In the case of HYA and Others (C-348/21, 8.12.2022), the CJEU ruled on whether national legislation which allowed a person to be convicted on the basis of statements by witnesses who had not been cross-examined by the defence at the trial was compatible with the Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (2016/343), read in combination with Articles 47(2) and 48, paragraph 2, of the EU-Charter.

The issue at the heart of the present case was about whether there was a right for the accused not only to attend their trial, as stipulated by Article 8(1) of the Directive, but also to cross-examine witnesses at the trial. Whereas under the Convention the answer to that question is obvious, spelled out as it is in its Article 6 § 3 d), the CJEU had to make long developments, thereby relying on the Strasbourg case-law, to come to the same conclusion. This is because the said Directive is silent about that issue.

Thus, next to such other recent rulings as in Spetsializirana prokuratura, HN and DD applying the same Directive, this case is another telling illustration of the limits of what the Directives on procedural rights in criminal proceedings, as the one at stake in this case, can achieve. While these directives are meant to codify and reinforce current case-law with a view to enhancing mutual trust amongst member States (see Recital 10 of the Directive at stake in this case), their weakness lies in the fact that they can cover only part of the huge amount of case-law existing in this field, while at the same time they freeze the part of the case-law which they actually cover, with the risk of being overtaken by events in case of further developments of that case-law. The result are important lacunae in these directives which the CJEU undertakes to gradually fill, not least by drawing to a significant extent on the Strasbourg case-law.

In the present case, the CJEU first found, after some lengthy developments, that a right for an accused to just attend their trial without at the same time having the possibility to exercise at this trial the rights of the defence, including the right to cross-examine the witnesses for the prosecution, would strip the right to a fair trial of its essential content (§ 45).

The CJEU then turned to the possible limitations to the right to cross-examine witnesses, more specifically whether the accused could be convicted on the basis of witness statements made during the investigation of the criminal case, in the absence of the accused and their lawyer. Here, another difficulty arose in that the Strasbourg and Luxembourg methodologies on this score differ. The CJEU, for its part, opted for squeezing the methodology applied by the ECtHR into its own methodology, which is based on Article 52(1) of the EU-Charter, thus complicating matters much more than would be necessary under the sole Convention.

In concrete terms, whereas the Strasbourg approach concerning limitations is based on an assessment of the proceedings as a whole, looking at whether any limitations or procedural flaws may have been offset by counter-balancing factors (see Ibrahim and Others, Beuze), the CJEU relied on Article 52(1) of the EU-Charter and in that context applied three different criteria: the existence of a legal basis, the preservation of the essential content of the right at stake and the proportionality of the limitations to it (§ 50).

It is under the second criterion, the essential content of the right, that the domestic courts are instructed by the CJEU to apply the Strasbourg case-law here, in particular the test of the proceedings considered as a whole (§§ 52 and 55), as in Al-Khawaja and Tahery and Schatschaschwili. What follows is a faithful description of that Strasbourg jurisprudence and its criteria, ordered to be applied as part of the said Directive and in the context of Article 52(1) of the EU-Charter. The final assessment is thereby left to the referring court, the CJEU recalling that under Art. 267 TFEU it has competence only to interpret EU law, not to apply it (§ 49).

All in all, this ruling is a welcome contribution by the CJEU to maintaining jurisprudential harmony with Strasbourg, by taking on bord large parts of the Strasbourg case-law, thus protecting domestic courts from having to face Convention liability. That said, the lacunae of Directive 2016/343 and the combination of two partly different methodologies generate a regrettable level of complexity for domestic courts, when compared with the Strasbourg approach.

In the case of Puig Gordi and Others (C-158/21, 31.1.2023), the CJEU ruled on the refusal by Belgian courts to execute a European arrest warrant (EAW) which had been issued by the Spanish Supreme Court in respect of several Catalan separatists. The refusal was based on concerns about the lack of jurisdiction of the court called upon to try them.

In its ruling, the CJEU relied on the two-step examination which it had previously applied, in such cases as Openbaar Ministerie, and which basically comes down to applying a double test, a general one followed by an individual one, for the assessment of any risks of a serious breach of fundamental rights which could be triggered by the execution of a EAW. While this methodology differs from the one applied by the ECtHR when assessing the execution of a EAW, which is more focussed on the individual risks, it is not problematic as such, as confirmed by Bivolaru and Moldovan v. France.

