I. The Extension of the Monitoring Obligation Imposed on the Requesting Member State

Certainly that was not the first time that the Court was called upon to rule on the obligations imposed by the Charter concerning the determination of the Member State responsible for examining an application for international protection. The first such occasion was given in the seminal N.S. ruling.^{Footnote 16} In that case, the Court concluded that EU law precludes the application of a conclusive presumption that the Member State responsible observes the fundamental rights of the EU. It also stressed that the competent national authorities may not transfer an applicant for international protection to the Member State normally responsible, when they cannot be unaware that there exist systemic flaws in the asylum procedure and in the reception conditions of asylum seekers in that Member State that amount to substantial grounds for believing that the asylum seeker there would face a real risk of suffering degrading treatment contrary to the requirements of the Charter.^{Footnote 17} Apart from its apparent importance concerning the explicit recognition of possible exceptions to the blind application of the principle of mutual trust, the ruling also made the existence of systemic flaws in the asylum system of the Member State responsible an issue not only of national law, but also of EU law. It further imposed on the requesting Member State a monitoring obligation aimed to guarantee that the reception conditions and the asylum procedure in the Member State responsible are not vitiated by systemic flaws giving rise to a substantial risk of degrading treatment of applicants for international protection.^{Footnote 18}

Later on, that principle was codified explicitly in the provisions of the amended Dublin III Regulation.^{Footnote 19} However, Dublin III also stresses in its recitals that Member States are bound in its application by the various instruments of international law on the protection of fundamental rights, and states that its provisions respect the fundamental rights and observe the principles recognized by the Charter.^{Footnote 20} Similar references can also be found in the recitals of all the other legal measures constituting the CEAS.^{Footnote 21} The question therefore arises whether the need to protect the fundamental rights of asylum seekers imposes additional exceptions to the application of the principle of mutual trust, going beyond those resulting from the legislative implementation of the N.S. case law.

Some indications in this respect were provided by the preliminary ruling in C.K. ^{Footnote 22} The Court there accepted that the individual circumstances of the asylum seeker should be taken into account and that transfer can take place only in conditions that preclude the existence of a serious risk of degrading treatment. It is true that this conclusion was reached in relation to risks arising from the transfer itself, which could not be attributed to the Member State responsible. That was because the case involved an applicant suffering from serious medical problems that could potentially lead to very severe and permanent consequences in the event that she was transferred, regardless of the quality of the reception and care that she would then get in the receiving Member State. The language used by the Court, however, and in particular its reference to the increased measure of protection that the amended regulation intends to provide to the fundamental rights of asylum seekers compared to its predecessor, suggests that the requesting Member State is obliged to perform an individualized examination of the concerned person’s situation in order to rule out the existence in the receiving Member State of any serious risk amounting to a violation of the prohibition of degrading treatment.^{Footnote 23} That obligation exists regardless of the source of the risk or the existence of systemic problems in the Member State responsible. For example, one could think of applicants for international protection suffering from severe illnesses that require specialized medical assistance that is not available in the receiving Member State.^{Footnote 24} The transfer of those persons would undoubtedly violate their fundamental rights, even if the general health care system of the Member State responsible is considered satisfactory.^{Footnote 25} It is indeed apparent that the particular vulnerability and the exceptional circumstances of the applicant are relevant factors that should always be taken into consideration by the competent national authorities.^{Footnote 26}

However, all cases decided thus far concerned the situation before the grant of international protection to the applicant. In comparison, the preliminary reference in Jawo concerned the impact that the expected living conditions of beneficiaries of international protection in the Member State normally responsible could potentially have on the transfer of an asylum seeker to that latter Member State. However, Dublin III refers to the beneficiaries of international protection only in their capacity as family members of the applicant.^{Footnote 27} Other than that, there is absolutely no indication that the EU legislature intended them to exercise any influence over the application of the responsibility criteria prescribed by that regulation. There were, therefore, several objections that could have been raised against the recognition of the obligation to examine the living conditions that an asylum seeker is likely to be subject to if granted international protection by the Member State responsible.

