In the case of Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer) (C-392/22, 29.2.2024), the CJEU ruled on whether a practice of pushbacks and detention at the border of a Member State which, under the Dublin III Regulation (No 604/2013), is responsible for the examination of an application for international protection, precludes the transfer of the applicant to that Member State.

In the case at hand pending before the Dutch courts, a Syrian national who had made an application for international protection in Poland, followed by another one in the Netherlands, challenged the request by the Dutch authorities for the Polish authorities to take back the applicant, pursuant to Article 18(1)(b) of the Dublin III Regulation.

The referring court interrogated the CJEU on whether such a take back could at all be requested, despite “objective, reliable, specific and properly updated information [showing] that the Republic of Poland has, for a number of years, systematically infringed a number of fundamental rights of third-country nationals by subjecting them to pushbacks [to Belarus], regularly accompanied by the use of violence, and by systematically detaining, in what are described as ‘appalling’ conditions, third-country nationals who enter its territory illegally.” (§ 20)

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In substance, the CJEU answered that the transfer of a third-country national to the Member State responsible for examining his or her application for international protection is precluded only if there are substantial grounds for believing that he or she would, during his or her transfer or thereafter, face a real risk of being subjected to pushbacks and detentions, and that those practices are capable of placing that third-country national in so grave a situation of extreme material poverty that it may be equated with the inhuman or degrading treatment prohibited by Article 4 of the EU-Charter.

In its reasoning, the CJEU first recalled the requirements of mutual trust between the Member States and explained why pushbacks as well as detention for the sole reason that a person is seeking international protection are contrary to EU law, notably Directives 2013/32 and 2013/33.

It then stated that while such practices constitute “serious flaws” in the asylum procedure and in the reception conditions for applicants, only “systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter make [the transfer of the person concerned] impossible”, those two conditions being cumulative (§§ 57-58). Article 3(2), second sub-paragraph, of the Dublin III Regulation, indeed reads:

“Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.“

Thus, the CJEU seems to interpret this provision not as an illustration of the kind of scenarios which could render such a transfer “impossible” but as limiting them to those which would entail a risk that Article 4 of the EU-Charter be breached because of “systemic flaws” in the Member State primarily designated as responsible for the examination of an application .

As to what constitutes inhuman or degrading treatment in this context, the CJEU referred to practices of pushback and detention which would be such as to expose the person concerned “to a situation of extreme material poverty that would not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that would undermine his physical or mental health or put him in a state of degradation incompatible with human dignity, placing him in a situation of such gravity that it may be equated with inhuman or degrading treatment”. (§ 63) This definition seems to draw on M.S.S. v. Belgium and Greece, §§ 253-264, which concerned the take back of a homeless applicant for international protection who, however, was never made the subject of any detention.

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This approach would appear to significantly restrict the effect of fundamental rights of migrants at the border with third countries, when compared with the Convention case-law. For at least two reasons.

1. First, because Article 3(2), second sub-paragraph, of the Dublin III Regulation, as interpreted by the CJEU, seems to limit the categories of risks precluding the take back of an applicant for international protection to risks of a breach of Article 4 of the EU-Charter. Risks of a breach of any other of an applicant’s fundamental rights seem to be irrelevant in this context.

Even detention by the local authorities at the border, which is one of the risks alleged by the applicant in the case at hand, would appear to have no chance of being considered relevant if it is not giving rise to ill-treatment within the meaning of Article 4 of the EU-Charter. This might also be the reason why the CJEU does not address the issue of arbitrary detentions as such but only as part of pushbacks exposing applicants to a situation of extreme material poverty (§ 63). The individual guarantees, which the CJEU suggests could be asked, seem limited to ill-treatment too (§ 80).

This approach seems to be ignoring the fact that several other fundamental rights issues can arise in the context of such pushbacks, as illustrated, inter alia, by Ilias and Ahmed v. Hungary and N.D. and N.T. v. Spain. Only recently was the case of C.O.C.G. and Others v. Lithuania, concerning pushbacks at the Lithuanian border with Belarus, brought before the Grand Chamber of the ECtHR for a determination of whether Articles 2 (right to life), 3 (prohibition of ill-treatment), 5 (right to liberty and security), 13 (right to an effective remedy) and 34 (right to individual petition) of the Convention, as well as Article 4 of Protocol No 4 (prohibition of collective expulsions) have been breached.

Given that, in addition to Article 3, Articles 2, 5 and 13 of the Convention, and 4 of Protocol No 4, have also found their way into the EU-Charter, i.e. in Articles 2, 6, 47(1) and 19(1) respectively, and in light of Article 52(3) of that same EU-Charter, one may wonder whether the Dublin III Regulation can legally restrict the impact of that Charter on the practices described above, to the extent that they come within the scope of EU law (Art. 51(1) of the EU-Charter). Thus, here too, EU law seems to be creating two different categories of fundamental rights, depending on their capacity to be invoked under the Dublin III Regulation, even though Recital 39 of the Preamble of that same Regulation states in its first sentence: “This Regulation respects the fundamental rights and observes the principles which are acknowledged, in particular, in the Charter of Fundamental Rights of the European Union.”

