FELIX RONKES AGERBEEK: Welcome to Europa Felix. Today, we’re delving into a topic that sits at the heart of how EU law functions: the principle of mutual trust. Though it's a technical subject, it's deeply intertwined with the existential questions about what the EU is and aspires to be. The principle of mutual trust isn’t just a legal precept; it’s a litmus test for the health of European integration itself. 

Joining me is Cecilia Rizcallah. She is professor of European Law at the Brussels campus of UC Louvain and a co-president of the newly established Belgian Association for European Union Law. Cecilia has published extensively on mutual trust, including a prize-winning book which is available in both English and French.

In this conversation, we’ll unpack the principle of mutual trust through real case-law examples. We'll explore the challenges of applying that principle in civil law, in criminal law and in asylum law. And we'll discuss how this foundational principle is being tested by Europe's current 'crisis of values.'

Here is Cecilia Rizcallah.

Cecilia, welcome to the show!

CECILIA RIZCALLAH: Thank you very much for your invitation.

FELIX RONKES AGERBEEK: Today, we’re going to talk about the principle of mutual trust, a topic you’ve literally written the book on. What inspired you to focus on this subject?

CECILIA RIZCALLAH: So I was very interested as a student in EU law, but also in human rights. And the topic of mutual trust very quickly appeared as being the topic that bridges the question of EU constitutional law and the question of EU integration with questions related to the protection of fundamental rights. And so I was really interested in the dynamic prompted by this principle.

FELIX RONKES AGERBEEK: In the context of EU law, what exactly is the principle of mutual trust, and where does it typically come into play?

CECILIA RIZCALLAH: The principle of mutual trust actually appeared very early in EU integration and in a quite random manner. It was in relation to the mutual recognition of diplomas, in relation to the internal market, and also in relation, of course, to mutual recognition of judgments. But it was not described at that time as being a constitutional principle of the EU legal order. And now it became one, because it is actually a very important tool for EU integration as it enables national authorities to cooperate despite the differences of their national legal orders. And this principle has been developed in many other areas. As I said it was first used in relation to technical questions of the internal market, but as it was a very attractive tool for integration, it was then borrowed in other fields that are much more controversial. Fields that belong to the Area of Freedom, Security and Justice notably. And so this principle acquired a very wide scope in EU law and is now used actually on a daily basis by national authorities. And that’s why I describe it now as being a structural, foundational principle of EU law, such as the principle of primacy and direct effect. 

FELIX RONKES AGERBEEK: It seems like the principle was always there, quietly present in the case law on the recognition of diplomas and things like that. But as EU policies expanded, especially in the Area of Freedom, Security, and Justice, it became much more visible. Is that a fair summary?

CECILIA RIZCALLAH: Yes, but it also became more controversial because of the consequences of mutual trust in these new fields of application. If there is a lack of trust in the field of mutual recognition of diplomas, and finally a diploma is recognised while the education behind it was a bit weak, or there was some problem in this education, the consequences will maybe be less harmful than when we speak about the transfer, the surrender of people that can suffer serious violations of their fundamental rights. And it is also the reason why I think that mutual trust became a topical issue of the literature and of the case-law. Because the consequences of this principle became more and more serious and could have important consequences for fundamental rights.

FELIX RONKES AGERBEEK: Could you give us some examples of those consequences Specifically, in the Area of Freedom, Security, and Justice—what kinds of policies fall under this, and how does mutual trust fit in?

CECILIA RIZCALLAH: So the principle of mutual trust is a very important principle for the Area of Freedom Security and Justice as it underlies almost all the instruments of this field. So this field includes criminal cooperation, civil justice cooperation, and also the Common European Asylum System. And actually the principle of mutual trust was very early used by EU institutions and the Member States for the specific reason that these fields are very close to national sovereignty. And actually Member States do not want to abandon their own national singularities, be it in their criminal law system, be it in their civil justice system. So they want to keep a hand on the substance of this system, but they are also aware that they need to cooperate, especially if they want to create and maintain an area without internal borders. And so very quickly, the need to have an instrument that enables the maintenance of national singularities and swift and strong cooperation between national authorities appeared. And that ’s why mutual trust became so important for this Area of Freedom Security and Justice. 

