A. Introduction
Mutual recognition is a cornerstone of European intergration. First emerging in the judicial context via the Court of Justice’s ruling in Cassis de Dijon, today it has spread beyond the Single Market to new spheres. The most notable place to which it has spread is the Area of Freedom, Security, and Justice where it is the linchpin of European judicial cooperation on criminal matters, in particular via the European Arrest Warrant Framework.Footnote 1 Mutual recognition has been described as the principle of European law that epitomizes the Union’s motto: “United in Diversity.”Footnote 2 Its strength lies in its ability to facilitate diversity by allowing the co-existence of heterogenous regulatory regimes at the horizontal level while ensuring that such diversity does not result in fragmentation and disunity at the vertical level, enabling unity without imposing uniformity in the pursuit of “ever closer union among the peoples of Europe.”Footnote 3 Today, mutual recognition can be found everywhere, from goodsFootnote 4 to services,Footnote 5 pharmaceutical regulationFootnote 6 to the recognition of civil and commercial judicial decisions,Footnote 7 criminal cooperationFootnote 8 to environmental regulation,Footnote 9 financial risk regulationFootnote 10 to private cooperation,Footnote 11 it has established itself as one of the most successful modes of European governance deployed by the Union’s legislative institutions.
While mutual recognition is frequently characterised as a “principle” of Union law, some—notably Weatherill— argue that mutual recognition is not a free-standing legal principle of Union law.Footnote 12 This Article seeks to go a step further. It posits that we should reframe our understanding of mutual recognition not as a purely legal norm or principle, but—by drawing on the study of governance and the literature on mutual recognition in the political sciences—as a judicially developed governance mode: a legal consequence shaped by the application of other foundational rules and principles of the Union’s legal order. The Article demonstrates that mutual recognition does not function as a normative principle that guides legal reasoning and so should not be characterised as such. Rather, mutual recognition functions as a mode of governance that enables the decentralized coordination of public power across jurisdictions in service of European political goods, notably the fundamental freedoms.
I present this argument in five parts. First, the Article traces the development of mutual recognition in the judicial context, focusing on its development in the Court of Justice’s case law—with particular emphasis on Cassis de Dijon and its embryonic development prior to that ruling. The Article demonstrates that mutual recognition emerges not from a singular doctrinal foundation, but as the outcome of applying a constellation of legal rules and principles—such as non-discrimination, proportionality, equivalence, and the rule of reason—to resolve cross-border regulatory conflicts.
Second, the Article reviews the advancement of mutual recognition by political institutions as a policy choice. Drawing on the work of Alter and Meunier-Aitsahalia from the political sciences, it explores how the doctrinal logic underpinning Cassis de Dijon was appropriated by political actors, particularly the Commission, as a governance tool to overcome the political hurdles to market integration via harmonization. Their work is then built upon via the review of three case studies in the context of the freedom of services, where mutual recognition is operationalized through secondary law as a mechanism for managing regulatory diversity: the Original and Recast Posted Workers Directives, the e-Commerce Directive, and the Services Directive.
Third, the Article links the operation of mutual recognition in the judicial and legislative contexts together via a study of the underlying doctrinal norms supporting its application in both contexts. In doing so, it demonstrates how the underlying rules and principles that supported mutual recognition’s operation in the judicial context have been adopted, adapted, embedded, and operationalized in secondary law by the legislature. In neither context is there an explicit reliance on a distinctive “principle” of mutual recognition. Moreover, in the judicial context, mutual recognition is not a starting point in the Court of Justice’s interpretation of the treaties; rather, it is an outcome (or output) which flows from the Court’s application of other rules and principles—such as non-discrimination, proportionality, and the prohibition of unjustified restrictions on fundamental freedoms—to a constellation of facts.
Fourth, the Article attempts to build its own conceptual framework for understanding mutual recognition. It draws upon studies of European governance and mutual recognition in the political sciences as its starting point. It then attempts to build a bridge that links legal conceptualizations of mutual recognition with those in the political science literature, using the study of governance as a unifying theoretical framework to integrate these distinctive approaches. Drawing on the work of Janssen and Schmidt in particular, the Article seeks to reinterpret mutual recognition as a mechanism through which law acts as a conduit that restructures the exercise of political and public power across the Union. Rather than framing mutual recognition as a legal principle that guides judicial reasoning, the Article argues it is a consequence of the Union’s legal, institutional, and political order when understood as a broader system of European governance. This order is structured by norms, principles, and obligations, such as the fundamental freedoms, which have the aim of securing European integration as a political objective. Legal obligations—such as the fundamental freedoms—can be understood from a political science perspective as representing shared European political goods. Their constraining effect on national public power can then be linked to the broader study of governance, given that they enable the Union to channel political authority toward the attainment of its broader political objectives and the management of the Union’s affairs as a distinctive socio-political entity.
Fifth, the paper draws its conclusions by foregrounding that mutual recognition’s significance lies in its ability to facilitate diversity and to sustain integration through coordinated legal, administrative, and political practices. Its expansion beyond the Single Market makes understanding how mutual recognition operates—and under what conditions it succeeds—ever more pertinent. We should care about mutual recognition not merely because it is everywhere, but because it is central to how the Union governs. Its centrality to European governance in turn reveals how the Union integrates through mechanisms that manage, rather than eliminate, diversity. Mischaracterizing it as a free-standing principle of Union law risks overestimating its integrative capacity and underestimating the institutional and political conditions required for its effective operation—factors that are obscured when it is framed narrowly as a legal norm.
B. Mutual Recognition in the Judicial Context
The Court of Justice first referred to the notion of “mutual recognition” as a unified principle of Union law derived from the treaties—as distinct from legislation—in Italian Trailers.Footnote 13 This is remarkable if we consider that this was twenty-eight years after the Court issued its ruling in Cassis de Dijon.Footnote 14 The term “mutual recognition” entered European legal parlance shortly thereafter, with the Delors Commission referring to a principle of mutual recognition via its White Paper on Completing the Internal Market in 1985.Footnote 15 This was the case despite the absence of the term from the Court’s case law. The Court in Italian Trailers held that, based on its previous case law, Article 34 of the Treaty on the Functioning of the European Union (TFEU) (ex-Article 28 EC) established the Member States’ obligation to “respect the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of Community products to national markets ….”Footnote 16 From a doctrinal perspective, mutual recognition was derived from Article 34 TFEU.Footnote 17 The Court of Justice referred to Article 34 as the source of mutual recognition of goods in Italian Trailers, and its ruling implies its existence as a freestanding principle of European law.Footnote 18
However, mutual recognition is not solely grounded in the freedom of movement provisions. It finds articulation via the interaction of several legal rules and principles. To understand how, we must reflect on mutual recognition’s genealogy and incremental emergence. Statistical Levy was an important first step in this evolution.Footnote 19 There, the Court of Justice held that any charge—internal or external—which had the effect of influencing cross-border trade between the Member States amounted to a charge having an equivalent effect to a quantitative restriction for the purposes of Article 34.Footnote 20 This ruling was significant as the Court essentially decided it would not consider the discriminatory impact of charges as having an equivalent effect to quantitative restrictions. Instead, all such charges would be treated as de facto barriers to the free movement of goods and therefore would be incompatible with Article 34.Footnote 21 In Dassonville, the Court took things a step further.Footnote 22 There, it shifted its eye away from identifying charges affecting cross-border trade by expanding its understanding of Article 34 to encompass any barrier which was “capable of hindering, directly or indirectly, actually or potentially,” cross-border trade. The Court held such barriers constitute a measure “equivalent to quantitative restrictions.”Footnote 23 This ruling expanded the de-regulatory scope of the treaties considerably, allowing Union law to review any domestic rule of a Member State that affected cross-border trade instead of limiting the scope of Union law to purely fiscal charges.
