Category Archives: European Court of Human Rights

Trends 2021-25: Taking stock of the interplay between the European Convention on Human Rights and EU Law

In addition to the multiple presentations of individual judgments on this platform, a regular stock-taking of the general situation of the interplay between Strasbourg and Luxembourg, and its evolution, might be useful in order to have an overview of the current situation and an idea of the direction of travel.

This is the purpose of the short paper below, which is an updated and complemented version of the 2024 edition. It sets out, with many case-law illustrations listed by area, the main trends characterising that interplay since 2021.

It is sometimes claimed that the protection of fundamental rights in Luxembourg and Strasbourg is virtually similar, any differences being negligible. This is an over-simplification of the issue. The real picture is much more differentiated, with significant consequences at domestic level, because of their impact on the precise level of protection which judges and prosecutors will apply and, ultimately, citizens will benefit from. This is indeed where the effects of this interplay are being felt on a daily basis.

The following conclusions emerge from this paper:

  1. The areas of divergence are confirmation of the optionality of the Convention in EU law, resulting in the benchmark function of the Convention being only occasionally acknowledged (see Optionality of the Convention).
  2. The EU legal system is autonomous, but the national judges and prosecutors are not, because they remain subject to the Convention and must apply EU law in compliance with it, which requires a comparison of the respective levels of protection. Compliance with the Convention in the application of EU law can be made the subject of an application before the ECtHR resulting in the finding of a violation of the Convention, as in Bivolaru and Moldovan v. France, M.B. v. the Netherlands and H.T. v. Germany and Greece.
  3. Consequently, in the field of fundamental rights, EU law is not the end of the story. Rather, a wholistic approach is called for, which takes into account the interplay between EU law and the Convention.
  4. As Executief van de Moslims van België shows, the last possible stop of a case as regards fundamental rights is Strasbourg and its ultimate benchmark is the Convention, as minimum standard. From this perspective, it makes little sense not to take into account from the start what is going to be the ultimate benchmark at the end anyway. The goal is not uniformity but cross-system compatibility of the case-law.
Trends 2021-25Download PDF

General presumption of compliance vs. systemic flaws – Judgment of the ECtHR in the case of H.T. v. Germany and Greece

In the case of H.T. v. Germany and Greece (13337/19, 15.10.2024) the ECtHR ruled on the transfer of an asylum seeker from Germany to Greece under the Dublin III Regulation (604/2013).

The case concerns a Syrian national who in 2018 was removed from Germany to Greece, on the day of his arrival in Germany, under an administrative arrangement concluded in 2018 between the two countries to facilitate Dublin returns to Greece: the “Administrative Arrangement between the Ministry of Migration Policy of the Hellenic Republic and the Federal Ministry of the Interior, Building and Community of the Federal Republic of Germany on cooperation when refusing entry to persons seeking protection in the context of temporary checks at the internal German-Austrian border”.

This arrangement regulated the “cooperation when refusing entry to persons seeking protection in the context of temporary checks at the border between the Federal Republic of Germany and the Republic of Austria”. It provided inter alia that Greece would readmit persons who at the German border would be denied entry because they already requested international protection in Greece. Returns to Greece had to be carried out by air only, at the Athens airport.

Pursuant to this agreement, the applicant was returned from Germany to Greece on 4 September 2018. The order refusing him entry in Germany was based on section 18(2) point 2 of the German Asylum Act and stated that there were indications that Greece had a responsibility to take back the applicant, under the Dublin III Regulation.

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The application before the ECtHR, which has strong similarities with the case of M.S.S. v. Belgium and Greece, was directed against Germany and Greece.

In respect of Greece, the ECtHR found violations of Article 3 of the Convention (ill-treatment) because of the applicant’s conditions of detention following his return from Germany and of Article 5 § 4 of the Convention, on account of the lack of a remedy for the examination of the legality of his detention.

