Category Archives: New publications

Mutual recognition before the European Court of Human Rights

Mutual recognition is an area characterised by some significant methodological differences between the Strasbourg and Luxembourg case-law (see Convention control and Trends 2021-24) which go to the heart of the notion of fundamental rights and of how fundamental rights should be assessed: individually and/or collectively?

On 21 March last, I made an online presentation at the Training Workshop, held at the University of Barcelona, devoted to “Mutual trust and judicial independence in the EAW Framework“. The workshop was part of the European Commission’s funded project TRIIAL 2 (TRust, Independence, Impartiality and Accountability of Legal Professionals under the EU-Charter).

My presentation, titled: “Mutual recognition before the European Court of Human Rights“, was based on the following considerations.

  1. The mutual recognition mechanisms have been accepted in principle by the ECtHR (Avotiņš v. Latvia);
  2. While the ECtHR also approved of the two-step methodology of the CJEU in principle, it reaffirmed its own one-step methodology “which place[s] the national authorities under a duty to ascertain whether there is a real risk, specifically assessed, to the individual concerned, of treatment contrary to [the Convention]” (Bivolaru and Moldovan v. France, § 114);
  3. The general situation occurring in a country is not ignored by the ECtHR, but used as evidence in the assessment of individual risks rather than as an autonomous test;
  4. According to the latest Luxembourg case-law (C-158/21, C-819/21,C-261/22), national judges should not, in the absence of systemic or generalised deficiencies, apply an individual test as regards risks of breaches of fundamental rights in the issuing Member State;
  5. This comes down to: a) replacing the individual test by a general test, thus accepting that fundamental rights can be assessed collectively rather than individually, and b) dividing fundamental rights into two categories, those arising from systemic deficiencies, considered relevant, and the others, which can be ignored in the field of mutual recognition;
  6. However, it is doubtful whether national judges can be precluded by EU law from applying the Convention as legally required, which includes an assessment of the individual risks incurred by the person concerned in the issuing Member State.

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.

The interplay between the European Convention on Human Rights and the EU-Charter of Fundamental Rights

The enclosed Powerpoint relates to a presentation given on the occasion of the launch at the Council of Europe, on 13 November last, of the HELP Course on the Interplay between the European Convention on Human Rights and the EU-Charter of Fundamental Rights. It is accessible here.

This course is one of the very few commendable initiatives undertaken so far to comprehensively explain, in an on-line format, the interplay between these two major European sources of fundamental rights. It is a very promising tool designed to help legal practitioners come to terms with that duality which, while globally ensuring quite some convergence between Strasbourg and Luxembourg, e.g. in the field of procedural rights or judicial independence, also generates some differences which should not downplayed, given their impact on the respective protection levels in several important areas.

The key to more convergence is a wholistic approach. It should allow European law-makers and caselaw-makers alike, while remaining within their own competences, to nonetheless look beyond the limits of their respective legal systems and to ensure as much compatibility as possible between the co-existing sources of fundamental rights, which will help domestic judges discharge their complex task of applying those sources simultaneously. The on-going judicial dialogue between the two European Courts is a major contribution towards achieving this.

The enclosed presentation gives an overview of recent case-law relating to this interplay, with an emphasis on judgments by the European Court of Human Rights illustrating the control exercised by the latter over compliance with the European Convention on Human Rights when domestic courts apply Union law. Interestingly, the breaches of the Convention identified in this case-law result not only from faithful applications of EU law, as in Bivolaru and Moldovan v. France or Šneersone and Kampanella v. Italy, but also from shortcomings in the application of EU law, as in Veres v. Spain or Spasov v. Romania.