FELIX RONKES AGERBEEK: That’s an interesting point. People often emphasise commonalities as the key to mutual trust, but you ar suggesting we need it precisely because of our differences. Could you expand on that?

CECILIA RIZCALLAH: In fields where there is harmonisation mutual trust can be useful. It is the case within the Common European Asylum System where there are strong measures of harmonisation but trust is still needed. There the trust will play a role in the execution of the rule. We will trust other Member States and we will trust the national authorities to comply with the common obligations that we have. But trust is even more needed, I believe, when there is no harmonisation, and when we don’t have common rules, because there national authorities need to trust in each other’s different legal system. And that is the place where mutual trust is the strongest, I mean the need for mutual trust is the strongest.

FELIX RONKES AGERBEEK: The Area of Freedom, Security, and Justice covers a lot of ground. You’ve already mentioned civil justice cooperation—could you explain how EU law plays a role here, and what kind of difficulties this brings up regarding mutual trust?

CECILIA RIZCALLAH: So mutual trust was used very early, at the outset of civil judicial cooperation within the realm of the European Communities, and actually it comes back to the Brussels Convention of 1968, which was formally speaking concluded outside the institutional law framework, but still it has been afterwords concluded in the [EU] Treaties. And this Convention imposes mutual recognition of judgments in civil matters between the different Member States. So there is a duty of trust, with regard to these other judgments. But this duty of trust exists also in general international private law. If you look at Belgian law, for example, we have an international private law code that will say that, under certain conditions, we have to recognise judgments that have been delivered in other states. The difference at EU level is that we have a common set of rules that will determine the jurisdiction that is competent and common rules regarding the recognition, where because of mutual trust the grounds for refusal of the recognition are limited. Nevertheless, in most of the instruments, not all of them, but most civil judicial cooperation instruments include public policy grounds justifying non-recognition. This is a major difference with criminal judicial cooperation instruments - I guess we will come back to that.

FELIX RONKES AGERBEEK: Let’s stick with civil law for a moment. For example, imagine someone in Latvia borrows money from a company in Cyprus. At some point, the company claims that the debt hasn't been repaid and obtains a judgment in a Cypriot court. The company then wants this judgment enforced in Latvia. That’s where the 'Brussels I bis Regulation' comes in, right? And the basic rule is that Latvia must recognise the Cypriot court’s judgment.

CECILIA RIZCALLAH: Yes, but still, for example in the Brussels I bis regulation, there is a public policy ground that enables national judges to refuse to recognise a judgment delivered by another Member State, on the ground of public policy. However, because of mutual trust, the Court of Justice has construed this possibility in a very narrow way. And one example of that, in relation to human rights, is the Krombach case.

FELIX RONKES AGERBEEK: That’s a tragic case. Krombach was a German doctor who turned out to be a serial killer and also killed his French stepdaughter. There are many layers to this, but please continue…

CECILIA RIZCALLAH: Without entering into all the details and focusing on the civil part of the case… Basically, Mr Krombach committed a crime against a French girl. And the father of this French girl sued him in France, because German authorities did not pursue the investigation against him. So he went to the French judge. And the French Cour d’assises condemned Mr Krombach among others to civil damages. But Mr Krombach was in Germany and the father of the deceased girl had to go to the German judges to ask for the recognition of this civil judgment to obtain the damages he was entitled to receive. And the German judges realised that Mr Krombach was not present at the case, so the judgment was rendered in absentia. And additionally, he was represented by a counsel, and the French Cour d’assises refused to hear his lawyer because he was not personally present. And the German judges were wondering if that should not be considered as being a violation of his right to a fair trial justifying the non-recognition of this judgment. So the German court asked for a preliminary ruling from the Court of Justice. And the Court of Justice confirmed that the public policy ground that can be used to refuse the recognition of a judgment may include fundamental rights concerns. However, because of mutual trust, it is only in case of a manifest breach of fundamental rights that this clause could be used by a national judge to distrust his or her peer. The idea is to say: ok, there is a public policy ground, but you should trust the other European judges and it is only in case of manifest breach of a fundamental right - in this case the right to a fair trial - that you could set aside trust and refuse the recognition of the judgment.