2. Secondly, to the extent that a complaint can be considered relevant under the Dublin III Regulation because it genuinely relates to Article 4 of the EU-Charter, it will be confronted with another restriction to the effect that the only abuses at the State border which that complaint will be capable of preventing are systemic flaws which “concern, generally, the asylum procedure and the reception conditions applicable to applicants for international protection or, at the very least, … certain groups of applicant for international protection as a whole, such as the group of persons seeking international protection after crossing or having attempted to cross the border between Poland and Belarus.” (§ 59)

Thus, the CJEU drew here on the two-step methodology which it developed in the field of the European arrest warrant. It requires the existence of systemic or generalised deficiencies in the issuing Member State as a pre-condition to any individual assessment of the risks incurred by the person concerned (e.g. in GN). One may wonder whether, by requiring such systemic or generalised flaws, this approach does not come down to replacing risk by certainty as a condition for the protection of a person’s fundamental rights in the context of a transfer. In any event, it considerably increases the burden of proof to be discharged by the person concerned.

This seems in contrast with the approach adopted in M.S.S. v. Belgium and Greece, in which the ECtHR, while taking note of the fact that the very poor situation in which the applicant found himself in Greece existed “on a large scale” (§ 255), did not require it to be in any way “systemic” or “generalised”, and even less made the individual assessment of whether the applicant’s fundamental rights had been complied with hinging on such a preliminary finding. In other words, this finding served merely as evidence in support of an individual assessment, not as a pre-condition to the latter.

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How should national courts handle these different levels of protection between Luxembourg and Strasbourg? Since the Convention is the mandatory minimum protection level governing also the application of EU law by the courts of the Member States, and in light of Article 52(3) of the EU-Charter, it would appear that in the face of such differences, like in the present case, national judges should, wherever EU law falls below the Convention level, apply the latter. Failure to do so entails the risk of seeing the final domestic judgment in the case successfully challenged before the ECtHR, as in M.S.S. v. Belgium and Greece and, mutatis mutandis, Bivolaru and Moldovan v. France or M.B. v. the Netherlands. In other words, a wholistic approach is called for here.

In the case of Krajowa Rada Sądownictwa (C-718/21, 21.12.2023), a Grand Chamber of the CJEU ruled that a request for a preliminary ruling from the Polish Supreme Court (Chamber of Extraordinary Control and Public Affairs, “the CECPA”) was inadmissible, on account of the fact that the panel of judges of the CECPA which submitted that request was not an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the EU-Charter. This was because of the procedure which had led to the appointment of the three judges composing that panel. Consequently, it did not constitute a “court or tribunal” within the meaning of Article 267 TFEU.

The CJEU insisted that it is alone responsible for interpreting EU law and must consider the issue in the light of its own case-law (§§ 40, 46 and 58). At the same time, it amply relied in its reasoning on the judgment of the ECtHR in the case of Dolińska-Ficek and Ozimek v. Poland, which concerned the dismissal by the CECPA of the appeals against resolutions of the National Council of the Judiciary (“the NCJ”, referred to as the “KRS” by the CJEU) on the non-recommendation of judges to posts at higher courts. It also referred to the judgment of the Polish Supreme Administrative Court of 21 September 2021, which had annulled Resolution No 331/2018 proposing the appointment of some of the judges of the CECPA.

What is noteworthy about this ruling is, first, the convergence between Strasbourg and Luxembourg in considering that the CECPA is not a “tribunal established by law”. According to both European Courts, this is because members of the CECPA were appointed following a procedure characterised by undue influence of the legislative and executive powers on the appointment of judges: the recommendation of candidates for judicial appointment to the CECPA was entrusted to the NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. In addition, and in breach of the rule of law and the separation of powers, the members of the CECPA had been appointed by the President of the Republic in spite of a stay of execution which had been decided by the Supreme Administrative Court pending its examination of the lawfulness of the Resolution which had recommended the appointment of the judges concerned. The ECtHR called this an act of “utter disregard for the authority, independence and role of the judiciary” (§ 330).

The importance of that convergence between the two European Courts on principles as fundamental for democratic societies as the rule of law and judicial independence can hardly be overestimated.

Some differences between the reasoning of the ECtHR and the CJEU on these issues should however be noted. The first one relates to the concepts being relied on by the two Courts. In Dolińska-Ficek and Ozimek the ECtHR considered the two main shortcomings mentioned above, i.e. the nomination by a non-independent body and the appointment by the President of the Republic in disregard of a court order, to be sufficiently serious, as such, to impair the very essence of the applicant’s right to a “tribunal established by law” (§ 350).

