A more recent case of the CJEU, Lanigen, noted that, “Article 1(3) of the Framework Decision expressly states that the decision is not to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU and reflected in the Charter of Fundamental Rights of the European Union (‘the Charter’), an obligation which moreover concerns all the Member States, in particular both the issuing and the executing Member States.”112 This demonstrates firstly, a practical fundamental rights reading into FD EAW, and secondly, it places the onus not only on the issuing state, but also on the executing state. It creates an explicit duty on the executing state to ensure that the fundamental rights of the individuals concerned are upheld. Violation in cases of systemic deficiencies in the asylum process In the same year as the ECtHR published the M.S.S. decision the CJEU released its judgment in the case of N.S and M.E.113 This case of N. S. also raised questions of mutual recognition in the context of asylum law. The issue was whether Member States, when returning an asylum seeker to the responsible country in accordance with the Dublin system (in that case to Greece), were under a duty to examine the compatibility of such a transfer with fundamental rights. The Court found that an application of the Dublin Regulation on the basis of a mere presumption that the Member State of return would adhere to ensuring fundamental rights could undermine the safeguards which are intended to ensure compliance with fundamental rights by the EU and its Member States.114 Essentially, the test elaborated in N.S., as to when the transfer to a particular Member State should be suspended, was whether there were systemic deficiencies which amount to substantial grounds for believing that there exists a real risk of violation of Article 4 CFREU. “Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.”115 The reasoning in M.S.S. by the ECtHR was thus adopted by the CJEU in the N.S. case, while establishing a high threshold of systemic deficiency in the asylum process. There was however no provision made for individual assessment or for the gap between EU rules and the actual practice, as noted by AG Trstenjak.116 It is of interest also to note the comments of the Advocate General regarding the difference between the decisions of the ECtHR and the CJEU. In particular, she found that without lessening the importance of the landmark decision of M.S.S., ECtHR judgments are case specific judicial decisions, while the CJEU judgments constitute a source of interpretation of EU law.117 112 Case C‑237/15 PPU Francis Lanigan, 15th July 2015 at para 53. 113 Joined Cases C‑411/10 and C‑493/10, N. S. and M. E. [201]). For comments on the case see inter alia Joanna Buckley, ‘Comment on N.S. v Secretary of State for the Home Department’, European Human Rights Law Review (2012/2), pp.205-210 [hereinafter: Buckley (2012)]; Cathryn Costello, ‘Dublin Case NS/ME – Finally an End to Blind Trust across the EU?’, A&MR (2012/2), pp. 83-92 [hereinafter: Costello (2012)]. 114 Joined Cases C‑411/10 and C‑493/10, N. S. and M. E. [2011] para. 100. 115 Joined Cases C‑411/10 and C‑493/10, N. S. and M. E. [2011] para. 106. 116 See the AG Trstenjak Opinion in Joined Cases C‑411/10 and C‑493/10, N. S. and M. E. [2011] and Buckley (2012) pp.205210; Costello (2012) pp.83-92. 117 AG Trstenjak Opinion in Joined Cases C‑411/10 and C‑493/10, N. S. and M. E. [2011], paras. 146-147. 32