An obvious argument is that the risk mentioned by the referring court is too remote to be taken into account before the transfer of the asylum seeker. At that stage, the applicant has not been recognized yet as a beneficiary of international protection and there is absolutely no certainty that his application will be accepted. Therefore, it could seem rather premature to examine before the transfer a potential risk that may never arise.^{Footnote 28}

There is also the concern that Dublin III does not govern the outcome of the asylum request and the situation that follows the grant of international protection to the applicant. Because it is not the transfer itself that exposes the person concerned to the risk of degrading treatment, it could therefore be argued that the question asked by the referring court escapes the scope of application of the Charter and that it is exclusively the Member State responsible that can be considered accountable for the living conditions of that person after the examination of his request.^{Footnote 29} Furthermore, the EU has adopted specific legislation regarding the obligations of its Member States towards the beneficiaries of international protection. That legislation requires only national treatment for those persons, instead of introducing uniform minimum standards applicable in all Member States.^{Footnote 30} It could therefore be maintained that the living conditions of the beneficiaries of international protection can be assessed only in the light of those requirements and that it is not permissible to additionally examine in this regard the question of a possible breach of the prohibition of degrading treatment under the Charter.^{Footnote 31}

The Court ruled though that the question asked by the referring national court concerned a situation that gave rise to the application of the Charter.Footnote ³² The preliminary ruling stressed in this respect that the transfer of an applicant for international protection to the Member State responsible pursuant to the criteria prescribed by the regulation constitutes an element of the CEAS and implements EU law, falling therefore within the scope of application of the Charter.^{Footnote 33} It then relied on the general and absolute nature of the prohibition of inhuman and degrading treatment to conclude that it is immaterial whether the applicant is exposed to a substantial risk of suffering such a treatment after the grant of international protection, given that the CEAS and the principle of mutual trust that underlies it are based on the premise that the operation of that system will not result—at any stage and in any form—in such a serious risk.^{Footnote 34}

Those statements merit closer examination. The Charter specifically states that its provisions are addressed to the Member States in circumstances only where they are implementing EU law.^{Footnote 35} Certainly it is not always easy to ascertain whether a Member State implements in a specific case the provisions of EU law.^{Footnote 36} There are even occasions where the relevant case law of the Court has given rise to constitutional reactions at the national level, on the rationale that it purports to extend the EU standard of protection of fundamental rights to cases that are only incidentally linked to the application of EU law.^{Footnote 37} The implication of the reasoning employed by the Court in Jawo seems to be that the Charter applies even in situations that may arise as potential consequences of the implementation of the provisions of EU law by a Member State, in that case of the obligation imposed on the competent national authorities to apply the Dublin III criteria in order to transfer the applicant for international protection to the Member State responsible to examine the request. It is not important that this situation may never actually occur. Rather, it suffices that it is conceivable at the time the competent national authority is called upon to examine the case. It is also immaterial that the existence of that situation presupposes some kind of action by another Member State, such as the acceptance by the Member State responsible for the asylum request.

Such an interpretation of the preliminary ruling could have very farreaching consequences regarding the scope of application of the Charter, as it could bring it into play in situations that merely constitute indirect outcomes of the requisite national action that gives rise to the application of EU law. In most of those cases, however, such an application of the Charter would amount to an unacceptable extension of the EU standard of protection of fundamental rights. Consider, for instance, the execution of a European arrest warrant. By surrendering the requested person to the issuing Member State, the national executing authorities are clearly implementing the relevant requirements of EU law.^{Footnote 38} It could not nevertheless be maintained that this alone suffices to make the Charter automatically applicable also to the circumstances and the living conditions that the person concerned is likely to experience in the issuing Member State after he has served his sentence. These considerations are therefore not relevant concerning the obligation to surrender the requested person to the issuing Member State.

Apparently, then, the relevant statements of the Court should be read in a more restrictive manner that confines them to the particular context of the CEAS. Indeed, that system comprises rules that protect the persons concerned both before and after their recognition as beneficiaries of international protection. It is certainly true that the nature and content of that protection is not the same, given that the relevant measures provide minimum substantive standards concerning applicants for international protection, but offer only national treatment after the grant of the requested international protection.^{Footnote 39} That being said, the fact remains that the application of EU law also extends to the stage that follows the transfer of the applicant to the responsible Member State and the successful examination of the asylum request. That specificity makes it possible to consider that all stages leading to the grant of international protection to the applicant constitute a single unity, although each one of them may be governed by its own rules and procedures.^{Footnote 40} Consequently, those individual stages follow on from each other and are intrinsically linked in the sense that the processing of applications for international protection and the possible grant of that protection clearly result from the specification of the responsible Member State according to the criteria prescribed by the regulation.^{Footnote 41} In these circumstances, it seems reasonable to introduce uniform standards regarding the protection of fundamental rights in all stages of the procedure that may eventually lead to the recognition of the applicant as a beneficiary of international protection under the provisions of EU law.

