Liebe Studierende,
in der kommenden Sitzung wird es um folgende Themen gehen:
Die betreffenden Urteile liegen bei.
Auch dieses Mal erwarten uns rege Diskussionen!
Prof. Dr. Johan Callewaert
Liebe Studierende,
auf unserer kommenden Sitzung, dieses Mal am Sitz des EGMR, werden wir folgende Themen aus konventionsrechtlicher Sicht behandeln:
Alle Urteile liegen bei.
Auch dieses Mal erwarten uns spannende Präsentationen und anregende Diskussionen.
Prof. Dr. Johan Callewaert
Liebe Studierende,
auf der Tagesordnung unserer kommenden Sitzung stehen folgende zwei aktuelle Themen:
Die jeweiliegn Urteile des EGMR liegen bei.
Ich freue mich auf eine spannende Sitzung.
Prof. Dr. Johan Callewaert
In Giannakopoulos v. Greece (20503/20, 3.12.2024) the ECtHR ruled on whether the Greek courts, in declaring themselves incompetent to deal with the applicant’s application for custody of his children in light of the Brussels II bis Regulation (“the Regulation”), had complied with Article 8 of the Convention (right to respect for private and family life).
The applicant in the present case, a Greek national, instituted proceedings before the Greek courts to obtain the sole custody of his two children who had been taken to Germany by his ex-wife. Applying the Regulation, the Greek courts considered that since the children had had in Germany their habitual residence for the purposes of Article 8 of the Regulation for more than one year, they were not competent to hear that case, contrary to the German courts.
The ECtHR found no violation of Article 8 of the Convention. It concluded:
“The Greek courts examined the case and gave judgments that paid particular consideration to the principle of the paramountcy of the interests of the children – who appeared to be very well integrated into their new environment (see, by contrast, Neulinger and Shuruk, cited above, §§ 145‑51). Their decisions do not appear arbitrary. The Court therefore finds no imperative reason to depart from the domestic courts’ findings in the case.The Court concludes that, having particular regard to the need to address the specific facts in children cases, the Greek courts’ assessment of the case in the light of the requirements of the Brussels II bis Regulation did not amount to a violation of Article 8 of the Convention, as it was proportionate to the legitimate aim pursued.” (§§ 76-77)
This case calls for the following six observations.
1. The case is an application of the principle, recalled by the ECtHR at § 55 of the judgment, according to which it must verify that the principle of mutual recognition is not applied automatically and mechanically to the detriment of fundamental rights. As the ECtHR specified in Avotiņš v. Latvia, § 116: if a serious and substantiated complaint is raised before [the courts of the Member States] to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law.
2. In the present case, the Greek courts obviously did not consider that any such serious and substantiated complaint had been raised before them. They rather concentrated on the issue of their own jurisdiction and therefore inquired about whether the habitual residence of the children, for the purposes of Article 8 of the Regulation, was in Greece or in Germany.
3. The ECtHR, for its part, did not refrain from assessing whether the domestic courts’ interpretation of the relevant provisions of the Regulation was arbitrary or manifestly unreasonable (§ 69). However, it concentrated on whether the interpretation and application of the provisions of the Regulation by the Greek Court of Cassation was consistent with the applicant’s rights as guaranteed under Article 8 of the Convention (§ 62). In this connection, it stated: “It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This also applies where domestic law refers to rules of general international law or to international agreements. The Court’s role is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention” (§ 70).
4. Compatibility with Article 8 of the Convention in a case like the present one means “that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents.” (§ 53)
5. The Greek courts obviously did not intend to deal with Article 8 of the Convention when trying to comply with Article 8 of the Regulation. However, in assessing where the children had their habitual residence, they relied, in line with the CJEU case-law, on several factual criteria (social and family environment, degree of integration, linguistic skills, etc.) which produced a result, the non-return of the children to Greece, which corresponded, in the ECtHR’s opinion, to the best interests of these children and, hence, was declared compatible with Article 8 of the Convention. Thus, the non-violation of that provision is not an automatic consequence of the application of Article 8 of the Regulation but will depend on the concrete circumstances of each case.