More interesting from a comparative Convention / EU law perspective, however, is the violation found by the ECtHR against Germany under the procedural limb of Article 3, on four different but complementary counts, which the ECtHR summed up as follows:

“The above-mentioned considerations are sufficient for the Court to conclude that the applicant’s removal from Germany to Greece was in violation of Article 3 of the Convention – notably the fact that at the relevant time (i) there was an insufficient basis for a general presumption that the applicant would, following his removal from Germany to Greece, have access to an adequate asylum procedure in Greece, protecting him against refoulement, and would not risk being exposed to treatment contrary to Article 3 there; (ii) neither the administrative arrangement on the basis of which the applicant was removed nor an individual assurance provided for any guarantees that asylum-seekers removed under that arrangement would, following their removal, have access to an effective asylum procedure in Greece in which the merits of their asylum claim would be assessed, and that asylum-seekers removed under that arrangement would not be exposed to treatment contrary to Article 3 in Greece on account of, for example, conditions of detention or living conditions for asylum-seekers; (iii) the German authorities had not demonstrated that they had assessed such risks before removing the applicant to Greece; and (iv) the applicant was hastily removed without having access to a lawyer prior to his removal.” (§ 150, emphasis added)

In its reasoning, the ECtHR stressed the following principles:

“In all cases of removal of an asylum-seeker from a Contracting State to a third intermediary country without examination of the asylum requests on the merits, regardless of whether the receiving third country is an EU member State or not or whether it is a State Party to the Convention or not, it is the duty of the removing State to examine thoroughly the question whether or not there is a real risk of the asylum-seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement … This examination must precede the removal to the third country … If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum-seekers should not be removed to the third country concerned.” (§ 138, emphasis added)

The ECtHR further found that on the basis of the information available, the German authorities knew or ought to have known about existing general shortcomings in the Greek asylum system. Thus, at that time, there was no sufficient basis for a general presumption that the applicant would, following his removal from Germany to Greece, have access to an adequate asylum procedure in Greece, protecting him against refoulement, and that he would not risk being exposed to treatment contrary to Article 3 there. (§§ 144-145)

That being so, the German authorities should have satisfied themselves, through respective guarantees in the administrative arrangement, or an individualised assessment, that the applicant did not run a real risk of being denied access to an adequate asylum procedure in Greece and would not be detained in conditions contrary to Article 3 there (§ 149).

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This judgment very well illustrates and confirms the methodology which the ECtHR applies to the returns of asylum seekers under the Dublin Regulation. This methodology, which was inaugurated in M.S.S. v. Belgium and Greece, appears slightly different from the methodology applied by the CJEU in such cases, as it was inaugurated in N.S. and Others and finds itself now enshrined in the text of the Dublin Regulation.

It is indeed well known that under Article 3(2), second subparagraph, of the Dublin III Regulation, a transfer to the Member State primarily designated as responsible for the processing of an application for asylum is only precluded in case of substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter (on this, see Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer)).

By contrast, the ECtHR takes it from the opposite angle by stating that it is only when there is a sufficient basis for a general presumption that an applicant would, following his/her return, have access to an adequate asylum procedure protecting against refoulement and that he/she would not risk being exposed to treatment contrary to Article 3 of the Convention that a transfer can be envisaged by the authorities of the transferring Member State (§§ 145,150). Where there is no such basis, a transfer can only take place if the transferring State has ensured, through an individualised assessment or individualised assurances (as in Tarakhel v. Switzerland and as recommended by the European Commission (see § 62)), that the treatment of the asylum seeker concerned in the receiving State will be Convention-compliant (§§ 64, 147, 149, 150).

Thus, rather than, as the CJEU, allowing transfers as long as the flaws in the receiving Member State are not “systemic”, the ECtHR precludes transfers as long as there is no basis for a general presumption, or no assurances, that the Convention rights of the individual concerned will be respected in that State.

The Strasbourg approach being obviously more protective of the individuals concerned, the question arises as to how national courts should handle these different levels of protection between Luxembourg and Strasbourg?

Since the Convention is the mandatory minimum protection level governing also the application of EU law by the courts of the Member States, and in light of Article 52(3) of the EU-Charter, it would appear that in the face of such differences, like in the present case, national judges should, wherever EU law falls below the Convention level, apply the latter, without prejudice to their possibility to consult the CJEU under Art. 267 TFEU. There is indeed no primacy of EU law over the Convention. Thus, failure to apply a higher Convention standard entails the risk of seeing the final domestic judgment in the case successfully challenged before the ECtHR, as in M.S.S. v. Belgium and Greece and, mutatis mutandis, Bivolaru and Moldovan v. France or M.B. v. the Netherlands.