It was Cassis de Dijon that represented the most radical evolution in the Court’s interpretation of Article 34. The German supermarket, Rewe, wanted to sell the French liquor Crème de Cassis, but was told it could not, as German law required fruit liqueurs to have a content minimum of twenty-five percent alcohol: Cassis had only fifteen to twenty percent alcohol.Footnote 24 Rewe argued this restriction was a violation of Article 30.Footnote 25 The Court agreed and noted in particular that Germany had failed to present a reasonable justification as to why the Cassis, while lawfully sold in France, could not be sold in Germany. The Court stated that there was no valid reason why a product lawfully produced in one Member State should “not be introduced into any other Member State,” and that as such, “‘the sale of such products may not be subject to a legal prohibition ….”Footnote 26 However, it noted that where there was no Union-level rule, Member States remained free to regulate the domestic production and marketing of goods, and that such measures are acceptable under Union law insofar as they relate to questions of effective fiscal supervision, the protection of health, ensuring the fairness of commercial transactions, consumer protection, and other overriding public interests.Footnote 27 While Germany had argued that the measure was about protecting public health, the Court was not convinced. It concluded that Germany failed to provide justifiable reasons as to why a liquor that was lawfully produced in France should not be sold in Germany on the grounds of protecting individual health. The Court, in essence, said if Crème de Cassis is safe for the French, it must also be safe for the Germans. To argue otherwise was unreasonable.Footnote 28
What was radical about Cassis was the Court of Justice’s move away from thinking about borders as the point when free movement law is engaged. Statistical Levy and Dassonville both expanded the scope of Article 34. First, Statistical Levy moved from fiscal charges affecting trade to any fiscal charge that could affect trade, while Dassonville moved from fiscal charges to any rule affecting cross-border trade. However, Cassis shifted the scope of Article 34 away from external interactions between legal systems at their borders towards the internal context; it peered inside the Member States’ internal regulatory systems to assess whether such measures have created de facto discriminatory barriers on cross-border trade, despite their de jure internal scope. It therefore extended the scope of Article 34’s prohibition on “measures equivalent to quantitative restrictions” from one that applied at the border of Member States to one that applied inside their domestic markets. Moreover, the Court’s reliance on a reasonability assessment—or “rule of reason”—in Cassis was also key in its evaluation of the legality of the German internal restrictions.Footnote 29 Most obviously, it represents a clear example of Union law’s ability to temper the Member States’ restrictions on cross-border trade hindering free movement by subjecting justifications for restrictions to an assessment based on their underlying objective rationality. Equally, Janssen notes, the rule of reason protected the Member States by neutralizing the potentially far-reaching and radical effects Cassis could otherwise have by counterbalancing free movement with interests deemed worthy of protection by the Member States and often also by Union law.Footnote 30 The significance of the reasonability assessment remains central to the operation of the internal market today: it remains the fundamental test to which the Court systematically subjects all non-discrimination-based measures resulting in cross-border barriers to trade.Footnote 31
The reasonability assessment in Cassis de Dijon started in the Court of Justice’s earlier case law, in particular as seen in Choquet and Van Wesemael.Footnote 32 Choquet examined German rules which required foreign driver’s license holders to obtain a domestic license after one year of residency. Mr. Choquet argued this violated Article 56 TFEU (Ex. Article 48 EEC Treaty) as it restricted his ability to provide services.Footnote 33 The Court first noted that driver’s license recognition fell within national competence due to road safety concerns and regulatory divergence.Footnote 34 Moreover, it observed that there existed considerable differences between Member States with regard to the regulation of driving license rules. In principle, restrictions on the freedom of movement of workers, services, or establishment with regard to the recognition of driver’s licenses would not amount to an unjustified restriction under the treaties owing to these factors.Footnote 35 Yet the Court also noted that where domestic measures caused such a degree of difficulty that they effectively hindered an individual’s effective exercise of the freedom of persons, establishment, or services, such measures could be found contrary to Union law. It specifically outlined that if a Member State insists on an individual taking a domestic driving test which duplicates tests taken and passed in another Member State, it would amount to a dual burden and would be incompatible with the treaty.Footnote 36 The underlying reasoning behind its decision is that if the test duplicates a test one has already taken, it creates dual barriers. Such a requirement hinders freedom of movement rights.Footnote 37
Van Wesemael was also concerned with a licensing requirement; however, in this case the requirement related to the provision of entertainment activities.Footnote 38 The Court of Justice held that where an individual held a license in their country of establishment, issued under comparable conditions to those required by the Member State of service performance, a licensing requirement could not be imposed by the state of performance.Footnote 39 What both of these rulings have in common is that they highlight the development of a reasonability assessment and a linked notion of equivalence prior to the Court’s ruling in Cassis. Where persons are subject to comparable obligations in the Member State of origin, including the comparability of the objective goal pursued by the legal obligation in question, the receiving State may be subject to an obligation to recognize those legal obligations already fulfilled as equivalent if to do otherwise would be unreasonable.
In addition to considering the reasonableness of such restrictions, Choquet and Van Wesemael also drew on a notion of equivalence supported by the imposition of a legal duty to compare and a general but conditional prohibition on dual burdens. These obligations result in a notion of equivalence, which is supported by the rule of reason. That latter rule directed that Member States, when evaluating if a stated reason for restricting cross-border service provision based on authorization regimes is justified with reference to overriding reasons in the public interest, must account for the different factual and evidentiary requirements applied within the neighboring regime. If two regimes are sufficiently similar in that they can be reasonably considered to secure equivalent objectives, mutual recognition may be possible. Concurrent factors to evaluate include their objective necessity and proportionality in relation to the pursued objective. Questions of a measure’s objective necessity and proportionality also form key principles which contribute to the operation of mutual recognition.