FELIX RONKES AGERBEEK: The aftermath of that case is long and complicated, including the father eventually kidnapping Mr. Krombach. We could fill an entire episode with this case, but we don’t have to: there’s a Netflix documentary on it. Let’s switch gears to another area of civil cooperation—child custody. Could you explain how mutual trust plays a role there?

CECILIA RIZCALLAH: Here we have a very important regulation about dividing the jurisdiction between the Member States. Who is competent to rule on a case where there is a cross border element? For example, you have a mother who is Spanish, a father who is Polish, they live in Brussels, then they divorce, and they want to have a judgment on the custody of the child. Should they go to the Spanish judge, the Polish judge, the Belgian judge… So this questions are ruled in the regulation and it is important to underline that it is harmonised, so Member States have to respect this division of jurisdiction. There is also the duty of trust and the duty to mutually recognise the judgment delivered by the competent judge. There are some exceptions, grounds of refusal of recognition, but there is one important tool in this regulation. It is the Certificate of Return. That enables a judge to order the return of a child that has been displaced illegally, in contradiction of a custody decision. And this [certificate] has to be recognised in all the other Member States and there are no grounds of refusal. An absolute trust has to be devoted to the certificate that has been issued by one of the Member States. And the reason behind this very strong duty of trust is the importance to have a swift return from the child that has been illegally displaced by one of the parents. And so here we have many cases arising from this absolute duty of trust…there is notably the Zarraga case.

FELIX RONKES AGERBEEK: I was just about to ask for an example but you were a step ahead of me.

CECILIA RIZCALLAH: So the Zarraga case concerned a Spanish father and a German mother that lived in Spain and had a daughter there. And then they got divorced. And the German mother wanted to go back to Germany, but she also wanted to take her daughter with her. And as the habitual residence of the child was Spain, it was the Spanish judges that were competent according to the regulation. And the Spanish judges gave the custody of this daughter to her father. The mother was not happy about this decision and the daughter went on holiday to her mother but she never came back. And she stayed in Germany. And the father quite logically asked for the certificate ordering the return of his daughter in Spain, and the Spanish judges asked for a hearing of the daughter, as it is provided in the regulation. Normally the children have the right to be heard by the judges and it is also an application of article 24 of the [EU Charter of Fundamental Rights] on the best interest of the child. But the daughter did not come back to Spain for this hearing. And nevertheless, Spanish judges decided to issue that certificate of return and it arrived in the hands of German judges. And the German mother contested that order by saying that her daughter has not been heard and that it was a contradiction of the regulation and also of the Charter and of the fundamental rights of her daughter. And that is the case that led to the preliminary ruling of the Court of Justice, where the Court of Justice insisted on the automaticity of the recognition of these certificates, in order to protect the best interest of the children that have been abducted. And it considered that even if there might be doubts about the respect of the right to be heard of the child, the executing judge, so here the German judge, couldn’t refuse to execute the certificate. And what I understand behind the lines - of course it was not expressed like this in the judgment - is that the violation was not that important. It was not… We were not speaking about an absolute right such as the prohibition of inhuman and degrading treatment. And since the violation was not that serious the Court of Justice preferred to safeguard mutual trust and the efficiency of the system put in place by the Brussels Regulation.