By contrast, the CJEU saw the problem more as one concerning appearances of independence and impartiality and “reasonable doubts in the minds of individuals as to the imperviousness of the persons concerned and the panel in which they sit with regard to external factors, in particular the direct or indirect influence of the national legislature and executive and their neutrality with respect to the interests before them” (§ 61, 62, 68 and 77).

The explanation for this reliance by the CJEU on appearances and doubts, rather than on the “very essence” of the right to a tribunal, may be found in the fact that here independence and impartiality are considered together by the CJEU, impartiality being the concept for the assessment of which the ECtHR itself relies on appearances and reasonable doubts (e.g. in Morice v. France, §§ 76-78). While there is of course a link between these two notions (see Dolińska-Ficek and Ozimek, §§ 315-316), they nonetheless cover different requirements.

However that may be, one may wonder whether the massive interference of the legislative and executive powers in the appointment of judges, as described in the case at hand, is only a problem of appearances and doubts, or whether it affects the substance of the rights concerned, leaving no room for any possible doubts or mere appearances. In other words, the problem should perhaps not be reduced to one of mere appearances and doubts. Rather, as indicated by the ECtHR, it goes to the heart of the rule of law, the separation of powers and judicial independence. These principles do not only appear to have been ignored in the case at hand. Rather, they were actually disregarded and therefore the very essence of judicial independence was genuinely affected.

Secondly, while the ECtHR saw the two main shortcomings mentioned above, in addition to the absence of adequate legal remedies, as sufficient to support its conclusion of a violation of the right to a tribunal established by law, the CJEU relied on several additional circumstances, such as the extent of the jurisdiction of the CECPA, the adoption by the Polish legislature of a new law limiting the possibility to challenge decisions by the NCJ,  or the annulment by the Supreme Administrative Court of Resolution No 331/2018 (§§ 65-76).

This could be interpreted as suggesting that under EU law the two main shortcomings identified by the ECtHR are not sufficient and require the combination of all mentioned additional circumstances to lead to a conclusion of incompatibility with Article 19(2), second sub-paragraph, TEU, read in the light of Article 47 of the EU-Charter. This, in turn, could be seen as offering a lesser protection of the right to a tribunal established by law.

Should this be the case, and in view of the fact that the Convention represents in this field the minimum protection standard also applicable under EU law (Art. 52(3) of the EU-Charter), the circumstances listed in Dolińska-Ficek and Ozimek should be considered sufficient to deny a national court the status of a “tribunal established by law”.

GN is yet another case concerning the execution of a European arrest warrant (EAW). This time round, the person subject to that EAW is the mother of a young child who, at the time of the events, was also pregnant with a second child. The Belgian judicial authorities had issued a EAW in respect of her for the purpose of enforcing a custodial sentence of five years which was handed down in absentia.

After a first refusal by the Bologna Court of Appeal to surrender GN to the Belgian authorities, on the ground that the latter had never responded to its request for information concerning inter alia the arrangements for the enforcement of sentences imposed on mothers living with minor children and the measures taken in relation to GN’s minor child, the case ended up before the Italian Supreme Court of Cassation, which referred the case for a preliminary ruling by the CJEU.

Interestingly, the Supreme Court of Cassation stated in its referral request that if the Belgian legal order did not provide for measures protecting the rights of children which were comparable to those provided for by Italian law, the surrender of GN would lead to a breach of the latter’s fundamental rights protected by the Italian Constitution and the European Convention on Human Rights (§ 22). In its second question to the CJEU, the Supreme Court of Cassation explicitly raised the question of the possible incompatibility of the surrender of GN with Articles 7 and 24(3) of the EU-Charter, “also considering the case-law of the European Court of Human Rights in relation to Article 8 [ECHR] and the constitutional traditions common to the Member States”.

In its response, the CJEU follows its traditional two-step approach, consisting of a general test, on the existence of systemic or generalised deficiencies in the issuing Member State, followed by an individual test, on whether in light of such deficiencies, there are substantial grounds for believing that the persons concerned will run a real risk of breach of their fundamental rights. In the case at hand, this risk concerned the rights to respect for one’s family life and to consideration given to the child’s best interests, as laid down in Articles 7 and 24(2) of the EU-Charter respectively (§§ 45-48).

Despite the sensitive nature of the issues involved, affecting minor children, the CJEU appears determined in this case to further narrow the scope left to the executing judicial authorities for the consideration of individual circumstances which might be relevant in the assessment of the risks incurred in the issuing Member State by the persons subject to the EAW at stake.

