“Combining and Reconciling European Laws” is the title of my address (enclosed) at a Conference held on 12 March 2026 at the French Court of cassation on the occasion of the 30th anniversary of the landmark judgment by the CJEU in the case of Brasserie du Pêcheur (programme below).

First of all, a particular note of appreciation for the methodological wisdom of the Court of cassation: by taking issues of State liability under EU law – as crystallised in Brasserie du Pêcheur – as a starting point, the discussion was thoughtfully extended to encompass State liability under the European Convention on Human Rights in situations involving the application of EU law.

Several speakers emphasised the need for national judges to combine these two legal orders and gave examples of how they achieve this in their daily practice. This genuinely trilateral perspective – as opposed to the traditional bilateral perspective – remains relatively rare in academic and judicial conferences, yet it reflects the real conditions under which national judges operate. As the programme of the conference aptly stated, “the national judge is the crucible in which the European sources of law – namely European Union law and the law of the European Convention on Human Rights – converge“.

In my own intervention, I offered a brief overview – illustrated with some case-law examples – of the key principles governing the relationship between EU law and the Convention. These principles are as follows:

EU law must remain compatible with the Convention
The Convention predates the EU and continues to bind all Member States. This means:
→ Applying EU law must not lead to a violation of the Convention
→ The Convention sets a minimum level of protection which EU law must respect

Legal tensions due to asymmetries
Two structural asymmetries complicate matters:
→ Member States are bound by the Convention, but the EU itself is not (yet)
→ EU law has primacy over national law, but not over the Convention

The “floor” principle: the Convention as mandatory baseline
EU law itself provides the solution:
→ Article 52(3) of the EU-Charter establishes the Convention protection level as binding under EU law
→ EU law may go beyond this level — but never below it
→ Consequently, to their own protection, national judges cannot be forced by EU law to breach the Convention

EU law is autonomous but national judges are not
EU law claims autonomy, but national judges cannot. EU law cannot render national judges autonomous vis-à-vis the Convention. They remain bound by the Convention when applying EU law.

In practice: the Convention turned into a mere option
In practice, the Convention’s role as a minimum standard is applied inconsistently in CJEU case law, turning the Convention into a mere option rather than a general safeguard (see Optionality of the Convention). More systematic and explicit references by the CJEU to the Convention as mandatory minimum protection level would assist national judges in navigating this complexity.

For an overview of convergencies and divergencies between the Convention and EU law, go to Trends 2021-26.