After G.K. and Others and EPPO (judicial review of procedural acts), Mincu Pătrașcu Brâncuși v EPPO (C-328/24 P, 16.4.2026) is another case in which the CJEU clarified the particular structure of the European Public Prosecutor’s Office (EPPO), as provided by Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (“the Regulation”).

The importance of this case lies in the fact that it confirms, through detailed reasoning, the key role played by national courts in ensuring an effective judicial review of procedural acts by the EPPO which produce legal effects vis-à-vis third parties.

In the present case, the appellant challenged Article 42(1) of the Regulation, the first sentence of which provides that procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties shall be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law.

The appellant had brought an action before the General Court against a decision by the EPPO referring his case to trial. The General Court dismissed the action on the ground that, having regard to Article 42(1) of the Regulation, it lacked jurisdiction to hear and determine it. Before the CJEU, the appellant challenged that dismissal. He contested Article 42(1), arguing that denying the General Court jurisdiction over such EPPO acts violated his right to an effective remedy and to a fair trial, as guaranteed by Article 47 of the EU-Charter.

The CJEU dismissed the appeal. After emphasizing that Article 86(3) TFEU expressly allows the EU legislature to determine the rules applicable to the judicial review of procedural measures taken by the EPPO, it noted the substantial level of integration of the EPPO within the Member States’ systems of criminal procedure (§ 70). Because the legal effects of EPPO acts were largely determined by national law, national courts were “best suited” to carry out judicial review of these procedural acts (§ 82). Article 42 thus established a specialized system in which national courts review procedural acts, while EU courts retain exclusive jurisdiction over administrative decisions, data protection issues, and decisions to dismiss a case (where challenged on EU law grounds).

Accordingly, Article 42(1) was held to be fully consistent with the complete system of legal remedies and procedures designed to ensure judicial review of the legality of EU acts, as established by the TFEU (§ 100). In particular, this provision was found to respect the right to effective judicial protection guaranteed by Article 47 of the EU-Charter, since it ensured the procedural fairness and the rights of the defence of persons affected by the procedural acts of the EPPO (§ 98).

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Having regard to the hybrid structure of the EPPO system, the repeated reference by the CJEU to the “complete system of legal remedies and procedures designed to ensure judicial review of the legality of EU acts” (§§ 66 and 100) would appear to take on a special significance. In the highly specific context of hybrid EU institutions which rely extensively on national institutions applying national law, one may legitimately question whether the system of judicial protection concerning EPPO acts, as described by the CJEU, is in fact as complete as the CJEU suggests.

This question arises because the CJEU’s description entirely omits the impact of the European Convention on Human Rights on domestic judges applying their own national law by virtue of Article 42 of the Regulation, thereby implicitly suggesting that the completeness of judicial protection in this field results solely from the interaction between national law and EU law.

The reality, however, is different. As the CJEU itself emphasizes, the reason why national courts have jurisdiction over the procedural acts covered by Article 42(1) of the Regulation lies in the substantial level of integration of the EPPO within the Member States’ systems of criminal procedure (§ 70). In practice, national courts are likely to be involved far more frequently than EU courts in litigation concerning EPPO acts, since Article 42(1) of the Regulation grants them exclusive jurisdiction over all procedural acts of the EPPO affecting persons directly targeted by those acts. As expressly provided by Article 42(1), their review is to be conducted in accordance with the requirements and procedures laid down by national law.

Procedural fairness and the rights of the defence can be expected to play a central role in this type of litigation (§ 98). Yet, at national level, these matters are to a very large extent governed by the Convention, in particular Article 6 thereof, which constitutes a mandatory minimum level of protection that Member States remain free to enhance, including in response to EU law requirements.

First, national judges remain bound by the Convention when applying EU law and are therefore required to interpret and apply EU law consistently with the Convention (see, among others, Bivolaru and Moldovan v. France, § 103). Pending confirmation by the ECtHR, there is no reason why this would be any different when they apply their own national law pursuant to Article 42(1) of the Regulation.