In any event, the practical consequence of the preliminary ruling is to considerably extend the monitoring obligation imposed on the transferring Member State concerning the observance of fundamental rights in the context of the CEAS. Its national authorities are now required to guarantee not only that the applicant will not suffer any degrading treatment because of his or her transfer to the responsible Member State—pending the examination there of his or her asylum request—but also that his or her expected living conditions in that same Member State as a potential beneficiary of international protection will adhere to the relevant requirements of the Charter. That effectively amounts to the introduction of an additional ground for nontransfer and imposes a new exception to the operation of the principle of mutual trust going beyond the legislative codification of the N.S. case law.

II. The Fundamental Rights that May Impose Limits on the Principle of Mutual Trust

In order to ascertain the actual extent of the limitations that the EU concept of fundamental rights practically imposes on the operation of the principle of mutual confidence, it is necessary to examine two additional issues. The first relates to the categories of fundamental rights that can set aside the application of that principle. The second concerns the requirements that the Court seems to introduce in order to conclude in a particular case that a given national conduct constitutes a fundamental rights violation capable of setting aside the principle of mutual trust. These are crucial issues that go beyond the area of EU asylum law and relate more generally to the magnitude of exceptions that the principle of mutual confidence may be subject to because of the need to give priority to the protection of the fundamental rights of individuals over the effectiveness of EU law.

Regarding the first of those questions, all asylum cases examined thus far under the preliminary reference procedure concerned alleged violations of the prohibition of degrading treatment.^{Footnote 42} The preliminary rulings have placed emphasis in this respect on the general and absolute nature of that prohibition, stressing particularly its fundamental importance and the fact that it is closely linked to respect for human dignity.^{Footnote 43} The question that arises then is whether the transfer of the applicant may also be precluded on the basis of other fundamental rights considerations, going beyond the prohibition of degrading treatment.

The CEAS is not the only area in which the Court has given prominence to the prohibition of degrading treatment in order to impose limits on the application of legislative rules based on the principle of mutual confidence. In fact, the first emphatic reference to the absolute nature of that prohibition was made in the area of judicial cooperation in criminal matters concerning, in particular, the execution of European arrest warrants.^{Footnote 44} The Court relied on the relevant provision of the Charter in order to introduce an exception to the automaticity of the surrender procedure of requested persons.^{Footnote 45} It imposed, to this end, the obligation on the national executing authorities to ascertain that the person concerned will not be exposed to a serious risk of degrading treatment because of the general prison conditions of the issuing Member State. When those authorities conclude that such a risk exists, they are required to postpone the surrender of the person concerned until such time as they are given precise and sufficient guarantees in relation to the specific individual that allow them to rule out in practice the existence of that risk.^{Footnote 46}

It could therefore be argued that the Court has created a subcategory of fundamental rights that are always considered superior to the objectives pursued by the principle of mutual confidence because of their absolute nature. According to one interpretation, it is only those rights that can introduce an exception to the mutual trust between the Member States and to the automatic application of the principle of mutual recognition. That reading of the relevant case law is not incontestable, however. On the contrary, a more likely interpretation of all the preliminary rulings concerning alleged violations of the prohibition of degrading treatment is that the Court placed specific importance on the absolute nature of the fundamental right involved in those cases in order to underline the particular seriousness of the fundamental rights concerns arising in the proceedings. According to this construction, it is the gravity of the violation rather than the nature of the fundamental right at issue that may affect the obligations of the Member States under the principle of mutual trust. Certainly, the infringement of an absolute fundamental right must always be regarded as particularly serious. Nevertheless, there may also be particularly grave violations of relative fundamental rights.

