In the case of Ilva and Others (C-626/22, 25.6.2024), the CJEU dealt with the serious environmental pollution caused by the Ilva steelworks, Europe’s largest iron and steel works located in Taranto, which had previously also be at the centre of proceedings before the European Court of Human Rights because of the same concerns regarding the health of the residents of the polluted area.

The toxic emissions produced by the Ilva steelworks have indeed been the subject of several legal proceedings at European level in recent years. Thus, in 2011, in Commission v. Italy (C-50/10), the CJEU held that Italy had failed to adopt in respect of the Ilva steelworks the measures required under Directive 2008/1 (concerning integrated pollution prevention and control). In 2014 the European Commission gave a reasoned opinion urging the Italian authorities to take measures in order to bring the operation of the Ilva plant into compliance with Directive 2010/75 on industrial emissions, which replaced Directive 2008/1, and other applicable EU environmental law (IP/14/1151).

The ECtHR, for its part, held in Cordella and Others v. Italy (54414/13 and 54264/15, 24.1.2019) that the 180 applicants in these cases had been the victims of violations of Articles 8 (right to respect for private and family life) and 13 (right to an effective remedy) of the Convention.

As regards Article 8, the ECtHR highlighted the failure of national authorities to effectively address the environmental pollution caused by the Ilva steel plant. It noted that despite various initiatives since 2012 aimed at reducing the plant’s environmental impact, the necessary measures had not been implemented, leading to legal action by the European Union. Additionally, the environmental remediation plan approved in 2014 had been delayed until August 2023. The Government’s interventions had focused on maintaining the plant’s operations, even though judicial authorities had identified serious health and environmental risks. Thus, this prolonged pollution endangered public health and violated the right to privacy, with authorities failing to properly balance individual and societal interests.

In addition, the ECtHR found a violation of Article 13 of the Convention, on account of the absence of an effective remedy enabling the applicants to obtain measures ensuring the decontamination of the areas affected by the harmful emissions from the plant.

In terms of the execution of its judgment, the ECtHR noted under Article 46 of the Convention that it was not its role to provide detailed, prescriptive recommendations to the Government. Instead, it was the responsibility of the Committee of Ministers of the Council of Europe under Article 46 of the Convention to advise the Government on the practical measures needed to implement the judgment. However, the ECtHR emphasized the urgent and critical importance of proceeding with the decontamination of the plant and the surrounding area affected by environmental pollution. The approved environmental plan, which outlined the necessary actions to protect the environment and public health, had to be executed as quickly as possible. To date, the monitoring of the execution of the ECtHR’s judgment by the Committee of Ministers has already produced some results but could not be completed yet.

In Ilva and Others, the CJEU was confronted with basically the same problem, but from a different angle, that of Directive 2010/75 on industrial emissions, read in the light of Article 191 TFEU and Articles 35 (health care) and 37 (environmental protection) of the EU-Charter. This Directive adopts a more procedural approach by mainly focussing on pre-defined requirements for the granting or reconsidering of a permit to operate an industrial installation. On the basis of Directive 2010/75, the CJEU notably held that:

a) the procedures for the grant and reconsideration of an operating permit had to include a prior assessment of the effects of the activity of an installation such as the Ilva steelworks on the environment and on human health;

b) in the reconsideration procedure all polluting substances linked to the installation’s activity had to be taken into account, even those which were initially not assessed;

c) as provided for by Article 8(2) of the Directive, where the activity of the installation concerned presents serious and significant risks to the integrity of the environment and human health, the operation of that installation had to be suspended.

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What conclusions can be drawn from a comparison of these two approaches?

First, it seems clear that the ultimate goal of both rulings is the immediate reduction of the impugned emissions to a level which is no longer harmful to the environment and the health of the persons living in the area concerned. Under EU law this may require the suspension of the operation of the steelworks.

However, this goal is being pursued in different ways, depending on the legal basis being relied on. For the ECtHR, the decontamination of the area is the way to the achievement of that goal, and the concrete measures to that effect are to be left to the assessment of the Committee of Ministers, which is in charge of the execution of the ECtHR’s judgments (Art. 46). The CJEU, for its part, focusses on a comprehensive and thorough assessment of the risks of pollution which must be carried out by the domestic authorities and serve as a basis for the assessment, prior to the delivery or renewal of an operating permit, as to whether the Ilva plant meets the European standards regarding emissions, failing which the operation of the Ilva plant may have to be suspended.