However, in Puig Gordi and Others the CJEU went one step further in developing its “two step” methodology, by denying the possibility to examine individualised risks in the event of a surrender if, prior to that, no systemic or generalised deficiencies have been found to exist. In substance, it ruled inter alia that in the absence of systemic or generalised deficiencies in the issuing State to the effect that persons in that State would be generally deprived of an effective legal remedy enabling a review of the jurisdiction of the criminal court called upon to try them, a court of the executing State may not refuse to execute a EAW (§ 111).

This comes down to autonomising the general test, to the effect that the application of the individual test is precluded if the result of the prior general test is negative. Thus, in that case the general test is suffient and can replace any further individual analysis. In that logic, the scale which deficiencies must reach to become relevant under the general test would appear to be of a magnitude which may be rarely reached in practice and which, in the few cases where it could still be reached, may be difficult to evaluate by domestic judges and even more difficult to prove by the persons concerned by the EAW. It can therefore be assumed that under this methodology, in most cases the assessment by the executing judicial authority will stop, out of convenience, after the first general step, leaving out the second individual step altogether. This would bring us back, de facto, to the much-criticised single collective test used in N.S. and Others, which would appear to be difficult to reconcile with the individual test being systematically and exclusively applied by the ECtHR, not least because one of the cornerstones of the Convention system is the right of individual petition.

Fortunately, in Puig Gordi and Others the CJEU did not go as far as suggested by its Advocate General, who wanted this new version of the “two step” examination potentially precluding the application of an individual test to be applied to all aspects of the right to a fair trial before a tribunal previously established by law under Art. 47(2) of the EU-Charter (on this Opinion, see the following comment).

By contrast, the CJEU limited the scope of its ruling to issues relating to the sole lack of jurisdiction of the courts in the issuing State, thereby placing some emphasis on the existence of efficient legal remedies which should avoid “the very occurrence” of the infringement at issue or avoid irreparable damage arising from that infringement (§ 113). Yet this latter consideration seems in contrast with other rulings in which the CJEU denied the relevance of existing domestic remedies in the issuing State for the assessment of risks to fundamental rights in that State (CJEU 25.7.2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C-220/18 PPU, § 74, and CJEU 15.10.2019, Dorobantu, C-128/18, § 80).

The fact remains, though, that in this way, a door has again been opened, for the sake of the efficiency of the EAW mechanism (§ 116), to a general rather than an individual assessment of respect for fundamental rights. One may wonder whether it will be further widened in the future. In this context, it might be useful to recall the following finding by the ECtHR in Avotins v. Latvia, § 113-114:

The Court has repeatedly asserted its commitment to international and European cooperation …. Hence, it considers the creation of an area of freedom, security and justice in Europe, and the adoption of the means necessary to achieve it, to be wholly legitimate in principle from the standpoint of the Convention. Nevertheless, the methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms, as indeed confirmed by Article 67(1) of the TFEU. However, it is apparent that the aim of effectiveness pursued by some of the methods used results in the review of the observance of fundamental rights being tightly regulated or even limited.

In the case of Delta Stroy 2003 (C-203/21, 10.11.2022), the CJEU declared incompatible with Article 48 of the EU-Charter (presumption of innocence and rights of the defence) national legislation under which a national court may impose on a legal person a criminal penalty for an offence for which a natural person who has the power to bind or represent that legal person is allegedly liable, where that legal person has not been put in a position to dispute the reality of that offence.

In the case at hand, a company, Delta Stroy, was prosecuted in separate proceedings for the purpose of imposing on it a financial penalty for a criminal offence relating to value added tax alleged against its manager and representative.

What is noteworthy, from a Convention point of view, is first of all the similarity between the facts underlying this case and those which gave rise to the case of G.I.E.M. S.r.l. and Others v. Italy before the ECtHR. The question at the heart of both cases was whether companies could be convicted and sentenced for a criminal offence committed by their managers.