The latter interpretation also finds support in the legislative structure of the CEAS. As explained previously, all legislative measures adopted in the context of the CEAS specifically state in their recitals that their provisions respect the fundamental rights and observe the principles recognized by the Charter. Those recitals also make explicit reference to a number of fundamental rights that must be observed in the application of Dublin III.^{Footnote 47} Most of the fundamental rights contained in that list are not absolute in nature. Consequently, there is no indication that the EU legislature intended to introduce a strict hierarchy of fundamental rights and to exclude completely the introduction of exceptions to the application of the principle of mutual confidence on the basis of relative fundamental rights. This conclusion is reinforced by the reasoning employed by the court in Jawo. The preliminary ruling stresses in this respect that the provisions of Dublin III must be interpreted and applied in a manner consistent with the fundamental rights guaranteed by the Charter.^{Footnote 48} It is only then that the Court concentrates on the specific circumstances of the case and refers to the absolute nature of the particular fundamental right involved in the legal proceedings.

The notion that even relative fundamental rights may introduce exceptions to the principle of mutual trust is confirmed by the preliminary ruling in Celmer.^{Footnote 49} That case concerned the surrender of a requested person to Poland on the basis of a European arrest warrant issued by a Polish court. Uncertain if the current state of the justice system in Poland ensured the right to a fair trial before an independent tribunal, the executing national court made a preliminary reference asking about the circumstances in which it could refrain from surrendering the requested person on account of a risk of violation of that fundamental right.^{Footnote 50}

The right to a fair trial is not absolute in nature, but its exercise may be subject to certain limitations that are provided for by law and respect its essence.^{Footnote 51} The Court examined, in this respect, whether the existence of a real risk of breach of that right could introduce an exception to the principle of mutual recognition that governs the execution of European arrest warrants. It pointed out that the requirement of judicial independence forms part of the very essence of the fundamental right to a fair trial. It also stressed the cardinal importance of that right, as a guarantee that all rights conferred by EU law on individuals will be protected and that the values common to the Member States, and in particular the value of the rule of law, will be safeguarded.^{Footnote 52} The ruling underlined that the very existence of effective judicial review is integral to the rule of law and that, accordingly, every Member State is obliged to ensure that all its courts and tribunals meet the requirements of effective judicial protection and independence.^{Footnote 53} The Court concluded that the existence of a real risk that the surrender of the requested person will lead to an infringement of his or her fundamental right to an independent tribunal—and consequently of the very essence of the fundamental right to a fair trial—is capable of permitting the executing judicial authority to create an exception from executing a European arrest warrant.^{Footnote 54}

It appears, therefore, that the protection of the essence of the relative fundamental rights poses an additional limitation on the application of the principle of mutual confidence. It is certainly true that there currently exists considerable obscurity around the concept of “essence,” its exact content, and its practical function.^{Footnote 55} It is rather incontestable, however, that the “essence” relates to the inviolable core of the fundamental right that must be protected against any external interference regardless of its source. Consequently, the measure of protection afforded to the essence of a relative fundamental right is exactly the same as the one recognized for rights that are considered as absolute in nature. It is nevertheless suggested that an infringement of the essence of a fundamental right exists only if the interference is of such an intensity and extent that it calls into question the very existence of the right and makes its exercise practically impossible.^{Footnote 56} It seems thus that resorting to the concept of essence is reserved exclusively for cases of exceptionally grave fundamental rights interferences that are clearly considered unjustifiable in all circumstances.^{Footnote 57} Other less serious violations of fundamental rights are not capable of affecting the essence of those rights.

That interpretation of the concept of essence and of its effect on the principle of mutual confidence seems to be confirmed by case law. Consider, for example, the preliminary ruling in N.S.^{Footnote 58} In that case, the Court stressed that all legal instruments constituting the CEAS expressly provide that they seek to observe the fundamental rights and principles recognized by the Charter. It could not be concluded, however, that every single infringement of a fundamental right by the Member State responsible can affect the obligations of the other Member States under the provisions of EU law. This could nullify the principle of mutual confidence by adding another exclusionary criterion, according to which even minor infringements committed by the Member States could exempt them from their obligations under the CEAS.^{Footnote 59} The ruling therefore seems to suggest that only exceptionally serious violations of fundamental rights can impose limitations on the application of the principle of mutual trust. Arguably, such infringements can only concern absolute fundamental rights and the essence of relative fundamental rights.