FELIX RONKES AGERBEEK: Thanks for setting that out so clearly. You can see the difficult trade-offs involved. The Court ultimately respected the choice of the EU legislature. But the idea that operates in the background is that EU law requires Member States to have sound judicial systems that adequately protect fundamental rights.

CECILIA RIZCALLAH: Yes of course, and that’s why the Court of Justice will always insist on the fact that you can put in question a judgment that has been delivered by one Member State, but only in that Member State.  Because you have in principle a sound judicial system that protects fundamental rights. EU Member States are presumed to respect and to share different values including fundamental rights as protected by the Charter and the European Convention on Human Rights. And they are also presumed to have functioning judicial systems that can protect these rights in a good manner.

FELIX RONKES AGERBEEK: That presumption is the bedrock of mutual trust in the EU, and this is perhaps most visible in the field of criminal law, especially with the European Arrest Warrant. Could you explain how the European Arrest Warrant  works?

CECILIA RIZCALLAH: So the European Arrest Warrant system is actually a very, now we can say, old system of criminal cooperation within the EU that was adopted after the big terrorist attacks of 2001 and with the threat of new terrorist attacks, also in the EU. So Member States wanted to have a very strong and efficient system for fighting against that. Especially in an area without internal borders, where going from one Member State to the other is very easy and there are no longer controls at the internal borders, so of course it is easy for terrorists and other criminals to go away in other states. And so they wanted a strong system of cooperation, and they adopted the European Arrest Warrant System, which enables one Member State to require the arrest of someone who is present in another Member State either for the sake of prosecution or in order to execute a sentence that has already been adopted by the issuing Member State. This system is the most innovative and strongest system of criminal cooperation between different states, I think. Because there are almost no grounds of refusal. There are a few grounds of refusal, and some of them relate to fundamental rights concerns, such as the principle of ne bis in idem, the right to a fair trial, but the list is exhaustive and is quite short. And there is no ground of refusal in relation to the general protection of fundamental rights. And so it is an almost automatic system. So judges are executing almost automatically European Arrest Warrants issued by judges from other Member States.

FELIX RONKES AGERBEEK: Can you give an example of how the Court of Justice handles the interplay between mutual trust and fundamental rights when dealing with a European Arrest Warrant?

CECILIA RIZCALLAH: The European Arrest Warrant system is a very good illustration to talk about mutual trust. And actually it is very paradoxical, because mutual trust is founded on the fact that Member States share and respect fundamental rights. So immediately when you speak about that topic you have an opposition between two ideas that should in principle be linked: one is the consequence of the other. But then, mutual trust comes also as a threat to fundamental rights, so it is a bit a circular idea. And so in the field of the European Arrest Warrant you see that circular relationship very clearly. And I can maybe give one example. It is a recent case that has been dealt with by the Court of Justice, the GN case, that concerns an Italian woman who had two young children and who was subject to a European Arrest Warrant issued by Belgian authorities. Because she was convicted for human trafficking and facilitating illegal migration. And so Belgian authorities, who tried this woman in absentia, wanted to execute that sentence. And they knew that this woman was in Italy and so they issued a European Arrest Warrant for the sake of execution of the sentence. And the Italian authorities were in a difficult situation, because the Italian woman had two children from a very young age. And so the Italian authorities asked for a preliminary ruling from the Court of Justice asking what they should do in front of this situation, where on the one hand there was the need to protect the fundamental rights of the person concerned, of the mother, but also of her children, and on the other hand there was the necessity to guarantee the effectiveness of justice and to execute that European Arrest Warrant to avoid impunity. Actually, the European Arrest Warrant system supports justice and security, but also the fundamental rights of the victims — and that was explicitly confirmed by the European Court of Human Rights, for example in a case Romeo Castaño where Belgium was condemned for not having executed the European Arrest Warrant.

FELIX RONKES AGERBEEK: And how did the Court of Justice resolve these different interests in the case of the Italian mother who was convicted of human trafficking?