Secondly, the Strasbourg case-law concerning the criminal limb of Article 6 of the Convention, developed over more than seventy years, is clearly far more extensive and detailed than the case-law so far developed by the CJEU on the basis of EU law, including Article 47 of the EU Charter and the Directives on procedural rights in criminal proceedings. For an overview of that case-law, see the Guide on Article 6 (criminal limb) by the Registry of the ECtHR.

It is therefore unsurprising that the CJEU relies extensively on Strasbourg case-law when interpreting these Directives and seeking to fill their numerous lacunae. Examples include VB II, Stachev, K.B. and F.S., Politseyski organ pri 02 RU SDVR, HYA and Others, HN and DD, Spetsializirana prokuratura, IS and the Opinion of Advocate General Ćapeta in European Commission v. Hungary and European Commission v. Czech Republic).

Thirdly, such reliance on the Convention is mandated by Article 52(3) of the EU-Charter, which imposes the Convention minimum standard across EU law, and by the non-regression clauses contained in those Directives..

Accordingly, the detailed minimum standards resulting from Strasbourg case-law in the field of criminal proceedings constitute an essential component of the “complete” protection of fundamental rights ensured at national level in respect of procedural acts of the EPPO which, however, the CJEU attributes solely to Articles 47 and 48 of the EU-Charter.

To disregard the contribution of the Convention in the context of hybrid institutions — where that contribution is not only indirectly required under EU law but is also necessary because of the lacunae of EU law in this field — is therefore even more problematic than elsewhere. More than in any other context, hybrid institutions demonstrate that the effects of EU law cannot adequately be understood in isolation from those of the Convention.

In other words, if the Convention is omitted from the description of the system of judicial protection, that system can be regarded as “complete” only in a very formal sense and from the perspective of EU law alone. From a substantive and holistic domestic perspective, however, it remains incomplete, thereby creating a risk of misunderstanding.

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That said, as long as the EU will not have acceded to the Convention (on this accession, see The European Commission requests an Opinion by the CJEU), the protection afforded by the Convention will itself remain incomplete with regard to hybrid institutions involving EU officials operating within a domestic legal context. As noted in a previous post concerning W.S. and Others v. Frontex:

From a Convention perspective, these hybrid constructions operating within the territory and jurisdiction of the Member States represent a new situation. It is no longer a Bosphorus-type scenario in which national authorities are the sole bodies responsible for applying EU law and thereby ensuring the full application of the Convention to all actions undertaken by them, even when those actions are based on EU law. Instead, full coverage by the Convention is being replaced by a “patchwork coverage”, with gaps in the Convention’s applicability emerging where actions within the jurisdiction of the Member States are carried out by EU entities or officers acting on behalf of the EU itself and therefore not subject to the Convention.

This marks the end of the complete Convention protection as described by the ECtHR in the following terms:

“Article 1 of the Convention requires the High Contracting Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”. Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention.” (among many others: Matthews v. the United Kingdom, § 29).

These new gaps in the Convention protection make the case for accession by the EU to the Convention even more compelling (see Accession of the EU to the ECHR: a logical response to the optionality of the ECHR in EU Law, p. 11 et seq.).

Rzecznik Praw Obywatelskich (Recusal of a judge of ordinary jurisdiction) (C-521/21, 24/03/2026) represents another instalment in the sequence of judgments addressing the rule of law crisis in Poland. This time, however, the focus is not on the procedure for the appointment of judges, but on the recusal of a judge appointed by a procedure which both the CJEU and the ECtHR have found to be incompatible with the right to an independent and impartial tribunal established by law.

The particular background to this ruling is the challenge resulting from the fact that currently around 30 % of the Polish judiciary – some 3,000 judges – have been appointed according to that same irregular procedure (§ 58). The present ruling is an attempt by the CJEU to come to terms with the consequences of this situation for the Polish judicial system in general and for the proper functioning of the preliminary ruling mechanism in particular. The CJEU thereby invokes the case-law of the ECtHR but in a way which perhaps raises more questions than it answers.