This is why the CJEU amply relied on G.I.E.M., thereby stating that the principle of the legality of criminal offences and penalties enshrined in Article 7 of the Convention, as applied by the ECtHR, corresponds to Article 49 of the EU-Charter and, by virtue of Article 52(3) of the EU-Charter, should therefore be interpreted so as not to disregard the level of protection guaranteed by Article 7 of the Convention, as interpreted by the ECtHR (§§ 43-44). The CJEU also noted that, according to the ECtHR, the violation of Article 7 of the Convention resulting from the imposition of a criminal sanction on an individual without his or her personal liability being established also breached the presumption of innocence protected by Article 6 § 2 of the Convention (§ 45).

In the case at hand, Delta Stroy was itself the subject of separate criminal proceedings triggering the application of the right to a fair trial. This is a significant difference with the 3 applicant companies in G.I.E.M. which could, not being themselves prosecuted, not invoke the right to a fair trial under Article 6 of the Convention and had therefore to rely on its Article 7. Consequently, the CJEU could confine itself to applying only Article 48 (presumption of innocence and rights of the defence), specifying that this provision too had to be interpreted so as not to disregard the corresponding Strasbourg protection level.

In sum, and regardless of these factual differences, there is correspondence between the Strasbourg and the Luxembourg jurisprudence in this area, something which can only be welcomed.

In the case of Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) (C-69/21, 22.11.2022), the CJEU ruled on the lawfulness under the Return Directive (2008/115) of a return procedure initiated in the Netherlands against a Russian national who developed a rare form of blood cancer the treatment of which consists, inter alia, of the administration of medical cannabis for analgesic purposes, which is forbidden in Russia.

The CJEU dealt with that issue inter alia from the perspective of the prohibition of ill-treatment (Article 4 of the EU-Charter) and the right to protection of private life (Article 7 of the EU-Charter). In light of Article 52(3) of the EU-Charter, both provisions were found to have the same meaning and scope as the corresponding provisions of the Convention, Articles 3 and 8 respectively.

As regards the impact of Article 4 of the EU-Charter on the return decision at issue, a striking feature of this judgment is its extensive reliance on Strasbourg case-law, notably Paposhvili v. Belgium and Savran v. Denmark, which are the leading cases on the deportation of seriously ill persons considered under Article 3 of the Convention.

This is another illustration of the “toolbox function” fulfilled by the Convention when Strasbourg case-law is used to fill lacunae in EU legislation or case-law (for another example, see Spetsializirana prokuratura(trial of an absconded suspect)). This kind of reliance on the Convention, which is to be welcomed as an important contribution to the coherence of European fundamental rights protection, is to be distinguished from the “benchmark function” of the Convention, which is less frequently mentioned and refers to the fact that pursuant to Article 52(3) of the EU-Charter, the Convention protection level also applies under EU law (as recently applied in Politsei- ja Piirivalveamet, §§ 47 et seq.).

On 15 September last, the CJEU handed down two important rulings on different aspects of the right of an accused person to be present at his or her trial, thereby applying Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

In the case of HN (C-420/20), the CJEU ruled that while Art. 8 of Directive 2016/343 does not preclude national legislation imposing an obligation on suspects and accused persons to be present at their criminal trial, it does preclude legislation permitting a trial to be held in the absence of the suspect or accused person, where that person is outside the Member State concerned and is unable to enter its territory because of an entry ban imposed on him or her by the competent authorities of that Member State.

In the case of DD (C-347/21), the CJEU in essence ruled that where, for the sake of preserving the right to be present at the trial, an additional examination of an incriminating witness is necessary because the first examination could not be attended by the accused person and his lawyer for reasons beyond their control, Article 8(1) of Directive 2016/343 and Article 3(1) of Directive 2013/48 (on the right of access to a lawyer) do not require the whole previous examination of that witness to be repeated. Rather, it is sufficient that the accused person and his or her lawyer be able freely to question that witness, provided that, prior to that additional examination, the accused person and his or her lawyer are provided with a copy of the minutes of the previous examination of that witness.