Non-formalistic Convention control over the application of the Brussels II bis Regulation: judgment of the ECtHR in Giannakopoulos v. Greece

In Giannakopoulos v. Greece (20503/20, 3.12.2024) the ECtHR ruled on whether the Greek courts, in declaring themselves incompetent to deal with the applicant’s application for custody of his children in light of the Brussels II bis Regulation (“the Regulation”), had complied with Article 8 of the Convention (right to respect for private and family life).

The applicant in the present case, a Greek national, instituted proceedings before the Greek courts to obtain the sole custody of his two children who had been taken to Germany by his ex-wife. Applying the Regulation, the Greek courts considered that since the children had had in Germany their habitual residence for the purposes of Article 8 of the Regulation for more than one year, they were not competent to hear that case, contrary to the German courts.

The ECtHR found no violation of Article 8 of the Convention. It concluded:

“The Greek courts examined the case and gave judgments that paid particular consideration to the principle of the paramountcy of the interests of the children – who appeared to be very well integrated into their new environment (see, by contrast, Neulinger and Shuruk, cited above, §§ 145‑51). Their decisions do not appear arbitrary. The Court therefore finds no imperative reason to depart from the domestic courts’ findings in the case.The Court concludes that, having particular regard to the need to address the specific facts in children cases, the Greek courts’ assessment of the case in the light of the requirements of the Brussels II bis Regulation did not amount to a violation of Article 8 of the Convention, as it was proportionate to the legitimate aim pursued.” (§§ 76-77)

This case calls for the following six observations.

1. The case is an application of the principle, recalled by the ECtHR at § 55 of the judgment, according to which it must verify that the principle of mutual recognition is not applied automatically and mechanically to the detriment of fundamental rights. As the ECtHR specified in Avotiņš v. Latvia, § 116: if a serious and substantiated complaint is raised before [the courts of the Member States] to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law.

2. In the present case, the Greek courts obviously did not consider that any such serious and substantiated complaint had been raised before them. They rather concentrated on the issue of their own jurisdiction and therefore inquired about whether the habitual residence of the children, for the purposes of Article 8 of the Regulation, was in Greece or in Germany.

3. The ECtHR, for its part, did not refrain from assessing whether the domestic courts’ interpretation of the relevant provisions of the Regulation was arbitrary or manifestly unreasonable (§ 69). However, it concentrated on whether the interpretation and application of the provisions of the Regulation by the Greek Court of Cassation was consistent with the applicant’s rights as guaranteed under Article 8 of the Convention (§ 62). In this connection, it stated: “It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This also applies where domestic law refers to rules of general international law or to international agreements. The Court’s role is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention” (§ 70).

4. Compatibility with Article 8 of the Convention in a case like the present one means “that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents.” (§ 53)

5. The Greek courts obviously did not intend to deal with Article 8 of the Convention when trying to comply with Article 8 of the Regulation. However, in assessing where the children had their habitual residence, they relied, in line with the CJEU case-law, on several factual criteria (social and family environment, degree of integration, linguistic skills, etc.) which produced a result, the non-return of the children to Greece, which corresponded, in the ECtHR’s opinion, to the best interests of these children and, hence, was declared compatible with Article 8 of the Convention. Thus, the non-violation of that provision is not an automatic consequence of the application of Article 8 of the Regulation but will depend on the concrete circumstances of each case.

6. In sum, this judgment is another confirmation of the ECtHR’s jurisdiction over the application of EU law by the domestic courts of the Member States (see recently M.B. v. the Netherlands). In exercising this jurisdiction, the ECtHR concentrates on the end result and is not too formalistic as to whether it has been achieved by explicit reference to the Convention or not.