The CJEU’s ruling

In the course of the main proceedings, which concerned a claim under a contract for services, the defendant applied for the recusal of Judge S.C. He argued that the judge was not validly appointed because the resolution for her appointment had been adopted by the National Council of the Judiciary (KRS) in its new composition, the latter being at the root of the lack of independence of the judges appointed according to this procedure. The referring court expressed doubts about this appointment and about its own jurisdiction under EU law to deal with this recusal request.

In substance, the CJEU ruled that EU law and the principle of primacy preclude national legislation and constitutional case-law which grant exclusive jurisdiction to a body to adjudicate on recusal applications while depriving that body of the power to actually examine the lawfulness of the appointment. The national court hearing the recusal application must disapply these restrictions and carry out the examination itself to determine if the judge meets the requirement of a tribunal previously established by law.

The CJEU also held that the appointment of a judge recommended by a non-independent body, i.e. the KRS, and the lack of an effective judicial remedy for other candidates does not, in itself, preclude the judge from being considered an independent and impartial tribunal. For such an appointment to fail the requirements of EU law, there must be other relevant contextual factors attending the procedure that are of such gravity that, when taken together, they call into question the judge’s independence or impartiality.

Observations

From a Convention point of view, this ruling calls for two series of observations, on the methodology applied by the CJEU and on its approach in respect of the systemic nature of the irregular judicial appointments in Poland.

On the methodology: context-based approach or essence-based approach?

To date, judicial independence has been an area in which a high degree of harmony could be observed between the two European Courts. This convergence is particularly visible in their approach to the ongoing rule-of-law crisis in Poland, including their understanding of the core requirements of such principles as the rule of law, the separation of powers, effective judicial protection, and the independence and impartiality of judges (see W.Ż). These foundational principles are restated in paragraphs 41 to 50 of Rzecznik.

The CJEU and the ECtHR also agree on the need not to be overly formalistic in assessing compliance with these principles, emphasizing that not every procedural or legal error should automatically entail consequences (§ 76; Guðmundur Andri Ástráðsson v. Iceland, § 246, quoted below).

However, some differences appear as regards the methodology flowing from this premise. The CJEU indeed goes for an overall assessment of the impugned appointment procedure which takes into account the broader context in which the alleged breaches occur, thereby having regard to their nature and gravity. It comes down to finding out whether taken together, the factors making up the context of an appointment as judge create in the minds of individuals a reasonable doubt as to the imperviousness of that judge to external factors (§§ 77-78).

Thus, according to the CJEU, the appointment of a judge recommended by a non-independent body, i.e. the KRS, and the lack of an effective judicial remedy for other candidates does not, in itself, preclude the judge from being considered an independent and impartial tribunal. For such an appointment to fail the requirements of EU law, there must be other relevant contextual factors attending the procedure that are of such gravity that, when taken together, they call into question the judge’s independence or impartiality.

The CJEU itself applied this methodology to the case of the judge being recused before the referring court, thereby also considering such factual circumstances as the absence of judicial challenges to the impugned appointment and the professional record of the judge since his/her appointment (§§ 89-92).

With this context-based approach, the CJEU seems to be shifting from its previous position which more closely relied on the Strasbourg approach, as in W.Ż. The ECtHR indeed goes for an essence-based approach, which comes down to finding out, through a three-step methodology, whether the very essence of the right to a tribunal established by law has been irretrievably undermined by a judicial appointment. Factual circumstances are not among the criteria used by the ECtHR in this context. In Guðmundur Andri Ástráðsson v. Iceland the ECtHR stated:

“Breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold. To the contrary, breaches that wholly disregard the most fundamental rules in the appointment procedure – such as, for instance, the appointment of a person as judge who did not fulfil the relevant eligibility criteria – or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement, as interpreted by the Court, must be considered to contravene that requirement.” (§ 246; to the same effect, see also Dolińska-Ficek and Ozimek v. Poland).

