In the case of PT (agreement between the Prosecutor and the perpetrator of an offence) (C-432/22, 28.11.2024), the CJEU ruled on the compatibility with EU law of provisions of Bulgarian criminal procedure relating to plea-bargaining, i.e. a mechanism providing for the possibility to impose a more lenient penalty on an accused who pleads guilty.

In the main proceedings, 41 persons were accused of drug related offenses in one set of proceedings. Two of them entered into a plea-bargaining agreement with the Public Prosecutor.

The first question submitted to the CJEU by the referring court, a Specialised Criminal Court, related to a provision according to which it is for an ad hoc court, and not the court responsible for the case, to rule on an agreement for settlement of the case entered into by a defendant and the public prosecutor, where other defendants are also prosecuted in the same proceedings. The second question concerned a provision which, in criminal proceedings brought against several defendants on the basis that they had participated in the same organised criminal group, makes the judicial approval of an agreement for settlement of the case, entered into by one of the defendants and the public prosecutor, subject to the consent of all the other defendants.

The CJEU detected no incompatibilities between these provisions and EU law. In its opinion, the first of these provisions was justified by the need to preserve the impartiality of the trial court which will have to assess the guilt of the other defendants, whereas the second provision sought to preserve their rights of the defence.

What is particularly noteworthy about this case, from a Convention point of view, is the CJEU’s reasoning as regards its own jurisdiction.

In a first step, the CJEU indeed considered that the provisions of the Bulgarian Code of Criminal Procedure at stake in the present case did not come within the scope of the EU-Charter, because they did not constitute “implementation of Union law”, for the purposes of Article 51(1) of the EU-Charter, in respect of the relevant provisions of Framework Decisions 2004/757 (laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking) and 2008/841 (on the fight against organised crime).

In other words, in the absence of an EU law obligation to legislate on the settlement of criminal cases, at issue in the present case, there was no sufficient “degree of connection” between the relevant national and EU law provisions. Consequently, the CJEU did not have jurisdiction to answer the questions submitted by the referring court in so far as they concerned Article 5 of Framework Decision 2004/757, Article 4 of Framework Decision 2008/841, the first and second paragraphs of Article 47 and Article 52 of the Charter (§ 43).

Interestingly, however, the CJEU then decided to consider the case under the 2^nd subparagraph of Article 19(1) TEU, the provision which “gives concrete expression to the value of the rule of law affirmed in Article 2 TEU” and which to date has been mainly applied as enshrining the requirement of judicial independence, as e.g. in Inspecţia Judiciară. According to this provision, which has direct effect (§ 54), the Member States shall provide remedies sufficient to ensure effective legal protection “in the fields covered by Union law”.

In this connection, the CJEU recalled that the 2^nd subparagraph of Article 19(1) TEU is intended, inter alia, to apply to any court or tribunal which can rule on questions concerning the interpretation or application of EU law and which therefore falls within the fields covered by that law, irrespective of any implementation of Union law (§§ 45-46). As this was the case with the referring court, the CJEU had jurisdiction, under that provision, to deal with the two first questions submitted by that court.

The CJEU then inferred from the 2^nd subparagraph of Article 19(1) TEU some new and specific requirements concerning the impartiality of the courts and the rights of the defence in the context of plea-bargaining proceedings, which were considered as fulfilled by the Bulgarian provisions at stake.

Even more interesting, from a Convention perspective, is the link established by the CJEU between the 2^nd subparagraph of Article 19(1) TEU and Articles 47, second paragraph, of the EU-Charter and 6 § 1 of the Convention. Considering that the principle of effective judicial protection was a general principle of EU law which was enshrined in the second paragraph of Article 47 of the EU-Charter, and considering that according to the Explanations relating to the EU-Charter, the second paragraph of Article 47 corresponds to Article 6 § 1 of the Convention, the CJEU indeed concluded that, pursuant to Article 52(3) of the EU-Charter, it had to ensure that its interpretation “in the present case” ensured a level of protection which did not disregard that guaranteed by Article 6 § 1 of the Convention, as interpreted by the ECtHR (§§ 51-52).