Mutual recognition is, however, not absolute. In the context of the freedom of goods, this is clear when Article 34—the source of mutual recognition in the context of goods—is considered in conjunction with Article 36 TFEU: Member States are permitted to introduce restrictions on the grounds of public morality, policy, or security, the protection of health, animals, plants, natural treasures of artistic, historic, or archaeological value.Footnote 40 Equally, however, the justifications of restrictions on these grounds run the risk of being used to hinder the effective application of the freedom of goods; thus, the Court has imposed the caveat that the reliance on such justifications may not constitute a means of arbitrary discrimination or a restriction on trade in disguise.Footnote 41 Mutual recognition is therefore conditional and limited in scope owing to the interactions between Articles 34 and 36 TFEU.
Legally, then, mutual recognition in the judicial context is grounded in the four freedoms. For goods, it finds its basis in Article 34’s general prohibition on quantitative restrictions and measures of equivalent effect, which, via the rule of reason, extended the regulatory scope of that treaty provision from covering measures with direct cross-border effects, to encompass measures which create trade barriers in practice or in theory. In particular, under Cassis, Article 34 was not only applied to rules with explicit cross-border effects, but expanded to encompass rules with purely internal legal effects if such rules affected trade directly or indirectly, actually or potentially. In the context of services law, mutual recognition is grounded in Article 56 et seq., which prohibits barriers to the free movement of services. It is furthermore supported by the application of a number of legal rules—such as the rule of reason, a duty to compare, and a general prohibition of dual burdens—which collectively and/or individually may generate a requirement to consider equivalence. These are all applied with regard to the principles of proportionality, objective necessity, and non-discrimination, and subject to the condition that all such barriers to trade and recognition may be justified by reference to wide-ranging grounds of overriding reasons in the public interest.
C. Mutual Recognition in the Legislative Context: Three Case Studies
Alter and Menunier-Aitsahalia demonstrate how the Court of Justice’s ruling in Cassis had a significant impact on the Union’s approach toward market regulation and European integration more broadly.Footnote 42 For the Commission, the regulatory governance logic underpinning Cassis provided it with the tools and solutions necessary to address the difficulties it had encountered with the pursuit of market integration via harmonization. Prior to Cassis, the Union’s governance and regulatory approach was underpinned by positive methods of market integration: primarily the approximation and harmonization of laws between Member States. A significant problem with this approach was reaching political agreement.Footnote 43 Mutual recognition constituted a method of “New Governance” for the Commission.Footnote 44 It facilitated the existence of a heterogeneity of national rules across the horizontal level while ensuring that such diversity of regulatory approaches would not create regulatory fragmentation, trade barriers, and disunity at the vertical level.Footnote 45 Commissioner for the Internal Market Etienne Davignon first endorsed the underlying principles of Cassis as the Union’s new approach to market regulation in 1979.Footnote 46 This was advanced by the Commission’s Communication to the Member States Concerning the Consequences of the Judgment Given by the Court of Justice on 20 February 1979 Case 120/78, which embedded this approach.Footnote 47 The Commission contended that based on the Court’s decision in Cassis, “any product lawfully produced and marketed in one Member State must, in principle, be admitted to the market of any other Member State.”Footnote 48 The corollary was that Member States could no longer act from “an exclusively national viewpoint and take account only of requirements confined to domestic products. The proper functioning of the common market demands that each Member State also give consideration to the legitimate requirements of the other Member States.”Footnote 49 The Communication informed the Member States that the principles which underpinned Cassis would form the basis of the Commission’s new approach to harmonization.Footnote 50 Alter and Meunier-Aitsahalia contend this was the “first time that the Commission tried to extract policy from a Court decision by issuing an interpretative communication”—an interpretation they characterised as “artful” and a “bold assertion of new policy.”Footnote 51 The Delors Commission’s 1985 White Paper on the Completion of the Internal Market adopted the principles laid down in Cassis as its new toolkit for securing the completion of the Single Market.Footnote 52 The following case studies explore how mutual recognition has been implemented through legislation as a mode of governance by the Union’s political institutions, structuring regulatory interactions between the Member States and their administrative authorities by drawing on the Court of Justice’s case law.
I. The Original Posted Workers Directive
I contend that the Posted Workers Directive is a mutual recognition instrument.Footnote 53 Perhaps the most contested mutual recognition instrument ever created, it was made famous by the Laval Quartet rulings.Footnote 54 Yet, it is never understood as such. Rather, it is most frequently characterized as a minimum labor law. This section demonstrates that the Original Posted Workers Directive from 1996 implements mutual recognition and that it draws on the doctrinal logic of the Court’s case law to achieve this mechanism. It allows workers from one Member State to work in another under the same terms and conditions as in the country of establishment, subject to certain conditions or caveats on this general clause (conditional recognition). Notably, the sending company is required to observe and apply the minimum rates of pay, working periods, holiday leave, and health and safety standards applied under the laws of the host or receiving state.
The requirement to observe the host countries’ rules amounts to a mutual recognition requirement, given that Article 3(1) created a host state regulatory control mechanism. The directive states that Member States’ rules on the terms and conditions of employment which are to be applied to the posted workers must be laid down by “law, regulation or administrative provision” and/or “collective agreements or arbitration awards which have been declared universally applicable.”Footnote 55 Via Article 3(1), the directive specifies both (i) the forms of national rules (in other words, legislation) and (ii) the specific terms and conditions of employment—such as national wage rules. This represents an articulation by the legislature of its chosen balance between freedom of service and permissible restrictions upon such freedom. For example, a permissible restriction on the freedom of services under the Posted Workers Directive is the subjection of posted workers to the host state’s nationally applicable rules for minimum wages.Footnote 56
Article 3(1) contains prior conditions for the establishment of mutual recognition. This list is non-exhaustive in nature: Article 3(1) specifies the rules a host state may enforce on posted workers that must be recognized by the home state, while Article 3(10) establishes exceptions to the general rule established in Article 3(1) by making the list non-exhaustive.Footnote 57 Article 3(10) specifies that the host state may apply a higher rule than those contained in Article 3(1) on grounds of public policy when applied with regard to the principle of equality, meaning non-discrimination.Footnote 58 It is important to highlight that the non-exhaustive nature of the list under Article 3(1) is operationalized via the concept of public policy exceptions, which operate against the guarantees of the free movement of services provided for in the treaties as interpreted by the Court of Justice. The application of Article 3(10)—given its activation by public policy exceptions and considered in light of the general principle of non-discrimination applied therein via the equality of treatment provision—would therefore be interpreted and applied strictly, given the Court of Justice’s jurisprudence, making this provision potentially difficult to activate.