Thus, while Strasbourg and Luxembourg have the same concerns, they differ in their methodology. Do these differences really matter? At any rate, even if they do not seem radical, they have at least the potential to create some confusion in the minds of national judges – who are indeed bound to apply EU law in conformity with the Convention (see, to that effect, inter alia Bivolaru and Moldovan v. France, § 103) – as to the criteria which are decisive in assessing whether an irregular judicial appointment undermines or not the independence and impartiality of a judge.

For example, one striking difference in this context is the role played by appearances. Whereas, in assessing the independence and impartiality of judges, the CJEU does rely on the role of appearances and on the importance of reasonable doubts created by these appearances (§§ 70, 71, 74, 76, 78), the ECtHR here follows a different line of reasoning. While it very much relies on appearances in assessing the impartiality of judges (see most recently Tsatani v. Greece, § 65), it adopts a different approach when assessing the independence of courts. In Guðmundur Andri Ástráðsson v. Iceland, § 247, the ECtHR indeed stated:

“The Court accordingly takes the view that only those breaches that relate to the fundamental rules of the procedure for appointing judges – that is, breaches that affect the essence of the right to a “tribunal established by law” – are likely to result in a violation of that right … In particular, as the Chamber rightly pointed out, the Court “must look behind appearances and ascertain whether a breach of the applicable national rules on the appointment of judges created a real risk that the other organs of Government, in particular the executive, [could exercise] undue discretion undermining the integrity of the appointment process to an extent not envisaged by the national rules in force at the material time.”

One may wonder whether the European Courts, by adopting such conflicting positions, ultimately undermine rather than reinforce fundamental rights, as their joint application becomes increasingly difficult for national judges.

On the systemic nature of the irregular appointments: the power of the facts vs. the power of the law?

However, the bigger novelty of Rzecznik would appear to be the approach proposed by the CJEU for addressing the systemic nature of the problem arising from the around 3,000 Polish judges who have been irregularly appointed, such as Judge S.C. in the present case, making up some 30 % of the current judiciary in that country.

At the heart of this issue is a fundamental tension. On the one hand, there is the need to uphold the principle of separation of powers and to ensure compliance with the requirements of judicial independence. On the other hand, however, there is a pressing concern to preserve the continuity and effectiveness of the administration of justice in a situation characterised by the fact that 30 % of the current judges have been irregularly appointed. This latter consideration is particularly salient with regard to the preliminary ruling mechanism, the proper functioning of which risks being seriously affected, if nothing changes, by the jurisprudence declaring inadmissible requests originating from improperly composed courts, such as the CERPA (§§ 61, 63, 85).

As a way out of this dilemma, the CJEU now interprets the second subparagraph of Article 19(1) TEU as imposing on the Polish “legal order” an obligation to establish a legislative framework enabling an assessment, having regard to the nature and gravity of the procedural defects, of whether individuals irregularly appointed to judicial office may continue to exercise their functions. While this obligation goes with a broad margin of discretion for national authorities, it is not without limits: the assessment must be guided by objective criteria and must ensure sufficient guarantees of independence and impartiality (§§ 63-65).

The direction of travel seems clear: the independence requirements should be softened to avoid the permanent exclusion of significant parts of the Polish judiciary from access to the preliminary ruling mechanism, with consequences for the interpretation of EU law in Poland.

Though perfectly understandable, this approach raises quite a few questions, not least on the substantive content of such criteria, the determination of which is left in the hands of the national “legal order”, even though this is about an EU law issue. Yet, it may be assumed that the contextual factors referred to by the CJEU in relation to Judge S.C. (§§ 91-92) are intended to inform this national determination.