CECILIA RIZCALLAH: By using this famous two-step test that it had already developed in other case-law, where basically it imposed the duty of trust unless two conditions are met. First, the duty of trust could be set aside if there are systemic deficiencies in the issuing Member State with regard to the fundamental right at stake in this case. So in this case it is the question of the situation of mothers that are imprisoned and the care that is reserved to the children of people that are imprisoned. 

FELIX RONKES AGERBEEK: In Belgium…

CECILIA RIZCALLAH: In Belgium. So we look at the system. And then, if there are systemic deficiencies, it is not enough to justify setting aside mutual trust. The executing state must also notice that the person concerned, because of its individual situation, will be directly facing that risk. That means that even in the presence of systemic deficiencies, the issuing Member States can provide safeguards to guarantee that this person will not be facing these systemic deficiencies. 

FELIX RONKES AGERBEEK: To sum up, under the European Arrest Warrant Framework Decision, there are grounds where authorities must refuse the execution—like ne bis in idem. Then there are optional grounds for refusal, like if the executing state is prosecuting the same person for the same facts. And finally, as you described, there’s the two-step test the Court applies in certain situations.

CECILIA RIZCALLAH: The exceptional circumstances doctrine.

FELIX RONKES AGERBEEK: The exceptional circumstances doctrine. Okay.

CECILIA RIZCALLAH: That was developed by the Court of Justice on the basis of article 1 point 3 of the Framework Decision that says that the European Arrest Warrant system should not hamper fundamental rights. But it is not an explicit ground of refusal. But on that basis the Court of Justice developed a case-law, a line of case-law, enabling it to develop additional grounds of refusal that were not provided in the Framework Decision. But the Court of Justice had no other choice. Because it was confronted [with] very serious violations of fundamental rights. And also there was the Strasbourg court behind it, that in other cases said that Member States had to continue respecting the Convention when they apply EU law, which is logical — you cannot deny your ECHR obligation in the name of your EU law obligation.

FELIX RONKES AGERBEEK: I want to return to the European Convention on Human Rights in a moment, but there is one area that we only mentioned in passing, and that is cooperation in the field of asylum, the Dublin III Regulation. Would you mind saying a bit more about that?

CECILIA RIZCALLAH: So the Dublin regulation is actually also an old instrument of the EU legal order. It was first adopted as the Dublic Convention as a flanking measure, actually, to the Schengen Agreement. Because Member States decided to remove internal borders they had to find a way to share responsibilities with regard to people that will arrive in Europe, seeking for international protection. Because again Member States did not want to  have a centralised asylum system… We could have imagined a centralised European agency that would have decided upon these international protection requests with a status that would have been valid in all the Member States… That was not the way the Member States wanted to do it. They wanted to keep national structures, and as we had no longer internal borders, we had to find a way to organise the different responsibilities in that regard. And another element that we very often tend to forget is that the Dublin Convention was not only adopted in the interest of the states, in order to share their responsibilities, but also to protect asylum seekers and to guarantee an access to an asylum procedure, to avoid the situation where an asylum seeker would arrive in Europe and have no place to lodge an asylum application. So that’s the Dublin system in 1990. It evolved. It became a regulation as it became a genuine competence of the EU. And quickly harmonisation was needed, and that’s why, at EU level, we started to adopt harmonisation measures that harmonised the procedure, the reception conditions and also the conditions under which you can ask for international protection.

FELIX RONKES AGERBEEK: I know there are many cases in this field, but could you give one example of a Dublin case where the issue of mutual trust came up, and how the Court addressed it?