Prior conditions for the establishment of mutual recognition ensure that national standards are treated as equivalent across Member States, thereby enabling their reciprocal recognition. While Article 3(1) does not harmonize minimum rates of pay, for example—this being left at the discretion of the Member States—the national rule as to what is equivalent to a minimum rate of pay must be constituted in compliance with the provisions of the directive.Footnote 59 Specifically, it must be established in compliance with Article 3(1)—meaning by law, administrative provision, or collective agreements that are universally applicable—mirroring the language of the Court of Justice. Once established in compliance with the directive, they can be considered to be equivalent rules on terms and conditions of employment and hence can be mutually recognized.Footnote 60 The directive coordinates what type of national rules concerning terms and conditions of employment Member States are to mutually recognize, but not the content of those rules.
Member States are therefore under an obligation to ensure that undertakings operating within their jurisdiction (Article 1) and providing cross-border services involving posted workers under the freedom to provide services (Article 2) apply the relevant provisions of the host Member States labor rules falling within the categories coordinated by Article 3(1)(a)–(g), insofar as those rules comply with the requirements set out in the first and second indents of Article 3(1).Footnote 61 Not only does the directive impose a positive obligation upon the Member State to workers posted, as defined by Article 2, to ensure that companies falling within the directive, per Article 1, guarantee the terms and conditions of employment set out by Article 3(1)(a)–(g), but this positive obligation furthermore implies a negative obligation upon the country of origin to recognize the host state’s regulatory control.Footnote 62 Host states may go beyond the terms of Article 3(1)(a)–(g) via Article 3(10). Looking at the act as a whole, it clearly implements a method of mutual recognition. It’s not mutual recognition à la Cassis, but it is most definitely mutual recognition.
II. The Recast Posted Workers Directive
The Recast Posted Workers Directive is intimately interwoven with the 1996 framework.Footnote 63 The 2018 directive amended Article 3 to address the controversial outcome of a series of rulings issued by the Court of Justice, which became known as the Laval Quartet.Footnote 64 Article 3(1) was amended in one important and specific way, which widened its scope significantly and significantly affected the scope of mutual recognition. While under the 1996 directive Article 3(1)(C) referred to the observance of “minimum rates of pay,” the 2018 amending act replaced this phrase with the term “remuneration,” establishing a broader conceptualization of what falls within the directive’s meaning of constituent elements of rates of pay to be recognized between jurisdictions.Footnote 65
This provision provides significantly greater autonomy to national wage-setting systems with regard to cross-border recognition in the context of posted workers. This is further reinforced via Article 1(2)(a) of the directive amendment, which states that the concept of remuneration “shall be determined by national law and/or practice” and means “all the constituent elements of remuneration rendered mandatory by national law, regulation or administrative provision, or by collective agreement or arbitration awards” of universal scope.Footnote 66 Additionally, the introduction of a new Article 3(1)(i), read in conjunction with Article 1(2)(a) of the directive amendment, extends the meaning of minimum terms and conditions of employment in the host state context—as distinct to the home state context—to specifically include both allowances and reimbursements paid for travel, board, and lodging expenditure incurred by posted workers.Footnote 67
However, there continues to be an exception to Article 3(1) via Article 3(10). That provision continues to specify that a host state may apply higher rules on grounds of public policy. Article 3(10) remains almost identical to its rendition under the 1996 framework. However, the second paragraph is removed so that it is merely one paragraph under the Recast Directive’s amended version of the provision.Footnote 68 While Article 3(1) does not harmonize the meaning of remuneration, the national rule as to what is equivalent to remuneration must be constituted in compliance with the provisions of the directive, as amended by the 2018 act. Specifically, remuneration must be established in compliance with Article 3(1) and/or Article 3(8).Footnote 69 Article 3(8) now specifies that Member States may, in addition to universally applicable agreements and awards, extend such application to other agreements “in the absence of, or in addition to, a system for declaring collective agreements or arbitration awards to be of universal application.”Footnote 70 This means that a wider set of collective agreements can now be included within the directive’s scope. The directive continues, in that sense, to coordinate what type of rules on terms and conditions of employment the Member States are required to mutually recognize, but the scope of the rules which may be included is now much larger. This significantly adjusts the extent to which Member States are required to mutually recognize one another’s labor rules for posted workers.
Member States therefore continue to be under an obligation to ensure companies operating within their jurisdiction, as defined by Article 1, providing cross-border workers within the context of the freedom of services, per Article 2, apply the rules of Member States that fall within those coordinated via Article 3(1)(a)–(i) and established under national law in compliance with the directive per Article 3(1) and a now wider Article 3(8). Not only does the directive impose a positive obligation upon the Member State to workers posted, as defined by Article 2, to ensure companies falling within the directive, per Article 1, guarantee the terms and conditions of employment set out by Article 3(1)(a)–(i), but this positive obligation furthermore continues to imply a negative obligation upon the country of origin to recognize the host state’s regulatory control unless Article 3(10) applies, which transforms the otherwise exhaustive nature of those provisions into a non-exhaustive list.
