article an
action is pending before a court or tribunal competent under that paragraph, or where in
respect of such a claim a judgment has been entered by such a court or tribunal no new
action shall be started between the same parties on the same grounds unless the judgment
of the court or tribunal before which the ﬁrst action was brought is not enforceable in the
country in which the fresh proceedings are brought.”
Case C-619/10 –Trade Agency Ltd v Seramico Investments. Ltd ECLI:EU:C:2012:531.
See Annex Vof the Regulation: “4.4. Date of service of the document instituting the pro-
ceedings where judgment was given in default of appearance”.
See also, eg, Case C-139/10 –Prism Investments BV v Jaap Anne van der Meer 
ECR I-9511, para 27.
Case C-619/10 –Trade Agency Ltd supra n 109, para 42; see also Case C-283/05 –
ASML Netherlands BV v SEMIS,  ECR I-12401, para 23.
Journal of Private International Law 89
of a judgment aims to strike “a fair balance between, on the one hand, mutual trust
in the administration of justice in the Union, and, on the other, respect for the rights
of the defendant”.
This aim justiﬁes a double review
which is in itself a limit-
ation to the principle of mutual trust. In addition, the case offered to the court an
occasion to rule on the interpretation of the general public policy control according
to Article 34 (1) in light of the guarantee for a fair trial under Article 47 of the
Charter of Fundamental Rights of the European Union. The court held that the
courts of the Member State in which enforcement is sought may refuse to
enforce a judgment given in default of appearance if this judgment disposes of
the substance of the dispute but does not contain an assessment of the subject-
matter or the basis of the action and lacks any argument of its merits, if it
appears to the court, after an overall assessment of the proceedings and in the
light of all the relevant circumstances, that that judgment is a manifest and dispro-
portionate breach of the defendant’s right to a fair trial referred to in the second
paragraph of Article 47 of the Charter, on account of the impossibility of bringing
an appropriate and effective appeal against it.
(c) Challenging the normative system by human rights
The European Court of Human Rights is quite aware of the principle of mutual
trust in European Union civil procedure.
(i) Avotiņš v Latvia (ECtHR). Most recently, in the case of Avotiņš v Latvia, cited
above in the introduction, the court expressly acknowledged that the Brussels I
Regulation “se fonde sur le principe de ‘conﬁance réciproque’dans la
Individuals have started challenging this principle in light of their
right to a fair trial, but with mixed success. For example, in the aforementioned
case of Avotiņš v Latvia, the European Court of Human Rights held that Article
34(2) of the Brussels I Regulation and its interpretation by the CJEU in Aposto-
is in conformity with Article 6(1) of the ECHR in respect to the defen-
dant’s obligation to seek redress against deﬁcient or no service of process in the
Member State of origin according to that state’s procedural rules before being
Case C-619/10 –Trade Agency Ltd supra n 109, para 42
Ibid, para 44.
Ibid, Question 2.
ECHR, Chamber judgment of 25 February 2014, case no 17502/02 –Avotiņš v Latvia,
Case C-420/07 –Apostolides supra n 100, paras 72 et seq: striking a “fair balance
between, on the one hand, mutual trust in the administration of justice in the Union”result-
ing in the ﬁnding that a default judgment given on the basis of a document instituting pro-
ceedings which was not served on the defendant in sufﬁcient time and in such a way as to
enable him to arrange for his defence must be recognised if he did not take the initiative to
appeal against that judgment when it was possible for him to do so.
90 M. Weller
entitled to invoke the ground of refusal of recognition in Article 34(2) of the Brus-
sels I Regulation in the enforcement proceedings in the requested Member
Although in such cases the Member State of origin gave reason to distrust
its administration of justice, it appears still acceptable to refer the defendant to
appeal against the deﬁcient judgment in that Member State ﬁrst.
(ii) Šneersone and Kampanella v Italy (ECtHR). Obviously, the strongest
clashes between the principle of mutual trust and the human right to a fair
trial occur in areas of judicial co-operation that exclude any residual public
policy control by the requested Member States such as, eg, for child return
orders under Articles 11 and 42 of the Brussels IIa Regulation. In the case of
Šneersone and Kampanella v Italy,
two Latvian nationals, mother and
child, alleged that Italy had violated their right to respect for their family guar-
anteed by Article 8 of the ECHR and their right to a fair trial under Article 6(1)
ECHR after Italian courts ordered the return of the child to the Italian father.