In any event, the CJEU’s reasoning appears to open the door to a shift in paradigm: from institutional and procedural guarantees of independence towards an assessment of factual circumstances, such as the personal professional conduct of the judge concerned, as a potential substitute or corrective mechanism. The power of the facts vs. the power of the law?

Interestingly, in support of this approach, the CJEU relies on the pilot-judgment procedure applied by the ECtHR in Wałęsa v. Poland under Article 46 of the Convention (§ 62). However, a closer look reveals that the two European Courts do not entirely converge on this point.

In Wałęsa, the ECtHR endorsed the indications given to Poland by the Committee of Ministers of the Council of Europe following previous judgments against Poland. In this context, the Polish authorities are ordered to adopt measures addressing “the status of all judges appointed in the deficient procedure involving the [KRS] as constituted under the 2017 Amending Act and of decisions adopted with their participation” (§ 329). Thus, the ECtHR and the Committee of Ministers are less explicit than the CJEU on whether the envisaged legislative framework should specifically aim at allowing irregularly appointed judges to continue to perform their duties. Not least because the ECtHR has no preliminary ruling mechanism to preserve as the CJEU has.

The ECtHR also emphasised: “It goes without saying that the Polish State must ensure that the issues pertaining to the independence of judges are determined by a court or courts which are themselves an ‘independent and impartial tribunal established by law’ in the light of the Convention standards.” (§ 330)

Most importantly, under the Strasbourg pilot-judgment mechanism, compliance by the State with its obligations under Article 46 of the Convention is monitored by an external European body, the Committee of Ministers. One may wonder about the existence of any external supervision of compliance by Poland with its obligations flowing from the Rzecznik jurisprudence. Will this be a task for the European Commission or for the CJEU itself?

Finally, it should also be noted that the implementation of the ECtHR’s judgment in Wałęsa has been postponed: the initial deadline for the adoption of the required measures has been extended by the ECtHR, at the request of the Polish Government, until 23 November 2026 (see Comparing AW ‘T’ with Walesa v. Poland). Consequently, the coming into being of any legislative framework requested by the European Courts is likely to take more time.

In the interim, in the absence of a comprehensive legislative solution, the question arises whether the ordinary Polish judges dealing with recusal requests will find a way to combine the Luxembourg context-based approach with the Strasbourg essence-based approach. The importance of their challenging task can hardly be overestimated. What is at stake is nothing less than the future of judicial independence in Europe.

The ruling by the CJEU in WS and Others v. Frontex (C-679/23 P, 18.12.2025), given on an appeal against a judgment by the General Court (T-600/21), represents a clarification of the fundamental rights obligations of the European Border and Coast Guard Agency (Frontex), with significant implications for the Convention protection system.

The facts underlying this ruling involve a Syrian Kurdish family consisting of two parents and four children who arrived on the Greek island of Milos in October 2016. Shortly after their arrival, they were transferred to a reception and identification centre, where they expressed their desire to apply for international protection. The family was nonetheless deported to Turkey, via a joint return operation coordinated by Frontex.

The family alleged that this removal occurred without any written or enforceable return decisions being issued by the Greek authorities, which they argued violated the principle of non-refoulement and their fundamental rights.

The family sued Greece before the ECtHR, resulting in a friendly settlement where Greece agreed to pay the family a total of 75,000 euros for damages.

In September 2021, the family brought an action for damages against Frontex in the General Court, seeking approximately 136,000 euros for material and non-material harm.

The current ruling by the CJEU arose from the family’s appeal after the General Court had dismissed their claim, primarily on the grounds that there was no direct causal link between Frontex’s actions and the family’s damages. The CJEU disagreed with these findings and referred the case back to the General Court.

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One of the main findings of this ruling on which this post will concentrate is that, contrary to what the General Court had considered, Frontex (European Border and Coast Guard Agency), as an Agency of the EU created in order to improve the integrated management of the external border of the EU (Hamoudi v. Frontex, § 66), cannot escape all extra-contractual liability when it cooperates with Member States to ensure the return of asylum seekers.

