Category Archives: Court of Justice of the EU

Freedom to wear visible political, philosophical or religious signs in the workplace: judgment of the CJEU in the case of Wabe and MH Müller Handel

In the cases of Wabe and MH Müller Handel (joined cases C-804/18 and C-341/19, 15.7.2021) the CJEU ruled on prohibitions on the wearing of visible forms of expression of political, philosophical or religious beliefs in the workplace, thereby applying Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The two complainants before the referring courts, respectively a special needs carer and a sales assistant, had both been prevented from wearing an Islamic headscarf on the basis of internal rules, applicable in their respective companies, which prohibited the wearing of any visible signs of political, philosophical or religious beliefs in the workplace.

Pursuant to Directive 2000/78, and in keeping with its previous case law (G4S Secure Solutions and Bougnaoui and ADDH), the CJEU carefully distinguished between direct and indirect discrimination on grounds of religion or belief. It thereby recalled that by virtue of Article 52(3) of the EU-Charter of fundamental rights, the right to freedom of conscience and religion, enshrined in Article 10(1) of the EU-Charter, corresponds to the right guaranteed in Article 9 of the Convention and has therefore the same meaning and scope as the latter provision (§§ 48 and 81). However, the CJEU did not draw any conclusions from this correspondence in terms of the limitations to which that right can be subjected.

Rather, it assessed the issue through the prism of the requirement of equal treatment, as prescribed by Directive 2000/78, which is presented as a specific expression of the general principle of non-discrimination enshrined in Article 21 of the EU-Charter (§ 62). At the same time, the CJEU stressed that the interpretation of Directive 2000/78 had to be done having regard not only to Articles 10 and 21 of that Charter but also to the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions (Article 14(3) of the EU-Charter) and the freedom to conduct a business (Article 16 of the EU-Charter) at stake in the present cases (§ 84).

Interestingly, the CJEU also considered that a national provision such as Article 4(1) of the German Basic Law (Grundgesetz), which requires limitations to the freedom of religion and conscience to be justified by the demonstration of specific rather than general risks, could be applied at domestic level as a provision which is more favourable to the protection of the principle of equal treatment within the meaning of Article 8(1) of Directive 2000/78. Consequently, such a national provision offering a higher protection of the freedom of religion and belief than did Directive 2000/78 could be taken into account in examining the appropriateness of a difference of treatment indirectly based on religion or belief (§ 89).

One might wonder whether this opening towards more protective domestic provisions requiring limitations to the freedom of religion and belief to be justified by evidence of specific rather than general risks might perhaps also ease the tension seemingly existing between the Luxembourg case-law described above and the Strasbourg case-law on the same issue based on Article 9 of the Convention, notably the Eweida jurisprudence (Eweida and Others v. the United Kingdom, 15.1.2013, 48420/10, 59842/10, 51671/10 and 36516/10) which is indeed also based on a case-by-case approach and, thus, necessarily focuses on specific risks.

Disciplinary regime applicable to Polish judges: judgment of the CJEU in the case of Commission v. Poland

In the case of European Commission v. Poland (Régime disciplinaire des juges) (C-791/19, 15.7.2021), the CJEU decided on several complaints which had been raised by the European Commission, in the context of an action for failure to fulfill obligations (Art. 258 TFEU), and which concerned the new disciplinary regime applicable to Polish judges. In line with previous rulings (notably A.K. and Others, C-585/18, C-624/18, C-625/18; see below), the CJEU thereby expansively dealt with the requirements to be fulfilled under EU law for a domestic court to be independent and impartial. From a Convention perspective, the following aspects of the CJEU’s reasoning would appear to be noteworthy.

First, on the general relationship between EU law and the European Convention on Human Rights, the CJEU confirmed that pursuant to Article 52(3) of the EU-Charter, its interpretation of Articles 47(2) and 48 of the Charter must ensure a level of protection which does not disregard the one guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights (§ 165).