For not only does the CJEU confirm in GN its recent case-law precluding the executing judicial authorities from applying the individual test in the absence of systemic or generalised deficiencies or from applying the two tests simultaneously (§ 46), this time round it also explicitly prohibits these authorities, in the absence of systemic or generalised deficiencies, from inquiring under Article 15(2) of Framework Decision 2002/584 about the conditions under which it is intended, in the issuing Member State, to detain persons as Ms GN and/or to take care of their children (§ 50). This only reinforces the conclusion already reached in Staatsanwaltschaft Aachen about the mere ancillary function of the individual test.

However, what is worrying about this strict ban on the application of an autonomous individual test, and the inquiries which may go with it, is that it may interfere with the obligations placed by the Convention on the executing judicial authorities. Given that the Convention applies to the execution of a EAW (see, among others, Bivolaru and Moldovan v. France) and that it only provides for an individual test, the question indeed arises whether the two-step approach, with the individual test made contingent on the outcome of the general test, leaves enough room for the judges of the executing Member State to conform with their duties under the Convention. This may also be the sense of the concerns expressed by the Supreme Court of Cassation concerning compliance with the Convention.

Of course, national judges are not prevented by the Convention from having regard, if appropriate, to the general context of the individual situations which they must assess. The ECtHR itself does it but uses that assessment only as evidence, not as an autonomous test. The ultimate test to be applied under the Convention is always an individual test, which is autonomous and focussed on the individual situation of the person concerned. It does not require to be preceded by any prior general assessment. Even less is its validity contingent on any specific outcome of that general assessment.

It follows that under the Convention the scope of the risks capable of justifying a ban on the the extradition or deportation of a person is not limited to those risks which flow from systemic or generalised deficiencies. Risks of a violation of fundamental rights in the country of destination which are unrelated to any systemic or generalised deficiencies, such as risks stemming exclusively from the biography of the person concerned, are equally relevant. For why should a risk of breach of a fundamental right be ruled out only because it does not exist on a large scale?

Thus, as confirmed in Bivolaru and Moldovan v. France, compliance with the Convention when executing a EAW logically also requires an assessment about the personal and individual risks incurred by the person concerned in the issuing Member State. The scrutiny cannot stop after a general assessment, regardless of its result, as this would be tantamount to replacing the individual test required by the Convention by a general test which only considers the overall situation in the issuing Member State, thereby also raising the question as from when deficiencies are to be considered systemic or generalised.

Yet, it would appear that under EU law the simple finding by the executing judicial authority that no systemic or generalised deficiencies can be identified in the issuing Member State is sufficient to preclude any such individual assessment. This situation raises at least two following questions. First, is the CJEU creating two categories of fundamental rights in this area: those which are susceptible to systemic and generalised deficiencies and are therefore relevant, and those which do not stem from such deficiencies and can consequently be ignored? Second, can national judges be prevented by EU law from correctly applying the Convention in this area, as they are instructed to do by the Avotiņš v. Latvia and Bivolaru and Moldovan v. France jurisprudence?

In the case of G.K. and Others (European Public Prosecutor’s Office) (C-281/22, 21.12.2023), the CJEU interpreted Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO) and ruled on the scope of the judicial review to be carried out by the courts of the Member States in the event of cross-border investigation measures.

In the case before the referring court, several persons were being prosecuted for fraud concerning the import of biodiesel into the Union. The EPPO conducted an investigation in Germany through a “handling European Delegated Prosecutor” (EDP) and, for the purposes of the investigation, the search and seizure of goods in Austria was ordered. The German handling EDP thus delegated the enforcement of those measures to an Austrian “assisting EDP”. The accused persons challenged those investigation measures before the Vienna court of appeal, which referred to the CJEU several questions about the extent of the judicial review which it should carry out for the purpose of authorising the investigation measures which had been assigned by the German handling EDP to the Austrian assisting EDP.

The CJEU ruled that Articles 31 and 32 of Regulation 2017/1939 limit the review by the courts of the Member State of the assisting EDP to matters concerning the enforcement of those measures, to the exclusion of matters concerning their justification and adoption, which are to be assessed by the courts of the Member State of the handling EDP. The CJEU added that the latter matters must be subject to prior judicial review in the Member State of the handling European Delegated Prosecutor in the event of serious interference with the rights of the persons concerned guaranteed by the EU-Charter.

While this ruling answers a number of important questions arising in the context of criminal proceedings by the EPPO, one equally important issue is being completely ignored by it: the status under the Convention of the national authorities involved in EPPO-proceedings, i.e. the enforcement authorities, such as police forces and investigators, and the courts entrusted with reviewing procedural acts by the EPPO and adjudicating the cases brought before them by the EPPO. Are these national authorities subject to the Convention or not, in addition to them being subject to Union law? The answer to this question will determine which fundamental rights exactly will apply to EPPO-proceedings.