European harmony on age discrimination: judgment of the ECtHR in Ferrero Quintana

In the case of Ferrero Quintana v. Spain (2669/19, 26.11.2024), the ECtHR ruled on whether the applicant had been the victim of age discrimination, contrary to Article 1 of Protocol No. 12 to the Convention, as a result of the imposition of a maximum age limit of 35 years in a public competition aimed at filling several police officer positions within the police force (Ertzaintza) of the Basque Autonomous Community.

After a careful analysis of all the circumstances and having regard to the wide margin of appreciation of the national authorities, the ECtHR unanimously found no violation of that provision, because the impugned difference in treatment pursued a legitimate aim and was not disproportionate.

Interestingly, the CJEU had come earlier to a very similar conclusion in Salaberria Sorondo, a case initiated by another candidate in the same competition, but on the basis of Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, notably its Article 4(1) which provides that “ … Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

This ruling by the CJEU is abundantly quoted by the ECtHR in its statement of the relevant domestic and international legal sources. While only sparely referring explicitly to these quotes in its reasoning, the ECtHR, by developing very similar arguments, but following its own methodology, clearly drew a lot of inspiration from that Luxembourg ruling.

This case is therefore another interesting illustration of the substantial and procedural interaction between the Luxembourg and Strasbourg protection of fundamental rights, in spite of methodological differences.

There is substantive interaction when cross-fertilisation is taking place between the Strasbourg and Luxembourg jurisprudence, despite the sometimes different legal provisions and methodologies being applied by each of the European Courts, as in the present case.

There is procedural interaction when, as in the case at hand, the same issues come, at different stages of the proceedings, before both European Courts, with the ECtHR coming last, as was also the case, mutatis mutandis, in Centraal Israëlitisch Consistorie van België and Others.

In Centraal Israëlitisch Consistorie van België and Others, however, the CJEU in giving its ruling had amply relied on the Strasbourg case-law on freedom of religion, which prompted the ECtHR, as it explicitly admitted, to exercise, for the sake of upholding subsidiarity and case-law harmony, some “self-restraint” as regards the Luxembourg approach. By not doing so in Salaberria Sorondo, the CJEU took a greater risk of not being followed by the ECtHR, with possible consequences for national judges and citizens.

Environmental pollution caused by the Ilva steelworks – judgment of the CJEU in Ilva and Others, compared with Cordella and Others v. Italy

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.

Similarities and differences between Strasbourg and Luxembourg on classified documents used in expulsion cases – Judgment of the CJEU in the cases of NW and PQ, compared with Muhammad and Muhammad v. Romania

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.

ECHR leading judgments on EU law

In the context of the launch of a new “ECHR/EU” page on its Knowledge-Sharing platform, the European Court of Human Rights recently published an overview (see below) of its leading judgments on EU law, i.e. those judgments and decisions which set out the key principles on the status of EU law under the Convention and their effects in a number of significant areas.

This is the first overview of its kind. The topics addressed by it, which are not exhaustive and will be gradually expanded, currently include:

◾ The responsibility of EU Member States under the Convention when applying EU law
◾ The absence of responsibility of the EU under the Convention
◾ The Bosphorus presumption (of “equivalent protection”)
◾ Mutual recognition in general
◾ The European arrest warrant
◾ The Dublin Regulation
◾ Child abduction (Brussels II bis Regulation)
◾ The obligation to give reasons for the refusal to make a reference for a preliminary ruling
◾ The manifest error of law

The key principle common to these leading judgments is the Convention liability of EU Member States for their apploication of EU law. It means that in applying EU law, domestic judges and prosecutors are required to ensure a level of protection of fundamental rights compatible with that of the Convention (see, for a recent illustration, M.B. v. the Netherlands). Thus, for them, EU law is not the end of the story. The said overview contains numerous examples of how this translates into everyday practice.


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The interplay between the European Convention on Human Rights and EU law in the field of migration

On the occasion of the conference on the use of the Charter of Fundamental Rights of the EU in asylum litigation, held in Luxembourg on 4-5 June by the European Council on Refugees and Exiles (ECRE), I was given the opportunity to make a presentation on “The interplay between the European Convention on Human Rights and EU law in the field of migration”. Below is the Powerpoint relating to my presentation.