III. The E-Commerce Directive
The e-Commerce Directive establishes a home-state control mechanism.Footnote 71 This mechanism took inspiration from the principle of mutual recognition developed by the Court. The fulcrum of mutual recognition in this act is contained in paragraph 1–2 of Article 3. Article 3(1) imposes an obligation on the Member States of service origin to ensure that information society service providers established within their jurisdiction complies with local law that falls within the scope of the field coordinated by the directive.Footnote 72
This requirement is married to Article 3(2), which imposes a negative obligation on the Member State of the service destination to refrain from imposing restrictions on such providers when exercising cross-border rights to provide services.Footnote 73 Article 3(3) provides a list of explicit or exhaustive derogations from the requirements of Article 3(1)–(2). These conditions are annexed to the directive.Footnote 74 Article 3(4), by contrast to Article 3(3), provides for non-exhaustive grounds of derogation from Article 3(1)–(2). Under that provision, Member States are permitted to restrict the freedom of services guaranteed by Article 3(2) if several conditions are met. These non-exhaustive grounds for derogation are linked to issues of public policy. The articulation of public policy derogations from the four freedoms, finding expression via the Court of Justice’s jurisprudence, constitutes one of the fundamental pillars of law framing these issues within the Union.Footnote 75 Article 3(5) is a form of emergency escape clause on the requirements imposed via Article 3(4) when seeking to derogate from Article 3(2)’s freedom of services guarantee. It allows for an expedient procedure for derogating from the freedom of services guaranteed in Article 3(2) in situations of “urgency.”Footnote 76 Finally, Article 3(6) imposes an enforcement obligation upon the European Commission to examine measures. Where it reaches the conclusion that a measure is incompatible with “Community Law,” the Commission is obligated to request that the Member State in question refrain from taking the aforementioned measures or alternatively to force an end to the measures via its enforcement powers as the guardian of the treaties.Footnote 77
Article 4 is a unique provision on the implementation of managed mutual recognition when compared with the Court’s judicially developed conception of mutual recognition. While mutual recognition as a form of legal regulation is normally underpinned in part by equivalence, which is an important legal concept contributing to the larger principle of mutual recognition’s constituent legal rules, the application of equivalence tests to information society services providers is expressly rejected by Article 4.Footnote 78 There are two exceptions to this rule. First, equivalence tests are expressly permitted for information society service providers in the field of telecommunication provision, but only because these tests have been subject to harmonization. Whereas equivalence is normally deployed as a tool of negative integration in the context of a lack of cross-border harmonization, in Article 4, equivalence requirements are upheld because of harmonization. This is unusual. Second, information society services can be subjected to equivalence tests where such authorization requirements are not “specifically and exclusively” targeted toward information society services.Footnote 79
Article 3(1)–(4) deals with the establishment and regulation of prior conditions for mutual recognition’s implementation in the e-Commerce Directive. While Article 3(1)–(2) sets the grounds for mutual recognition, Article 3(3)–(4) sets out the basis upon which that principle can be derogated from by the Member States and in this sense fine-tune the operation of mutual recognition in practice to suit political desires. Article 3(4) in particular shows a detailed consideration and influence of the Court of Justice given the mirroring of much of the Court’s jurisprudence in its provisions. Article 3(5)–(6) first establishes ex-post guarantees that act to compensate Member States for the loss of regulatory control via the introduction of an urgency procedure for derogating under Article 3(5), and second establishes the imposition of mutual monitoring mechanisms via the placement of the Commission as a guarantor for the enforcement of the directive. Finally, Article 4, rather than embedding residual forms of equivalence tests to which individuals or companies may be subjected, expressly removes this possibility, bar two exceptions.
Equivalence is an important constituent legal rule that forms part of the principle of mutual recognition. It allows Member States to ensure the integrity of their own domestic markets by accounting for the degree of parity which exists between regulatory systems within the Union as to the objectives of the rule in question. By removing equivalence from the equation, the ability of the Member States to ensure the integrity of their domestic markets is considerably undercut. This provision significantly departs from the Court’s case law. This raises the question, from a doctrinal perspective, if we can consider the form of mutual recognition implemented under the directive to be mutual recognition as we know it doctrinally. Mutual recognition is tightly linked to the concept of equivalence, which itself is a derivative of the rule of reason. Legislative implementation will naturally differ from court-driven mutual recognition. Case law cannot create generalized rules in the same way as secondary law; legislatures have the luxury of saying that if “X” is the situation, then “Z” is the outcome. Courts do not have this luxury because the decisions of judges cannot reflect their own political objectives, as judicial institutions can only apply the legal principles and norms of the law as a social system in order to reach the conclusion that X + Y = Z.Footnote 80 Courts provide an answer by applying existing rules, norms, and principles, while legislatures provide answers by creating rules anew. The removal of equivalence via Article 4 illustrates this distinction well.
IV. The Services Directive
The Services Directive has been described as one of the most significant pieces of secondary law negotiated by the legislative institutions.Footnote 81 This was due to its horizontal impact on a wide range of policy areas linked with service provision, and by extension, its potential impact on domestic autonomy in regulatory decision-making. Rather than—as originally proposed by the Commission—pursuing a de jure requirement to confer regulatory jurisdiction for a service provider upon the country of establishment, it does quite the opposite.Footnote 82 Regulatory jurisdiction remains with the host state. Member States are required to respect this freedom of services via the first paragraph of Article 16(1). The second paragraph of Article 16(1) imposes a positive requirement upon the Member State of service provision to ensure “free access to and free exercise” of service activities within their borders, while the third paragraph of Article 16(1) allows restrictions on the freedom of services subject to the principles of non-discrimination, necessity, and proportionality of the restrictive measure in question.Footnote 83 This provision sets out the test to be applied when assessing restrictive measures applied against the freedom of service provision and is framed by Article 16(3), which lays down non-exhaustive criteria upon which such restrictions may be based.Footnote 84 Finally, Article 16(2) prohibits specific forms of restrictive measures on service providers operating in the intra-Union context, such as authorization or establishment requirements.Footnote 85
By extension, the act establishes an indirect presumption of equivalence of services, in particular via Article 16(2), between Member States. This is most clearly demonstrated via the prohibition on imposing authorization requirements. This is evident when we consider the implications, from a regulatory governance perspective, of removing—barring on specific grounds—authorization requirements via Article 16(2)(b).Footnote 86 The explicit prohibition on such requirements therefore creates a situation of legislatively presumed equivalence that goes beyond the Court of Justice’s case law. Article 16(1)(a)–(c) incorporates the Court of Justice’s language with regard to establishing that derogation from Article 16(1) is possible where non-discriminatory, necessary, and proportionate.Footnote 87 This finetuning of the terms and conditions of mutual recognition application persists in Article 17 and Article 18, which create specific grounds for restricting a service provider’s freedom of movement rights.Footnote 88 A common theme can therefore be seen between this act and the Posted Workers Directive from a legislative design standpoint, each defining the line between the permissible and the discriminatory with regard to the freedom of services.
D. Mutual Recognition: A Legal Consequence, Not a Legal Principle
Interestingly, in none of the above legislative dossiers is a reference to mutual recognition made in the operative provisions of the directives as a normative rule or principle that drives the framework’s legal operation.Footnote 89 Rather, they refer to principles or rules such as the freedom of services, proportionality, objective necessity, and non-discrimination, which are used to create a mutual recognition mechanism. This is the same as the Court’s case law evaluated in Section B of this Article, with the Court’s rulings resulting in mutual recognition because of its application of a series of rules and principles grounded in its interpretation of the treaties. While it is true that the Court declared mutual recognition to be a unified and free-floating legal principle of Union law grounded in the treaties in its Italian Trailers decision, this finding seems mistaken. Judicial mutual recognition—á la Cassis de Dijon—has always been a result which flowed from the application of a series of legal norms, such as non-discrimination, the rule of reason, equivalence tests, proportionality, and objective necessity. The application and interaction of these rules converge and manifest as a de facto (but not de jure) requirement to mutually recognize goods or activities between jurisdictions.