While it seems clear that EDPs, acting on behalf of the EPPO, an EU institution, are not subject to the Convention, the situation is less clear as regards these national authorities. This can only be decided by the ECtHR itself. Pending this clarification by the ECtHR and focussing on the national courts involved in proceedings initiated by the EPPO, it should be recalled that the creation of the EU and its predecessor organisations did not remove the responsibility of the Member States under the Convention for their application of Union law (see, among others, Bivolaru and Moldovan v. France). Neither does Regulation 2017/1939 provide that the national courts would act as EU courts when involved in EPPO-proceedings.

It can therefore be assumed that the national courts, when involved in such proceedings, remain national courts and, in this capacity, remain bound to apply Union law in conformity with the Convention. In any event, any other solution would deprive citizens who are the subject of EPPO-proceedings of the possibility of filing an application for external review of these proceedings by the ECtHR. Their fundamental rights would in that case be less well protected than those of the persons who are subject to proceedings initiated by national prosecutors under national law, which would be unacceptable.

Thus, as things currently stand, two partially different sets of European fundamental rights apply to a single set of EPPO-proceedings, depending on the acting institution: the sole EU rights in respect of legal acts by the EDPs, and a combination of EU and Convention rights in respect of legal acts by the national courts and perhaps also by the national enforcement authorities. This distinction becomes relevant in all cases where the level of protection between EU and Convention fundamental rights differs.

Fortunately, in criminal proceedings more than in any other area, the CJEU seems to be taking greater care in avoiding discrepancies with the Strasbourg case-law, which is beneficial to the coherence of the European standards in criminal procedure and facilitates the challenging task of national judges (see Greater convergence). However, some differences remain, e.g. with the application of the ne bis in idem principle (see Convention control, at p. 342) or with some aspects of the right to legal assistance such as the free choice of a lawyer.

What is helpful in this context, though, is that Article 41(2) of Regulation 2017/1939 provides that suspected or accused persons shall, “at a minimum”, have the procedural rights provided for in Union law enumerated in that provision (§ 76). This seems to indicate that the level of protection guaranteed by the latter can be raised if need be.

At the same time, this duality of European sources of fundamental rights can prove useful, as it will allow national judges to also rely on the Strasbourg case-law on the right to a fair trial in criminal matters which, being developed since more than 70 years, is indeed richer and more comprehensive than the Luxembourg case-law on these issues and, in any event, by virtue of Article 52(3) of the EU-Charter, represents a mandatory minimum protection standard which is also applicable under EU law.

Even so, the fact nonetheless remains that under the scheme put in place by Regulation 2017/1939, such “double standards” distort the uniformity which should in principle characterize, throughout criminal proceedings, the fundamental rights applied to the latter. For how coherent is it for an accused to be entitled to claim a level of protection which did not apply to the prosecutor in the very same case? Both should rather play by the same rules. If not, and in the event, as a result, of a failure by national courts to comply with the Convention, the Member State concerned would, in addition, incur liability in Strasbourg for action by an independent EU institution over which it has no control. The only way to minimize the impact of such distortions would be for the EU to become a Contracting Party to the Convention, along with its own Member States (for a more detailed analysis of the impact of the Convention on criminal proceedings of the EPPO, turn to No case to answer).

One can only regret that the authors of Regulation 2017/1939 did not adopt a wholistic approach which would have allowed them to address these important issues and help avoid yet another layer of complexity in this area.

The case of Commune d’Ans (C-148/22, 28.11.2023) concerned an employee of a Belgian municipality who performs her duties as head of office primarily without being in contact with users of the public service and who was prohibited from wearing an Islamic headscarf in her workplace. In the wake of that decision, the municipality amended its terms of employment, now requiring its employees to observe strict neutrality. As a consequence, any form of proselytising is prohibited and the wearing of overt signs of ideological or religious affiliation is prohibited for any worker, including those who are not in contact with the administered. The employee concerned complained before a Belgian Labour Court about breaches of her right to freedom of religion and of the prohibition of discrimination.

Before the Labour Court and the CJEU, the case was dealt with as a case about indirect discrimination on grounds of religion or belief. Consequently, Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation applied. Given that Article 51(2) of the EU-Charter does not allow the latter to extend the field of application of Union law and therefore obviously precluded direct reliance on Article 10 of the EU-Charter (freedom of thought, conscience and religion), Directive 2000/78 allowed the case to nonetheless be brought within the scope of Union law. On that basis, the CJEU interpreted Article 2(2)(a) of that Directive as meaning that:

“An internal rule of a municipal authority prohibiting, in a general and indiscriminate manner, the members of that authority’s staff from visibly wearing in the workplace any sign revealing, in particular, philosophical or religious beliefs may be justified by the desire of the said authority to establish, having regard to the context in which it operates, an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of that context and taking into account the various rights and interests at stake”.

