Mutual recognition is not concerned in the first place with fundamental rights, but with the creation of an ‘area of freedom, security and justice’. By flanking mutual recognition with the new ‘principle’ of mutual trust, the CJEU and the EU legislator have endeavoured to foster mutual recognition through a virtuous, yet illusory claim that fundamental rights are equally safeguarded by all the Member States. However, a recent turn to realism has acknowledged that there may be grounds for ‘deactivating’ mutual recognition in exceptional circumstances related to a Member State’s failure to respect fundamental rights. Although that change may suggest that the protection of fundamental rights may actually be at variance with mutual recognition and mutual trust, it rather appears that a high level of protection of fundamental rights calls for (re)consideration of the function and content of mutual trust, which needs to be at the service of mutual recognition.

This chapter offers a broad reflection on the difficulties and challenges that the notion of trust presents for judges. After a historical excursion, it demonstrates how basing the operation of an area of law on trust is likely to clash with a rich and powerful bundle of ideas and historical experience at national level. This epilogue invites us to consider a shift in paradigm from law based on trust to trust based on law: ‘Seen this way, trust is not a pre-requisite for the law, but rather something that the law and social interaction generate. Trust becomes the end destination, not the starting point.’

Through the introduction of competences in the Area of Freedom, Security and Justice (AFSJ) we are witnessing a progressive ‘vulnerabilisation’ of EU law. This chapter begins by explaining this problematic notion and then highlights the normative effects of vulnerability within the framework of human rights protection in the AFSJ. In particular, it advances the argument that the notion of vulnerability could enhance the effectiveness of human rights protection and raise the hitherto neglected profile of the justice aspect of the AFSJ, encouraging the development of a more sophisticated ethics of Member State duties.

This chapter seeks to identify the particularities of the AFSJ relevant to delineating the scope of the Charter. It outlines the regime governing the application of the Charter pursuant to Article 51(1) and describes how this regime plays out in the AFSJ. It also clarifies the role of other criteria traditionally used to determine scope, such as territorial, personal and temporal considerations. The chapter focuses on some of the particularities affecting the determination of the scope of the Charter in the AFSJ. It is suggested that, more than merely an interesting field to test the general limits of EU fundamental rights, the AFSJ represents a specific area of law that has moved the Charter into a more central position in EU case law, thereby consolidating the role and identity of the CJEU as a fundamental rights court.