One striking aspect of both rulings is the fact that here, in contrast for instance with the recent ruling in TL, the CJEU explicitly drew on relevant Strasbourg case-law, notably on the leading cases of Hermi v. Italy, Sejdovic v. Italy, Jussila v. Finland and Al-Khawadja and Tahery v. United Kingdom, as a basis, along with the two directives, on which to build its own reasoning. These references each time follow a clear indication by the CJEU to the effect that, since the right to a fair trial as guaranteed by Articles 47 §§2-3 and 48 of the EU-Charter corresponds to that same right as protected by Article 6 of the Convention, “the Court must, accordingly, ensure that its interpretation of the latter provisions ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights” (C-420/20, §§ 54-55; C-347/21, § 31).

Thus, in addition to drawing on the said Strasbourg case-law, the CJEU also rightly pointed to the need to preserve under EU law the minimum level of protection emerging from it. In so doing, it not only made use of the “toolbox function”of the Convention, as it indeed quite often does when simply taking on board Convention elements as it deems fit. In addition, in a move which is less frequent in its case-law and is therefore to be commended, it acknowledged – and effectively applied – the “benchmark function” which was conferred on the Convention in relation to EU law by Article 52(3) of the EU-Charter. The Explanations to this provision indeed state: “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR.” This is clearly in order to protect national judges from being held liable in Strasbourg for breaching the Convention when applying EU law.

All of this is of course without prejudice to the possibility for EU law to provide “a more extensive protection” (Art. 52(3), 2^nd sentence, of the EU-Charter). In this connection, there is also room for a fruitful interaction between Article 6 of the Convention and the directives on procedural rights in criminal proceedings. A striking illustration of such an interaction is provided by the fact that while, on the one hand, the directive on the right to access to a lawyer (2013/48) clearly draws on the Strasbourg case-law relating to that right, the European Court of Human Rights, on the other hand, in Ibrahim and Others v. United Kingdom took on board the specifications contained in that directive concerning the notion of compelling reasons justifying an exception from the right to access to a lawyer (§ 259).

At any rate, since procedural rights in criminal proceedings are an area with a significant overlap between EU law and the Convention, in terms not only of the scope and substance of the rights concerned but also of the high number of cases in which Article 6 of the Convention is invoked, such explicit indications by the CJEU about the Strasbourg sources of its reasoning would appear to be of great importance, for at least three reasons.

First, as part of the CJEU’s legal reasoning which, as with any judicial decision, citizens have in principle a right to know and understand by virtue of the rule of law.

Secondly, for pedagogical reasons, as an illustration of the existing interaction between the Convention and EU law regarding many fundamental rights. For why suggest autonomy from the Convention where there is none and a wholistic approach would be required instead?

Thirdly, because any domestic judgment applying preliminary rulings by the CJEU may ultimately be reviewed in Strasbourg under Article 34 of the Convention (see Bivolaru et Moldovan c. France). Consequently, domestic judges have an interest in being given the legal arguments to satisfy themselves that by applying a preliminary ruling of the CJEU, they will not remain under the Convention level of protection and not run the risk of being found in Strasbourg to have breached the Convention. After all, it is their own responsibility and that of their respective Member States which are engaged in Strasbourg, interpretations of the Convention by the CJEU not being authoritative. Contrary to EU law itself, domestic judges are indeed not autonomous.

In the case of Valstybės sienos apsaugos tarnyba (C-72/22 PPU, 30.06.2022), the CJEU ruled that a domestic regulation which, by reason of the state of emergency created by a mass influx of migrants, precludes a foreigner who unlawfully entered a Member State from lodging an application for international protection, is incompatible with Articles 6 and 7(1) of the Procedures Directive (2013/32). Moreover, the domestic regulation allowing in the same circumstances asylum seekers to be placed in detention for the sole reason that they are staying illegally on the territory of that Member State was declared incompatible with Article 8(2) and (§) of the Reception Directive (2013/33).