Additional indications in this respect are provided by Celmer. The Advocate General of the case proposed an assessment based on the gravity of the infringement of fundamental rights that are not absolute in nature. He argued that exceptions to the principle of mutual recognition on the basis of a real risk of violating the right to a fair trial can be accepted only in cases where a particularly serious breach of that fundamental right exists. He concluded that there must be a real risk of breach not of the right to a fair trial as such, but rather of the essence of that right, in order for the executing authority to be required to postpone the surrender of the requested person.^{Footnote 60} Read in the light of the Advocate General’s conclusions, the preliminary ruling in Celmer seems to confirm that it is not just any violation of a fundamental right that can exercise an influence over the balance of responsibilities imposed on the Member States by the provisions of EU law. Unless the observance of an absolute fundamental right is at stake, it is only the risk of an exceptionally serious violation affecting the essence of the fundamental right concerned that may introduce limitations to the principle of mutual trust. This is vividly illustrated by the recent preliminary ruling in Ibrahim.^{Footnote 61}

Ibrahim involved a number of stateless persons that had been granted subsidiary protection in Bulgaria pursuant to the provisions of the CEAS.^{Footnote 62} Those persons then travelled on to Germany and lodged new applications for asylum. The German authorities rejected those applications as inadmissible on the basis that the persons concerned had already been offered subsidiary protection in another Member State and ordered the removal of the applicants to Bulgaria.^{Footnote 63} The applicants appealed that rejection and the national court considered it necessary to refer a number of preliminary questions, asking inter alia whether a Member State is precluded from relying on the relevant ground for inadmissibility provided for by EU law in case the asylum procedure in the Member State that granted the subsidiary protection is vitiated by systemic flaws. According to the referring court, those flaws arose from the predictable and systematic refusal of the Bulgarian authorities to grant refugee status to applicants for international protection and to examine subsequent applications of persons already granted subsidiary protection notwithstanding that there may be new evidence that increases the probability of the applicant satisfying the conditions required to be recognized as a refugee.

The Advocate General of the case stressed that the right to asylum is a fundamental right explicitly recognized by the Charter, and pointed out that subsidiary protection status is in principle less than refugee status, particularly concerning the right of residence and the right to social welfare. He underlined then that because of the application of the principle of mutual trust, Member States are permitted to presume that the other Member States grant the superior refugee status to applicants for international protection, provided that the latter meet the relevant requirements. He considered, though, that the person concerned must be allowed to prove the existence of systemic flaws, consisting inter alia of a general practice of granting subsidiary protection status rather than refugee status. The Advocate General concluded that the right to asylum precludes the rejection of an asylum application as inadmissible on the ground that the applicant has been granted subsidiary protection in another Member State, if the asylum procedure in that latter Member State is vitiated by systemic flaws.^{Footnote 64}

Although the Court ruled that the systematic refusal of a Member State to grant the superior refugee status to eligible applicants constitutes a violation of the fundamental right to asylum, it concluded that the other Member States are entitled by the principle of mutual trust to rely on the provisions of the secondary EU legislation and to reject as inadmissible any further asylum application submitted to them by a beneficiary of subsidiary protection. In such circumstances, it is for the Member State that granted the subsidiary protection to resume the procedure for obtaining refugee status.^{Footnote 65} Arguably, then, this particular violation of the right to asylum is not considered serious enough to impose on the national authorities of the other Member States the responsibility to monitor the observance by the Member State concerned of its fundamental rights obligations towards applicants for international protection. Although the Court provides no explanation in this respect, one possible interpretation of its preliminary ruling could be that beneficiaries of subsidiary protection are provided effective protection under EU law and are therefore not exposed to the same risks as the other categories of asylum seekers.^{Footnote 66} Following this, there is no overriding need to upset the operation of the principle of mutual confidence and it is only the Member State responsible for the breach that must remedy the problem and adhere to the requirements set by the CEAS. In other words, the violation involved in Ibrahim was not of such gravity as to affect the essence of the right to asylum so as to make its exercise practically impossible.