While it is impossible to be exhaustive when considering the vast area of migration law, the following trends would nonetheless appear to emerge from such a comparative analysis.

  • EU law and the Convention converge as regards the main principles governing the procedures for the application of international protection, including the right for any person to make such an application at the border of a State, regardless of any formalities, and the prohibition of refoulement and pushbacks.
  • However, EU law and the Convention diverge on when there is detention of applicants for international protection and on the grounds which can justify such a detention.
  • As the CJEU itself recently noted, EU law and the Convention are on the same page when it comes to the requirements of subsidiary protection under Art. 15 of the Qualification Directive (click here for the post dealing with this issue).
  • The Dublin III Regulation, as recently applied by the CJEU in C-392/22 in respect of pushbacks and detentions at the Polish border with Belarus, gives rise to some concerns as to whether the approach thus followed might not be creating two different categories of fundamental rights and, moreover, collectivising their assessment, which would be in contrast with the Strasbourg case-law (click here for the post dealing with this issue).
  • For the sake of coherence and legal certainty, fundamental rights should be approached, not least by the European Courts, in a wholistic way, i.e. in their mutual interplay, the purpose not being uniformity but cross-system compatibility between EU law and the Convention. In this way, national judges will find it easier to apply EU law in conformity with the Convention, as they are required to do under the Convention, failing which a violation can be found, as in M.B. v. the Netherlands.
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The Convention and the Reception Conditions Directive: judgment of the ECtHR in the case of M.B. v. the Netherlands

In the case of M.B. v. the Netherlands (71008/16, 23.4.2024) the European Court of Human Rights found a violation of Article 5 § 1 of the Convention (right to liberty and security) in respect of an applicant who was detained, on the ground that he posed a threat to public order, pending the assessment of his application for asylum.

What makes this judgment interesting in terms of the interplay between the Convention and EU law is the fact that the domestic legal basis for the impugned immigration detention, the Dutch Aliens Act 2000, transposed in domestic law the EU Reception Conditions Directive (No 2013/33), which prompted the domestic courts to interpret the Aliens Act 2000 in light of that Directive and the case-law of the CJEU relating to it.

The first issue arising in this case was about the domestic legal basis for the applicant’s immigration detention. The Dutch Regional Court considered that this basis was provided by Section 59b(1)(d) of the Aliens Act 2000, which transposed into the Dutch legal system Article 8(3)(e) of the Reception Conditions Directive allowing detention of an applicant for international protection “when protection of national security or public order so requires”.  In reaching that conclusion, the Regional Court relied on the case-law of the CJEU relating to that provision, notably in the case of N. (C-601/15 PPU). At the same time, it pertinently noted that “the considerations of the CJEU do not take away from the fact that the treaty provisions in the [Convention] have independent effect in the Dutch legal order and that the court can also directly review the contested decision against Article 5 [of the Convention]” (§ 61).

The ECtHR accepted the domestic courts’ findings that Section 59b(1)(d) provided the domestic legal basis for the applicant’s detention. It thereby recalled its well-established case-law according to which, first, it is not competent to apply – or examine alleged violations of – EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention (§ 61) and, secondly, the interpretation of domestic law provisions, including its conformity with EU law, falls primarily to the national authorities, notably the courts (§ 62; in the same sense: § 64).

The second issue was about the conformity of that domestic legal basis with Article 5 § 1 f) of the Convention. The difficulty here was the fact that while Article 5 § 1 f), unlike Article 8(1) of the Reception Conditions Directive, allows the detention of an applicant for international protection for the period of time needed for the processing of his/her application (Saadi v. the United Kingdom), it does not allow, unlike Art. 8(3)(e) of that same Directive, their detention on grounds relating to the protection of national security or public order, which under Dutch law can last up to six months (Section 59b(4) of the Aliens Act 2000). The ECtHR noted in this connection:

“Although Article 8 (3) e of the Reception Conditions Directive permits, from an EU-law standpoint, detention when national security or protection of public order so requires, this has no bearing on the fact that Article 5 § 1 (f) of the Convention only allows for immigration detention to prevent unauthorised entry or to effect deportation.” (§ 72, emphasis added)