6. In sum, this judgment is another confirmation of the ECtHR’s jurisdiction over the application of EU law by the domestic courts of the Member States (see recently M.B. v. the Netherlands). In exercising this jurisdiction, the ECtHR concentrates on the end result and is not too formalistic as to whether it has been achieved by explicit reference to the Convention or not.
Liebe Studierende,
unsere kommende Sitzung ist gänzlich dem Spannungsfeld zwischen Pressefreiheit und Schutz der Persönlichkeitsrechte gewidmet. Dieses Spannungsfeld werden wir am Beispiel folgender zwei Themen aus Sicht der EMRK untersuchen:
Die betreffenden Urteile liegen bei.
Ich freue mich auf anregende Diskussionen.
Bis Donnerstag,
Prof. Dr. Johan Callewaert
In the case of Ferrero Quintana v. Spain (2669/19, 26.11.2024), the ECtHR ruled on whether the applicant had been the victim of age discrimination, contrary to Article 1 of Protocol No. 12 to the Convention, as a result of the imposition of a maximum age limit of 35 years in a public competition aimed at filling several police officer positions within the police force (Ertzaintza) of the Basque Autonomous Community.
After a careful analysis of all the circumstances and having regard to the wide margin of appreciation of the national authorities, the ECtHR unanimously found no violation of that provision, because the impugned difference in treatment pursued a legitimate aim and was not disproportionate.
Interestingly, the CJEU had come earlier to a very similar conclusion in Salaberria Sorondo, a case initiated by another candidate in the same competition, but on the basis of Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, notably its Article 4(1) which provides that “ … Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”
This ruling by the CJEU is abundantly quoted by the ECtHR in its statement of the relevant domestic and international legal sources. While only sparely referring explicitly to these quotes in its reasoning, the ECtHR, by developing very similar arguments, but following its own methodology, clearly drew a lot of inspiration from that Luxembourg ruling.
This case is therefore another interesting illustration of the substantial and procedural interaction between the Luxembourg and Strasbourg protection of fundamental rights, in spite of methodological differences.
There is substantive interaction when cross-fertilisation is taking place between the Strasbourg and Luxembourg jurisprudence, despite the sometimes different legal provisions and methodologies being applied by each of the European Courts, as in the present case.
There is procedural interaction when, as in the case at hand, the same issues come, at different stages of the proceedings, before both European Courts, with the ECtHR coming last, as was also the case, mutatis mutandis, in Centraal Israëlitisch Consistorie van België and Others.
In Centraal Israëlitisch Consistorie van België and Others, however, the CJEU in giving its ruling had amply relied on the Strasbourg case-law on freedom of religion, which prompted the ECtHR, as it explicitly admitted, to exercise, for the sake of upholding subsidiarity and case-law harmony, some “self-restraint” as regards the Luxembourg approach. By not doing so in Salaberria Sorondo, the CJEU took a greater risk of not being followed by the ECtHR, with possible consequences for national judges and citizens.
In what is still a rather rare occurrence in the Luxembourg jurisprudence, the benchmark function of the Convention (on this notion, as opposed to the toolbox function of the Convention, see Convention control over the application of Union Law by National Judges, p. 337) has been extensively relied on in the two following Grand Chamber rulings of the CJEU.
These rulings are rather remarkable when considered against the background of a recent internal study showing that over the period 2016–2024, as at 1 November 2024 only 55 references were found during these eight years which explicitly acknowledge the benchmark function of the Convention, as established by Article 52(3) of the EU-Charter. More specifically, 34 such references concern Articles 6 (fair trial) and 13 (effective remedy) of the Convention, while the remaining 21 are divided among the other provisions of the Convention. Such explicit references therefore look like a marginal phenomenon in the Luxembourg case law. By comparison, in 2023 alone, the CJEU, excluding the General Court, delivered 723 judgments. The future will tell whether the two judgments presented below mark a new trend or are simply another swallow not making a summer. It remains the case, though, that such references greatly facilitate the job of national judges by protecting them from breaching the Convention when applying EU law.