III. The Restrictive Interpretation of the Absolute Prohibition of Degrading Treatment

It appears therefore that the gravity of the infringement comes into play once a violation of a non-absolute fundamental right has been established, in order to ascertain whether that particular breach can introduce an exception to the application of the principle of mutual trust. That already limits considerably the chances of successfully rebutting the operation of that principle, because the concept of essence seems to be reserved only for exceptionally serious infringements of fundamental rights. Jawo attests, however, that severity may be relevant concerning the establishment of a violation of the absolute prohibition of degrading treatment. That brings this Article to the last issue raised by the referring national court regarding the criteria under EU law that must guide the assessment of the living conditions of the beneficiaries of international protection. This is indeed a very important issue, not least because it is also connected to the standard of the reception conditions of applicants for international protection required by EU law.^{Footnote 67} The conclusions reached by the preliminary ruling further testify that the importance that the Court continues to place on the principle of mutual confidence in the area of fundamental rights protection is likely to lead to interpretations that practically exercise a limiting effect even on absolute fundamental rights.

The Court ruled in this respect that the systemic flaws affecting the living conditions of those receiving international protection must attain such a particularly high level of severity so as to place the person concerned in an involuntary situation of extreme material poverty which does not allow him or her to meet his or her most basic needs, and that undermines his or her physical and mental health, putting him or her in a state of degradation incompatible with human dignity. Anything falling under that threshold cannot be considered a violation of the prohibition of degrading treatment, even if it is characterized by considerable insecurity and significant degradation of the living conditions of that person.^{Footnote 68} The Court makes an apparent attempt to base these conclusions on the relevant case law of the European Court of Human Rights (ECtHR). It starts by stressing that the meaning and scope of the prohibition of degrading treatment under the Charter corresponds to that of the relevant provision of the European Convention on Human Rights (ECHR).^{Footnote 69} Based on that premise, the preliminary ruling makes then specific reference to the seminal judgment of the ECtHR in M.S.S. and appears to rely on its conclusions.^{Footnote 70}

It is not entirely clear, however, that the ECtHR has introduced the criterion of extreme material poverty as an absolute requirement for establishing the existence of living conditions that violate the prohibition of degrading treatment. It is indeed correct that the case law of that Court has stressed on numerous occasions that a minimum level of severity is required for a given ill treatment to fall under the relevant prohibition. That same case law has also made it clear though that the assessment of that minimum is relative and requires an examination of all circumstances of the case, including those relating to the victim of the ill treatment.^{Footnote 71} Applying those criteria to the question of the living conditions of asylum seekers, the M.S.S. judgment confirmed that the exposure of the person concerned to a situation of extreme material poverty because of the official indifference of the national authorities constitutes a violation of the prohibition of degrading treatment.Footnote ⁷² That is not to say, however, that other national practices which place the concerned persons in a state of significant insecurity in their living conditions can never fall under that prohibition in the absence of such extreme material poverty.

The Tarakhel case appears to confirm this.^{Footnote 73} That case concerned the removal to Italy of an entire family of third country nationals, on the basis of the provisions of the CEAS. The overall situation of the reception arrangements in that Member State could not be compared in any respect to that involved in the M.S.S. proceedings, and there was no allegation that the persons concerned would be exposed to a situation of extreme material poverty. The ECtHR nevertheless concluded that the assessment of the reception conditions in the responsible Member State should also take into account the specifics of the case: Namely, the age of the children and the need to keep the family together. Tarakhel seems, therefore, to suggest that the criteria for the examination of the living conditions of the persons concerned should never be absolute, but must rather allow an overall assessment based on the circumstances of the case.

It could, of course, be argued that Jawo also provides for such an individualized examination to the extent that it allows the person concerned to rely on exceptional circumstances that are unique to him or her in order to prove that his or her recognition as beneficiary of international protection in the responsible Member State would give rise to a real risk of degrading treatment.^{Footnote 74} Yet the preliminary ruling states that the purpose of such a reliance is to establish the existence of a situation of extreme material poverty because of the particular vulnerability of the person concerned. It is not intended to introduce an exception to that requirement based on the specificities of the case. As a result, that statement cannot be interpreted as an indication that the Court accepts that the extreme material poverty criterion is not applicable in all cases involving the assessment of the living conditions in the receiving Member State.