Consequently, the only chance for the applicant’s immigration detention to be found compatible with Article 5 § 1 f) of the Convention was for it to have, in the circumstances of the present case, a sufficiently close connection with the aim of preventing the applicant’s unauthorised entry. This, however, was denied by the ECtHR, on the ground that the national authorities had not used the time previously spent by the applicant in criminal law detention to take steps to further the examination of his application. The ECtHR stated inter alia:

“The Court can understand the legitimate concerns which exist when an asylum applicant is released from detention shortly after having been convicted on terrorism related charges. However, this cannot lead to “preventive detention”, nor can it absolve a State of its obligations under the Convention. It is moreover undisputed that during the applicant’s (pre-trial) detention between 30 November 2015 and 23 September 2016, no steps were taken to assess his asylum application, such as conducting interviews to enable a determination of his claim, including his possible exclusion from international protection on the basis of Article 1F of the Refugee Convention … Consequently, this immigration detention appears disproportionate, even unnecessary, as many of the steps required to assess the asylum application could have been taken during the criminal law detention without the need to subsequently keep the applicant in immigration detention.” (§ 73)

Thus, the ECtHR found the applicant’s detention to be arbitrary, for lack of a sufficiently close connection between his immigration detention and the aim of preventing his unauthorised entry, and therefore in breach of Article 5 § 1 of the Convention.

The following three conclusions can be drawn from this case regarding the interplay between the Convention and EU law:

  1. Within one single area, here the detention of applicants for international protection, the respective levels of protection can vary between the Convention and EU law depending on the aspect considered. This calls for a differentiated analysis: whereas EU law allows the detention of applicants on grounds of national security or public order, the Convention does not; but whereas EU law does not allow detention of applicants merely to facilitate the processing of their applications, the Convention does.
  2. What matters at the end of the day in Strasbourg, however, is only whether the Convention minimum protection level has been ensured by the domestic courts, without prejudice to a higher level being applied by them, notably under EU law. As the ECtHR put it, a lower level of protection, as provided e.g. by Article 8(3)(e) of the Reception Conditions Directive, has “no bearing” on the applicable higher Convention protection level.
  3. This variety of legal scenarios calls for a wholistic approach which takes into account the full range of interactions between the national, EU and Convention legal orders.

Trends 2021-24: Taking stock of the interplay between the European Convention on Human Rights and EU Law

After many presentations of individual judgments in recent years, time has come for a stock-taking of the general situation of the interplay between Strasbourg and Luxembourg.

This is the purpose of the short paper below. It sets out, with many case-law illustrations listed by area, the main trends characterising that interplay since 2021. These areas are: procedural rights in criminal proceedings, judicial independence, freedom of religion, the right to be forgotten, migration, the European arrest warrant, abduction of children, non bis in idem and the protection of personal data.

It is sometimes claimed that the protection of fundamental rights in Luxembourg and Strasbourg is virtually similar, any differences being negligible. This is an over-simplification of the issue. The real picture is much more differentiated, with significant consequences at domestic level, because of their impact on the precise level of protection which judges and prosecutors will apply and, ultimately, citizens will benefit from. This is indeed where the effects of this interplay are being felt on a daily basis.

The following five conclusions emerge from this paper:

  1. Whereas the areas of convergence are a reason for satisfaction, the areas of divergence represent a challenge for national judges and prosecutors.
  2. The EU legal system is autonomous, but the national judges and prosecutors are not, because they remain subject to the Convention and must apply EU law in compliance with it, which requires a comparison of the respective levels of protection.
  3. Consequently, in the field of fundamental rights, EU law is not the end of the story. Rather, a wholistic approach is called for, which takes into account the interplay between EU law and the Convention.
  4. Fundamental rights are in essence individual rights. They call for an individual test, which can be complemented but not replaced by a general test.
  5. As Executief van de Moslims van België shows, the last possible stop of a case as regards fundamental rights is Strasbourg and its ultimate benchmark is the Convention, as minimum standard. From this perspective, it makes little sense not to take into account from the start what is going to be the ultimate benchmark at the end anyway. The goal is not uniformity but cross-system compatibility of the case-law.
Trends 2021-24.2Download PDF