The legal ambiguity identified here as to how to characterize and conceptualize mutual recognition across the legislative and judicial contexts is reflected in the literature. Hatzopoulos has described it as a general principle of Union law and as a legislative technique,Footnote 90 Pelkmans draws a distinction between mutual recognition as a form of judicial versus regulatory recognition,Footnote 91 and Armstrong highlights the difference between “active” recognition (where the host State seeks to evaluate equivalence) and “passive” recognition (where the host State passively applies recognition as determined at the Union level).Footnote 92 Chalmers, Davies, and Monti have characterized mutual recognition as a specific instance of non-discrimination law.Footnote 93 Trachtman separates the notion of equivalence from mutual recognition, understanding them as distinct but linked notions.Footnote 94 Schmidt does not pull these notions apart. Instead, she argues that the underlying idea of the principle is that a measure of functional equivalence exists,Footnote 95 while Horng seems to implicitly suggest that mutual recognition should be understood as a political norm of behavior between Member States,Footnote 96 with Nicolaidis noting in this regard that mutual recognition involves a transfer of some regulatory authority to another jurisdiction.Footnote 97 Weatherill argued in 2018 that a principle of mutual recognition doesn’t exist in internal market law.Footnote 98 Views on mutual recognition’s form, substance, and requirements are therefore characterized by a diversity of views and subject to disagreement both within and between disciplines.
Legal principles are usually understood as normative frameworks that guide our understanding and application of the law as a social system, allowing rules to be adapted on an ongoing basis to different situations.Footnote 99 Principles, such as proportionality, function as interpretive and justificatory tools across a wide range of cases and offer a coherent standard with an internal logic against which the legitimacy of legal rules and acts can be assessed. By contrast, mutual recognition does not operate in this way: it is not a starting point in the Court of Justice’s legal reasoning, but rather the outcome of applying various other principles and rules—such as non-discrimination, proportionality, and the prohibition of unjustified restrictions on fundamental freedoms—to a constellation of facts. The notion of mutual recognition lacks the normative autonomy and general applicability that is characteristic of legal principles.
Some people will undoubtedly disagree with my characterization, particularly given the references to a “principle” of mutual recognition sometimes found in secondary law.Footnote 100 I would, however, argue that this “principle” is not in fact a principle. The scope of that principle is defined by Article 2, grounds for non-execution are outlined in Article 3, additional discretionary grounds are provided in Article 4, the content and form of the arrest warrant itself are specified in Article 8, detailed surrender procedures are outlined in Chapter 2, and the legal effects of surrender are specified in Chapter 3.Footnote 101 Article 1(2) might refer to a “principle” of mutual recognition, but all the work necessary to operationalize mutual recognition is done via the other provisions of the Framework Decision, revealing that “mutual recognition” in this context functions not as a principle but as a legally constructed mechanism realized through the cumulative effect of these provisions.
E. Mutual Recognition: A Governance Mode Output
The analysis in Section D of this Article raises a broader question: If mutual recognition cannot be understood as a legal principle, how then should it be understood? The conclusion in that section—which combines the doctrinal analysis conducted in Section B with the legislative analysis and the conceptualizations forwarded in the literature in Section C—suggests that mutual recognition is best understood as an output or consequence of the Union’s legal, political, and institutional ordering. It is structured by the rules, principles, and objectives embedded in the Union’s treaty framework as interpreted by the Court, and later developed and expanded by the Union’s political institutions.
In the preceding section, I attempt to reconceptualize mutual recognition as a governance mode output rather than a normative principle guiding legal reasoning. I argue that mutual recognition should be understood as a label we retroactively apply to a particular pattern of legal and institutional interactions. Mutual recognition does not function as a normative starting point for legal reasoning as a legal principle would. Rather, it is the emergent result of various legal rules, principles, and institutional practices interacting. I present my argument in two steps. First, I situate mutual recognition within broader debates on governance, drawing on Schmidt’s work to show how political institutions have deployed mutual recognition as a legislative governance technique in particular. Second, I advance a framework for understanding mutual recognition as a judicially constructed legal consequence, later appropriated by political institutions to manage integration through decentralized legal coordination. This framework attempts to create a bridge that links Alter and Meunier-Aitsahalia’s 1994 account of mutual recognition as a political strategy with Janssen’s 2013 legal conceptualization of mutual recognition as a regulatory mechanism for managing divergent national legal outputs.
I. What Is “Governance”?
“Governance” has been defined by Fukuyama as “[A] government’s ability to make and enforce rules, and to deliver services, regardless of whether that government is democratic or not.”Footnote 102 The World Bank’s earlier definition decentered our understanding of the notion away from an identifiable “government” towards politics more broadly, defining governance as “the exercise of political power to manage a nation’s political affairs.”Footnote 103 Tiihonen, reflecting on the World Bank definition, notes the debate the World Bank’s definition provoked as to the meaning of the term governance. What followed was a broadening of our understanding of the meaning of governance via the introduction of additional frames of reference in the literature. For example, this resulted in the emergence of the term “good” governance, which characterizes a process where clear rules and well-functioning institutions manage the affairs of a state in a way that safeguards democracy, good order, human security, and human rights, with economy and efficacy followed in the management of a country’s resources.Footnote 104 The term “European governance,” Scott notes, necessitates looking beyond traditional legislative instruments and case law toward a broader conception that accounts for the diverse range of processes for managing the internal and external political affairs of European states.Footnote 105 Classical studies of European governance would have pointed toward the “Community Method” as a “mode of European governance”: rules established by the Union’s legislative institutions implemented at the domestic level by the Member States and their national structures to secure shared political goods such as the rule of law, the four freedoms, and European integration itself. Implementation is reviewed and monitored by the Commission; the Commission’s role is married with peer-based supervisory mechanisms between Member States, who may take political, administrative, or judicial actions where implementation is failing at the horizontal and/or vertical levels.Footnote 106
Yet, as Scott argues, such an understanding of European modes of governance has become problematic in the contemporary context given the increasing pursuit of European governance through alternative processes and instruments.Footnote 107 The evolving nature of the European polity has stretched the classical view of European governance. The increasing involvement of national institutions in European governance sees “National Courts” inhabit dual roles as “European Courts.”Footnote 108 National administrative authorities and independent bodies today operate as part of the broader European administrative space. The Open Method of Coordination (OMC) stretches the concept of European governance further. Under the OMC, mutual monitoring and political enforcement of norms and goals are set down in legal instruments. These objectives are converted into guidelines which are implemented at the national level via policy instruments and domestic targets. Compliance monitoring is conducted via benchmarks that account for qualitative and quantitative indicators at the European level, predominantly via political mechanisms, backed by legal enforcement as a last resort. This affects traditional conceptions of enforcement based on command-and-control models. Instead, compliance evaluation is converted into a system of peer review and peer learning, the “antithesis of harmonization through law.”Footnote 109 Therefore, governance in the Union can be broadly understood as the exercise of political power to manage the Union’s political affairs. The treaties represent a framework that regulates the exercise of public power so as to establish and secure common political goods—including fundamental freedoms and the rule of law—in service of broader political objectives, most obviously European integration. European integration can therefore be framed as both a political objective and a political good of the Union.
