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.