A comparison of this CJEU ruling with the relevant Strasbourg case-law reveals a number of striking similarities but also some particularities. Here is a short overview of them, concerning four different aspects. In view of the duty of domestic judges to apply EU law in conformity with the requirements of the European Convention on Human Rights, which basically means that in case of divergencies they should apply the norm providing the higher protection, such considerations would not appear totally irrelevant. What is indeed required here is a wholistic approach which does no longer consider the Convention and EU law separately but rather as interacting with each other whenever EU law applies.

a. Unlawful stay on the territory of a State

A first striking element of the present CJEU ruling is its reliance on the need to interpret the relevant provisions of the Procedures Directive so as to ensure the effectiveness of the rights at stake, i.e. the right to access to the procedure in which applications for international protection are examined and the right to asylum enshrined in Article 18 of the EU-Charter (§§ 61-62).

Another remarkable element is the reminder by the CJEU, in light of the wording of the Directive, that the “making” of an application for international protection cannot be made dependent on the observance of administrative formalities, such formalities applying only at a later stage, when the application is “lodged”. Furthermore, a third-country national or stateless person is entitled to make such an application on the territory of a Member State even if that person is staying illegally on the said territory and irrespective of the prospects of success of such an application (§ 58).

On all these points, there is strong convergence with the case-law of the European Court of Human Rights (ECtHR). It is indeed well-established Strasbourg case-law that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, a principle which the ECtHR frequently applies in migration cases, as in M.K. and Others v. Poland where it stated:

The Court’s main concern in cases concerning the expulsion of asylum‑seekers is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled (§ 167).

As regards the role played by formalities in applying for asylum, the ECtHR stated in N.D. and N.T. v. Spain:

The protection of the Convention … cannot be dependent on formal considerations such as whether the persons to be protected were admitted to the territory of a Contracting State in conformity with a particular provision of national or European law applicable to the situation in question. The opposite approach would entail serious risks of arbitrariness, in so far as persons entitled to protection under the Convention could be deprived of such protection on the basis of purely formal considerations, for instance on the grounds that, not having crossed the State’s border lawfully, they could not make a valid claim for protection under the Convention. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions cannot go so far as to render ineffective the protection afforded by the Convention, and in particular by Article 3. (§ 184)

As the ECtHR put it in M.K. and Others v. Poland: Taking into account the absolute nature of the right guaranteed under Article 3, the scope of that obligation was not dependent on whether the applicants had been carrying documents authorising them to cross the Polish border or whether they had been legally admitted to Polish territory on other grounds. (§ 178)

b. Pushback at the State border

It is worth noting, however, that the ruling of the CJEU concerns the situation of a migrant who already found himself on the territory of Lithuania, though unlawfully, which is different from the situation occurring when migrants are not admitted to the territory of a State and face pushbacks at the border instead.

Regarding that kind of situation, the ECtHR, relying notably on the Schengen Borders Code and the Procedures Directive, ruled in N.D. and N.T. v. Spain that States should ensure effective access to means of legal entry:

With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen Area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. … However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (see also Article 6 of the EU Procedures Directive, …). Consequently, they may refuse entry to their territory to aliens, including potential asylum-seekers, who have failed, without cogent reasons … to comply with these arrangements by seeking to cross the border at a different location, especially … by taking advantage of their large numbers and using force. (§§ 209-210)

As regards asylum-seekers at the State border, there is again some convergence between the present CJEU ruling and the Strasbourg case-law on access to the territory of the State concerned. The ECtHR indeed stated in M.K. and Others v. Poland:

In order for the State’s obligation under Article 3 of the Convention to be effectively fulfilled, a person seeking international protection must be provided with safeguards against having to return to his or her country of origin before such time as his or her allegations are thoroughly examined. Therefore, the Court considers that, pending an application for international protection, a State cannot deny access to its territory to a person presenting himself or herself at a border checkpoint who alleges that he or she may be subjected to ill-treatment if he or she remains on the territory of the neighbouring State, unless adequate measures are taken to eliminate such a risk. (§ 179)

c. Derogations

A further interesting aspect of the present ruling is the denial by the CJEU of the possibility for the national authorities to rely on Article 72 TFEU in order to derogate from the prescriptions of the Procedures Directive by reason of the threat to public order or internal security flowing from the mass influx of migrants at the border. This approach would appear to be in line with the absolute nature of Article 3 of the Convention, the effect of which is to prohibit torture and inhuman or degrading treatment or punishment even in the most difficult circumstances (Gäfgen v. Germany, § 87).