Thus, at the risk of over-simplifying, one could say that Strasbourg sets an obligation of result, whereas Luxembourg goes for an obligation of means.

The Strasbourg approach is based on general provisions enshrining fundamental rights. It is therefore more flexible in that it more easily allows for the final objectives regarding the protection of the environment in a given area to be defined on a case-by-case basis, in light of the circumstances of each individual case. It should be borne in mind, in this connection, that Article 8 is indeed the basis for a whole line of case-law addressing a large variety of different forms of local pollution (see the case-law guide on the environment). By contrast, the Luxembourg approach is more detailed and prescriptive, but also more foreseeable, based as it is on detailed provisions of secondary law setting, category by category, pre-defined standards applicable in the same way to all polluting activities belonging to one of the categories concerned.

Yet, judged by their efficiency, none of these two approaches seems preferable or more successful, as despite some partial improvements, the overall situation in Taranto following Commission v. Italy and Cordella and Others v. Italy remains unsatisfactory. This shows the limits of European judicial review in the face of recalcitrant national authorities.

But at least can these different approaches be said to be complementary. First, because they are not incompatible with each other. On the contrary: the more general Strasbourg objectives, which are systematically monitored by the Committee of Ministers, can usefully be complemented and concretised by the specific procedural steps required under EU law, the enforcement of which however requires infringement proceedings to be launched on a case-by-case basis by the European Commission.

Secondly, together the two sets of proceedings surely brought already more pressure to bear on the local authorities to take remedial action than if only one European authority had acted. In other words, the current situation could well have been worse without the combined intervention of the CJEU, the ECtHR, the European Commission and the Committee of Ministers of the Council of Europe. Could this perhaps be a blueprint for other similar cases in the future?

What is now the bottom line of all the above? In other words, and in practical terms, what should be the approach by national judges and prosecutors in this field? In response, it would appear that since the prescriptions of the rulings in Ilva and Cordella are compatible with each other, national judges and prosecutors do not need to have any reservations in applying either of them as required.

In the cases of NW and PQ (C-420/22 and C-528/22, 25.4.2024), the CJEU ruled on the withdrawal, on the basis of classified information, of the residence permit of a third-country national bringing up a child who is a Union citizen. It found in essence that this withdrawal must be subject to an effective remedy.

This ruling naturally invites to a comparison with the case of Muhammad and Muhammad v. Romania (80982/12) which was decided by a Grand Chamber of the ECtHR on 15.10.2020. It concerned proceedings as a result of which the applicants, Pakistani nationals living lawfully in Romania, were declared undesirable and deported, here too on the basis of classified information to which they had been denied access.

The set up of legal remedies in Europe is such as to allow decisions made by domestic courts of EU Member States on the basis of CJEU preliminary rulings to be made the subject of an application before the ECtHR. This is no different in the present case: domestic decisions implementing the ruling in NW and PQ can be challenged in Strasbourg on the basis of, notably, Muhammad and Muhammad. This makes a comparison of these two jurisprudences all the more interesting.

In NW and PQ, the CJEU based its reasoning on Article 20 TFEU (on citizenship of the Union), Directive 2003/109 concerning the status of third-country nationals who are long-term residents and Article 47 of the EU-Charter (right to an effective remedy and to a fair trial). In Muhammad and Muhammad, the ECtHR applied Article 1 of Protocol No. 7 to the Convention, on procedural safeguards relating to the expulsion of aliens.

Despite these quite different legal provisions, the two European Courts appear to agree to a very large extent on the guiding principles to be applied in respect of the expulsion of aliens on the basis of classified information to which access was denied in full or in part.