CECILIA RIZCALLAH: There are indeed plenty of case and also an evolving case-law of the Court of Justice in that regard, but I will speak about the Jawo case. So the Jawo case concerned a Gambian citizen who wanted to reach Europe. And as many migrants he arrived from the South and he arrived in Italy. But then he moved to Germany, and he lodged an application for asylum [with the] German authorities. But these German authorities noticed that he had arrived on the European territory through Italy. And in application of the Dublin regulation, it was Italy that was responsible to deal with the asylum application. And so German authorities just wanted to operate a Dublin transfer, to Italy. Because Italy was the responsible Member State, and so they wanted to use mutual trust. And as all Member States respect fundamental rights and the rights of asylum seekers, why not? That’s the philosophy behind the Dublin regulation. And so the German authorities wanted to send him back to Italy, but he contested this transfer, notably on the basis that in Italy the system of reception is less protective than the German system. And the German court asked for a preliminary ruling to the Court of Justice that decided on the case in Grand Chamber and recalled the importance of the duty of trust that underlies this system. And so asylum seekers cannot rely upon the fact that the system is less comfortable in one Member State to not being sent back to that state. However, the Court of Justice specified that if there is such a bad condition for asylum seekers in the responsible Member State, it could lead to a violation of Article 4 of the Charter, the prohibition of inhuman and degrading treatment, and in that case, if you are in such situation where the asylum seeker faces a situation of extreme material poverty, then trust has to be set aside. So the idea behind this case — and you see it in most of the cases relating to mutual trust — again is that not any breach of fundamental rights, or not any treatment that would be less protective than in another Member State justifies setting aside mutual trust. Only very serious violations of very important rights, absolute fundamental rights, can justify not trusting another Member State.

FELIX RONKES AGERBEEK: Looking at the case law, including the Jawo case, it seems to me that the application of mutual trust varies significantly depending on the circumstances and particularly between different areas of law. Could you discuss how the incentives of Member States might shift when it comes to trusting or questioning the judicial systems of their peers, if you think about the Dublin system, for instance.

CECILIA RIZCALLAH: Here it is… Member States want to trust their peers. If they can send back asylum seekers that arrived in their borders they will use that possibility. And it is the Court of Justice and the European Court of Human Rights that will limit a bit this trust. So that is also a very different way of functioning of the principle of mutual trust. In the criminal judicial cooperation you see that Member States refrain to trust the other Member States, because they want to keep a hand on criminal justice and they don’t want, for example, to send nationals to other Member States. So here Member States do not want to trust their peers. And so that is also challenging when you study mutual trust you have to have in mind who has interest to trust, and to show trust, in whom.

FELIX RONKES AGERBEEK: You mentioned the ECHR earlier, and both the Court of Justice and the European Court of Human Rights have indeed approached mutual trust differently. The Court of Justice often emphasises the two-step test, while the European Court of Human Rights focuses more on individual circumstances…

CECILIA RIZCALLAH: Yes, and my take on that is that both strands of case law are from a methodological point of view very different, but substantially protect in the same way fundamental rights. You can notice that when you study the case-law of the European Court of Human Rights on international cooperation. Even before the European Arrest Warrant system the Court of Human Rights explicitly said that the objective to guarantee an international criminal judicial cooperation is a legitimate aim to limit fundamental rights. Why? Because it aims also to protect the fundamental rights of the others. Of the victims. And it is a legitimate as such to have an efficient criminal law system. And so international criminal cooperation is a legitimate aim and the European Court of Human Rights very early said that it is only in case of manifest breach of the right to a fair trial that someone can complain of having been subject to an extradition. The fact that the threshold of the violation is put at a certain level, within the framework of international cooperation, is not new, and it has been accepted in the past by the European Court of Human Rights. I am just saying that the method is very different.

FELIX RONKES AGERBEEK: And how would you explain this difference in method?

CECILIA RIZCALLAH: The most probable explanation is that the European Court of Human Rights has as main task to protect fundamental rights. And so the emphasis will be put on individual rights, because it is the only task of the European Court of Human Rights, while the European Court of Justice has other tasks. Notably the task to guarantee the effectiveness of European judicial cooperation, of the common European asylum system, of mutual recognition of judgments, et cetera. So the Court of Justice has also to limit the situations where Member States can refuse to cooperate with each other.