The applicants submitted, inter alia, that the Italian courts violated the principle
of mutual trust because (1) they made decisions diametrically opposite to those
of the Latvian courts, (2) the Italian courts gave an inadequately reasoned
decision, and (3) that they did not take into account all available information
about the child’s best interests. The court did not accept that diametrically
different decisions directly violate the principle of mutual trust, nor did it
accept the proposition of a violation of the right to a fair trial by exclusively
written proceedings in Italy, but held that (1) the Italian courts in their decisions
failed to sufﬁciently address the risks to the child’s best interests that had been
identiﬁed by the Latvian authorities, and that (2) the Italian courts failed to take
into account alternative measures, thereby violating Article 8 of the ECHR.
Insufﬁcient reasoning and insufﬁcient taking account of submissions to the
court, however, are not only violations of a substantive human right applicable
to the subject matter such as, in this case, Article 8 of the ECHR, but also vio-
lations of the right to a fair trial.
In this case, Latvia had also instituted infrin-
gement proceedings under Article 227 of the Treaty Establishing the European
Community (now Article 259 of the TFEU) against Italy but, in contrast to the
ECHR, Chamber judgment of 25 February 2014, case no 17502/02 –Avotiņš v Latvia,
paras 51 et seq. The Grand Chamber of the ECHR will hear this case on 8 April 2015.
ECHR, judgment of 12 July 2011, case no 14737/09 –Šneersone and Kampanella v
Ibid, paras 93 et seq.
See, eg, the German case law on the violation of the right to be heard by a court whose
reasoning of its judgment does not show that the court took account of and analysed core
arguments submitted by one party, for example the German Federal Court (Bundesgericht-
shof), decision of 12 July 2012 −IX ZB 270/11 (2012) Neue Zeitschrift für Insolvenzrecht
(NZI) 721; see also W Ball in H Musielak (ed), Zivilprozessordnung (11th ed, 2014), § 543
ZPO para 9d.
Journal of Private International Law 91
European Court of Human Rights, the European Commission held that Italy
violated neither the Regulation nor any general principles of Community
Whereas Italy had to pay compensation, the most interesting issue in
respect to the principle of mutual trust was not raised, i.e. whether the
Latvian courts are still obliged to recognise and enforce the child return order
despite the violation of human rights by the courts of origin –or whether
they are allowed or even obliged to refuse recognition and enforcement.
(iii) Simone Pelz. Shortly before Šneersone, the Court of Justice of the Euro-
pean Union, in Simone Pelz, also cited as Aguirre Zarraga, had conﬁrmed its
view that mutual trust is to be operated as a conclusive presumption even in
light of potential violations of human rights in the judgment to be recog-
“[t]he court of the Member State of enforcement can do no more
than declare that a judgment thus certiﬁed is enforceable.”The requested
court may not review the judgment even if it is “vitiated by a serious infringe-
ment of fundamental rights”.
(iv) N.S. v Secretary of State for the Home Department. However, a newly
balanced answer to this question may possibly be found in the judgment of N.
S. v Secretary of State for the Home Department
by the European Court of
Justice on implicit limits imposed by human rights guarantees on the judicial
co-operation under the Common European Asylum System.
In this case,
ECHR, judgment of 12 July 2011, case no 14737/09 –Šneersone and Kampanella v
Italy, paras 39 et seq.
Case C-491/10 PPU –Joseba Andoni Aguirre Zarraga v Simone Pelz,  ECR I-
14247para 49; see also Case C-211/10 PPU –Povse,  ECR I-6673, para 70: “no
possibility of opposing …recognition”; appeal of Soﬁa and Doris Povse against Austria
held inadmissible, ECHR, Application no 3890/11 –Soﬁa Povse and Doris Povse v
Austria; ECtHR judgment of 11 July 2008,Case C-195/08 PPU –Inga Rinau, 
ECR I-5271, para 85.
