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European Papers European Papers A Journal on Law and Integration Vol. 2, 2017, N0 1 www.europeanpapers.eu European Papers – A Journal on Law and Integration (www.europeanpapers.eu) Editors Ségolène Barbou des Places (University Paris 1 Panthéon-Sorbonne); Enzo Cannizzaro (University of Rome “La Sapienza”); Gareth Davies (VU University Amsterdam); Christophe Hillion (Universities of Leiden, Gothenburg and Oslo); Adam Lazowski (University of Westminster, London); Valérie Michel (University Paul Cézanne Aix-Marseille III); Juan Santos Vara (University of Salamanca); Ramses A. Wessel (University of Twente). Associate Editors M. Eugenia Bartoloni (Second University of Naples); Emanuele Cimiotta (University of Rome “La Sapienza”); Elaine Fahey (City, University of London); Maria Fletcher (University of Glasgow); Eleni Frantziou (University of Westminster, London); Daniele Gallo (Luiss “Guido Carli” University, Rome); Paula García Andrade (Comillas Pontificas University, Madrid); Alan Hervé (University of Bretagne Occidentale); Claudio Matera (University of Twente); Nicola Napoletano (University of Rome “Unitelma Sapienza”). Scientific Board Uladzislau Belavusau (University of Amsterdam); Marco Benvenuti (University of Rome “La Sapienza”); Francesco Bestagno (Catholic University of the Sacred Heart, Milan); Giacomo Biagioni (University of Cagliari); Marco Borraccetti (University of Bologna); Susanna Maria Cafaro (University of Salento); Roberta Calvano (University of Rome “Unitelma Sapienza”); Federico Casolari (University of Bologna); Roberto Cisotta (LUMSA University, Rome); Angela Cossiri (University of Macerata); Francesco Costamagna (University of Turin); Gráinne de Búrca (New York University School of Law); Chiara Favilli (University of Florence); Ester Herlin-Karnell (VU University of Amsterdam); Costanza Honorati (University of Milano-Bicocca); Sara Iglesias Sanchez (Court of Justice of the European Union); Francesca Ippolito (University of Cagliari); Clemens Kaupa (VU University Amsterdam); Jeffrey Kenner (University of Nottingham); Jan Klabbers (University of Helsinki); Vincent Kronenberger (Court of Justice of the European Union); Mitchel Lasser (Cornell Law School, Ithaca – New York); Philippe Maddalon (University Paris 1 Panthéon-Sorbonne); Stefano Manacorda (Second University of Naples); Maura Marchegiani (University for “Foreigners” of Perugia); Mel Marquis (European University Institute, Florence); Fabrizio Marrella (University of Venice “Ca’ Foscari”); Francesco Martucci (University Paris 2 Panthéon-Assas); Rostane Mehdi (University Paul Cézanne - Aix-Marseille III); François-Xavier Millet (Court of Justice of the European Union); Vincenzo Mongillo (University of Rome “Unitelma Sapienza”); Elise Muir (Maastricht University); Fernanda Nicola (Washington College of Law, American University); Raffaella Nigro (University of Perugia); Massimo Francesco Orzan (Court of Justice of the European Union); Tom Ottervanger (University of Leiden); Lorenzo Federico Pace (University of Molise); Etienne Pataut (University Paris 1 Panthéon-Sorbonne); Fabrice Picod (University Paris 2 Panthéon-Assas); Emanuela Pistoia (University of Teramo); Sara Poli (University of Pisa); Jorrit Rijpma (University of Leiden); Sophie Robin-Olivier (University Paris 1 Panthéon-Sorbonne); Andrea Saccucci (Second University of Naples); Lorenzo Schiano di Pepe (University of Genua); Heike Schweitzer (Free University of Berlin); Silvana Sciarra (Italian Constitutional Court); Francesco Seatzu (University of Cagliari); Erika Szyszczak (University of Sussex); Chiara Enrica Tuo (University of Genua); Benedetta Ubertazzi (University of Milano Bicocca); Simone Vezzani (University of Perugia); Annamaria Viterbo (University of Turin); Jan Wouters (University of Leuven). Editorial Committee Managing Editors: Giulia D’Agnone (University of Rome “La Sapienza”); Caterina Mariotti (Luiss “Guido Carli” University, Rome); Alberto Miglio (University of Milan “Bicocca”); Stefano Montaldo (University of Turin); Aurora Rasi (University of Rome “La Sapienza”); Andrea Spagnolo (University of Turin). Editorial Staff: Micol Barnabò (University of Rome “La Sapienza”); Eleonora Catani (University of Rome “La Sapienza”); Sara Fattorini (University of Rome “La Sapienza”); Mauro Gatti (University of Luxembourg); Ulyana Kohut (University of Rome “La Sapienza”); Nicolò Nisi (Bocconi University, Milan); Ilaria Ottaviano (University of Roma Tre); Luca Pantaleo (T.M.C. Asser Instituut, The Hague); Rossella Pulvirenti (University of Nottingham); Cristina Renghini (University of Macerata); Nicolò Ridi (King’s College London). European Papers is a double-blind peer-reviewed journal. This Issue of the e-Journal (final on 15 June 2017) may be cited as indicated on the European Papers web site at Official Citation: European Papers, 2017, Vol. 2, No 1, www.europeanpapers.eu. ISSN 2499-8249 – European Papers (Online Journal) Registration: Tribunal of Rome (Italy), No 76 of 5 April 2016. