How Much Trust in Times of Distrust: National Courts, the ECJ and Criminal Cooperation in an Era of Rule-of-Law Backsliding

Trust is an essential prerequisite for cooperation between EU Member States and EU institutions and between the Member States. This is especially evident in the Area of Freedom, Security and Justice (AFSJ). It is undisputable that national courts play a pivotal role in the EU legal order and that their role has become increasingly more prominent in the AFSJ, especially when it comes to the balancing of protection of fundamental rights with the principle of mutual trust. It is in this field that it has become clear that the quality of the rule of law in one EU Member State has strong implications and affects the rule of law and fundamental rights protection in other Member States. In this context, Polish judges sent numerous preliminary references asking the ECJ whether judicial independence is still guaranteed in Poland. Similarly, national courts in other Member States, such as the Netherlands or Ireland, referred multiple questions to Luxembourg in essence asking various times whether the automaticity required by the principle of mutual trust can be maintained in the EU in the light of rule-of-law backsliding and erosion of judicial independence. In this article two different dimensions of trust – that is, the principle of mutual trust and the trust of national courts in the ECJ – are combined to address the question of the extent to which national courts trust the ECJ in relation to preliminary rulings that affect the operation of the principle of mutual trust with respect to the independence of the judiciary.