Case C-491/10 PPU –Joseba Andoni Aguirre Zarraga v Simone Pelz,ibid, paras 51 and
69: “[i]t is solely for the national courts of the Member State of origin to examine the law-
fulness of that judgment with reference to the requirements imposed, in particular, by
Article 24 of the Charter of Fundamental Rights and Article 42 of Regulation No 2201/
2003”; for a critical account emphasising the child’s interests see L Walker and P Beaumont,
“Shifting the Balance Achieved by the Abduction Convention: The Contrasting
Approaches of the European Court of Human Rights and the European Court of Justice”
(2011) Journal of Private International Law 231.
Cases C-411/10 and C-493/10 –N.S. v Secretary of State for the Home Department and
M.E. and Others v Refugee Application Commissioner and Minister for Justice, Equality
and Law Reform  ECR I-13905.
Council Regulation (EC) no 343/2003 of February 2003 establishing the criteria and
mechanisms for determining the Member State responsible for examining an asylum appli-
cation lodged in one of the Member States by a third-country national,  OJ L50/1
(“Dublin Regulation”), replacing the Convention determining the State responsible for
92 M. Weller
asylum seekers were to be returned from the United Kingdom and Ireland to
Greece. Greece was responsible for examining the asylum applications pursuant
to the Dublin Regulation. However, it was generally known that the proceedings
in Greece would be prone to violations of human rights. Therefore, the UK court
seised with the matter referred the question to the European Court of Justice
whether a Member State violates its obligation to protect EU fundamental rights
if this Member State transfers an asylum seeker to the Member State responsible
for examining the asylum application regardless of the quality of administration of
justice in that Member State. To put it differently, the UK court asked whether the
judicial co-operation under the Common European Asylum System operates on
the basis of unlimited mutual trust and thereby with a conclusive presumption
that the responsible Member State will observe the claimant’s fundamental
rights under European law and/or the minimum standards imposed by the appli-
cable secondary Union law.
Further, the UK court asked for clariﬁcation if
the Member State under the obligation to transfer the asylum seeker to another
Member State may not only be entitled to decide itself on the asylum application
but may even be obliged not to transfer the asylum seeker if there is the risk of
violations of fundamental rights in the target Member State. The European
Court of Justice held that the judicial co-operation in asylum matters grounds
on the principle of mutual trust and thereby on a presumption of compliance in
favour of each Member State, this being “the raison d’être of the European
Union and the creation of an area of freedom, security and justice”.
“if there are substantial grounds for believing that there are systemic ﬂaws in the
asylum procedure and reception conditions for asylum applicants in the Member
State responsible, resulting in inhuman or degrading treatment, within the meaning
of Article 4 of the Charter, of asylum seekers transferred to the territory of that
Member State, the transfer would be incompatible with that provision”
whereas “minor infringements”would not sufﬁce to release the Member States
from their duty under European Union law to judicial co-operation.
This is a veritable landmark decision for judicial co-operation.
pean Court of Justice released the Member States from their obligations for
examining applications for asylum lodged in one Member State of the European Commu-
nities of 15 June 1990 (“Dublin Convention”),  OJ C 1.
Case C-411/10 and C-493/10 –N.S. supra n 125, paras 50 et seq.
Ibid, para 83.
Ibid, para 86.
Ibid, para 85.
See also V Mitsilegas, “The Limits of Mutual Trust in Europe’s Area of Freedom, Secur-
ity and Justice: From Automatic Inter-State Co-operation to the Slow Emergence of the
Individual”(2012) Yearbook of European Law 319, 355; XE Kramer, “Cross-Border Enfor-
cement and the Brussels I-bis Regulation: Towards a New Balance between Mutual Trust
and National Control over Fundamental Rights”(2013) Netherlands International Law
Journal of Private International Law 93
judicial co-operation at least in case that this co-operation, if executed strictly by
the letter of the law, would result in a violation of human rights due to systemic
deﬁciencies in the administration of justice by the Member State principally
responsible. This landmark has recently been conﬁrmed once more.
Still, the decision has come with little surprise because in the same year the
European Court of Human Rights had already decided along these lines about
the human rights implications of judicial co-operation between Greece and other
Member States in asylum matters in light of human rights.