The approach adopted by the CJEU in this case would nonetheless appear to be somewhat different from the one usually adopted by the ECHR in similar cases. This could be explained by the fact that by their very nature, the complaints raised by the European Commission against the new disciplinary regime applicable to judges in Poland required the CJEU to look at the situation from an institutional perspective, covering simultaneously the independence and the impartiality of the judges concerned, considered in the abstract. Thus, the test and its application read as follows:

Taken together, the particular context and objective circumstances in which the Disciplinary Chamber was created, the characteristics of that chamber, and the way in which its members were appointed are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that body to external factors, in particular the direct or indirect influence of the Polish legislature and executive, and its neutrality with respect to the interests before it and, thus, are likely to lead to that body’s not being seen to be independent or impartial, which is likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals. Such a development constitutes a reduction in the protection of the value of the rule of law for the purposes of the case-law of the Court referred to in paragraph 51 of the present judgment. (§ 112; see also §§ 59, 86, 98, 139).

By contrast, the ECHR primarily looks at the issues from the point of view of the individual applicant, thereby distinguishing between the independence of a judge and his/her impartiality and, as far as the latter is concerned, requiring any doubts of an applicant to be objectively justified (see, e. g., Morice v. France, 23.4.2015, 29369/10, § 76).

However, both Courts converge in emphasizing the importance of appearances in this field as an essential means of preserving the trust which justice in a democratic society governed by the rule of law must inspire in the citizens (see, e. g., Micallef v. Malta, 15.10.2009, 17056/06, § 98, recalling that “justice must not only be done, it must also be seen to be done“).

Finally, against this background, it comes as no surprise that on the issue of whether a court can be considered as “established by law”, the CJEU, in contrast with its approach on the other issues addressed, explicitly relied on Strasbourg case-law (§§ 168, 171). The reason would appear to be that under Article 6 of the Convention too, the answer to this issue can only be given from an institutional perspective, which is much closer to the perspective adopted by the CJEU in the present case. In this connection, see also the recent judgment in the case of Reczkowicz v. Poland (22.7.2021, 43447/19) in which, after abundantly referring to the case-law of the CJEU concerning the recent reform of the judiciary in Poland, the ECHR found that the Disciplinary Chamber of the Polish Supreme Court could not be considered a “tribunal established by law” (§ 277) (see also the post on this judgment, on this page).

Right to silence under the EU-Charter – judgment of the CJEU in the Consob case

In the Consob case (2.2.2021, C-481/19), which concerned proceedings relating to the lawfulness of penalties imposed for offences of insider dealing and failure to cooperate in the context of an investigation conducted by the Italian National Companies and Stock Exchange Commission (Consob), the CJEU ruled on the interpretation of Articles 47 and 48 of the EU-Charter and on the validity and interpretation of provisions contained in two legal instruments dealing with market abuse (Directive 2003/6 and Regulation 596/2014). When inquiring about the protection of the right to silence provided by Articles 47 and 48 of the EU-Charter, the CJEU drew to a large extent, by virtue of Article 52(3) of the EU-Charter, on the case-law of the ECHR relating to that right (para. 36-43).

Applying the right to freedom of religion under the Charter, having regard to the Convention – judgment of the CJEU in the case of Centraal Israëlitisch Consistorie van België and Others

In the case of Centraal Israëlitisch Consistorie van België and Others (17.12.2020, C-336/19) the CJEU ruled that in order to promote animal welfare in the context of ritual slaughter, Member States may, without infringing the fundamental rights enshrined in the EU-Charter, require a reversible stunning procedure which cannot result in the animal’s death. The CJEU reached this conclusion after striking a balance between freedom of religion, guaranteed by Article 10 of the EU-Charter, and animal welfare, as set out in Article 13 TFEU and given specific expression to in Regulation No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing.

From a Convention perspective, several aspects of the ruling of the CJEU are worth mentioning. They represent interesting steps as regards the methodology to be applied in respect of fundamental rights which the Convention and the Charter have in common.