Convention Control over the Application of Union Law by National Judges: the Case for a Wholistic Approach to Fundamental Rights

The main ideas developed in this new publication can be described as follows:

  1. In the vast majority of cases, the effects of EU fundamental rights are being felt at domestic level, as the result of the application of Union law by national courts. This application comes within the scope of the European Convention on Human Rights and can therefore give rise to scrutiny by the ECtHR, as illustrated by a well-established line of case-law.
  2. As a result, national judges must apply EU law in conformity with the Convention. They bear the brunt of any lack of consistency in the protection of fundamental rights, because it is at domestic level that these two sets of norms come together.
  3. Consequently, the consideration of the effects of EU fundamental rights cannot stop at the border of the EU legal system and ignore the impact of the Convention on the application of EU law at domestic level. A wholistic approach is required instead.
  4. Such a wholistic approach is designed to identify convergencies and divergencies between the Convention and Union law, and be clear about them, with a view to facilitating the job of national judges, who must ensure that the EU protection level does not fall below the Convention level.
  5. It is not accurate to assume general convergence between the Convention and Union law. The picture is much more differentiated, with areas offering a high level of convergence (e.g. procedural rights, judicial independence) and others not (e.g. ne bis in idem, European arrest warrant).
  6. Several divergencies are rooted in methodological discrepancies. Some have an impact on the level of protection offered by fundamental rights.
  7. That said, the Convention ensures only a common minimum protection level, thus allowing that level to be raised. Consequently, unlike a lower or unclear EU protection level, a higher EU protection level is not problematic from a Convention point of view.

Detailed explanations of these considerations can be found in the enclosed paper.

The Recent Luxembourg Case-Law on Procedural Rights in Criminal Proceedings: Towards Greater Convergence with Strasbourg?

Criminal proceedings are an area characterised by an ever-increasing interplay between EU law and the Convention, not least as a result of the Directives on procedural rights in criminal proceedings, which cover a sizeable number of topics already regulated by Article 6 of the Convention on the right to a fair trial. This expanding overlap between EU law and the Convention resulting in two sets of regulations to be applied to the same domestic proceedings is a challenge for all concerned: lawyers, accused persons, victims, prosecutors, domestic judges, European judges.

In this context, the way in which the CJEU, in charge of authoritatively interpreting these Directives, goes about dealing with this challenge and the amount of coherence it thereby achieves with the Strasbourg case-law are highly relevant, not only for the lawyers, prosecutors and judges who have to handle these multiple legal sources, but also in terms of the efficiency of these procedural fundamental rights altogether, which should not be allowed to contradict each other, as this would weaken them.

These considerations and interrogations are at the heart of the short paper enclosed below.

The Quest for Consistency between the EU and the European Convention on Human Rights

Last Tuesday it was my pleasure to participate in the seminar brilliantly organised and run by Prof. Jan Wouters and Prof. Pietro Franzina at the Università Cattolica del Sacro Cuore in Milan on the topic: “How strong is the European Union’s commitment to International Law?”.

My own presentation was about “The Quest for Consistency between the EU and the European Convention on Human Rights”. It was built around the following five key findings.

1. Consistency between EU law and the European Convention on Human Rights (“Convention”) is needed not least because the domestic courts of the EU Member States are bound to comply with the Convention when applying EU law. Their compliance with the Convention can be assessed by the European Court of Human Rights in the context of an application under Article 34 of the Convention. This can give rise to the finding of a violation of the Convention (as in Bivolaru and Moldovan v. France). Thus, the domestic judges engage their responsibility under the Convention when applying EU law.

2. The EU legislature has developed an appropriate methodology designed to ensure the necessary consistency between EU law and the Convention, by establishing the latter as minimum protection level in the field of EU law. This is indeed the rationale of Article 52(3) of the EU-Charter on Fundamental Rights, of the non-regression clauses which can be found in several instruments of secondary legislation enshrining fundamental rights and, ultimately, of Article 6(2) TEU ordering the EU to accede to the Convention. Under this scheme, the Convention level can be raised but should not be lowered by EU law.

3. The implementation of this methodology by the EU courts gives rise to a mixed picture, though. It would indeed appear that the Convention is much more frequently used by the CJEU as a simple toolbox designed to fill gaps in EU legislation or jurisprudence (as, typically, in Spetsializirana prokuratura (trial of an absconded suspect)) than as a benchmark of the requisite minimum protection level sheltering domestic judges from breaching the Convention when applying EU law (as, typically, in HN).