Court of Human Rights reconﬁrmed its decision in Bosphorus
that no Contract-
ing State to the European Convention on Human Rights is hindered by the Conven-
tion to transfer sovereign power to an international organisation. State action taken
in compliance with international legal obligations following from such transfer is
justiﬁed as long as the organisation is considered to protect fundamental rights
in a manner which can be considered at least equivalent to that for which the Con-
vention provides. However, a State is fully responsible under the Convention for all
acts falling outside its strict international legal obligations, notably where it exer-
cises discretion as is the case under Article 3 (2) of the Dublin Regulation.
Thus, Article 3(2) of the Dublin Regulation must be interpreted in light of the
ECHR to the effect that the respective Member State is obliged to exercise its dis-
cretion in a way that leads to a result compatible with human rights guarantees.
Under these conditions, Belgium was obliged by human rights standards to exer-
cise its discretion not to transfer the asylum seekers to Greece given the systemic
deﬁciencies in asylum proceedings there.
Interestingly, in contrast to the Euro-
pean Court of Human Rights, the European Court of Justice did not rely on any
Review 343 , esp 366; XE Kramer, “Procedure Matters –Construction and Deconstructi-
vism in European Civil Procedure”,Erasmus Law Lectures 33, The Hague 2013, 24.
Case C-4/11 –Bundesrepublik Deutschland v Kaveh Puid ECLI:EU:C:2013:740.
ECHR, judgment of 21 January 2011, application no 30696/09 –M.S.S. v Belgium and
Greece, para 338.
ECHR, judgment of 30 June 2005, application no 45036/98 –Bosphorus Hava Yollari
Turizm ve Ticaret Anonim Sirketi v Ireland, paras 152 et seq.
Art 3(2) of the Dublin Regulation reads: “By way of derogation from paragraph 1, each
Member State may examine an application for asylum lodged with it by a third-country
national, even if such examination is not its responsibility under the criteria laid down in
this Regulation. In such an event, that Member State shall become the Member State
responsible within the meaning of this Regulation and shall assume the obligations associ-
ated with that responsibility. Where appropriate, it shall inform the Member State pre-
viously responsible, the Member State conducting a procedure for determining the
Member State responsible or the Member State which has been requested to take charge
of or take back the applicant.”Art 3 (1) reads: “Member States shall examine the application
of any third country national who applies at the border or in their territory to any one of them
for asylum. The application shall be examined by a single Member State, which shall be the
one which the criteria set out in Chapter III indicate is responsible”.
ECHR, judgment of 21 January 2011, application no 30696/09 –M.S.S. v Belgium and
Greece, para 360.
94 M. Weller
margin of discretion granted to the Member States in the relevant provisions on the
judicial co-operation but introduced a general reservation. Methodically, this reser-
vation can be reconstructed as reacting to a non-apparent or hidden lacuna (ver-
in the wording of the respective secondary Union law created
by a conﬂict with human rights and resolved by recourse to human rights standards.
Some Member States’courts sought to further check out human rights impli-
cations on certain provision and scenarios of judicial co-operation in criminal
matters in respect to the European arrest warrant, but in the eyes of the Court of
Justice of the European Union, these cases did not produce any violation of
human rights, let alone violations arising from systemic deﬁciencies in the admin-
istration of justice by the responsible Member State.
(d) Challenging the normative system by “systemic deﬁciencies”in a Member
In its most recent Communication on a new framework to strengthen the rule of
law, the Commission underlines the fundamental importance of this rule of law
as the “backbone of any modern constitutional democracy”and thus also for
the European Union.
Obviously, the rule of law is to be understood in the
light of Article 2 of the TEU as including, inter alia,
the proper administration
As opposed to an apparent lacuna in the wording of a statute the non-apparent lacuna
occurs in seemingly comprehensive statutes that turn out to be not compatible with
norms of higher hierarchy, thereby creating a concealed or non-apparent lacuna.