This would appear to be the first time the CJEU considers the Convention as a benchmark when applying Article 19(1) TEU (on the benchmark function of the Convention in EU law, see The Recent Luxembourg Case-Law on Procedural Rights in Criminal Proceedings and Benchmark function of the Convention stressed by the CJEU in Mirin and Real Madrid Club de Fútbol).

Not only does this approach serve to ensure consistency of the CJEU case-law with that of the ECtHR. It also allows the national judges applying this rather novel Luxembourg case-law to be satisfied that by doing so, they also comply with the Strasbourg case-law, in respect of which they can be held liable in an application before the ECtHR.

The “fields covered by Union law” are indeed not outside the “fields covered by the Convention”. As the ECtHR put it, inter alia in Bosphorus v. Ireland, § 153: “A Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention”.

In the case of Tudmur (19.12.2024, joined cases C‑185/24 and C‑189/24) the CJEU ruled on the unilateral suspension by the Italian authorities of the transfer to Italy of asylum seekers under the Dublin III Regulation (“the Regulation”).

The referring court, a Higher German Administrative Court dealing with two applications for asylum for which Italy was responsible under the Regulation, was confronted with the decision by the Italian authorities to temporarily suspend all transfers of asylum seekers to Italy under that Regulation, because of the unavailability of reception facilities as a result of the high number of arrivals and the lack of available reception places. In that context, the referring court requested the CJEU to clarify the interpretation of the Regulation, notably as regards the existence of systemic flaws in Italy.

According to the CJEU, the fact that a Member State had unilaterally suspended the taking charge of asylum seekers was not capable, in itself, of justifying the finding of systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection, to the effect that the latter could not be transferred to the Member State responsible for the processing of the application for asylum.

However, it nonetheless remained for the referring court to assess whether the conditions for an exception to the transfer to Italy of the two asylum seekers concerned, as laid down in the 2^nd sub-paragraph of the Article 3(2) of the Regulation, were met. This will only be the case if, first, in the asylum procedure and the reception conditions of the Member State designated as responsible there are systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the EU-Charter and, secondly, if these systemic flaws result in a risk, for the person concerned, of being exposed to such a treatment (§§ 35-38).

Thus, systemic flaws precluding the transfer of an asylum seeker cannot be the result of a unilateral legal act by that Member State but are a factual circumstance the existence of which must be assessed “following a specific analysis based on information that is objective, reliable, specific and properly updated” (§ 40).

To this extent, the present case bears a striking resemblance with M.S.S. v. Belgium and Greece which concerned the transfer under the Dublin Regulation (No. 343/2003/EC) of an Afghan asylum seeker by Belgium to Greece, where the asylum system had broken down, which resulted in the applicant living in the streets of Athens in a state of extreme material poverty and being exposed to a risk of refoulement. In that case, the ECtHR found several violations of the Convention, notably of Article 3 of the Convention (prohibition of ill-treatment), taken alone and in conjunction with Article 13 (right to an effective remedy), on account of the dire living conditions of the applicant in Athens and the serious flaws in the Greek asylum procedure.

With Italy refusing any more transfers because of a lack of reception places as a consequence of a massive influx of migrants, the asylum seekers in the present case, RL and QS, can hardly expect any better conditions than M.S.S. could expect in Greece. Yet the ECtHR’s approach in M.S.S. differs from Tudmur in at least three different respects: the scope of the problem, the test to be applied and the burden of proof.

The scope of the problem

As regards, first, the scope of the problem, it is to be noted that in M.S.S. the relevant risks to the fundamental rights of the applicant were not limited to the risk of finding himself in a state of extreme material poverty incompatible with human dignity, as seems to be the case in Tudmur (§ 37).

By contrast, the ECtHR found in M.S.S. a violation of Article 13 of the Convention, in conjunction with Article 3, “because of the deficiencies in the Greek authorities’ examination of the applicant’s asylum request and the risk he faces of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy” (§ 321).

A similar risk can hardly be ruled out in respect of RL and QS. It should therefore also be dealt with, at least under the Convention, by the referring court, provided of course that it has been raised by RL and QS. Strangely enough, though, the CJEU does not address that aspect of the situation, despite the wording of the 2^nd sub-paragraph of Article 3(2) of the Regulation and Article 47(1) of the EU-Charter which also protects the right to an effective remedy. Is this another illustration of the categorisation of fundamental rights under the Regulation (see Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer)) ?