As the ECtHR put it:

Under Article 1 of Protocol No. 7, a right is secured to the alien to be informed, preferably in writing and in any event in a way allowing an effective defence, of the content of the documents and the information relied upon by the competent national authority which is deciding on the alien’s expulsion, without prejudice to the possibility of imposing duly justified limitations on such information if necessary. Article 1 § 1 of Protocol No. 7 requires in principle that the aliens concerned be informed of the relevant factual elements which have led the competent domestic authorities to consider that they represent a threat to national security and that they be given access to the content of the documents and the information in the case file on which those authorities relied when deciding on their expulsion. (§§ 128-129)

The CJEU, for its part, stated:

It follows from the Court’s settled case-law that if the judicial review guaranteed by the first paragraph of Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information, so as to make it possible for the person concerned to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question. (§ 81)

As regards the possibility of restrictions on these rights on grounds of national security, the two Courts are on the same line too.

The ECtHR indeed ruled:

Nevertheless, any limitations of the rights in question must not negate the procedural protection guaranteed by Article 1 of Protocol No. 7 by impairing the very essence of the safeguards enshrined in this provision (see, mutatis mutandis, Regner, cited above, § 148). Even in the event of limitations, the alien must be offered an effective opportunity to submit reasons against his expulsion and be protected against any arbitrariness. (§ 133)

The CJEU, for its part, stated:

Although the Member States may, in particular where national security so requires, decide not to grant the person concerned direct access to the entirety of his or her file in the context of a procedure relating to Article 20 TFEU, they cannot, without acting in breach of the principle of effectiveness, the general principle of sound administration and the right to an effective remedy, place the person concerned in a situation where neither that person nor his or her representative would be able to gain effective knowledge, where applicable in the context of a specific procedure designed to protect national security, of the substance of the decisive material contained in that file. (§ 97)

There is also convergence on how this is to be achieved in terms of the procedures to be followed. Both European Courts indeed concur in considering that there should be an independent review of the justification for the non-disclosure of the evidence for reasons of State security, and of the grounds on which the expulsion of the person concerned was decided. However, whereas the CJEU requires a judicial review, the ECtHR states that the review “should be entrusted to an authority, judicial or not, which is independent from the executive body seeking to impose the limitation” (§ 140).

Similarities, however, stop here. Some differences indeed appear as regards the modus operandi of this independent review. While both European Courts identify the same two possible scenarios, depending on whether the reviewing authority agrees, or not, with the impugned restrictions on the applicant’s access to the classified information and evidence, these scenarios give rise to different consequences.

In the event that the reviewing authority disagrees with the authority competent in matters of national security (“the competent authority”) as regards the need not to disclose some information to the person concerned, the ECtHR indeed requires the reviewing authority to be entitled to either declassify itself the classified information or invite the competent authority to review the said classification, failing which there will be a violation of Art. 1 of Protocol no. 7 (§ 142).

By contrast, the CJEU does not consider the possibility of a declassification to be required by Article 47 of the Charter, provided that the reviewing court has the power to draw “appropriate conclusions” from the refusal to declassify, i.e. the power to disregard any information which was not disclosed to the person concerned when making its decision on the residence permit at stake, which seems a more radical solution (§§ 113-115).

But what if the reviewing authority agrees with the non-disclosure of all or part of the classified information? The European Courts concur in considering that this conclusion can only be the result of a weighing up, by the reviewing authority, of the national security interests against the alien’s interests, the purpose being to ensure that the very essence of the rights of the person concerned is preserved and that the substance of the grounds for the impugned decision is communicated to that person (Muhammad and Muhammad § 143, 145; NW and PQ, § 111, relying on ZZ).

How is this to be achieved? The CJEU is completely silent on this. Yet it is clear that such decisions which confirm the impugned expulsion on the basis of non-disclosed classified information are likely to be challenged on the merits, as happened e.g. in Muhammad and Muhammad and, mutatis mutandis, before the Belgian Supreme Administrative Court (Conseil d’Etat) in the case which gave rise to the Advisory Opinion on Request no. P16-2023-001.

This is an important aspect for national judges and authorities, as it raises the question of the test to be applied by the reviewing authority under Article 1 of Protocol no. 7, which is also the test which will be applied by the ECtHR in the event of an application against a final domestic judgment, regardless of whether it is compliant with the CJEU’s case-law.