Eg, Case C-396/11, –Ciprian Vasile Radu, ECLI:EU:C:2013:39 paras 39 et seq:“the
observance of Articles 47 and 48 of the Charter does not require that a judicial authority
of a Member State should be able to refuse to execute a European arrest warrant issued
for the purposes of conducting a criminal prosecution on the ground that the requested
person was not heard by the issuing judicial authorities before the arrest warrant was
issued. It must be stated that an obligation for the issuing judicial authority to hear the
requested person before such a European arrest warrant is issued would inevitably lead
to the failure of the very system of surrender …and consequently prevent the achievement
of the area of freedom, security and justice …”; Case C-399/11 –Stefano Melloni v Min-
isterio Fiscal ECLI:EU:C:2013:107: Compatibility of Art 4a(1) of the Framework Decision
2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures
between Member States, as amended by Council Framework Decision 2009/299/JHA of 26
February 2009 as interpreted by the court –executing judicial authority is precluded from
making execution of a European arrest warrant issued for the purposes of executing a sen-
tence conditional upon the conviction rendered in absentia being open to review in the
issuing Member State –with Arts 47 and 48 (2) as well as with Art 53 of the Charter of
Fundamental Rights of the European Union.
European CommissioņCommunication from the Commission to the European Parlia-
ment and the Council –A new EU Framework to strengthen the Rule of Law, COM
(2014) 158 ﬁnal of 11 March 2014.
According to the Commission’s observation as substantiated by case law in Annex I of its
Communication, the rule of law includes, for example, “legality”relating to a transparent,
accountable, democratic and pluralistic process for enacting laws, “legal certainty”,
Journal of Private International Law 95
of justice by the judiciaries of the Member States and this constitutes the core pre-
requisite for mutual trust in judicial co-operation.
The Commission rightly
states that the different judicial systems of the EU Member States
“are, in principle, well designed and equipped to protect citizens against any threat to
the rule of law. However, recent events in some Member States have demonstrated a
lack of respect for the rule of law and, as a consequence, also for the fundamental
values which the rule of law aims to protect, can become a matter of serious
In order to take care of such concerns, the Commission proposes to introduce a new
procedure, the “pre-Article 7-procedure”. Under Article 7 of the TEU, the Council
may under certain procedural conditions determine that there is a clear risk of a
serious breach by a Member State of the values referred to in Article 2 of the
TEU. In a second step, the European Council, again under certain procedural con-
ditions, may determine the existence of a serious and persistent breach by a
Member State of the values referred to in Article 2 of the TEU, after inviting the
Member State in question to submit its observations. Finally, where a determination
under paragraph 2 has been made, the Council may decide to suspend certain of the
rights deriving from the application of the Treaties to the Member State in question,
including the voting rights of the representative of the government of that Member
State in the Council –in the language of the President of the European Commis-
sion, the “nuclear option”of the European Union against threats to the rule of
The Commission is now proposing a formalised communication prior to
resorting to the procedure provided for under Article 7 of the TEU. This new frame-
work aims to address threats to the rule of law of a systemic nature.
the core term “systemic deﬁciencies”, the Commission expressly makes reference
to the jurisprudence of the Court of Justice of the European Union discussed above,
in particular to the matter in N.S. concerning the judicial co-operation in asylum
matters under the Dublin Regulation.
In such a case, the Commission envisages
a three-stage process including (1) a precise assessment of the situation by the
“prohibition of arbitrariness of the executive powers”, but also and of the highest relevance
for the purposes of this text, “independent and impartial courts, effective judicial review
including respect for fundamental rights and equality before the law”,ibid,4.
See above section C.1(i) –In what to trust?
José Manuel Durão Barroso, State of the Union 2012 Address of 12 September 2012,
10, http://europa.eu/rapid/press-release_SPEECH-12-596_en.htm (16 May 2014): “We
need a better developed set of instruments –not just the alternative between the ‘soft
power’of political persuasion and the ‘nuclear option’of article 7 of the Treaty.”
European CommissioņCommunication from the Commission to the European Parlia-
ment and the Council –A New EU Framework to Strengthen the Rule of Law, COM
(2014) 158 ﬁnal of 11 March 2014, 7.
Cases C-411/10 and C-493/10 –N.S. supra n 125, paras 86 et seq; see also Case C-4/11 –
Germany v Kaveh Puid supra n 132, para 36.