In the case at hand, the liability invoked by the appellants mainly concerned a) their inclusion in a return operation from Greece to Turkey without them having been the subject of written return decisions, and b) infringements of their fundamental rights committed during their return flight to Turkey, notably the principle of non-refoulement.

The General Court had denied the existence of a direct causal link between the alleged damage and Frontex’s actions, considering that the latter were of the sole responsibility of Greece. In its opinion, Frontex only had to provide technical and operational support to the Member States (§ 92). It had no obligations in respect of joint return operations organized by the Member States (§ 124).

However, the CJEU is of a different opinion. Referring to Article 51(1) of the EU-Charter and the relevant provisions of Regulation 2016/1624 on the European Border and Coast Guard – now replaced by Regulation 2019/1896 – it comes to the conclusion that “in the light of the specific obligations which Regulation 2016/1624 imposes on Frontex in the context of the coordination of joint return operations, that agency is required to verify that such decisions exist for all persons whom a Member State intends to include in such operations, in order to ensure that they comply with the requirements arising from that regulation and with the fundamental rights of the persons concerned, and in particular the principle of non-refoulement.” (§ 102)

As regards the damage allegedly incurred by the appellants as a result of their forced return to Turkey, the CJEU ruled that while, under Article 42(1) of Regulation 2016/1624, the host Member State is in principle to be held liable for any damage caused by members of the European Border and Coast Guard, Frontex is nonetheless under a set of obligations intended to ensure respect for fundamental rights in the context of joint return operations. It can therefore not be excluded a priori that a breach of those obligations by its departments or staff in the context of a particular operation may have contributed to infringements of fundamental rights taking place during a return flight (§ 132).

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From a Convention point of view, this ruling is particularly interesting in that it confirms that the hybrid structure of the European Border and Coast Guard (EBCG), resulting from its institutional and operational association of national and EU components, also produces a hybrid form of non-contractual liability for breach of fundamental rights, with Frontex bearing part of that liability, along with the Member States. As Recital 6 of Regulation 2016/1624 puts it, the European integrated border management is a matter of shared responsibility of Frontex and the national authorities responsible for border management.

In this respect, the EBCG bears some resemblance with the European Public Prosecutor’s Office (EPPO), which is another hybrid EU entity operating on the basis national and EU authorities cooperating on the ground (see An Elephant in the Room: the European Convention on Human Rights and the EPPO).

EBCG and EPPO represent a challenge for the Convention system in that they both rely in part on EU entities and officers which, because the EU is not itself a Contracting Party to the Convention, are not subject to the latter (on this, see Bosphorus v. Ireland, § 152), whereas the national components of EBCG and EPPO are. This results in a legal duality as regards the fundamental rights applicable to the actions which these two bodies undertake. Consequently, potential victims of these actions must base their claims on different sets of fundamental rights. Not only does this represent a heavier burden for these persons, it is also a challenge to legal certainty and legal coherence. The impact of the EPPO hybrid structure on the application of the Convention has been described in detail in No case to answer for the EPPO?.

WS and Others is a perfect illustration of this duality and of the resulting increased complexity. Indeed, before going before the General Court with their claim against Frontex based only on EU law, the appellants had filed an application against Greece with the ECtHR, which gave rise to a friendly settlement, based on the sole Convention (§ 35). In this connection, the CJEU also makes it clear that the non-contractual liability to be assumed by Frontex is under EU law only (§ 127).

From a Convention perspective, these hybrid constructions operating within the territory and jurisdiction of the Member States represent a new situation. It is no longer a Bosphorus-type scenario in which national authorities are the sole bodies responsible for applying EU law and thereby ensuring the full application of the Convention to all actions undertaken by them, even when those actions are based on EU law. Instead, full coverage by the Convention is being replaced by a “patchwork coverage”, with gaps in the Convention’s applicability emerging where actions within the jurisdiction of the Member States are carried out by EU entities or officers acting on behalf of the EU itself and therefore not subject to the Convention. (Bosphorus v. Ireland, §§ 137 and 152).