4. Where the CJEU relies on the Convention, it often does so by using a terminology and/or a methodology which is not entirely similar to that of the Convention, but not entirely different either (as, typically, in bpost). This creates a kind of permanent ambivalence as to whether the duality of norms thus created also entails a duality of protection and, if so, in what sense. It is also ignoring the fact that contrary to EU law itself, domestic judges are not autonomous.

5. In such situations, domestic judges are left in the dark as to whether they can rely on the fact that they will not breach the Convention when applying CJEU standards (as they would actually do by applying, for instance, a test such as the one emerging from N.S. and Others).  A more general commitment by the CJEU to the benchmark function of the Convention established by the EU legislature would be most helpful here.

The Powerpoint presentation of my talk is enclosed below.

Two-step examination of potential violations of fundamental rights in the issuing Member State: towards “systemic or generalised” differences with Strasbourg?

The enclosed paper is a reaction to the recent Opinion by Advocate General de la Tour in the case of Puig Gordi and Others (C-158/21). This Opinion would indeed appear to touch on fundamental methodological issues with serious implications for the consistency of the protection of fundamental rights in the field of European arrest warrants.

The problem arises in connection with the so-called two-step examination prescribed by the CJEU in the context of the execution of European arrest warrants, when risks of violations of fundamental rights in the issuing Member State are being claimed to exist. This two-step examination basically consists of a general test followed by an individual test. Yet the Advocate General’s Opinion now suggests that in the absence of evidence under the general test of any “systemic or generalised” deficiencies in the protection of the right to a fair trial in the issuing Member State, an individual test should no longer be carried out. This, it is argued, would come down to autonomising the general test and letting it replace the individual test altogether, a development which would indeed raise some Convention-based concerns. These concerns and their implications are explained in greater detail in the enclosed paper.

NO MORE COMMON UNDERSTANDING OF FUNDAMENTAL RIGHTS? About the looming fundamental rights patchwork in Europe and the chances for the current negotiations on EU-accession to the ECHR to help avoid it

The enclosed paper discusses the picture regarding the protection of fundamental rights in Europe today which increasingly looks like a patchwork, due to a lack of coordination at different levels. Developments reinforcing that picture include the emergence of different methodologies for the application of fundamental rights, Constitution-based challenges to European law by national Supreme Courts, codifications of existing case-law and the creation of so-called « hybrid » institutions.

The resulting complexity is a challenge for domestic courts, a threat to the confidence of citizens and detrimental to the fundamental rights themselves, their special role and authority being gradually eroded by a general relativism.

EU-accession could have an anti-patchwork effect and represent a chance for a general coordination of fundamental rights in Europe. Beyond making the Convention binding upon the EU, it would also have a pan-European (re)structuring effect by confirming the Convention as the minimum benchmark providing both the bedrock and the framework for all other national or European fundamental rights as well as for the necessary judicial dialogue on the latter.

Good progress has been achieved since the resumption of negotiations for EU-accession, justifying cautious optimism as to the possibility to find adequate solutions to the outstanding issues

The European arrest warrant under the European Convention on Human Rights

The enclosed paper discusses the landmark judgment of the European Court of Human Rights in the case of Bivolaru and Moldovan v. France, which deals with the execution of a European arrest warrant and provides a good illustration of the effects of the Convention liability of EU Member States for their implementation of EU law. These effects touch on such notions as cooperation, trust, complementarity, autonomy and responsibility.

The two European courts have been cooperating towards some convergence of the standards applicable to the handling of EAWs. The Bosphorus presumption and its application in Bivolaru and Moldovan show the amount of trust placed by the Strasbourg Court in the EU protection of fundamental rights in this area. To the extent that their standards of protection coincide, the Luxembourg and Strasbourg jurisdictions are complementary. However, the two protection systems remain autonomous, notably as regards the methodology applied to fundamental rights. Ultimately, the EU Member States engage their Convention responsibility for the execution by their domestic courts of any EAWs.