First, in interpreting Article 10 of the Charter the CJEU draws to a significant extent on the case-law of the European Court of Human Rights relating to Article 9 of the Convention. It did so relying on Article 52(3) of the Charter, in the following terms:

In that regard, it should be borne in mind that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed in the ECHR, without adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union. Account must, therefore, be taken of the corresponding rights of the ECHR for the purpose of interpreting the Charter, as the minimum threshold of protection …. Since it is apparent from the explanations relating to Article 10 of the Charter that the freedom guaranteed in paragraph 1 thereof corresponds to the freedom guaranteed in Article 9 of the ECHR, that freedom must be taken into account for the purpose of interpreting Article 10(1) of the Charter. (§ 56)

The fact that the reference to the corresponding rights of the Convention as the minimum threshold of protection comes after a reminder about the need not to affect adversely the autonomy of EU law and of the CJEU might suggest, apparently for the first time in the Luxembourg case-law, that it is now being accepted that this autonomy cannot lead to the protection of fundamental rights under EU law to fall below the level of protection under the Convention. This would be in keeping with the Explanations relating to Article 52(3) of the Charter, according to which “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR.”

Secondly, when it comes to examining the limitations applied in the present case to the exercise of the rights under Article 10 of the Charter, the CJEU stresses in § 58 of the ruling the similarities existing in this regard between the Convention (Art. 9 § 2) and the Charter (Art. 52(1)). Interestingly, and here again, apparently for the first time in the Luxembourg case-law, the CJEU then goes on to indicate that the justification of these limitations should be assessed having regard at the same time to both Article 52(1) and (3) of the Charter:

It is in the light of those considerations that it must be examined whether national legislation, which lays down the obligation to stun the animal beforehand during ritual slaughter, while stipulating that that stunning should be reversible and not cause the animal’s death, fulfils the conditions laid down in Article 52(1) and (3) of the Charter, read in conjunction with Article 13 TFEU. (§ 59)

Last but not least, the ruling contains another first-time reference which is another step towards the Convention protecting system, i.e. the endorsement of the well-known Strasbourg living instrument doctrine:

Like the ECHR, the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, by analogy, ECtHR, 7 July 2011, Bayatyan v. Armenia [GC], CE:ECHR:2011:0707JUD002345903, § 102 and the case-law cited), with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. (§ 77)

Effective access to international protection – detention of asylum seekers: judgment of the CJEU in the case of Commission v. Hungary

In the case of Commission v. Hungary (17.12.2020, C-808/18) the CJEU again addressed a number of issues in connection with the treatment of asylum-seekers in transit zones located in the immediate vicinity of the Serbian-Hungarian border. From a Convention perspective, two specific aspects are worth highlighting.

First, in interpreting the relevant provisions of the Procedure Directive (no. 2013/32) the CJEU stresses the need for the domestic authorities to ensure effective access to procedures for international protection:

Article 6 of Directive 2013/32 requires Member States to ensure that the persons concerned are able to exercise in an effective manner the right to make an application for international protection, including at their borders, as soon as they declare their wish of doing so, so that that application is registered and can be lodged and examined in effective observance of the time limits laid down by that directive. (§ 106)

This concern about ensuring effective access to procedures for international protection appears to be common to the two European Courts. For it lies also at the heart of the recent judgment in the case of N.D. and N.T. v. Spain (13.2.2020, nos. 8675/15 and 8697/15) in which the European Court of Human Rights ruled:

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. In the context of the present case the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4(1) of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. … 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. (§§ 209-210)

In this context, both Courts also concur in considering that an application for international protection is deemed to have been made as soon as the person concerned has declared, to one of the competent authorities, his or her wish to receive international protection, without the declaration of that wish being subject to any administrative formality whatsoever (see §§ 96-97 of the CJEU ruling and § 180 of N.D. and N.T.).

Secondly, the CJEU also confirmed its assessment, made in FMS and Others, C-924/19 PPU and C-925/19 PPU (see below, the post on this judgment), according to which the conditions prevailing in the transit zones of Röszke and Tompa amounted to detention, within the meaning of Article 2(h) of the Reception Directive (2013/33). This is in contrast with ECHR 21.11.2019, Ilias and Ahmed v. Hungary (no. 47287/15), § 249, in which the ECHR found that restrictions in such transit zones could only amount to a deprivation of liberty within the meaning of Article 5 of the Convention if they exceeded what was strictly necessary for the purpose of examining the application for international protection of the person concerned. The implications of this difference are explained below, in the post devoted to FMS and Others.