96 M. Weller
Commission, (2) a recommendation to the Member State in question by the Com-
mission, and (3) the monitoring of progress in the Member State and/or follow-up
recommendations. If and to the extent “systemic deﬁciencies”in this procedure are
to be understood as deﬁned by the CJEU in order to limit obligations of the
Member States for mutual recognition under secondary law of the European
Union because mutual trust is no longer justiﬁed in the exceptional circumstances
of the particular case at hand,
then it would be only logical to assume a general
limitation on the Member States’obligations for mutual recognition once the Com-
mission has assessed general or “systemic deﬁciencies”in the Member State from
which the judicial act in question has come. To expressly assess systemic
deﬁciencies in the administration of justice of a Member State means nothing
else but declaring that the basis for trust in that Member State’s administration of
justice is lost –at least for the moment and until the Commission observes
implementation of its recommendations and sufﬁcient improvement.
(e) Integrating the challenges into the normative system
In order to integrate these challenges into the normative system of mutual trust, a
convincing balance between (far-reaching) trust and (residual) control needs to be
achieved. In the long run, only such a balance will uphold and enhance real mutual
trust amongst the Member States.
(i) Express public policy clause. The key instruments for exercising such
residual control are public policy controls. Where there is an express public
policy clause there is no need for the party resisting recognition and enforcement
to establish a systemic deﬁciency in the Member State of origin of the judicial act
in question. Rather, it sufﬁces to establish a (singular) violation of public policy in
the proceedings in question. It is not necessary that this violation of public policy
amounts to a violation of human rights. Nevertheless this will often be the case. If
the Commission has assessed systemic deﬁciencies relating to the administration
of justice by the Member State of origin, the court of the Member State obliged to
recognise the judicial act in question should be allowed and even be obliged to
review the proceedings on its own motion for violations of human rights,
See ibid and above section C.2(c).
According to Art 41 of the Brussels I Regulation, a judgment must be declared
enforceable immediately on completion of the formalities in Art 53 without any
review under Arts 34 and 35, and the party against whom enforcement is sought
cannot at this stage of the proceedings make any submissions on the application, but
only in appeals proceedings according to Art 43, see, eg, S Leible, in T Rauscher
(ed), Europäisches Zivilprozessrecht/Europäisches Internationales Privatrecht
(Munich 2011), Art 34 Brussels I Regulation, para 3. Art 36 of the Brussels I Regulation
(Recast) now provides that a judgment given in a Member State shall be recognised in
other Member States without any special procedure, and Art 45 of the Brussels I
Journal of Private International Law 97
least in a prima facie review. If the resisting party submits that there was a (singu-
lar) violation of public policy, the standard of proof for such a violation of public
policy should be lowered to probability. For, if it is sufﬁcient to establish for an
implied exception from mutual recognition that “there are substantial grounds
for believing”that there are systemic ﬂaws in the proceedings of the Member
State of origin resulting in violations of human rights,
there should not be a
higher standard for establishing a concrete violation of public policy in a proceed-
ing of such a Member State. One may even think about shifting the burden of
proof to the party seeking recognition and enforcement.
For, once the Commis-
sion has assessed systemic deﬁciencies in the administration of justice by the
Member State of origin, the basis for mutual trust is put into question,
normative system based on mutual trust must react.
(ii) Implied public policy control. Where there is no express public policy clause
the European Court of Human Rights
and the European Court of Justice
developed an implied public policy control by the Member State obliged to recog-
nise a judicial act of another Member State. The party resisting recognition and
enforcement must establish that there are substantial grounds for believing that
there are systemic ﬂaws in the procedures of the Member State from which the
judicial act originates, and these ﬂaws must result in the violation of human
rights. This implied public policy control is a general and indispensable element
of residual control in the normative system of mutual trust in judicial co-operation.
Therefore, it must even apply in favour of the second Member State where an
instrument of secondary law expressly attributes control powers only to the
Member State of origin.
The European legislator cannot derogate from and
cannot exclude this implied public policy control. The fundamental values and
rights forming the basis for mutual trust on the level of primary law
limits for the secondary law.
Regulation (Recast) provides that recognition shall be refused “on the application of any
interested party”on any of the grounds listed in that article. Despite this structural
change, the normative imperative for reviewing the proceedings in the ﬁrst Member
State for violations of human rights remains unaltered.
Cases C-411/10 and C-493/10 –N.S. supra n 125, para 86 and above section C.2(d).
