Category Archives: Recent Case Law

The ECHR recalls its case-law on the obligation for courts to give reasons when dismissing a request for a preliminary ruling by the CJEU: decision in the case of Quintanel v. France

By a decision in the case of Josette Quintanel v. France and 14 other applications (no. 12528/17 et seq., 17.6.2021) the ECHR declared inadmissible 15 applications against France which, inter alia, complained about the alleged failure by several administrative courts to properly motivate their refusal to grant the applicants’ requests that some EU law issues be referred to the CJEU for a preliminary ruling.

The ECHR first recalled that only the national courts which, under Art. 267 TFEU, are bound to turn to the CJEU for a preliminary ruling, i. e. those courts against whose decisions there is no judicial remedy under national law, are also under an obligation, flowing from Art. 6 of the Convention, to give reasons when dismissing a request by a party to the domestic proceedings for an EU law issue to be submitted to the CJEU (§ 89).

Consequently, in the present case only the Conseil d’Etat (Supreme Administrative Court) was bound to give reasons for its refusal to refer the case to the CJEU, which it had actually not done. However, the ECHR noted that a lower administrative court acting in the same case had previously well explained that in view of relevant CJEU case-law on the issue at hand such a referral was not required under Art. 267 TFEU. This being so, the ECHR considered that having regard to the proceedings as a whole, an answer compliant with Art. 6 of the Convention had been given to the applicant who had therefore been enabled to understand the reasons underlying the contested dismissal (§ 90). Consequently, Art. 6 had not been breached.

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

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

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

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

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

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

Disciplinary Chamber of the Polish Supreme Court: judgment of the ECHR in Reczkowicz v. Poland

In the case of Reczkowicz v. Poland (22.7.2021, 43447/19), the ECHR found that the Disciplinary Chamber of the Polish Supreme Court had not been a “tribunal established by law” and had lacked impartiality and independence. After abundently referring to several international legal instruments, including the case-law of the CJEU on the recent reform of the judiciary in Poland (notably joined Cases C‑585/18, C-624/18, C-625/18), the ECHR stated inter alia:

The right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. The right to “a tribunal established by law” is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society. … It is also to be reiterated that although the right to a “tribunal established by law” is a stand alone right under Article 6 § 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of “independence” and “impartiality”. (§ 260)

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

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

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

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

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

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

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

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

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

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

Manifest deficiency in the execution of a European arrest warrant – judgment of the European Court of Human Rights in the case of Bivolaru and Moldovan v. France

In the landmark case of Bivolaru and Moldovan v. France (25.3.2021, 40324/16 and 12623/17), the ECHR ruled on the execution of two European arrest warrants (EAWs) for the purpose of the service of prison sentences in Romania. It found a violation of Article 3 of the Convention (prohibition of ill-treatment) in respect of one of the applicants and no violation in respect of the other. The details of the case are summarized in the press release below.

The judgment is noteworthy as it confirms and clarifies the principles to be applied by the domestic courts of the EU member States in the field of mutual recognition.

First of all, the judgment once more confirms that the Convention requires EU law to be applied in conformity with it. It equally confirms and illustrates the competence of the ECHR to assess that conformity.

The judgment furthermore recapitulates the Court’s doctrine on mutual recognition, as set out in Avotins v. Latvia (23.5.2016, 17502/07), which is the leading case on this topic. It stresses in particular that:

  • The presumption of equivalent protection, as established in Bosphorus v. Ireland (30.6.2005, 45036/98), in principle applies when by virtue of a mutual recognition mechanism domestic courts are left with no discretionary power and are legally bound to presume that another member State sufficiently respects fundamental rights. When this presumption applies, the Convention will be breached only if there has been a manifest deficiency in complying with the Convention, which is a lower standard than the ordinary violation.
  • In cases concerning the compatibility of the execution of an EAW with Article 3 of the Convention, any discretionary power of the judicial authority of the executing State in this field is limited to the assessment of the facts and has to be exercised within the framework strictly delineated by the case-law of the CJEU. The presumption of equivalent protection therefore applies.
  • The principle of mutual recognition must nonetheless not be applied in an automatic and mechanical way, to the detriment of fundamental rights.
  • Consequently, if a serious and substantiated complaint is raised before domestic courts 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. In that case they must apply EU law in conformity with the Convention.
  • These principles apply to all mechanisms of mutual recognition.

The judgment also provides some interesting information on how these principles play out in the field of European arrest warrants.

In this respect, it first notes the convergence between the case-law of the two European Courts as regards the assessment of the individual risks of ill-treatment to which persons can be exposed as a consequence of the execution of a EAW. At the same time, it stresses the different methodology applied by each Court: whereas the CJEU applies a two-step examination requiring evidence of systemic or generalised deficiencies in the issuing State before any individual risk resulting from these deficiencies can be identified (see e.g., below on this page, CJEU 17.12.2020, Openbaar Ministerie, joined cases C-354/20 PPU and C-412/20 PPU, para. 53-56), the ECHR focuses immediately on the individual risks incurred by the person concerned.

Thus, the convergence noted by the ECHR relates to the final individual test, not to the respective methodologies applied by the European Courts, which remain different and are therefore not interchangeable. This is illustrated by the fact that in the case of Moldovan, the ECHR found a violation of Article 3 on the ground that the French courts had transferred the applicant in spite of the fact that they had before them sufficient factual elements indicating that he would be exposed to a serious risk of ill-treatment by reason of the detention conditions in the prison in which he would be detained after his transfer. These factual elements only concerned the personal situation of Mr Moldovan, not any systemic or generalized deficiencies. At no point in this judgment did the ECHR inquire about such deficiencies in the Romanian prison system, contrary to the French courts which were bound by EU law to apply the two-step examination. The ECHR nonetheless found a violation of Article 3 on account of the fact that the individual risk incurred by Mr Moldovan had not been correctly assessed by those French courts.