One of the striking features of this ruling is that the weighing-up of the rights and interests at stake in this case is done at a collective level, not at the level of the individual complaining about discrimination. While the CJEU leaves to the Member States a “margin of discretion” and therefore accepts in principle the policy of “exclusive neutrality” which the municipality concerned wants to pursue (§§ 33-34), the assessment of whether any indirect difference in treatment generated by this policy is objectively justified and proportionate must be done, according to the CJEU, with regard to the right to freedom of thought, conscience and religion not of the complainant considered individually but of the entire municipal staff which, because they are all subject to the same exclusive neutrality policy at stake, is being considered as a single, undifferentiated entity.

In other words, the required assessment is to be based not on the individual but on the collective circumstances of the case. Logically, the fundamental rights being referred to under this approach are those of the entire collectivity of the staff concerned, not those of the complainant considered individually (see §§ 28 and 40).

The Strasbourg approach is different, based as it is on the individual rights flowing from Article 9 of the Convention, considered alone or in conjunction with Article 14 (prohibition of discrimination), as the case may be. The assessment of the justification of any interference with these rights must have regard to the particular circumstances of the case, which include the particular circumstances of the applicant. Thus, an examination in concreto rather than in abstracto, as in Commune d’Ans.

This was the case e.g. in Ebrahimian v. France. In finding no violation of Article 9 in this case, the ECtHR had regard to such general circumstances as the French secular model or the policy of strict neutrality imposed on the staff of the hospital concerned, but also to individual circumstances such as the difficulties she had encountered in her unit, the refusal by the applicant to apply for another function which was open to her within the same institution, the impact of her attire on the exercise of her duties, as well as the procedural safeguards and judicial remedies from which she had benefitted in her dealings with her employer (see also, following a similar approach, Eweida and Others v. United Kingdom).

It would therefore appear that such rulings as Commune d’Ans are not necessarily the end of the story for the persons concerned. This is because, being focussed on discrimination, Directive 2000/78 does not exhaust the issue of freedom of religion in the workplace. At best, it only exhausts the issue under Union law. Thus, in the event of significant and relevant individual circumstances not addressed under Directive 2000/78, these circumstances could in principle still be invoked, under Article 9 of the Convention, alone or in conjunction with Article 14, as the case may be, before the domestic courts and, after exhaustion of domestic remedies, before the ECtHR.

In other words, the Union law elements of a case like Commune d’Ans do not displace its Convention elements. Rather, on condition that Article 9, alone or in conjunction with Article14, have been lawfully invoked before the domestic courts, they remain to be assessed by these courts and, ultimately, by the ECtHR, along with the compatibility of the Commune d’Ans jurisprudence with these provisions, since the application of Union law must be Convention compliant (see, mutatis mutandis, Bivolaru and Moldovan v. France, § 103).

From this perspective, Commune d’Ans is also an example of an issue capable of being addressed both under Union law and under the Convention, with slightly different outcomes depending on the legal basis invoked. This illustrates the importance of the choice by the parties to judicial proceedings and the adjudicating judges of the legal basis for the claims being made.

In the case of Staatsanwaltschaft Aachen (C-819/21, 9.11.2023), the CJEU addressed the concerns of a German Regional Court regarding the enforcement in Germany of a custodial sentence imposed on a Polish national (M.D.), resident in Germany, by a Polish District Court after a hearing in absentia.

The referring court asked the CJEU whether, under Framework Decision 2008/909 (on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty), it could refuse to declare the custodial sentence imposed on M.D. in Poland to be enforceable in Germany, because of systemic or generalised deficiencies in the Polish judicial system, in violation of the second paragraph of Article 47 of the Charter and of Article 2 TEU. The referring court relied inter alia on the reasoned proposal of the European Commission of 20 December 2017 submitted on the basis of Article 7(1) TEU regarding the rule of law in Poland (COM(2017) 835 final), and to the recent case-law of the CJEU on that matter (§ 14).

Drawing a parallel between Framework Decision 2008/909, at stake in the present case, and Framework Decision 2002/584 on the European arrest warrant, the CJEU first recalled its case-law about the limitations of the principles of mutual recognition and mutual trust which can be made in exceptional circumstances and which derive from the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU, notably the prohibition of ill-treatment enshrined in Article 4 of the EU-Charter ( as in Aranyosi und Căldăraru) and the right to a fair trial laid down in the second paragraph of Article 47 of the EU-Charter (as in Minister for Justice and Equality (Deficiencies in the system of justice), and Openbaar Ministerie (Tribunal established by law in the issuing Member State)).

Addressing the methodology to be applied in such cases, the CJEU recalled the well-known obligation on the competent authority of the executing Member State to carry out a two-step examination.