Arguably, then, the Court has adopted a very restrictive interpretation of the notion of degrading living conditions on this matter that is not completely in line with the definition given under the ECHR. This may potentially pose problems for the reception of that case law by the national courts, especially in those Member States that traditionally provide very robust constitutional standards of fundamental rights protection. Certainly, the Court has stressed that Member States are not allowed to require a higher standard of national protection of fundamental rights from another Member State than that provided by EU law.^{Footnote 75} It is equally true, however, that certain constitutional courts have expressed forceful objections against the unconditional lowering of their level of fundamental rights protection in the areas involving the implementation of EU law. That is particularly the case regarding fundamental rights that are closely connected to the respect for human dignity, such as the one prohibiting any form of inhuman and degrading treatment.^{Footnote 76}

Furthermore, it appears extremely challenging to prove that asylum seekers run a real risk of exposure to a situation of extreme material poverty on account of their expected living conditions as beneficiaries of international protection in the Member State responsible. That is partly because EU law has not subjected beneficiaries of international protection to uniform minimum standards of protection.^{Footnote 77} On the contrary, Member States are only required, as a general rule, to treat them under the same conditions as their own nationals in relation to a number of social benefits.^{Footnote 78} That seems to imply that the requesting Member State may rely in principle on the fact that the responsible Member State formally respects its obligations under that principle of national treatment, in order to conclude that the person concerned will not be exposed to a real risk of extreme material poverty in case he or she is recognized as a beneficiary of international protection in that latter Member State.

However, asylum seekers constitute a particularly underprivileged and vulnerable population group in need of special protection.^{Footnote 79} Apparently, that need continues to exist for some time, even after the grant of the international protection. Consequently, it is not selfevident that reliance on the principle of national treatment will always suffice to guarantee to beneficiaries of international protection living conditions that live up to the requirements of the Charter. That point was specifically brought up by the referring national court in Jawo. That court underlined that, in order to be able to effectively assert their rights under the principle of national treatment, the beneficiaries of international protection must be brought first to a situation comparable to that of the nationals of the receiving Member State. The preliminary reference particularly stressed the obligation of that latter Member State to ensure effective access to integration programs intended to facilitate the incorporation of the beneficiaries of international protection into the society.^{Footnote 80} The court also placed specific emphasis on the reported inadequacies of the social system of the responsible Member State that could not be offset by support in family structures, as in the case of the nationals of that same Member State, given that such a form of support is normally not available to beneficiaries of international protection. Seen in this perspective, the preliminary reference essentially invited the Court to clarify whether the requirements of the Charter could lead to the imposition of minimum standards of protection concerning the beneficiaries of international protection, notwithstanding the explicit introduction of the principle of national treatment in secondary EU law.

The preliminary ruling seems to exclude such a possibility. It specifically states that the mere fact that beneficiaries of international protection are not able to rely on support in family structures in order to counterbalance the alleged inadequacies of the social system of the Member State responsible is not sufficient to conclude that the person concerned will be exposed to a situation of extreme material poverty in that latter Member State.^{Footnote 81} Arguably, that statement is indicative of the Court’s reluctance to overlook the clear and unambiguous intention of the EU legislature to guarantee only national treatment to beneficiaries of international protection and not to introduce any minimum substantive standards similar to those recognized for applicants of international protection. This conclusion is reinforced by the preliminary ruling in Ibrahim. In that case, the Court underlined that the fact that beneficiaries of subsidiary protection receive in the Member State that granted that protection a subsistence allowance that is markedly inferior to that in other Member States may not in principle lead to the finding that the persons concerned are exposed to a real risk of suffering degrading treatment, so long as the principle of national treatment is observed.^{Footnote 82}

However, the concerns expressed by the referring national court about the inherent vulnerability of beneficiaries of international protection are certainly valid. The preliminary ruling attempts to address these concerns by allowing the persons involved to rely on exceptional circumstances unique to them in order to establish the existence of a real risk of extreme material poverty.^{Footnote 83} The Court seems to suggest that it may be possible for an asylum seeker to object to his or her transfer to the responsible Member State on the basis that the national treatment that he or she would be subject to in that latter Member State as a beneficiary of international protection could still expose him or her to a situation of extreme material poverty because of his or her particular vulnerability.^{Footnote 84} It is submitted that this also implies that it is solely a small subcategory of particularly vulnerable applicants for international protection that may rely on such exceptional and unique circumstances, on account of factors such as the age and the special needs of the person concerned.