European arrest warrant – independence of the judiciary: judgment of the CJEU in the case of Openbaar Ministerie

In the case of Openbaar Ministerie (joined cases C-354/20 PPU and C-412/20 PPU, 17.12.2020) the Amsterdam District Court was called upon to decide upon the surrender of a person to the Polish authorities on the basis of a European arrest warrant (EAW) issued for the purpose of conducting a criminal investigation. It referred the case to the CJEU for a preliminary ruling on whether, in view of existing evidence of systemic or generalised deficiencies concerning the independence of the judiciary in Poland, the EAW was nonetheless to be executed.

In response, the CJEU confirmed in the following terms the two-step methodology which it had previously set out in the case of Minister for Justice and Equality (Deficiencies in the system of justice, C-216/18 PPU, 25.7.2018):

Where the executing judicial authority … has material … indicating that there is a real risk of breach 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 the issuing Member State’s judiciary, that authority must determine, specifically and precisely, whether, having regard to his or her personal situation, to the nature of the offence for which he or she is being prosecuted and the factual context in which the European arrest warrant was issued, and in the light of the information provided by that Member State pursuant to Article 15(2) of that framework decision, there are substantial grounds for believing that that person will run such a risk if he or she is surrendered to that Member State. (§ 52)

Thus, according to the CJEU, the possibility of refusing to execute a European arrest warrant for such reasons presupposes a two-step examination covering, first, the general situation of the judiciary in the State concerned and, secondly, the impact which this situation is likely to have on the fairness of the trial to which the person concerned will be subjected if surrendered (§ 53). Accordingly, it would appear that such a refusal could not lawfully be decided under Union law on the basis of evidence which concerned only the person to be surrendered and was not backed-up by evidence of existing systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary (see, in the same vein, concerning Art. 4 of the EU-Charter (prohibition of ill-treatment), CJUE 5.4.2016, Aranyosi et Căldăraru, C-404/15 et C-659/15 PPU).

This methodology might usefully be compared with the one applied by the ECHR in respect of applications challenging the execution of a EAW on account of a violation of Article 6 of the Convention (fair trial), as in Pirozzi v. Belgium (17.4.2018, no. 21055/11; discussed in a post below). While the ECHR can be expected, in such a context, to have regard to any systemic or general deficiencies in the issuing Member State, the existence of such deficiencies would not appear to be a pre-requisite to any finding of a breach in an individual case. This is because, in the context of an individual application under Article 34 of the Convention, the ECHR focuses on the particular circumstances of the individual case (see, mutatis mutandis, Taxquet v. Belgium, 16.11.2010, no. 926/05, § 83).

The question therefore arises whether such methodological differences could perhaps generate different protection levels, not least in terms of the burden of proof. It would indeed appear that no proof of any systemic or generalised deficiencies in the issuing State is required for a real and individual risk of a “flagrant denial of a fair trial” to amount to a potential breach of Article 6 of the Convention (see ECHR 7.7.1989, Soering v. United Kingdom, no. 14038/88, § 113; 4.5.2010, Stapleton v. Ireland (dec.), no. 56588/07, § 25).

Right of asylum seekers to be heard: judgment of the CJEU in the Addis case.

In the case of Addis (C-517/17, 16.7.2020), the CJEU ruled on the failure by a German administrative authority to comply with the obligation, laid down in the Procedures Directive (2013/32/EU), to give an applicant for international protection the opportunity of a personal interview before the adoption of a decision declaring his application inadmissible on account of the fact that he had entered Germany from a safe country, namely Italy.

Relying on Articles 14 and 34 of this Directive and the importance of such an interview in order to avoid expulsions which would entail a breach of Article 4 of the EU-Charter (§ 52), the CJEU decided that such a failure should lead to the said decision being annulled and the case being remitted to the determining authority, unless the applicable domestic law allows the applicant, in an appeal procedure, to set out in person all of his or her arguments against the decision in a hearing which complies with the detailed conditions and fundamental guarantees set out in Article 15 of the Procedures Directive (“requirements for a personal interview”), and those arguments are not capable of altering that decision. The CJEU thereby stressed that compliance with the safeguards laid down in Article 15 was essential in preserving the effectiveness of the right to be heard at that subsequent stage of the procedure (§ 71).