Mirin
In Mirin (C-4/23, 4.10.2024), the CJEU ruled on the recognition by a Member State of a change of first name and gender identity which had been lawfully acquired in another Member State.
The claimant in the main proceedings was a Romanian citizen who was registered in Romania as female and, during a stay in the United Kingdom, where that person acquired British nationality, changed his first name from female to male and obtained legal recognition of his male gender identity. Back in Romania, he asked for these changes of name and sex to be recorded in his birth certificate so as to reflect his male sex. However, the Romanian administrative authorities rejected his request, considering that he should start new proceedings for a change of gender identity before the Romanian courts. The CJEU considered this regime to go against Articles 20 and 21(1) TFEU, read in the light of Articles 7 and 45 of the EU-Charter.
In so doing, the CJEU amply relied on Strasbourg case-law, notably X and Y v. Romania, considered to set a minimum protection standard applicable also under EU law, by virtue of Article 52(3) of the EU-Charter. The CJEU indeed stated in paragraph 63 of its judgment:
In that regard, as is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed in Article 7 thereof have the same meaning and the same scope as those guaranteed in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, … the latter provision constituting a minimum threshold of protection (see, by analogy, judgment of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraph 92 and the case-law cited).
Noteworthy in this connection is also the fact that contrary to previous habits (as in W.Ż. or in Orde van Vlaamse Balies and Others), the CJEU here did not refer to the autonomy of EU law as limiting the effect of Article 52(3) of the EU-Charter. This would indeed appear to be the correct approach, since after acknowledging the importance of EU law autonomy, the EU legislature in the Explanations to that provision stated: “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR”. To this extent, Article 52(3) of the Charter thus amounts to a self-imposed restriction to the autonomy of EU law.
As a result, the CJEU rightly read the relevant Strasbourg case-law as imposing, under Article 8 of the Convention (right to respect for private and family life), an obligation on States to provide for a clear and foreseeable procedure for legal recognition of gender identity which allows for a change of sex and thus of name and digital code, on official documents, in a quick, transparent and accessible manner (§ 66).
Against this background, the CJEU saw the absence in Romania of a procedure allowing for the legal recognition of a change of name and gender identity which had already been lawfully acquired in another Member State to stand in the way of an effective enjoyment of the right to free movement, as guaranteed by Articles 21 TFEU and 45 of the EU-Charter, read in the light of Article 7 of the EU-Charter (§ 68).
This approach, based on the requirements of the right to free movement, is very similar to the one adopted by the CJEU in cases which concerned the recognition in a Member State of a homosexual partnership lawfully established in another Member State, as in Coman and Others where the CJEU also relied on the Strasbourg case-law (see Different ways to the same goal: Strasbourg and Luxembourg on same-sex couples).
Consequently, the present ruling by the CJEU is subject to the same limitations as those which apply to its case-law on homosexual partnerships: as it is based on the right to free movement, it can only apply to persons who made use of that right and assert in one Member State a status lawfully acquired in another one. This is an essential difference ratione personae with the Strasbourg case-law.
In conclusion, there being an overlap between the Convention and EU law standards on this score, the application by national judges of EU law, as interpreted by the CJEU, entails no risks of a breach of the Convention. However, where the person concerned has not made use of his/her right to free movement, only the Convention will apply.
Real Madrid Club de Fútbol
In Real Madrid Club de Fútbol (C-633/22, 4.10.2024), the CJEU ruled on the use of the public policy clause to refuse the enforcement of a judgment, delivered by a court of another Member State, which gives rise to an infringement of the freedom of the press.