According to the ECtHR, this test is about whether, in the light of the proceedings as a whole, the very essence of the rights secured to the alien by Article 1 § 1 of Protocol no. 7 has been preserved (§ 157). Consequently:

Should the national authorities have failed to examine – or have insufficiently examined and justified – the need for limitations on the alien’s procedural rights, this will not suffice in itself to entail a violation of Article 1 § 1 of Protocol No. 7. In any event, the Court will also ascertain whether any counterbalancing measures have been applied in the case at hand and, if so, whether they were sufficient to mitigate the limitations of the alien’s procedural rights, such as to preserve the very essence of those rights. (§ 144)

As non-exhaustive examples of such counterbalancing measures, the ECtHR mentions those which relate to the relevance of the information actually disclosed to the alien, the information provided as to the conduct of the domestic proceedings, the representation of the alien and the powers of the reviewing independent authority (§§ 151-157).

Applying these criteria in Muhammad and Muhammad v. Romania, the ECtHR found a violation of Article 1 of Protocol No. 7, on the ground that the limitations imposed on the applicants’ enjoyment of their rights under that provision had not been counterbalanced in the domestic proceedings such as to preserve the very essence of those rights (§ 206).

In its Advisory Opinion on Request no. P16-2023-001 “on whether an individual may be denied authorisation to work as a security guard or officer on account of being close to or belonging to a religious movement”, the ECtHR relied on the same criteria in respect of the classified information which had not been disclosed to a claimant who challenged the refusal by the administration to give him the authorisation to work as a security guard. In this case, the Belgian Supreme Administrative Court, despite having the power to consult the classified documents compiled by the State Security Service, had not made use of it until after the ECtHR’s Advisory Opinion which considered this power to be an important safeguard, along with others (§§ 48 and 117).

In sum, both the Convention and EU law accept that information and evidence serving as the basis for a decision to expel an alien may need to remain undisclosed for State security reasons, but only on condition that the very essence of the defence rights of the person concerned is preserved, which requires a review by an independent authority. However, unlike the CJEU, the ECtHR is much more explicit about the test, the criteria and the safeguards to be applied by that authority, the decisions of which can, if final, be made the subject of an application in Strasbourg.

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In light of the above, the question arises what lawyers should plead and what national judges should decide in proceedings challenging the use of classified documents to which access has been denied.

Given the obligation to apply EU law in compliance with the Convention (Bivolaru and Moldovan v. France, § 103; M.B. v. the Netherlands) and the legal possibility for the Strasbourg protection standard to be raised by EU law (Art. 52(3) of the EU-Charter and Art. 53 of the Convention), lawyers and judges should go for the higher of the two standards, thereby differentiating between the issues.

This means, in concrete terms, that judges could be allowed, under EU law, to simply disregard documents the classification of which they consider unjustified in the circumstances but that, as regards the examination of whether a justified classification has nonetheless preserved the rights of the defence to a sufficient degree, they should rely on the Strasbourg criteria. This is of course without prejudice to any obligations on domestic courts under Article 267 TFEU.

In the case of European Commission v. Hungary (Déclaration d’intention préalable à une demande d’asile) (C-823/21, 22.6.2023), the CJEU applied Article 6 of Directive 2013/32 (the Procedures Directive), which regulates access to the procedure for international protection, to the situation of migrants at the State border.

The CJEU ruled that Hungary had failed to fulfil its obligations under Article 6 of Directive 2013/32 because it had made the possibility, for certain third-country nationals or stateless persons present in the territory of Hungary or at its borders, of making an application for international protection subject to the prior lodging of a declaration of intent at a Hungarian embassy located in a third country and to the granting of a travel document enabling them to enter Hungarian territory. Thus, these people have to leave Hungary and come back with papers delivered by a Hungarian embassy abroad before being able to apply for international protection.

In essence, the CJEU’s ruling is based on the following five considerations.

1. Article 6 of Directive 2013/32 allows any third-country national or stateless person to make an application for international protection, including at the borders of a Member State (Art. 3(1)), by expressing his or her wish to benefit from international protection to one of the authorities referred to in that article, without the expression of that wish being subject to any administrative formality. That right must be recognised even if that person is staying illegally on the territory of the Member State concerned and irrespective of the prospects of success of such a claim (§ 43).