Mutual recognition was explicitly linked with the study of European governance by Schmidt, who argued that mutual recognition was frequently left out of conversations on European governance despite its considerable impact on the exercise of public authority and political power across the multi-level polity.Footnote 110 In Schmidt’s view, discourse related to mutual recognition often focuses on its facilitation of market and economic integration by skirting around the high political bargaining costs associated with harmonization. As a result, it is often overlooked as a European governance mode given that it does not create unified rules or norms. It is viewed as a market-based approach to the resolution of regulatory disputes, supported by market-based competition principles: Member States pitching their regulatory solutions against one another.Footnote 111 Nicolaïdis and Schmidt highlight two distinctions between judicial and legislative modes of mutual recognition which for them reflect broader patterns relating to the underlying levels of trust that support the functioning of mutual recognition. First, pure mutual recognition—a lá Cassis de Dijon—characterizes situations where there are no legislative instruments of the harmonization at Union level; it is an anything-goes approach underpinned by negative approaches to integration where the law is deployed as a sword to break down regulatory barriers between the Member States. In other words, it is judicially driven mutual recognition. Second, managed mutual recognition represents situations where implementation of the principle is aided by secondary law and is non-automatic, relying instead on positive integrative approaches and re-regulation at the Union level to remove regulatory barriers. In other words, it is legislatively driven mutual recognition.Footnote 112
II. Law as a Vector of Political Power
In the political sciences, mutual recognition has long been understood as a mode of governance. Alter and Meunier-Aitsahalia emphasize in their research how the doctrinal logic underlying the Court’s ruling in Cassis was deployed by the Commission to shift the Union’s market regulation strategy away from harmonization and overcome the political barriers to positive integration that plagued the Union in the 1970s and 1980s. Schmidt’s work emphasizes its success as a mode of governance in large part due to its decentralizing character, which facilitates rule recognition between jurisdictions via vertical-level institutional structures and secondary laws. Yet this decentralized, non-hierarchical steering, coordination, and cooperation between Member States via mutual recognitionFootnote 113 also resulted, in Schmidt’s view, in its exclusion from the discourse around European governance despite its ability to reorder exercises of public authority and public power.Footnote 114
While these political science accounts emphasize the decentralizing impact of rule recognition as a strategic policy approach pursued by the Union’s political institutions to overcome political hurdles when seeking to re-regulate via secondary legislation, they offer a more limited engagement with mutual recognition operation from a legal perspective. This analytical gap is addressed by Janssen’s 2013 study, which provides a legal and regulatory conceptualization of mutual recognition that complements these political science and governance-based accounts. Janssen’s 2013 work undertook a broad, detailed, and meticulous cross-policy study of mutual recognition, considering its judicial occurrence and legislative implementation in both internal market law and judicial cooperation on criminal matters. She observed that Union institutions have been reluctant to provide a clear and concise definition of mutual recognition and sought to fill this gap by forwarding a working definition of mutual recognition.Footnote 115 Her research proposed a legal definition of mutual recognition that focused on its effects and requirements, rather than the underlying legal rules that result in those effects. She concluded that:
[T]he principle of mutual recognition requires that, notwithstanding differences between the various national rules that apply throughout the EU, objects, activities or decisions that are lawful in accordance with a Member State’s legal framework must be accepted as equivalent to objects, activities or decisions carried out by one’s own state, and must be allowed to take effect in one’s own sphere of legal influence (either by granting them access to the national territory, or by taking them into account in any subsequent decisions, or by executing them), unless one of the available grounds for non-recognition applies.Footnote 116
Mutual recognition, according to Janssen, manifests via the creation of (A) a requirement on Member States to allow (B) “objects,” “activities,” or “decisions” (C) conducted lawfully in accordance with (D) one Member State’s legal framework to (E) take effect in their own sphere of influence by (F) granting them access to the national territory unless (G) one of the available grounds for non-recognition applies.
Abstracting from Janssen’s work allows us to see that mutual recognition is a tempering of the exercise of public power at both national and European levels to secure broader European political goods. The interaction of various rules and principles of Union law crystallizes as a requirement for national administrative and judicial authorities to mutually recognize certain foreign legal outputs such as acts, authorizations, and decisions, thereby securing the fundamental freedoms as political goods guaranteed by the Union. The treaties represent agreements that regulate the exercise of public power within the Member States. Linking this to the World Bank’s definition of governance as the exercise of political power to manage a nation’s political affairs, we can see how mutual recognition enables the management of the Union’s political affairs as a distinctive socio-political entity. The pursuit of European integration—as a normative political objective—is concretized via the fundamental freedoms, which impose legal obligations on the Member States that restrict their exercise of public power. In particular, this is seen in the creation of negative obligations to refrain from imposing restrictions on the activities of individuals which move against their liberties or entitlements protected by the fundamental freedoms as legal norms.Footnote 117
Following this approach, the emergence of mutual recognition in the judicial context can be understood through the lens of governance as the aggregated result of the interactions of the Union’s legal and institutional systems. The Court of Justice—and Courts generally—may be viewed from a governance perspective as specialist governance structures given their active adaptation of rules to a factual context on an ongoing basis. They exercise semi-legislative functions when they engage in legal interpretation—articulating the meaning of the law as a distinctive social system—or where their interpretations of the law interact with law-making bodies to provoke, or even require, new legislative processes as clearly occurred in relation to mutual recognitions legislative expansion which was driven by the Commission.Footnote 118 The treaties as legal texts are structured around a political commitment to integration, and the pursuit of “Integration through Law” in particular. Mutual recognition is an outcome of the choices embedded in the Union’s governance architecture, with Union law, as interpreted by the Court of Justice, structuring and regulating the interactions and participation of national administrative and judicial bodies in European transnational governance via administrative rules and principles. The interaction of those rules and principles, as interpreted by the Court of Justice, reorders national decision-making so as to restrain public power where it might frustrate the fundamental freedoms—understood as representing both legal rules and political goods—and, by extension, the pursuit of European integration as a normative political objective embedded in the Union’s legal order.
Mutual recognition is not the starting point of the Court’s analysis. Rather, it is a legal consequence that emerged from the application of a series of rules and principles. In this sense, mutual recognition is not a principle that guides legal reasoning, but the outcome of a case-specific interaction between various other legal rules and principles through the Union’s institutional apparatus. This understanding aligns with the work of Alter and Meunier-Aitsahalia in the political sciences, who demonstrated how the doctrinal logic supporting the Cassis judgment was strategically interpreted and leveraged by the Commission to shift the Union’s regulatory strategy away from harmonization and toward a governance model based on mutual recognition. Their work complements Janssen’s definition by highlighting the political appropriation of judicial doctrines to manage integration through decentralized legal coordination.