The case in the main proceedings concerned a considerable amount of damages (300 000 and 30 000 euros) imposed by a Spanish court on a French newspaper and one journalist for the harm done to the reputation of Real Madrid and Fútbol Club Barcelona by publishing an article suggesting that the latter had had recourse to doping.
Faced with a request to enforce that judgment based on the Brussels I Regulation (Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), the French Court of cassation had doubts about the proportionality of these damages and turned to the CJEU for an answer on whether the public-policy exception provided for by Article 34(1) of that Regulation could be applied for this reason in the case at hand.
The CJEU first considered that in light of the principle of mutual trust, the refusal to enforce a judgment from another Member State should remain exceptional (§ 34). The public policy clause, laid down in Article 34(1) of the Regulation, could therefore be relied on to refuse such an enforcement “only where the recognition or enforcement of the judgment concerned in the Member State in which enforcement is sought would result in the manifest breach of a rule of law regarded as essential in the EU legal order or of a right recognised as being fundamental within that legal order and therefore in the legal order of that Member State” (§ 39).
The CJEU found this to be particularly the case when the enforcement of a judgment in the Member State concerned would give rise to a manifest breach of a fundamental right as enshrined in the EU-Charter. It therefore turned to Article 11 of the EU-Charter which protects freedom of expression and the freedom of the press, and examined the limitations to which these freedoms could be subjected.
In this context, the CJEU extensively referred, in paragraphs 52 to 65 of its judgment, with a rarely seen amount of details, to the ample and well-established Strasbourg case-law on the freedom of the press, particularly the case-law on the enhanced protection of political speech and speech on matters of public interest, thereby also illustrating the striking parallels with its own case-law. Here too, the CJEU did so after recalling that by virtue of Article 52(3) of the EU-Charter, the case-law of the ECtHR was to be considered the minimum threshold of protection under EU law (§ 52).
Interestingly, prior to relying on Article 52(3) of the EU-Charter, the CJEU also referred to the limitations which Article 52(1) of the EU-Charter allowed to be applied to Article 11. This shows that these two provisions are not mutually exclusive but complementary when Convention rights are involved.
On this basis, the CJUE concluded that the public policy clause should be applied, and the enforcement of the foreign judgment refused where it would give rise to a manifest breach of the freedom of the press. It was for the French domestic courts to assess whether, in the circumstances, this would be the case.
Liebe Studierende,
in der kommenden Sitzung werden wir uns mit den folgenden zwei Themen beschäftigen:
1) Schutz des Privat- und Familienlebens gemäß Artikel 8 der EMRK, am Beispiel der Rechtsprechung des EGMR zur Leihmutterschaft (Rechtssache Mennesson / Frankreich).
2) Schutz von Menschenhandelsopfern gemäß Art. 4 EMRK (V.C.L. und A.N. / Vereinigtes Königreich)
Die zu besprechenden Urteile liegen bei.
Ich freue mich auf einen spannenden Austausch mit Ihnen.
Bis Donnerstag,
Prof. Dr. Johan Callewaert
Liebe Studierende,
im Hinblick auf die erste Sitzung der Arbeitsgemeinschaft zum Grundrechtsschutz durch den Europäischen Gerichtshof für Menschenrechte (Donnerstag 7.11.24 um 19.15 Uhr in HS 5), bei der Sie sich auch jeweils ein Urteil des EGMR zur Präsentation und Besprechung in der AG aussuchen sollten, finden Sie anbei die Themenliste, aus der Ihre Auswahl erfolgen soll.
Damit können Sie sich schon mit den in der AG anstehenden Themen etwas vertraut machen und vielleicht auch schon eine Vorauswahl treffen. Die einzelnen Themen werde ich in der AG auch noch näher erläutern.
Ich freue mich darauf, Sie am 7. November persönlich kennenzulernen.
Prof. Dr. Johan Callewaert
KUBERA (C-144/23, 15.10.2024) would appear to be the first case in which the CJEU imposed an obligation on a national court against whose decisions there is no judicial remedy (Art. 267(3) TFEU) to give reasons when rejecting the request by a party to the proceedings to make a reference for a preliminary ruling by the CJEU.