FELIX RONKES AGERBEEK: How do these variations affect national courts when they’re applying the principle of mutual trust?

CECILIA RIZCALLAH: I think it would be more coherent, also for the application in national legal orders, to have a common thread, a common framework surrounding mutual trust, that would be compatible with EU requirements and the Convention. Because now you have national judges that have to have a look to these two different frameworks. And in a recent case, the Bivolaru case, French authorities were condemned for having executed a European Arrest Warrant and for not having examined sufficiently in depth the risk for the protection of fundamental rights in this case. So national authorities navigate within these different strands of case-law. And even if substantially, I do not think, after an in-depth analysis, that they conflict, for national judges the method, the different methods, is a big hurdle in their day to day work.

FELIX RONKES AGERBEEK: In your book, you propose a new, more streamlined method for adjudicating mutual trust issues. Could you explain your proposal and how it might help judicial authorities?

CECILIA RIZCALLAH: I do not think that I propose the miracle solution to solve all the problems resulting from mutual trust. And also these courts are in very difficult situations, because they can only judge on the cases that are raised in front of them and they are not there to develop a theory on mutual trust. So I just don’t want to be misunderstood. I am not saying that the European Courts are not doing a good job and that I have a better solution. No, I have the luxury to develop a new way of thinking about it that could maybe be used by judicial authorities in cases that are raised before them, and I hope so, but it is not a magical solution. So, I proposed a one-step risk-analysis test which takes inspiration from the approach of the ECHR, but without abandoning this idea that the system of the other Member State, the systemic approach is still relevant. Why? Because in this one step risk-based test, I propose to take into account different criteria. First, an identification of the risk at stake. The fundamental right that is threatened. Potentially the vulnerability of the person concerned, and also, of course, the quality of the system of the state to which trust has to be shown. So if you have a Member State [whose] whole system is deficient, of course the risk will be higher. And so, I am not pleading for the abandonment of the first step of the two-step approach, I am more pleading for the merging of these two steps, to have a method that is clearer and more practicable, but all the elements of these two-steps should be taken into account when the national authority is executing this risk-based analysis.

FELIX RONKES AGERBEEK: In your book, you draw a connection between mutual trust and what you term the EU’s ‘crisis of values’. Could you say something about that connection?

CECILIA RIZCALLAH: Actually, mutually trust imposes a presumption that legal solutions - judgments, practices, rules - adopted in other Member States comply with fundamental rights. And when you like at the presumptive mechanism from a legal point of view, it always has to have a strong foundation. So the foundation of this presumption in EU law is that Member States are sharing the same values: the values of Article 2 of the [Treaty on European Union], which include the rule of law, human rights and democracy, among others. Because the Member States share these values, we can presume that the legal solutions of their legal orders will comply with EU law and fundamental rights more particularly. But here the foundation is also a presumption, or if I take the words of the Court of Justice, it is a premiss. We presume that Member States share the same values and then we presume that their legal decisions, rules, et cetera, will comply with these values. But actually from a legal point of view is unconvincing. We know that the EU is facing a crisis of values. Not only of the rule of law. Of course many Member States — and not only the ones we are speaking the most of — are facing rule of law backsliding. But the value of human rights is also more and more put into question. And so how can you still continue imposing mutual trust when the foundation of mutual trust is eroding that much. On the other hand I understand the Court of Justice because suspending mutual trust or setting it completely aside would destroy the EU architecture. And so we are facing a dilemma. Mutual trust is based on the logic that all states respect the same principles that even if the legal solutions will be different, or can be different, their systems can produce an equivalent justice. So even if we don’t have the same rules, we know that values will be respected, not in an identical way, but in an equivalent way in all the Member States. And that’s why Member States have to trust each other. But if these basics, the basic rules, the basic principles that we are all supposed to share are no longer verified, then there is no longer a justification for trust. Then Member States should start again controlling each other. It would have detrimental consequences for the EU as a whole, and for the European project. 