F. Conclusions
This Article has attempted to argue that mutual recognition should be understood, across its judicial and legislative occurrences, as a judicially developed mode of governance: a consequence rather than a legal norm. Section B discussed how mutual recognition first emerged via the Court of Justice’s case law and demonstrates how it does not operate as a normative starting point in the Court’s reasoning. Instead, it is an outcome that follows from the application of a constellation of other legal rules and principles within the broader framework of Union law. The collective interactions of these rules and principles act, via the Court’s interpretation, to constrain the exercise of public power.
In Section C, the Article explored how, in the political context, the deployment of mutual recognition in secondary law by the Union’s legislative branch builds on these doctrinal logics, which were actively adopted, embedded, and augmented so as to actively direct mutual recognition from the judicial context towards new areas of politically driven cooperation. The work of Alter and Menunier-Aitsahalia illustrates how Cassis, in particular, had a significant impact on the Union’s approach toward market regulation and positive modes of European integration. For the Commission in particular, the regulatory governance logic of Cassis provided it with the tools and solutions necessary to address the difficulties it had encountered with the pursuit of market integration via harmonization, constituting a new approach to European governance driven by the Union’s political institutions. The case studies examined herein—the Posted Workers Directives, the e-Commerce Directive, and the Services Directive—also illustrate this dynamic. Rather than being implemented as a formal legal principle, mutual recognition has been institutionalized as a mechanism constructed through the structured interaction of other legal standards, notably non-discrimination, proportionality, necessity, and the freedom of services, which are embedded in secondary legislation to reconstruct a mutual recognition governance mode.
In Section D, the Article demonstrates that in neither the case studies nor in the judicial context is a free-standing principle of mutual recognition identifiable. Mutual recognition is not a starting point, but rather the outcome of applying various other principles and rules, such as non-discrimination, proportionality, and the prohibition of unjustified restrictions on fundamental freedoms, to a constellation of facts via either courts as governance structures or through secondary law created by the Union legislature. The notion of mutual recognition lacks the normative autonomy and general applicability that is characteristic of legal principles.
In Section E, I attempt to forward my own conceptualization of mutual recognition. Combining the legal and political science accounts of mutual recognition with the doctrinal analysis of the Court’s case law conducted and the practical evaluation of its legislative construction allows me to develop a conceptually rich understanding of mutual recognition from an interdisciplinary perspective. The study of governance was then deployed to create a unifying vocabulary and theoretical framework to understand the form and substance of mutual recognition from a governance perspective across its judicial- or legislative-driven forms. Governance—as a distinctive field of study—embraces both legal and political science accounts of the exercise of legal and political norms via institutional structures to account for broader trends in the exercise of public power to secure political goods. Drawing on Janssen’s definition of mutual recognition allows me to deploy a legally embedded framework for understanding mutual recognition that, while legally embedded, is not focused on the foundations of the norm. Rather, it is concerned with its effects. This legal embeddedness and conceptual shift allow me to deploy her framework as a bridge between legal and political conceptualities of mutual recognition. Also of particular importance is the work advanced by Alter and Meunier-Aitsahalia, and later Schmidt, who emphasize a conceptualization of mutual recognition as a decentralized governance strategy adopted to overcome the political and institutional limitations of the pursuit of European integration via positive harmonization. They, too, are concerned with its effects and uses, rather than the underlying substructure that supports its operation.
Bridging between these different perspectives, I understand mutual recognition to represent a mode of European governance that regulates and modulates the exercise and coordination of public power to secure shared political goods, such as the four freedoms, and broader political objectives, such as European integration, which are embedded in the treaties. Under this conceptualization, the law can be understood as a vector which serves as a medium through which political power is exercised, structured, and directed within the Union as a socio-political entity. Rather than only viewing the law as a social system which constitutes a set of rules and a constraint on politics, it is understood as an adaptable mechanism that actively participates in the transmission and operationalization of the Union’s political objectives as a broader system of governance. This aligns with “Integration Through Law” accounts of European integration. Such accounts view the law not just as a technical system of rules, but as a normative, legitimizing force that serves as a fundamental mechanism for regulating and fostering economic, social, and political integration. Within this view, Union law is framed as both a product and creator of the European polity, emphasizing the central role of politics through the law.Footnote 119
At the outset of this Article I highlight how central mutual recognition is to European integration. Our reliance on it as a mode of governance has been driven by the legislative institutions in particular, who have expanded it into ever more areas of Union action. If we are to continue to rely on mutual recognition, we need to conceptually clarify what it is and how it operates. Misunderstandings risk legal uncertainty, misapplication, and potentially even policy failure. A more precise conceptualization enables more coherent legislative drafting and sounder judicial reasoning. Fractures have already emerged in the operation of mutual recognition: The European Arrest Warrant is the clearest illustration of this.Footnote 120 The notion of mutual trust has been stretched so far it is starting to tear, risking the destabilization of the European Arrest Warrant Frameworks operation more broadly. It is raising questions as to our ability to be “United in Diversity” in the area of judicial cooperation, prompting the question, “Do we need more harmonization?”
If mutual recognition is to remain a viable mode of governance, we need to more clearly understand and respect its limits. Those limits cannot be fixed by the Court’s implication that “mutual recognition can continue to work, because we all trust each other,” when preliminary references to the Court of Justice increasingly indicate national courts believe the opposite in increasingly more fields of cooperation supported by mutual recognition.Footnote 121 A conceptual reframing of mutual recognition matters because it allows us to interrogate not just “if” mutual recognition works, but “how” it works, under what conditions, and whether its foundational assumptions remain politically and legally workable. Understanding mutual recognition’s nature is essential if we are to navigate these tensions and preserve the Union’s capacity to govern effectively through diversity.
Data Availability Statement
The documents supporting the findings of this study are freely and openly available at EUR-Lex, the European Union’s official online repository for legal documents which is maintained by the Publications Office of the European Union. (https://eur-lex.europa.eu/homepage.html)
Acknowledgements
A draft of this paper was first presented at the ICONS annual conference in Madrid (July 2024). Many thanks to the participants for comments and feedback, in particular Mariolina Eliantonio, Lavina Kortese, Luis Arroyo Jiménez, and Ana Bobić. Thanks also to Mark Dawson, Niamh Nic Shuibhne, Dorte Martinsen, and Martijn van den Brink for comments at earlier stages during my PhD. Many thanks also to the Hertie School who supported much of this work during my PhD research via a scholarship. Many thanks also to Fulvia Ristuccia for her thoughtful comments and feedback, despite our disagreements.
Competing Interests
The author declares none.
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