2. The obligation imposed on migrants at the border by the impugned Hungarian legislation is not provided for by Article 6 of the Directive and runs counter to the objective pursued by it, which is to ensure effective, easy and rapid access to the procedure for granting international protection (§ 51).

3. This obligation also deprives migrants of their right, under Article 18 of the EU-Charter, to effectively seek asylum (§ 52).

4. A Member State cannot unjustifiably delay the time at which the person concerned is given the opportunity to make his or her application for international protection (§ 47).

5. The public health and public policy and security grounds invoked by the Hungarian government as justification for this scheme are ill-founded (§§ 54-69). 

Interestingly, , in the landmark case of N.D. and N.T. v. Spain a unanimous Grand Chamber of the European Court of Human Rights recently dealt with the same topic, i.e. the forcible return of migrants from the Spanish border surrounding the enclave of Melilla. It did so under Articles 4 of Protocol No. 4 (prohibition of collective expulsion) and 3 of the Convention (prohibition of ill-treatment, including refoulement). In that same judgment, the ECtHR set out its doctrine about the rights and duties of migrants at the border of Contracting States. It is based on the following five principles, listed hereinafter with relevant excerpts from the judgment.

1. No formalities are required for a valid application for asylum

In the specific context of migratory flows at borders, the wish to apply for asylum does not have to be expressed in a particular form. It may be expressed by means of a formal application, but also by means of any conduct which signals clearly the wish of the person concerned to submit an application for protection. (N.D. and N.T., § 180)

2. The non-admission of a refugee is to be equated with refoulement

The “non-admission” of a refugee is to be equated in substance with his or her “return (refoulement)”. Consequently, the sole fact that a State refuses to admit to its territory an alien who is within its jurisdiction does not release that State from its obligations towards the person concerned arising out of the prohibition of refoulement of refugees. (§ 181)

3. The protection of the Convention is not subject to formal considerations

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)

4. Expulsion is to be understood as any forcible removal of an alien from a State’s territory

The term “expulsion” is to be interpreted in the generic meaning in current use (“to drive away from a place”), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border. (§ 185)

5. States must make available genuine and effective access to means of legal entry, in particular border procedures

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. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution. (§ 209)

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 (§ 210)

What conclusions can be drawn from a comparison of these two rulings?

The good news is that in terms of their outcome, i.e. the obligations of States regarding the treatment of migrants at the border, the two rulings appear to be very similar in that in essence, they both require the effective possibility for migrants at the border to make an application for international protection.

A striking difference, though, lies in the approach followed by each of the two European Courts. Whereas the CJEU adopted a rather textual approach based on the wording of Articles 6 and 3(1) of Directive 2013/32 and previous case-law, the ECtHR adopted a more principled approach, thereby going to great lengths, notably with a thorough analysis of the current state of international law, to explain that what is at stake in such cases are two basic fundamental rights of migrants, i.e. the right not to be subject to refoulement or collective expulsion. By contrast, nothing is said about these fundamental rights in Commission v. Hungary, despite the suggestion by the Commission that this case is in fact about refoulement (§ 23). The resulting impossibility for migrants at the Hungarian border to seek asylum is mentioned only incidentally by the CJEU (§ 52).

This is indeed the paradox of Commission v. Hungary and several other similar rulings: it is ultimately about basic fundamental rights, but nothing is said about them. Instead, the matter is addressed on the basis of a textual interpretation of “ordinary” provisions of secondary law of a rather technical nature. These provisions may perhaps have the same concrete impact in practice, but they also have the effect of trivialising the issues at stake and ignoring what is their very essence.

While the main issue characterising the situation of migrants at the Hungarian and other State borders is ultimately one of basic fundamental rights, i.e. one of refoulement and collective expulsion, as recently confirmed in S.S. and Others v. Hungary, this issue is being ignored in European Commission v. Hungary and treated as just another breach of an ordinary provision of EU law. The Strasbourg case-law therefore seems a good reminder of the deeper issues behind these ordinary provisions.

The practical relevance of this distinction is that, being of a higher rank and less easily modifiable, fundamental rights can be expected to provide a better protection in the long run. Moreover, they raise the importance of the issues involved, preventing them from being considered as purely technical matters.