FELIX RONKES AGERBEEK: Cecilia, thank you so much for your detailed insights. Before we wrap up with the book question, there’s an exciting development I’d like to discuss. Could you share the good news about the new Belgian Association for European Union Law?

CECILIA RIZCALLAH: So Belgium was unfortunately missing an active association for European Union law. And it was a pity, especially because we are the heart of Europe, so we created a new association, called BEDER for: Belgium, Droit Européen, Europees Recht. And the association is completely new, and the launch event will take place on the 22nd of November 2024 in Brussels, with a keynote speech of the President of the Court of Justice Koen Lenaerts. And the objective of the association is to create a community and to entertain a community of European Union lawyers, from academia, from institutions, from the business world, from the judiciary, et cetera. Of course, there is no nationality condition, every person that practices European Union law and that has a link with Belgium can ask to be a member of BEDER. And so I have the honour to co-preside BEDER with my colleague, professor Inge Govaere from Universiteit Gent and the College of Europe.

FELIX RONKES AGERBEEK: So that’s the 22nd of November in Brussels—I’ll make sure to include a link in the show notes. Now, for our final question: Could you share three books that have influenced you, or that you would recommend to our listeners?

CECILIA RIZCALLAH: I cheated a little bit because I chose two books and one movie. The first book is from Amin Maalouf, a French-Lebanese author and philosopher, “Les Identités meurtrières”. The English title is “In the name of identity: violence and the need to belong”. And I advise anyone to read this book because it explains the importance of considering identity as a multi-faced phenomenon. And reducing the identity of persons on the basis of their nationality, their religion, their ethnic origin, or other single criteria, can lead to very harmful consequences and to violence. I find this book very inspiring. I am myself half Libanese and in Libanon we know very much about multi-faced identity and I think it should be seen as something enriching and not as a problem. 
The second book is a “Une farouche liberté”, “A fierce freedom”, written by Gisèle Halimi and Annick Cojean, but it is mainly the story and autobiography actually of Gisèle Halimi, who is a Tunisian-French lawyer. Actually, she is one of the lawyers that defended one of the main trials in relation to abortion before its legalisation in France. She died a few years ago. She was a Tunisian immigrant, and she migrated to France, and she was a human rights activist. And in this book she tells us about her struggles for women rights, for the rights also of Algerian and Tunisian independence activists, the rights of discriminated people. And this persion is very inspiring and I think that in the future we will need more people that devote their life to the fight for liberties and so if it could inspire your listeners, that would be a great thing.

FELIX RONKES AGERBEEK: And the third one, you said, is a movie…

CECILIA RIZCALLAH: Yeah, it is the movie of Agnieszka Holland, Green Border. And I chose this movie because I really wanted to speak about it, even if it is not a book. So it is a movie on the situation at the Belarus-Polish border, and in particular the situation of the migrants arriving there with the help of Belarusian authorities and Russian authorities. And I think that everyone actually should see this movie. It shows the crisis of our Common European Asylum System, it shows the crisis of our Area of Freedom Security and Justice, and also it is very illustrative of the rule of law crisis, and the way these different crises interconnect. And the gravity of the situation for people seeking international protection in Europe. The movie is very harsh and it is difficult to watch, but people should be aware of the reality on the ground. It is really based on true stories, she interviewed human rights activists, she interviewed asylum seekers, also Polish and Belarusian authorities, and so it shows actually what is happening on the ground.

FELIX RONKES AGERBEEK: I’m really glad you recommended this movie. I saw it not too long ago, and it left a deep impression. Some scenes are simply burned into my memory. It unfolds almost like a documentary. You can just feel that it is rooted in real stories and actual events. And I completely agree—it’s a must-see for everyone, though it’s not easy viewing. Cecilia, thank you so much for this interview. Talking with you has been a great pleasure.

CECILIA RIZCALLAH: Thank you very much, Felix, for the invitation. I am really honoured to have been interviewed for Europa Felix.