In the specific context of Europol, which is another hybrid entity, the CJEU even acknowledged a form of joint and several liability between Europol and a Member State, allowing a claim for compensation for a breach of the confidentiality of personal data to be brought in its entirety either before the EU courts or before the national courts, at the claimant’s choice (Kočner v. Europol).

In response to these concerns, one may of course refer to the EU-Charter and its Article 52(3) which is designed to ensure coherence between the EU and Convention protection levels. However, in spite of this Article 52(3), which is meant to guarantee compliance with the Convention as minimum protection level under EU law, this compliance in practice turns out to be purely optional in the case-law of the CJEU, resulting in some significant protection deficits (see A logical response to the optionality of the Convention).

Moreover, this “patchwork coverage” clashes with the principle according to which “Article 1 [of the Convention] … does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention” (Bosphorus v. Ireland, § 153). With hybrid EU entities ensuring part of the law-enforcement in the Member States, part of what is taking place within the “jurisdiction” of the Member States now falls outside the scope of the Convention and is therefore no longer subject to the external scrutiny by the ECtHR.

Yet, this external scrutiny by the ECtHR has always been seen as an essential component of an effective protection of fundamental rights in Europe. This is also why the European legislature in Art. 6(2) TEU enjoined the EU to accede to the Convention. The rise of EU hybrid entities is one more good reason for the EU to go ahead with this accession, as it would put an end to the patchwork coverage by the Convention in this area, by making the EU and its entities subject to the Convention, on an equal footing with the Member States (on the current state of the accession process, see The European Commission requests an opinion by the CJEU). In the meantime, however, the patchwork coverage will continue. It can therefore only be hoped that the optionality of the Convention in EU law will not.

In the case of Nuratau (5.6.2025, C-349/24), the CJEU ruled on the interpretation of Article 3 of the Qualification Directive (2011/95), which allows EU Member States to adopt more favourable standards for granting international protection, provided they are compatible with the Directive. ​ The case involved A.B., a third-country national in the Czech Republic, whose application for international protection was rejected three times by the Ministry of the Interior. ​ A.B. argued that his removal to his country of origin would violate his right to private life due to the severing of his ties with the Czech Republic. ​

The CJEU clarified that subsidiary protection under the Qualification Directive is intended to address risks of serious harm in the applicant’s country of origin, such as the death penalty, torture, or threats due to violence. ​ It does not cover risks related to the applicant’s private life in the Member State examining the application. ​ Therefore, national legislation granting subsidiary protection based on the severing of ties with the host Member State is not within the scope of the Directive and cannot be considered a “more favourable standard” under Article 3. ​ Thus, this provision does not allow national legislation to grant subsidiary protection based solely on the risk of breaching the applicant’s right to private life.

However, the CJEU noted that Member States are free to grant residence permits or protection on humanitarian grounds under their national laws for reasons unrelated to the applicant’s country of origin, as long as such protection is distinct from the refugee or subsidiary protection status under the Qualification Directive. ​ Additionally, the Court emphasized that any return decision or removal order made under the Return Directive (2008/115) must respect the fundamental rights of the individual, including the right to private life, as guaranteed by the EU Charter of Fundamental Rights. Consequently, ​a return decision or a removal order cannot be adopted if it infringes the right to respect for the private life of the third-country national concerned.

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This judgment not only highlights the limits of EU law in safeguarding the right to private life within the framework of international protection, it also is a striking example of how the CJEU closes itself off to a holistic approach, even in cases where it would be most needed.