As a first step, that authority must “determine whether there is objective, reliable, specific and duly updated material indicating that there is a real risk of breach, in the issuing Member State, of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of that Member State’s judiciary”. (§ 29, emphasis added)

The CJEU then went on to say: “If that is the case, the competent authority of the executing Member State must, as a second step, determine, specifically and precisely, to what extent the deficiencies identified in the first step may have had an impact on the functioning of the courts of the issuing Member State which have jurisdiction over the proceedings brought against the person concerned and whether, having regard to that person’s personal situation, the nature of the offence for which he or she was tried, and the factual context of the sentence in respect of which recognition and enforcement are requested, and, where appropriate, to additional information provided by that Member State pursuant to that framework decision, there are substantial grounds for believing that such a risk has actually materialised in the present case”. (§ 30, emphasis added)

The opening words “if that is the case” in the above quotation read as a condition and suggest that it is only if the existence of systemic or generalised deficiencies is confirmed in the context of the first step of the examination that, as a second step, it can be assessed whether these deficiencies may have had a concrete impact on the individual concerned in terms of the fairness of the criminal proceedings which led to his conviction.

Assuming this interpretation is correct, it would mean that conversely, in the absence of such systemic or generalised deficiencies, no such individual assessment would be permissible. This would be in line with the CJEU’s approach in Puig Gordi and Others where a similar question was asked to the CJEU in relation to the execution of a European arrest warrant for the purpose of conducting criminal proceedings against the person concerned. In that case too, the CJEU denied the possibility for the executing authority to apply an individual test in the absence of systemic or generalised deficiencies (§ 111), the only difference being that in Staatsanwaltschaft Aachen the referring court had itself found such systemic or generalised deficiencies to exist.

Applied in this way, the two steps of this methodology appear of unequal weight and not on the same footing. Rather, the individual test seems subordinated to the general test, performing an ancillary function compared to that of the general test. Unlike the general test, the individual test is indeed not autonomous in the sense that it could on its own justify a conclusion as regards the existence of a risk of breach of a fundamental right – here the right to a fair trial – in the issuing State, as it can do under the European Convention on Human Rights.

Under this approach the individual test can only operate to validate or not the findings under the general test that systemic or generalised deficiencies do exist. But if the general test is negative about the existence of such deficiencies, this is the end of the story: no assessment of the individual situation of the person concerned can be allowed to rebut the conclusions regarding the general situation.

This, in fact, amounts to allowing the general test to replace the individual test and strongly reminds of the position taken by the CJEU in N.S. and Others to the effect that only systemic flaws could justify an exception based on Article 4 of the EU-Charter to the Dublin Regulation (§§ 82-86). Here too, efficiency considerations were allowed to prevail over fundamental rights.

In essence, however, fundamental rights are individual rights and call for an autonomous individual assessment. It can be complemented but not replaced by a general assessment. This is also reflected in the central position in the Convention system of the right of individual petition which, by definition, calls for an individual assessment. The way to handle this in a mutual recognition context has been set out by the ECtHR in Avotiņš v. Latvia, in the following terms:

[The Court] must verify that the principle of mutual recognition is not applied automatically and mechanically … to the detriment of fundamental rights – which, the CJEU has also stressed, must be observed in this context …. Where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them 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. (§ 116, emphasis added)

The CJEU argues that “allowing the competent authority of the executing Member State to suspend, on its own initiative, the mechanism laid down in Framework Decision 2008/909 by refusing, in principle, to give effect to all the requests seeking recognition of judgments and enforcement of criminal sentences from the Member State concerned by those deficiencies would call into question the principles of mutual trust and mutual recognition which underpin that framework decision” (§ 34).

However, this is no answer to the question why an individual test should not be allowed to be applied in the absence of systemic or generalised deficiencies. By definition, the result of such a test would be limited to the individual case concerned and could therefore not call into question the entire system of mutual recognition. Under the Avotins approach referred to above, it would at the same time remain exceptional, in line with the CJEU’s doctrine on mutual recognition.

In the case of Staatssecretaris van Justitie en Veiligheid (Notion d’atteintes graves) (C-125/22, 9.11.2023), the CJEU ruled on the requirements to be fulfilled for the granting of subsidiary protection under Article 15 of Directive 2011/95/EU (“Qualification Directive”).

Under that provision, the “serious harm” justifying the granting of subsidiary protection can consist of either the death penalty or execution (a), or torture or inhuman or degrading treatment or punishment of an applicant in the country of origin (b), or serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (c).

The main issue raised in this case was about the criteria to be used for the assessment of whether any of these three situations materialised in a given case: only the general situation in the country concerned or also the individual position and personal circumstances of the applicant for subsidiary protection?