There is no authority by the CJEU on the burden of proof in this matter. In general, com-
mentators shift the burden of proof to the party who contests the recognition, see, eg, S
Leible, in T Rauscher (ed) supra n 146, para 3a with further references.
See above section C.2(d).
ECHR, judgment of 21 January 2011, application no 30696/09 –M.S.S. v Belgium and
Greece, para 338, and above sub C.2.d.
Cases C-411/10 and C-493/10 –N. S. supra n 125, para 86, and above section C.2(d).
See, eg, Regulation (EC) No 805/2004 of the European Parliament and of the Council of
21 April 2004 creating a European Enforcement Order for uncontested claims,  OJ
L143/15 and above section C.2(a).
See above section C.1(a).
98 M. Weller
(iii) Révision au fond for manifest errors of law. A third element of residual
control could be a révision au fond strictly limited to manifest errors of law
once the Commission has assessed systemic deﬁciencies in a Member State relat-
ing to its administration of justice. According to Article 36 (Article 52 of the
Recast) of the Brussels I Regulation, “under no circumstances”may a judgment
from another Member State be reviewed. The prohibition of the révision au
fond is the core element of mutual trust on the level of recognition of foreign judg-
ments in general and under the Brussels I Regulation.
However, if the Commis-
sion has declared that the basis for this trust is in doubt, then the normative system
of mutual trust must react. A manifest error in law does not necessarily result in a
violation of public policy, let alone in a violation of human rights. For example, if
a court holds against all authorities that a prescription period runs for three years
rather than two then the defendant may lose because of this manifest error in law
but it would be difﬁcult to see how such error should be reframed as a violation of
public policy, at least if the defendant were heard by the court with all arguments
on this point of law. If at the same time, the Commission has assessed systemic
deﬁciencies in that Member State, there should be the possibility of a review of
such manifest errors in law.
(iv) The European Union needs to trust its Member States. The elements of
residual control described above do not threaten the European Union area of
justice, freedom and security or the judicial co-operation amongst Member
States. There is sufﬁcient evidence that EU Member States do not abuse their
powers of residual control.
In addition, common standards, in particular
those created by the European Convention on Human Rights and the Charter of
Fundamental Rights of the European Union, harmonise the exercise of the
public policy control by Member States, and the CJEU may have the opportunity
to supervise the exercise of the control mechanisms thereby limiting abuses.
The more that public policy is Europeanised, the more the public policy control
by each Member State in each individual case departs from too great a protection
of national particularities and protects the rule of law in the area of fundamental
rights and other core values of the Union. Delaying tactics by defendants who
See above section B.1.
European Parliament, Directorate General for Internal Policies, Policy Department C:
Citizen’s Rights and Constitutional Affairs, Legal Affairs, Interpretation of the Public
Policy Exception as referred to in EU Instruments of Private International Law, Study by
B Hess and T Pfeiffer, University of Heidelberg, Brussels 2010, 13.
See in particular Case C-7/98 –Krombach,  ECR I-1935, para 39; Case C-38/98 –
Renault,  ECR I-2973, para 26; for an excellent in-depth analysis of European Union
public policy on all levels see T Corthaut, EU Ordre Public (Alphens 2012) (book review
by M Weller in (2014) Rabels Zeitschrift); W Wurmnest, “Ordre public”,in S Leible (ed),
Brauchen wir eine Rom 0-VO? Überlegungen zu einem Allgemeinen Teil des europäische-
nIPR (Jena 2013), S. 445 et seq; see also E Jayme, Nationaler Ordre public und europäische
Integration –Betrachtungen zum Krombach-Urteil des EuGH (Vienna, 2000).
Journal of Private International Law 99
may be tempted to raise unfounded claims of public policy violations should be
taken care of by clarifying the procedural rules for submitting and proving such
violations and by training judges on how to operate public policy clauses
quickly on the grounds of these rules.
To be sure, the standards for the
implied public policy control in the case of systemic deﬁciencies would still
have to be developed. Nevertheless, the European Union should trust the
Member States not to abuse their residual control powers.