However, an element which would appear to raise some doubts is the reference by the CJEU to the possibility, provided for by Article 43 of the Directive, to establish special procedures, to be applied at the border, for assessing the admissibility of applications for international protection “where the conduct of the applicant suggests that his or her application is manifestly unfounded or abusive” (§ 74).

While the reference to the conduct of applicants bears some resemblance with the N.D. and N.T. jurisprudence concerning the conduct of migrants who lose the benefit of the protection against collective expulsions by crossing a State border in an unauthorised manner outside existing border checkpoints (§ 211), it must be noted that the eventuality being addressed by the CJEU in the present ruling potentially covers a much wider range of situations occurring at State borders. This might render the suggestion by the CJEU that the mere conduct of an applicant could indicate that his/her application is unfounded or abusive difficult to reconcile with the safeguards required by Article 4 of Protocol no. 4 to the Convention when no unlawful crossing of a State border has taken place. In such cases this provision indeed requires the State authorities to ensure that each of the aliens concerned has a genuine and effective possibility of submitting arguments against his or her expulsion (§ 198).

d. Detention

Finally, by not allowing asylum-seekers to be placed in detention for the sole purpose of the processing of their application, EU law applies a higher protection standard than the Convention, as demonstrated by the present CJEU ruling (compare with Z.A. and Others v. Russia, § 162).

In the case of BV (C-570/20, 5.5.2022), the CJEU again ruled on the requirements of the non bis in idem principle (prohibition of double jeopardy) laid down in Article 50 of the EU-Charter on fundamental rights. The referring court in this case, the French Court of cassation, had doubts as to whether, basically, the French legislation allowing VAT-related offences to be punished through a combination of a financial administrative penalty of a criminal nature and a custodial sentence was precise enough to comply with the EU law requirements in this area.

What is somewhat surprising in this ruling, from a Convention point of view, is yet again an apparent lack of methodological coherence by the CJEU as regards the exceptions which can be made to the non bis in idem principle in respect of dual proceedings. Whereas the CJEU in its recent Grand Chamber ruling in the bpost case seemed willing to somewhat close the methodological gap between its own Menci jurisprudence and the Strasbourg A and B jurisprudence, the present judgment seems to take a step back in this respect, by not at all referring to either A and B or bpost and even seemingly ignoring the progress achieved by the latter in bringing some more coherence between the Strasbourg and Luxembourg case-law on this issue. All case-law references are indeed to the sole Menci case which, one could have thought, had been complemented or superseded by bpost in the meantime.

In concrete terms, whereas bpost took on board some of the Strasbourg criteria which in Menci had played no role, notably the fact that for a duplication of proceedings to be acceptable, the two sets of proceedings at stake had to be complementary in nature and form a “coherent whole” (§ 49), or indeed that there was to be a “sufficiently close connection in substance and time” between them (§ 53), in the present ruling these elements are completely left out of the enumeration made by the CJEU of the requirements to be fulfilled under Article 52(1) of the EU-Charter (§§ 30-36), despite their importance, as underlined both in bpost and A. and B.

Perhaps one should not read too much into the present judgment, bearing in mind that the focus in BV was on the precision of the domestic legislation. The fact remains, though, that in an area which is already highly complex and has over the years been the subject of a succession of varying approaches, any additional confusion as to the applicable standards should preferably be avoided. From this perspective, a clear indication about the methodological continuity between bpost and BV would have been welcome, thus dispelling the – hopefully false – impression that Menci still looks like the leading case when it comes to dual proceedings in Luxembourg.

In the case of BPC Lux 2 and Others (C-83/20, 5.5.2022), the CJEU examined the compatibility of Portuguese legislation on the resolution of credit institutions with the right to property protected by Article 17 of the EU-Charter of fundamental rights. It concluded that the legislation at issue was compatible with it.

The preliminary ruling is noteworthy in that for the interpretation of Article 17 the CJEU relied to a large extent on the Strasbourg methodology and case-law relating to Article 1 of Protocol No. 1 to the Convention, notably the “three distinct rules” approach developed by the ECHR (see §§ 37-44 and 56). This comes after a reminder about Article 52(3) of the EU-Charter the effect of which is to require that the case-law of the ECHR on Article 1 of Protocol No. 1 be taken into account as minimum protection level (§ 37).