One can indeed easily imagine a situation whereby the reception conditions in the responsible Member State might not be such as to reach the point of extreme material poverty, while the flaws in the asylum procedure of that same State nonetheless represent a risk which is relevant under Article 13 in conjunction with Article 3 of the Convention.

The test to be applied

Secondly, under the Convention the existence of “systemic flaws” is not a necessary pre-condition the absence of which precludes any finding as regards the individual risks incurred by a person subject to a transfer, as is the case under the Regulation (§§ 38-39). In other words, under the Convention any general assessment cannot represent an obstacle to the application of an individual test. Rather, widespread shortcomings – not necessarily “systemic flaws” – are only used by the ECtHR as evidence serving as a basis for an individualised finding concerning the risks incurred by the applicant, as illustrated by paragraph 255 of M.S.S.:

“The Court notes in the observations of the Council of Europe Commissioner for Human Rights and the UNHCR, as well as in the reports of non-governmental organisations (see paragraph 160 above) that the situation described by the applicant exists on a large scale and is the everyday lot of a large number of asylum-seekers with the same profile as that of the applicant. For this reason, the Court sees no reason to question the truth of the applicant’s allegations.”

Consequently, the absence of widespread shortcomings in the country of destination of a transfer does not dispense the ECtHR from inquiring about individual risks incurred by the person concerned, as recently confirmed in Khasanov and Rakhmanov v. Russia (§§ 95-101). Even where the application of a general test is mandatory under EU law, the ECtHR’s only determination is individualised, focussed on the personal situation of the applicant (see Bivolaru and Moldovan v. France). This is because by virtue of the right to individual petition (Article 34 of the Convention), any individual application requires an individual determination based on an individual assessment, regardless of the general circumstances.

Thus, under the Convention domestic judges are not dispensed from applying an individual test when applying the Dublin Regulation, there being no primacy of EU law over the Convention.

The burden of proof

Finally, on the burden of proof, paragraph 39 of the Tudmur ruling seems to suggest that it is for the asylum seeker to provide the initial evidence establishing the risks which he or she would incur in the event of a transfer to responsible Member State, whereupon the domestic courts “must take into consideration, on their own initiative, relevant information of which they are aware”. In this connection, it might be worth recalling the following well-established principles of the Strasbourg case-law, as reiterated in paragraphs 125-126 of F.G. v. Sweden:

“It is in principle for the person seeking international protection in a Contracting State to submit, as soon as possible, his claim for asylum with the reasons in support of it, and to adduce evidence capable of proving that there are substantial grounds for believing that deportation to his or her home country would entail a real and concrete risk of exposure to a life‑threatening situation covered by Article 2 or to treatment in breach of Article 3.However, in relation to asylum claims based on a well-known general risk, when information regarding such a risk is freely ascertainable from a wide number of sources, the obligations incumbent on the States under Articles 2 and 3 of the Convention in expulsion cases entail that the authorities carry out an assessment of that risk of their own motion.” (emphasis added)

In F.G. v. Sweden, the failure by the authorities to inquire of their own motion about such well-known general risks concerning the applicant amounted to a breach of their procedural obligations under Articles 2 and 3 of the Convention.

Conclusion

On all three aspects addressed above, the Convention would appear to guarantee a higher level of protection for Dublin asylum seekers than the Regulation. In view of the obligation on domestic courts to apply EU law in compliance with the Convention (see M.B. v. the Netherlands), these courts should therefore preferably take the above aspects into account when applying Article 3(2), 2^nd sub-paragraph, of the Regulation, of course without prejudice to the application by them of Article 267 TFEU.

In this connection, it is clear that, as repeatedly indicated by the CJEU, the Convention not being part of EU law, the CJEU does not have jurisdiction to assess the compatibility of EU legislation with the Convention (see, among others, Åkerberg Fransson, § 44). One may however wonder whether Article 52(3), 1^st sentence, of the EU-Charter might not have the potential, if explicitly relied on in a referral request, to allow the CJEU to at least indirectly verify to what extent EU law complies with the minimum Convention protection level. Domestic courts might want to test this.

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.