The deconstruction of the opaque and omnipresent buzzword of mutual trust in
European Union policy-making for judicial co-operation in civil matters has
revealed the following facets:
1. Traditional notions and explanations for structures of private international
law may be translated into aspects of trust to a certain extent. On this
route, trust plays a more important role on the level of recognition of
foreign judicial acts than on the level of choice of law. If the European
Union’s policy for judicial co-operation in civil matters sails under the
ﬂag of mutual trust, it thereby signals that its focal point is recognition
and that choice of law, albeit playing an important role, tends to be con-
ceptualised primarily as follow-on support for convincing recognition
2. Both on the level of recognition of foreign judicial acts as well as of
choice of law, trust is never granted unconditionally but is balanced
against forms of residual control, in particular public policy clauses.
3. Article 2 in connection with Article 6(1) and (3) of the TEU raise high
expectations for the values of “justice”and the “rule of law”supposed
to be common to all Member States as a basis for granting mutual trust
in the administration of justice. Mutual recognition of foreign judicial
acts from other Member States appears as the predominant practice and
expression of granting such trust.
4. The functioning of the fundamental freedoms relies on the mutual recog-
nition of the exercise of regulatory powers. This mechanism may be
reconstructed to a certain extent in choice-of-law rules. However, the
essential difference between choice-of-law rules and the fundamental
freedoms is that the freedoms require the Member States to ensure that
cross-border trade is not hindered unduly whereas choice-of-law rules
The Commission puts much emphasis on judicial training in EU law in order to
strengthen mutual trust, see European CommissioņCommunication from the Commission
to the European Parliament and the Council –A New EU Framework to Strengthen the Rule
of Law, COM(2014) 158 ﬁnal of 11 March 2014. sub 4.1. (iii), 5.
100 M. Weller
are merely one legal technique amongst others to achieve this objective.
Nevertheless, the mechanism of mutual recognition developed in the
context of fundamental freedoms strongly inspired the Commission’s
thinking about choice of law that for a while revolved around a general
concept of the mutual recognition of legal relationships, thus making
mutual recognition the “grand unifying theory”of judicial co-operation
in civil matters.
5. On the level of secondary law the European Union has established a far-
reaching normative system of mutual recognition based on mutual trust.
Mutual trust serves as the justiﬁcation and express explanation for instal-
ling obligations for mutual recognition. In this system the Commission
tends to shift the balance between trust and control towards absolute
trust but faces resistance from the Member States. The justiﬁcatory
force of mutual trust is limited. Using mutual trust as legal ﬁction does
not work, at least not beyond the point reached in the system. The Com-
mission should respect these limits.
6. In the operation of that normative system, the Court of Justice of the Euro-
pean Union has started using the justiﬁcatory principle of mutual trust as
an interpretative imperative. Since Gasser, a number of cases have turned
on an extensive interpretation of rules on mutual recognition in light of the
underlying principle of mutual trust. Most recently, the Member State
courts have started to refer questions to the CJEU on the notion and
scope of the principle of mutual trust.
7. However, the system is challenged by human rights guarantees, in par-
ticular in light of Article 6(1) of the ECHR. In 2011, both the European
Court of Human Rights in M.S.S. v Belgium and Greece and the Court
of Justice of the European Union in N.S. v Secretary of State for the
Home Department developed implied exceptions to mutual recognition
where the basis for mutual trust is highly questionable. These cases
involved asylum seekers. The ratio of these decisions can be applied to
judicial co-operation in civil matters.
8. The system is further challenged by doubts about the administration of
justice in certain Member States. Most recently, the Commission has pro-
posed to introduce a procedure for assessing and monitoring systemic
deﬁciencies in fulﬁlling the expectations of European Union law for the
proper administration of justice. If this proposal is implemented, the nor-
mative system based on mutual trust must react once the Commission has
assessed such systemic deﬁciencies in a particular Member State.
9. Technically, the system will have to react by modifying the use of express
public policy clauses, by accepting that there is an implied public policy
control in any instrument ordering mutual recognition in case of systemic
deﬁciencies and possibly by limiting to a certain extent the prohibition of
arévision au fond of foreign judgments in cases of manifest errors in law
Journal of Private International Law 101
by courts in Member States where systemic deﬁciencies in the adminis-
tration of justice have been assessed.
10. On these premises, the balance between (far-reaching) trust and (residual)
control will be struck convincingly. This must be the overriding objective
in striving for European Union private international law based on mutual
102 M. Weller