The explanations relating to Article 17 of the EU-Charter indeed state that while the wording of Article 1 of Protocol No. 1 has been updated in Article 17 of the EU-Charter, “in accordance with Article 52(3), the meaning and scope of the right are the same as those of the right guaranteed by the ECHR and the limitations may not exceed those provided for there.”

Interestingly, though, when examining the lawfulness of the limitations imposed by the legislation at issue, notably its detrimental impact on shareholders and creditors, the CJEU applied Article 52(1) of the EU-Charter, which is the provision laying down the requirements to be fulfilled by limitations to the rights of the EU-Charter. It did so without subsequently addressing the question whether those criteria – or at least their effect in the present case – were meeting the Strasbourg minimum standards, even though the test provided for by Article 52(1) is slightly different from the one applied in Strasbourg under Article 1 of Protocol No. 1. The latter is indeed based on the “fair balance to be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights”. The implicit conclusion from the CJEU’s silence on this issue seems to be that the Luxembourg limitations applied in this case met the Strasbourg standards.

This conclusion could indeed find some support in the relevant Strasbourg case-law heavily relied on in the judgment, as well as in the use of a good deal of the conceptual framework emerging from it, including the consideration that because national authorities are better placed to assess the economic situation, they should enjoy a wide margin of appreciation (§ 55).

On these issues, see also the following post.

In the case of Spetsializirana prokuratura (trial of an absconded suspect) (C-569/20, 19.5.2022) the CJEU applied Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings on a situation arising from the fact that an accused in domestic criminal proceedings had absconded. The issue was whether under that Directive the accused could be tried in absentia and, if so, would be, after reappearing, entitled to a new trial or, alternatively, another legal remedy allowing a fresh determination of the merits of the case.

The judgment is already noteworthy in that it represents another contribution by the CJEU to the interpretation of one of the directives on procedural rights in criminal proceedings, the list of those contributions being still rather short (see, for another recent example, the judgment in the case of IS).

A further interesting feature of this case is certainly the fact that it confronted the CJEU with a situation not explicitly covered by Directive 2016/343, i. e. the situation created by an accused who may be considered to have waived the right to a new trial laid down in Article 9 of the Directive. The Directive indeed covers the situations whereby an absent suspect is either properly informed about the upcoming trial or represented by a mandated lawyer (Article 8(2)) or indeed cannot be located by the authorities (Article 8(4)). It does not, however, deal with a suspect who, while being informed of his or her trial, waives his or her right to be present at it.

In the absence of an explicit provision addressing that eventuality, the CJEU therefore engaged into an interpretation of Article 8(2) of the Directive – which sets out the circumstances under which a judgment in absentia does not give rise to a right to a retrial –, with a view to determining when there could be such a waiver and whether it came within the scope of that provision.

Interestingly, the CJEU thereby relied on the case-law of the ECtHR on the requirements to be fulfilled for a waiver of procedural rights to be compliant with Article 6 of the Convention (Sejdovic v. Italy, Vilches Coronado and Others v. Spain) and, more specifically, on the fact that such a waiver can be inferred from the circumstance that the summons to appear could not be served on an accused on account of a change of address which the accused failed to communicate to the competent authorities (Lena Atanasova v. Bulgaria). In light of that case-law, the CJEU concluded that:

“It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that that person may, subject however to the particular needs of the vulnerable persons referred to in recitals 42 and 43 of Directive 2016/343, be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it. The situation of such a person who received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial in due time by means of the document referred to in paragraph 41 of the present judgment is thus covered by Article 8(2) of that directive. (§ 48, emphasis added)

According to the CJEU, it was for the referring court to examine, in the light of its interpretation of Article 8(2), whether the accused could be deemed to have, tacitly but unequivocally, waived his right to be present at his trial, in which case he would not be entitled to a new trial.