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. Web site Copyright © European Papers, 2016 European Papers A Journal on Law and Integration Vol. 2, 2017, N0 1 Editorial Towards a Uniform Standard of Protection of Fundamental Rights in Europe? p. 3 Overviews Steven Blockmans, In Search of a Role to Play: The EU and the War in Syria 9 Mary Ellen O’Connell, Europe and Syria: Diplomacy, Law and War 15 Articles Eva Kassoti, The Council v. Front Polisario Case: The Court of Justice’s Selective Reliance on International Rules on Treaty Interpretation (Second Part) 23 Benedetta Ubertazzi, The Child’s Right to Be Heard in the Brussels System 43 Special Section – Mutual Recognition and Mutual Trust: Reinforcing EU Integration? (Second Part) edited by Tony Marguery and Ton van den Brink Sacha Prechal, Mutual Trust Before the Court of Justice of the European Union 75 Nathan Cambien, Mutual Recognition and Mutual Trust in the Internal Market 93 Jessy Emaus, The Interaction Between Mutual Trust, Mutual Recognition and Fundamental Rights in Private International Law in Relation to the European Union’s Aspirations Relating to Contractual Relations 117 2 European Papers – A Journal on Law and Integration – Vol. 2, 2017, No 1 Luisa Marin, “Only You”: The Emergence of a Temperate Mutual Trust in the AFSJ and Its Underpinning in the European Composite Constitutional Order p. 141 On the Agenda: Brexit and Beyond Mauro Gatti, Art. 50 TEU: A Well-Designed Secession Clause 159 Tobias Lock, Scotland’s Place in Europe After Brexit: Between a Rock and a Hard Place? 183 Insights Graham Butler, A Question of Jurisdiction: Art. 267 TFEU Preliminary References of a CFSP Nature 201 Alla Pozdnakova, Aleksei Petruhhin: Extradition of EU Citizens to Third States 209 Elena Gualco, “Clash of Titans” 2.0. From Conflicting EU General Principles to Conflicting Jurisdictional Authorities: The Court of Justice and the Danish Supreme Court in the Dansk Industri Case 223 European Forum Insights and Highlights 231 Editorial Towards a Uniform Standard of Protection of Fundamental Rights in Europe? The multiplicity of systems of protection of fundamental rights is certainly a badge of honour for Europe. At present, there are no less than three general instruments of pro- tection applicable to the territories of the Member States: the European Convention of human rights, the Charter of fundamental rights and the plethora of national bills of rights. Their coexistence, however, is not as peaceful as one could expect. The European judicial chronicles yearly report a relatively high figure of conflicts, real or sometimes imaginary, between rights and procedural instruments of control. This conflictual coexistence is due, to an extent at least, to the fact that the various systems of protection, although largely converging in substance, have overlapping scopes and grant different standards of protection. It may seem strange that the pro- cess of integration in Europe has not attained a unitary standard of protection of fun- damental rights. Yet, the existence of concurrence on the fundamentality of a set of rights and values, of individual and collective nature, and the corresponding establish- ment of a uniform standard of protection, appears an indispensable complement of the process of integration and a hallmark of a new constitutional community. The settlement of conflicts between competing systems of protection of human rights would require a generally recognized rule for the resolution of conflicts. Whereas such a rule can be discerned in the relationship between the ECHR and domestic systems of protection, including EU fundamental rights, it is hardly identifiable in the relations be- tween the EU and the national systems of protection. For years, the relationship between the ECHR and the bills of rights of its signatory States rested on the principle of more extensive protection. According to that rule, en- shrined in Art. 53 of the Convention, the protection granted at the Convention level is to be considered as a minimum standard. The signatory States retain their freedom to ap- ply a higher standard of protection. Although the EU is, notoriously, not bound by the obligations flowing from the Con- vention, it has unilaterally adopted the same rule. After stating that the level of protec- tion granted by the Charter of fundamental rights must be equivalent to that granted by the ECHR, Art. 52, par. 3, of the Charter goes on to say that “this provision shall not pre- vent Union law providing more extensive
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