Admittedly, the procedural situation was a particular one, as it concerned proceedings before the Slovenian Supreme Court on an appeal on a point of law. Under the Slovenian Code of civil procedure, the Supreme Court is not required in this particular context to make a determination on whether it should grant a request by a party that a reference for a preliminary ruling by the CJEU be made. It can thus lawfully ignore that request. It is this approach with which the CJEU takes issue in the present ruling. It remains to be seen whether this case-law will be extended to other types of procedures in the future.
What is interesting about this novel move by the CJEU is its proximity with the well-established Strasbourg jurisprudence, according to which Article 6 of the Convention (right to a fair trial) requires any last instance court, within the meaning of Article 267(3) TFEU, which dismisses a request by a party to the proceedings that a reference for a preliminary ruling be made, to give reasons for its dismissal.
While the ECtHR, for lack of competence, does not itself assess the merits under Union law of the reasons thus given, it nonetheless must be satisfied that these reasons are built upon the relevant criteria as first set out in the Cilfit jurisprudence of the CJEU (for an overview of that Strasbourg case-law, see The obligation to give reasons for a refusal to make a preliminary reference to the Court of Justice of the European Union; see also Georgiou v. Greece)
It is significant to note, in this respect, that in establishing this new rule, the CJEU refers to Article 267 TFEU, read in the light of the second paragraph of Article 47 of the EU-Charter, which is the “counterpart” in EU law of Article 6 of the Convention, protecting the right to a fair trial. This is another indication of the new similarity between the two approaches. What they ultimately have in common is an upgrading of the role of the parties to proceedings in the system of preliminary rulings by the CJEU. This is in contrast with the traditional Luxembourg view according to which no reasons are required in this context, as preliminary rulings are part of the system of cooperation between national courts and the CJEU, with no involvement of the parties to the main proceedings.
Both Courts also concur in requiring that the said reasons be given by reference to the Cilfit jurisprudence.
Some differences are to be noted, though. The first one concerns the justification of the respective approaches. While the Strasbourg approach is primarily dictated by the right to a fair trial, which requires courts to give reasons for their decisions, as an expression of the rule of law and a guarantee against arbitrariness, the Luxembourg approach is more system-oriented, i.e. intended to preserve the effectiveness of the system of preliminary rulings, as explained by the CJEU in the following terms:
“Such legislation or national practices can thus lead to a situation in which a question concerning the interpretation or validity of a provision of EU law, despite being raised by a party before the Vrhovno sodišče (Supreme Court) or having to be raised by that court in the light of the legal issue highlighted by that party and not being a question that is covered by the exceptions referred to in paragraph 36 above, would not be submitted to the Court of Justice, contrary to the obligation imposed on that national court by the third paragraph of Article 267 TFEU.
Such a situation is capable of undermining the effectiveness of the system of cooperation between the national courts and tribunals and the Court of Justice established in Article 267 TFEU, and the achievement of the objectives which that article is intended to achieve, particularly that of preventing a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States.” (§§ 45-46)
A second difference is perhaps the fact that the ECtHR does not require the same level of reasoning in all circumstances. The ECtHR indeed considers that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints, if the matter raises no fundamentally important legal issue, or for lack of prospects of success, without dealing explicitly with the request (see, among others, Baydar v. the Netherlands, § 42).
What is now the bottom line of this for national judges? First of all, the case-law discussed above only applies to courts against whose decisions there is no domestic remedy, within the meaning of Article 267(3) TFEU. As far as these courts are concerned, they should, when rejecting a request for a preliminary ruling, always give reasons based on the Cilfit jurisprudence, so as to at least meet the Strasbourg standards which, however, are flexible as regards the level of reasoning required. As regards any Luxembourg standards, the future will tell if and how the CJEU case-law will develop in terms of its scope and its concrete requirements.