Interestingly, the CJEU contrasted this approach with its ruling in M. G. & N. R. (C-383/13 PPU, 10.9.2013) according to which “in principle, an infringement of the rights of the defence results in annulment of the decision taken at the end of the administrative procedure at issue only if the outcome of the procedure might have been different had it not been for such an irregularity”. It justified the different approach adopted in Addis by referring to the binding nature of the prescriptions laid down in Article 15 and the paramount importance of a personal interview in the procedure for examination of an application of international protection (§ 70). However, considering the fact that M. G. & N. R. was about detention under the Return Directive, a no less serious interference with civil liberties, and that the case for an interview in this case was pleaded by reference to such fundamental rights as the rights of the defence and the right to be heard, one may wonder why the Addis approach was not adopted already in M. G. & N. R. For what can be the sense of hearing a person only when it can be anticipated that he or she might come up with unforeseen arguments? How can the actual enjoyment of a fundamental right be made conditional upon the prediction of the unpredictable? (For a critical view on this judgment, see Johan Callewaert, “To accede or not to accede: European protection of human rights at the crossroads”, European journal of Human Rights, 2014, p. 506-7).

Be that as it may, the emphasis in Addis on preserving the effectiveness of the safeguards provided by the Procedures Directive has much in common with the approach recently followed by the ECHR in such matters. In N.D. & N.T. v. Spain, another migration case (nos. 8675/15 and 8697/15, 13.2.2020, see below on this page), the ECHR stressed that by virtue of Article 4 of Protocol no. 4 (prohibition of collective expulsions), Contracting States to the Convention are under an obligation to provide persons seeking international protection with an effective access to their territory and to procedures allowing for an effective examination of their application. And in Khlaifia and Others v. Italy (no. 16483/12, 15.12.2016), it stated: “Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances; the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State.” (§ 248)

Detention of asylum seekers in the Röszke transit zone: judgment by the CJEU in the case of FMS and Others

In the case of FMS and Others (C-924/19 PPU and C-925/19 PPU, 14.5.2020), the CJEU ruled on several aspects of the situation of asylum seekers in the Röszke transit zone, which is located on Hungarian territory, at the border with Serbia. One of the findings by the CJEU is that the accommodation in this transit zone amounts to a de facto detention of asylum seekers (§ 231). Yet, in the case of Ilias and Ahmed v. Hungary (see on this page, the post on this case), the ECHR found the same living conditions experienced by the applicants in the same transit zone not to have amounted to a deprivation of liberty within the meaning of Article 5 of the Convention, with the consequence that this provision was declared inapplicable.

Does it follow from this that EU law better protects asylum seekers from detention in transit zones? Not necessarily. The qualification as detention of the accommodation in a transit zone is indeed a pre-condition for the start of the four weeks deadline set by Article 43(2) of the Procedures Directive as the maximum length of detention of asylum seekers in such a zone. This means, in practical terms, that a detention of up to four weeks is in principle acceptable under EU law, regardless of individual circumstances.

By contrast, even if Article 5 of the Convention does not in principle apply from the very beginning of a stay in a transit zone such as Röszke, at the border of two States, this can change any time in view of individual circumstances, i.e. from the moment when restrictions to the liberty of movement of asylum seekers exceed what is strictly necessary for the processing of their asylum applications (see § 233 of the Ilias and Ahmed judgment). There is no reason why this could not occur before the expiry of a four weeks period, with the consequence that Article 5 would then most likely also be breached and require an immediate lifting of the impugned restrictions (see, mutatis mutandis, CEDH 23.2.2012, Creanga v. Romania, 29226/03, §§ 97 and 100).

Thus, this comparison clearly demonstrates the methodological differences between the two systems. While EU law operates on the basis of an abstract deadline of four weeks to be triggered by the finding of the existence of a detention from the beginning of the stay concerned, Article 5 of the Convention allows for a case-by-case assessment of the living conditions in transit zones and an “activation” of the ban on arbitrary detentions from the moment when those conditions exceed what is strictly necessary in the circumstances.

Consequently, domestic courts of EU Member States should not confine themselves to examining such situations under only one of the legal systems concerned. For depending on the circumstances, either of them can provide the higher protection against unlawful detention of asylum seekers. In such a situation, domestic courts of EU Member States are indeed bound to apply the higher protection (Article 52(3) of the EU-Charter).