In the case of Koilova and Babulkova v. Bulgaria (40209/20, 5.9.2023), the European Court of Human rights found a violation of Article 8 of the Convention (right to respect for private and family life) on account of the failure by the Bulgarian authorities to set up a legal framework allowing same-sex couples to be granted adequate recognition and protection of their relationship.

The applicants, two women who married in the United Kingdom and live in Sofia, were denied the right to have their marriage entered in the Bulgarian civil status register, on the ground that under the Bulgarian legal system a marriage could only be between a man and a woman.

This case provides a good opportunity to compare with each other the Strasbourg and Luxembourg approaches to same-sex couples. While the former is based on the right to respect for private and family life, the latter relies on the right of EU citizens to move and reside freely within the territory of the Member Sates.

In essence, what Article 8 of the Convention requires is, as confirmed by Koilova and Babulkova, that Member States provide a “legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship”, there being some margin of appreciation in determining the exact nature of the legal regime to be put in place. It does not necessarily have to take the form of a marriage (Fedotova and Others v. Russia, §§ 178 and 188).

The CJEU, for its part, developed its own case-law on the legal recognition of same-sex couples under Union law, notably in Coman and Othersand Stolichna obshtina, rayon “Pancharevo”.

Coman and Others was about a same-sex couple which married in Belgium, where they lived for a couple of years, and wanted to settle back in Romania, the country of origin of Mr Coman. His husband, however, was denied a resident permit on the ground that the Romanian legal order did not allow same-sex marriages. The CJEU ruled in essence that this refusal was in breach of Article 21(1) TFEU which enshrines the right for every citizen of the Union to move and reside freely within the territory of the Member states. It stated, inter alia:

Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those of the main proceedings, a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that State has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months.

Stolichna obshtina, rayon ‘Pancharevo’, for its part, was about a minor child who is a Union citizen and whose birth certificate, issued by the Spanish authorities, designated as that child’s parents two persons of the same sex. The Bulgarian authorities refused to issue identity papers to the child on the basis of the Spanish birth certificate, arguing that this would contravene the Bulgarian public order which only allowed a man and a woman to be registered as the parents of a child. The CJEU ruled inter alia that the Member State of which that child is a national, i.e. Bulgaria, was obliged to recognise the document from the host Member State, i.e. Spain, which permits that child to exercise, with each of those two persons, his or her right to move and reside freely within the territory of the Member States.

When comparing those two approaches, the following observations would appear relevant:

• First of all, Koilova and Babulkova is another example of the ECtHR correcting the effects of mistakes made at domestic level in assessing Union law requirements. In this case, the Bulgarian administrative courts had indeed stated that their position was in line with Union law, as well as the Convention (§ 6). One may wonder why the Bulgarian courts did not make a reference for a preliminary ruling by the CJEU.
• The CJEU case-law is based on the right of EU citizens to move and reside freely within the territory of the Member States (Art. 21(1) TFEU and 45(1) of the EU-Charter). Thus, it would appear not to apply to situations where the legal status the recognition of which is sought in a EU Member State has been granted outside the EU.
• Furthermore, the recognition in a Member State of the status granted in another Member State is imposed for the effective enjoyment of the right to move and reside freely within the EU. By its very nature, it presupposes that the EU citizen concerned made effective use of that right, notably by living in another Member State than the one which granted the status the recognition of which is being sought. As such, a person’s status is a matter which indeed falls within the exclusive competence of the Member States (Coman and Others, § 37).
• These are notable differences with the Strasbourg case-law based on Article 8 of the Convention. The latter indeed applies to the entire jurisdiction of the Contracting States and to all persons subject to their jurisdiction, regardless of their biography or nationality.
• However, as stated above, Article 8 does not require the benefit of a specific status for same-sex couples, but only an adequate recognition and protection of their relationship, i.e. an effective protection of their right to private and family life (Koilova and Babulkova, § 46). By contrast, EU law requires the recognition of the specific status which was granted by the host Member State. This may entail an obligation to recognise a same-sex marriage, at least for the purpose of the exercise of the right to move and reside freely, as in Coman and Others.
• Finally, one should note the references made by each European Court to the case-law of the other, which testifies of the cross-fertilisation taking place between the two in this area.