This was the first time the Court rebutted the presumption of equivalent protection, because of a manifest deficiency in applying a mutual recognition mechanism. Thus, regardless of the methodology applied by the domestic courts, what matters from a Convention point of view is the correct application of the Convention standards in any individual case governed by EU law.

Finally, the judgment also illustrates the fact that in the field of mutual recognition the test to be applied in respect of complaints not covered by the presumption of equivalent protection (because of the discretionary power left to the judicial authority of the executing State and/or the absence of relevant CJEU case-law on the fundamental right at issue) is the higher standard of whether there has been an ordinary violation of the Convention, not whether there has been a manifest deficiency (§§ 131-132).

Degrading treatment and deprivation of liberty in the Röszke transit zone – judgment of the European Court of Human Rights in the case of R.R. and Others v. Hungary

In the case of R.R. and Others v. Hungary (2.3.2021, 36037/17, not final), the European Court of Human Rights found several breaches of the Convention on account of the de facto deprivation of liberty (Art. 5) and the living conditions of asylum-seekers (Art. 3) in the Röszke transit zone, on the Hungarian-Serbian border.

The ECHR distinguished the circumstances prevailing in this case from those which had recently lead it, in the case of lias and Ahmed v. Hungary (21.11.2019, 47287/15), to find no violation of these provisions of the Convention (see below, the post on this judgment). Significant differences indeed lay in the fact that the applicants, an Iranian-Afghan family of five with three young children, were particularly vulnerable and that their stay in the transit zone had by far exceeded the time needed for the examination of an asylum request, due to inaction on the part of the Hungarian authorities.

Interestingly, the ECHR in its reasoning also relied on several prescriptions of the EU Reception Directive (2013/33) which in its opinion had not been complied with by the authorities (§§ 54 and 58).

With regard to the question whether there has been a deprivation of liberty, the judgment confirms the case-by-case approach followed by the ECHR in such matters, which is in contrast with the more abstract approach resulting from the application of Union law, as illustrated by the rulings of the CJEU in the cases of FMS and Others (C-924/19 PPU and C-925/19 PPU) and Commission v. Hungary (C-808/18; see below, the posts on these judgments). There is nonetheless some valuable interaction between the two approaches. Not only did the ECHR rely on Union law in its reasoning, making its requirements relevant in assessing compliance with the Convention, but by doing so it indirectly also provided some ex post assessment as to whether Union law was respected in the present case, along with its findings on whether the Convention was violated or not.

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

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

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

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

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

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

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

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

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

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

German Federal Constitutional Court allows complaints against the execution of European arrest warrants

In a judgment dated 1 December 2020 (2 BvR 1845/18 and 2 BvR 2100/18) the German Federal Constitutional Court allowed, for breach of Article 4 of the EU-Charter (prohibition of ill-treatment), constitutional complaints against judgments by ordinary courts allowing the execution of two European arrest warrants (EAW). It thereby specified the methodology to be applied by German courts when dealing with such matters.

One of the striking elements of this methodology is the global perspective underlying it, i.e. its endeavour to apply Union law while at the same time have due regard to the requirements of the European Convention on Human Rights (the Convention) and national constitutional law. The result is an integrated approach combining and harmonizing the application to the facts of the case of those three co-existing sources of fundamental rights, thereby respecting the specificities of each of them. Key considerations of the judgment regarding the methodological issues raised by the case include:

  • The field of the EAW has been entirely regulated by Union law. Consequently, compliance with the fundamental rights of the persons concerned is to be assessed in light of the EU Charter only, to the exclusion of the national Constitution.
  • The Constitutional Court is competent to assess that compliance on the basis of the EU Charter, unless a referral for a preliminary ruling by the CJEU is required (Art. 267 TFEU). This assessment is to be done having regard to the case-law of the European Court of Human Rights (Art. 52(3) of the EU-Charter) and of the Constitutional and Supreme Courts of the other EU Member States (Art. 52(4) of the EU-Charter)
  • In the case at hand the requirements of Art. 4 of the EU-Charter, as set out by the CJEU, are in line with:
    • Art. 3 of the Convention, as interpreted by the European Court of Human Rights (Art. 52(3) of the EU-Charter)
    • The constitutional requirement of respect for human dignity (Art. 1 (1) of the German Constitution)
  • Consequently, Art. 4 of the EU-Charter can be applied as such to the present case.

By having due regard to the requirements of the Convention when applying EU law and EU fundamental rights, the German Constitutional Court in fact, though not explicitly, takes into account the well-established Strasbourg case-law according to which the application of Union law has to be compliant with the Convention and can be made the subject of an application before the European Court of Human Rights (see, as regards a EAW, the judgments by the European Court of Human Rights in the cases of Pirozzi v. Belgium, 17.4.2018, no. 21055/11and Romeo Castaño v. Belgium, 9.7.2019, no. 8351/17). This is also one of the main reasons why Article 52(3) of the EU-Charter requires that in respect of the rights which the EU-Charter and the Convention have in common, the level of protection guaranteed by the Charter should not fall below the Convention level. Otherwise, domestic courts applying EU law might indeed see their judgments being found in breach of the Convention because the latter’s standards are higher than those of the EU.

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

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

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

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

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

With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4(1) of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. … However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points. (§§ 209-210)

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

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