2. The requirement to check whether another Member State has observed fundamental rights under the ECHR
As a second problem the Court perceives a danger for the autonomy of EU law in the draft agreement because it may adversely affect the principle of mutual trust between the Member States concerning the respect of fundamental rights, which is in particular relevant in the Area of Freedom, Security and Justice (paras 191 ff.). The draft agreement provides according to the Court for an obligation of Member States to check the observance of all other party states even if they are EU Member States (para 194).
Indeed it can be taken as a fact that the mutual checking of observance of fundamental rights under the ECHR impairs the principle of mutual trust. The Court’s dicta, however, do not address that the relevant obligation already binds the EU Member States now. Furthermore, a more conciliatory argument could have been made at this point. Mutual checking of the observance of fundamental rights is typically required in the case law of the ECtHR where substantial violations of ECHR rights would be caused by the surrender of persons to another state – e.g. in the framework of the Dublin system. A deviation from the principle of mutual trust in EU law is, however, typically only permitted in cases of extraordinary circumstances, which arguably requires a graver and more systematic violation of Convention rights. It is deplorable that the Court only recognises the divergence of standards in this matter as a problem without trying in any way to align EU law with the higher standard of protection given under the ECHR. It thereby sustained the principle of mutual trust practically at all costs.