On the notion of safe third country: judgment of the CJEU in the case of Bevándorlási és Menekültügyi Hivatal

The case of Bevándorlási és Menekültügyi Hivatal, adjudicated by the CJEU on 19 March 2020, is very similar to the case of Ahmed and Ilias v. Hungary (see below, on this page) which was decided a few months earlier, on 21 November 2019, by the ECHR. In both cases the main issue was the way Hungarian courts had made use of the possibility, provided for by article 33.2 (c) of the Procedures Directive, to declare a request for international protection inadmissible on the ground that a country which is not a Member State is considered as a safe third country for the applicant.

The CJEU found the domestic legislation not to have adequately transposed the Directive by omitting to incorporate some of its basic requirements, including the principle of non-refoulement. It thereby came, in substance, much to the same conclusion as the ECHR, which for its part had found, inter alia, Hungarian courts to have breached the procedural obligations flowing from Article 3 of the Convention.

Interestingly, however, and in contrast with the ECHR ruling, the CJEU elaborated on the requirement, for a third country to be able to be considered safe, that there be a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country (Art. 38.2 (a) of the Directive). In its opinion, the mere fact of transiting through a specific country could not be considered as amounting to such a connection.

No such requirement flows from the Convention. In this respect, EU law would appear to offer a higher protection standard. This, however, is in line with Article 53 of the Convention, which allows States to exceed the minimum Convention protection standard, including on the basis of EU law (see, on this latter aspect, mutatis mutandis, M.N. v. Belgium (dec.), no. 3599/18, 5.5.2020, § 140).

Judgment of the CJEU in the case of “AGRO IN 2001”

In the case of AGRO IN 2001, a Bulgarian judge asked the CJEU whether under EU law he could lawfully order the confiscation of the assets of persons on account of criminal offences – embezzling of funds – the same persons had been charged with in criminal proceedings which were still pending. The CJEU ruled that the relevant legal instrument, Framework Decision 2005/212 on the confiscation of crime-related proceeds, instrumentalities and property (“the FD”), was not applicable in the present case, since the scope of the FD was limited to criminal proceedings, whereas under Bulgarian law the confiscation proceedings at stake were civil proceedings. Consequently, EU law did not preclude such confiscations.

What is somewhat striking about this ruling is that at no point the CJEU seems to have asked the question whether those confiscation proceedings, classified as civil under Bulgarian law, were not in fact criminal in nature, with totally different consequences, as is indeed suggested by the recent case-law of the ECHR in the case of G.I.E.M. S.R.L. and Others v. Italy (28.6.2018), which concerned a similar problem, i.e. confiscation measures applied without prior formal conviction for unlawful site developments.

In the latter case, rather than the formal approach based on domestic classifications, followed by the CJEU, a Grand Chamber of the ECHR went for a substantive approach guided by an autonomous interpretation of the relevant notions. Applying Article 7 of the Convention, which precludes the imposition of a penalty without a prior formal declaration of liability, the ECHR had to determine whether the impugned confiscations amounted to such a penalty. It thereby ruled that the domestic characterisation of confiscation measures or proceedings was, as such, not decisive in determining whether they were criminal or not. Rather, other criteria, such as the nature and purpose of such measures as well as their severity had also to be taken into account. The ECHR stated in particular:

The Court concludes that the impugned confiscation measures can be regarded as “penalties” within the meaning of Article 7 of the Convention. This conclusion, which is the result of the autonomous interpretation of the notion of “penalty” within the meaning of Article 7, entails the applicability of that provision, even in the absence of criminal proceedings within the meaning of Article 6. Nevertheless, … it does not rule out the possibility for the domestic authorities to impose “penalties” through procedures other than those classified as criminal under domestic law. (§ 233)

Consequently, such confiscation measures being criminal in nature, despite their different characterisation under domestic law, they could not have been lawfully ordered without a prior formal declaration of liability. This could also have been the answer under Convention law to the question asked by the referring court in the present case before the CJEU.

Had the CJEU adopted a similar, more substantive approach in determining the notion and scope of civil and/or criminal proceedings for the purpose of the FD, it could have extended the scope of the FD so as to cover the “civil” confiscations at stake, thereby allowing the safeguards relating to the protection of fundamental rights (Art. 4 and 5 of the FD) to apply in the present case. Instead, it would appear that in a case like this, only the Convention can help.