In essence, the CJEU ruled that the application of Article 15 (a) and (b) required a “clear degree of individualisation” (§§ 37, 72), whereas under Article 15 (c), one had to distinguish between exceptional and less exceptional situations.

According to this approach, the exceptional situations are those which occur when the applicant for subsidiary protection comes from an area of a given country hit by “the most extreme cases of general violence”, within the meaning of the judgment of the ECtHR in NA. v. United Kingdom. In such cases, substantial grounds would exist for believing that a civilian, returned to the relevant country or region, would, solely on account of his or her presence on the territory of that country or region, face a real risk of being subject to a serious and individual threat to his or her life or person (§§ 58, 63). Therefore, the existence in such cases of a risk of a “serious and individual threat”, within the meaning of Article 15(c), is not conditional on the applicant proving that he or she is specifically affected by reason of factors particular to his or her personal circumstances (§ 41).

By contrast, in the “less exceptional situations”, factors relating to the individual position and personal circumstances of the applicant are relevant, to the effect that the more the applicant is able to show that he or she is specifically affected by reason of factors particular to his or her individual position or personal circumstances, the lower the level of indiscriminate violence required for him or her to be eligible for subsidiary protection (§ 42). Consequently, in such cases more relevant personal elements are needed to justify subsidiary protection than just the fact of coming from an area where “the most extreme cases of general violence” occur (§ 65).

What is very helpful in this ruling is that the CJEU takes care of indicating that by virtue of Articles 6(3) TEU and 52(3) of the EU-Charter, the case-law of the ECtHR on Article 3 of the Convention (prohibition of ill-treatment) must be taken into account “as the minimum threshold of protection”, when interpreting Directive 2011/95 and Article 4 of the EU-Charter (§§ 59-60).

What is perhaps even more remarkable as a result, and regrettably still very rare in the Luxembourg jurisprudence (one isolated example being Menci, § 62), is a clear statement by the CJEU about its interpretation of EU law being “fully compatible” with the corresponding Strasbourg case-law, here on Article 3 of the Convention (§ 66). Such a useful clarification – which indeed corresponds to reality – can only facilitate the task of domestic judges who, when they apply EU law, must also comply with the Convention (see Bivolaru and Moldovan v. France, § 103).

Somewhat surprisingly, though, the CJEU adds that its interpretation of Article 15(c) would provide applicants for international protection a more extensive protection than that offered by Article 3 of the Convention (§ 66). As such, this would not be a problem, as the Convention is open to its own standards being raised at domestic level (Art. 53 of the Convention) and Article 52(3) of the EU-Charter allows EU law to do the same.

However, this statement would appear to be a misrepresentation of the situation. It seems based on the following false assumption by the CJEU:

The Court has already held that it is Article 15(b) of Directive 2011/95 which corresponds, in essence, to Article 3 ECHR. By contrast, Article 15(c) of that directive is a provision, the content of which is different from that of Article 3 ECHR, and the interpretation of which must, therefore, be carried out independently, in order, inter alia, to ensure that that provision has its own field of application, although with due regard for the fundamental rights guaranteed under the Charter and the ECHR (§ 62)

This analysis seems to be missing the fact that while the wording of Article 3 of the Convention is reflected only in Article 15 (b), the ECtHR has interpreted Article 3 so as to extend its scope to most of the situations described in Article 15 (c), thereby applying both individual and general criteria for the assessment of whether an individual can be considered to be at a risk relevant under Article 3 if returned to his or her country of origin. For instance, in Khasanov and Rakhmanov v. Russia, the ECtHR stated:

The risk assessment must focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances …. It must be considered whether, having regard to all the circumstances of the case, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. If the existence of such a risk is established, the applicant’s removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two. (§ 95, emphasis added)

These are exactly the kind of situations described in paragraphs 63 and 64 of the ruling which, according to the CJEU, come with the scope of Article 15 (c) of Directive 2011/95. In other words, under the current case-law Article 3 of the Convention covers the situations coming within the scope of Article 15 (b) or (c), the level of personal circumstances being required for Article 3 to kick in hinging on the nature of the risk at stake. This means, as a consequence, that the CJEU is not dispensed from complying with the Convention minimum standard under Article 3 when interpreting Article 15 (c) of the Directive.

Last but not least, another useful clarification made by the CJEU is about the burden of proof, the CJEU stating that although, under Article 4(1) of Directive 2011/95, Member States may require the applicant, during the first of those stages, to submit as soon as possible all elements needed to substantiate the application for protection, the authorities of the Member States must, if necessary, actively cooperate with him or her in order to determine and supplement the relevant elements of the application, those authorities being often better placed than the applicant to gain access to certain types of documents (§ 47). This is very much in line with the Strasbourg approach as described in J.K. and Others v. Sweden.