Rather predictably, the preliminary ruling also concludes that the existence of shortcomings in the implementation by the responsible Member State of programs to integrate the beneficiaries of international protection may not support the conclusion that the person concerned would be exposed to a real risk of suffering degrading treatment as a beneficiary of international protection in that latter Member State.^{Footnote 85} That finding confirms that is not any single infringement of the common European asylum rules that may prevent the transfer of an asylum seeker to the Member State normally responsible.Footnote ⁸⁶ Apparently, the same applies to isolated violations of the principle of national treatment.^{Footnote 87} Arguably, then, the combined effect of the introduction of the extreme material poverty criterion and the application of the principle of national treatment it is that it will usually suffice to establish that the Member State responsible treats the beneficiaries of international protection under the same conditions as its own nationals in order to rule out that an asylum seeker will be exposed to a real risk of degrading treatment on account of his or her expected living conditions as a beneficiary of international protection in that latter Member State. If that interpretation of the preliminary ruling is indeed correct, it may very well mean that it is only manifest and generalized violations of the principle of national treatment by the Member State responsible that can give rise to concerns under the provisions of the Charter about the expected living conditions of beneficiaries of international protection in that Member State. For the time being, it appears that the Court is prepared to go beyond that principle of national treatment only in cases of particularly vulnerable applicants for international protection.

Looking more closely at the practical effects that the preliminary ruling entails for the application of the principle of mutual confidence, it is possible to make two very interesting observations. The first concerns specifically the operation of that principle in the CEAS. Instead of improving the chances of successfully challenging on grounds of fundamental rights the transfer of an asylum seeker to the Member State normally responsible because of the extension of the monitoring obligation imposed on the requesting Member State also to the stage that follows the recognition of the applicant as a beneficiary of international protection, it seems likely that the ruling may actually lead to the relaxation of the applicable transfer criteria. That is because the introduction of the material poverty requirement also has an impact on the interpretation of the minimum standard of the living conditions that the responsible Member State is obliged under the Charter to make available to applicants for international protection, pending the examination of their asylum request. That makes it extremely challenging for an asylum seeker to rebut the presumption of adequate fundamental rights protection that the principle of mutual confidence entails, placing an important limitation on the practical application of the N.S. case law.

The second observation is of a more general nature and concerns the balancing of the effectiveness of EU law and the principle of mutual confidence against the fundamental rights of individuals. A common criticism against the Court is that it is carrying out its fundamental rights review taking into account perspectives that are alien to the nature of those rights and that intend to facilitate the attainment of the objectives pursued by the EU legislature. Even in cases where the Court is called upon to balance two competing fundamental rights, its reasoning often gives rise to the suspicion that it is inclined to add to the scale the requirements of the EU legal order.^{Footnote 88} In the same vein, the application of the principle of mutual trust in the area of fundamental rights protection suggests in essence that the level of protection of those rights must be adapted to the particularities of EU law and to the specific interests pursued by its provisions.^{Footnote 89} It is certainly true that the judicial recognition of absolute prohibitions stemming from the fundamental right to respect for human dignity automatically exempts an entire category of fundamental rights from any kind of balancing exercise. At the same time, though, the Court introduced requirements that could be interpreted as concealed attempts to prioritize mutual trust over individual protection even regarding supposedly absolute rights.

Jawo is very instructive in this respect. While the Court confirms the absolute nature of the prohibition of degrading treatment, it interprets its scope in a very restrictive manner that seems to misconstrue the relevant case law of the ECtHR. That poses serious obstacles to the successful reliance on that prohibition not because it is outbalanced by the application of the principle of mutual confidence, but rather because it is very onerous to establish in the first place the existence of a real risk of its violation in order to set aside the operation of that principle. Therefore, the absolute nature of that prohibition is compromised by its circumscribed reading and one could reasonably suspect that this may be motivated by the pivotal role that is still reserved for the principle of mutual trust in the area of fundamental rights protection. As a result, the continuous reliance on that principle may effectively lead to very contestable judicial interpretations that place additional implicit limits on the effective protection of individuals even in circumstances where the fundamental right at stake is absolute in nature.