While the harmony thus being created between Luxembourg and Strasbourg on the issue at stake is of course a welcome development, this case also illustrates the risks involved in trying to codify a subject matter such as procedural fundamental rights, which is primarily the result of a dynamic case-law resulting from the application of Articles 6 of the Convention and 47-48 of the EU-Charter (right to a fair trial).

It is indeed a well-known fact that the Convention is a « living instrument » and is interpreted accordingly by the ECHR, with the consequence that its rights must on occasion be adapted to new situations and their requirements refined. Yet, the present case reveals that not only does Directive 2016/343 not address the waiver of one of the main rights laid down by it, but also that, for obvious chronological reasons, it could not take on board more recent case-law developments such as those resulting from the more recent ECHR judgments referred to by the CJEU. Against this background, the question arises whether such Directives are intended to be updated accordingly or whether they might gradually turn into static alternatives to a dynamic case-law (on this, see No more common understanding, at p. 27-28)?

In the case of bpost (C-117/20, 22.3.2022) a Grand Chamber of the CJEU gave another ruling on the requirements of the non bis in idem principle (prohibition of double jeopardy), enshrined in Article 50 of the EU-Charter, when applied to dual proceedings concerning the same facts. In the present case, the company bpost was successively fined by two national authorities: first by the Belgian postal regulator, on account of discrimination against some of its clients, and subsequently by the Belgian competition authority, on grounds of abuse of a dominant position.

From a Convention point of view, the ruling is noteworthy in that it represents some evolution of the CJEU’s doctrine on the application of the non bis in idem principle to dual proceedings, i.e. a combination of administrative and/or criminal proceedings applied in respect of the same reprehensible conduct. To the extent that the administrative part of such dual proceedings is to be considered, by virtue of an autonomous interpretation, as criminal for the purposes of the Convention and/or the Charter, an issue about non bis in idem may indeed arise. Yet the methodological differences which existed between the Strasbourg and the Luxembourg approach in this field and resulted in different protection levels had given rise to some concerns (on this, see Do we still need Article 6(2) TEU?, at pp. 1707 et seq.).

In A and B v. Norway, the ECtHR upheld the ban on duplication of trial or punishment laid down in Article 4 of Protocol No. 7 to the Convention, but accepted that depending on the circumstances, some dual proceedings could be seen as complementing each other so as to form a single coherent whole not breaching that provision. This required that they be combined in an integrated manner, notably through a sufficiently close connection in substance and in time. By contrast, in Menci and two other cases decided on the same day, the CJEU accepted the possibility of a duality of criminal proceedings in certain circumstances, by considering such a duality as a limitation permitted under Article 52(1) of the EU-Charter.

This resulted in two different approaches to the same provision, based on criteria which partly overlap and partly differ from each another. While these different criteria did not necessarily appear mutually exclusive or incompatible, their coexistence nonetheless confronted the domestic courts, who may have to combine them, with a new source of complexity and legal uncertainty.

In the bpost case, while sticking to its own methodology based on Article 52(1) of the EU-Charter, the CJEU now took on board some of the Strasbourg criteria which it had previously ignored in Menci. It did so notably by referring to the notion of the “coherent whole” which, according to the ECtHR, the two sets of proceedings at stake must build in order for them to be complementary (A. and B., § 130) and by adding the requirement of a proximate timeframe to the relevant criteria for determining whether that is the case (§§ 51, 53 and 56). It now also relied on A. and B. in confirming its own case-law on the requirement that dual proceedings must be foreseeable and proportionate in their effects. Most significantly, the CJEU mentioned side by side, as the source of its relevant case-law, the Luxembourg judgment in Menci and the Strasbourg judgment in A. and B. (§§ 51 and 53), thereby suggesting that its case-law had a common basis. This is a significant move towards common standards, considerably facilitating the work of domestic courts.

Overall, there would therefore appear to be increasing convergence between Strasbourg and Luxembourg as regards the application of non bis in idem on dual proceedings, despite the remaining methodological differences. This, it is suggested, should hardly come as a surprise in light of the fact that, as recalled by the CJEU itself (§ 23), Article 50 of the EU-Charter, when applied within the same Member State, corresponds to Article 4 of Protocol No. 7 to the Convention and should therefore, by virtue of Article 52(3) of the EU-Charter, be given the same meaning and scope.