While the CJEU reaffirmed that Member States may adopt more favourable standards under Article 3 of the Qualification Directive, it ruled that such discretion cannot extend to granting subsidiary protection solely on the basis of a risk to private life arising from the severance of personal ties with the host Member State. At the same time, it left open the possibility for Member States to grant residence on humanitarian grounds under national law.

In this domestic context, the CJEU referred to the EU Charter. Mindful of Article 51(1) of that Charter, which limits the latter’s scope to that of EU law, the CJEU established the connection between the applicant’s circumstances and EU law through a possible application of the Return Directive, giving rise to a decision to return or remove the third-country national.  

At this juncture, two important aspects appear to have been overlooked by the CJEU. First, when national authorities, as suggested by the CJEU, rely on domestic law to determine whether a third-country national should be permitted to reside in the country, they are unlikely to base their assessment on the Return Directive, whose very purpose is to facilitate removal rather than residence. Secondly, Article 8 of the Convention remains applicable in any event, even where the Return Directive ultimately governs the case.

This is because under the Convention, domestic courts confronted with a claim that deportation would result in a serious interference with private or family life are required – regardless of whether EU law applies – to assess the claim in light of Article 8. The ECtHR has developed a rich and nuanced body of case law setting out the criteria for such assessments (see the Guide on Article 8 of the Convention, at §§ 328-330)).

Thus, seen from a broader human rights perspective, Nuratau indirectly highlights the importance of the Convention as a complementary, or indeed as the primary safeguard in a context like the present one. While the Convention does not confer any right to asylum or international protection (N.D. and N.T. v. Spain, § 188), its Article 8 does operate to preclude deportation where such deportation would entail a disproportionate interference with the individual’s private or family life.

This principle also finds resonance within EU law through Article 52(3) of the EU-Charter, which provides that rights in the EU-Charter corresponding to those in the Convention must be interpreted consistently with the latter. Thus, even in the context of the Return Directive, the substantive protection offered by Article 8 of the Convention ought to inform the interpretation and application of EU law.

That said, the Convention framework and the EU legal order do not coincide entirely. Article 8 of the Convention, while capable of preventing removal, does not generate the broader entitlements attached to EU subsidiary protection – such as a residence permit, access to employment, education, or social welfare. Where the Qualification Directive does not apply, these matters remain governed by national law.

The outcome is a fragmented landscape in which the level and nature of protection depend on whether the case falls within the scope of EU secondary legislation or instead under the residual guarantees of the Convention. One can only regret the complete silence of the CJEU on the relevance and impact of Article 8 of the Convention in this context.

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Nuratau therefore illustrates, with particular clarity, the complex interaction between EU law, national humanitarian discretion, and the Convention system. It also exposes the CJEU’s reluctance to engage with the broader legal landscape: despite the Convention’s clear relevance in cases such as the present one, the CJEU refrains from acknowledging it as part of the interpretative framework. In doing so, it misses one more opportunity to promote a more integrated approach to fundamental rights protection in Europe – one that would provide clearer guidance to national courts faced with such hybrid cases.

This reluctance is all the more worrying given that there are examples to the contrary. One of them is Dereci and Others, which concerned an issue not too remote from the issue at stake in Nuratau: the right of residence of third country nationals who sought to join their European Union citizen family members. In this case, a Grand Chamber of the CJEU explicitly addressed the interplay between EU law and the Convention in the following way:

“In the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR. All the Member States are, after all, parties to the ECHR which enshrines the right to respect for private and family life in Article 8.” (§§ 72-73)

In light of this statement, by disregarding the possibility of a more holistic approach and presenting only a limited, fragmented view of the fundamental rights landscape as it exists in practice, Nuratau represents a regrettable step back in the CJEU’s role in assisting domestic courts and citizens in navigating Europe’s complex and fragmented framework of fundamental rights.

Be that as it may, the key takeaway for domestic judges and prosecutors is that Article 8 of the Convention invariably applies to claims by third-country nationals who allege a risk of violation of their right to private or family life in the event of deportation, regardless of whether EU law is applicable.