After a series of inconsistencies in the case-law of the CJEU on the application of ne bis in idem to dual administrative – criminal proceedings, in addition to some discrepancies with the Strasbourg case-law on this topic (see Menci, bpost, BV and MV – 98), it is noteworthy that a certain stability seems to be now emerging in this area with the CJEU’s judgment in the case of Engie România SA (C-205/23, 30.1.2025).

Engie România SA, a natural gas supplier, was penalized by two Romanian authorities – the National Energy Sector Regulatory Authority (ANRE) and the National Consumer Protection Authority (ANPC) – for allegedly breaching transparency obligations and engaging in misleading commercial practices.

The applicant company was accused of failing to provide clear information to customers about its right to adjust the price of natural gas during a fixed 12-month contract period. ​The ANRE imposed fines totaling RON 800,000 (approx. ​ EUR 160,000) and required Engie to revert to the original contract price. ​ Separately, the ANPC imposed a fine of RON 150,000 (approx. ​ EUR 30,000) for misleading and aggressive practices.

The referring court, the Bucharest Regional Court, asked the CJEU inter alia whether the combination of these two penalties had infringed the ne bis in idem principle, laid down in Article 50 of the EU-Charter, which prohibits double criminal proceedings or punishment.

The CJEU’s answer to this question is very much in line with its bpost jurisprudence, which itself extensively relied on A and B v. Norway, the leading Strasbourg case on dual proceedings. While applying a methodology according to which the second set of proceedings is to be considered as a limitation the legality of which is to be checked under Article 52(1) of the EU-Charter, thus departing from the Strasbourg approach on this issue, the CJEU nonetheless applies criteria which are rather close to the Strasbourg criteria, with both European Courts considering that the decisive issue is whether the two set of proceedings can be considered as a “coherent whole”. This is notably so when the proceedings brought by two different authorities pursue complementary aims relating to different aspects of the same unlawful conduct (§ 63).

If this is indeed the case, according to the CJEU, imposing criminal penalties by two different authorities for the same facts is allowed under Article 50 of the EU-Charter, provided a) clear and precise rules exist to predict such duplication of proceedings and penalties, and ensure coordination between the two sets of proceedings, b) these proceedings are conducted in a coordinated and timely manner, and c) penalties are proportionate to the seriousness of the offenses and do not impose an excessive burden. ​

This judgment is to be welcomed as an important contribution to the internal stability of the Luxembourg case-law on dual criminal proceedings and to the harmony with the Strasbourg case-law on this issue.

In the case of Inspektorat kam Visshia sadeben savet (joined cases C-313/23, C-316/23, C-332/23, 30.4.2025), the CJEU addresses several legal questions concerning judicial independence and the application of the General Data Protection Regulation (GDPR) in Bulgaria.

The case involves the Bulgarian Inspectorate at the Supreme Judicial Council (“Inspectorate”), which requested the referring court, the Sofia District Court, to lift banking secrecy on the accounts of several judges, prosecutors, and their family members. ​ The purpose was to verify asset declarations submitted by these individuals, as required under Bulgarian law.

In its ruling, the CJEU first holds that the principle of judicial independence under Article 19(1) TEU and Article 47 of the Charter precludes a practice whereby members of a judicial body, here the Inspectorate, continue to perform their functions beyond their constitutionally defined terms of office without clear legal rules limiting such extensions.

However, this post will focus on the CJEU’s findings regarding the requirements of the GDPR in the present case, more particularly on the answer by the CJEU to the sixth question raised by the referring court: whether it should, when dealing with the lifting of the bank secrecy in this case, ensure of its own motion the protection of the security of the data of the persons concerned.

In the aftermath of Deldits, which already involved the European Convention on Human Rights in interpreting the GDPR, this case indeed presents significant considerations for further reflection on the Convention’s impact on the application of the GDPR.

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In substance, the CJEU answers the referring court’s sixth question by stating that if it is not seized under Articles 78(1) or 79(1) of the GDPR, and in the absence of rules of Bulgarian law expressly conferring supervisory powers on it, it is not required to ensure compliance with the substantive provisions of the GDPR in order to ensure their effectiveness (§ 135). However, the effectiveness of the remedies under Articles 77(1), 78(1) and 79(1) of the GDPR is to be ensured at domestic level, as a requirement flowing from Article 47 of the EU-Charter (§ 136). In other words, only an ex post judicial review is required under the GDPR, not an ex ante review. From a Convention perspective, this reasoning calls for the following observations.

One of the particularities of the GDPR is indeed the fact that, along with the European Public Prosecutor’s Office and Frontex, it belongs to the category of recent legal constructions by the EU which associate national and EU entities in implementing EU law. The list of these entities operating in the context of the GDPR includes, as national entities, the controllers, the processors, the supervisory bodies and the national courts, and, as a “body of the Union” with legal personality, the European Data Protection Board (“the Board”) (Art. 68(1)). In addition, the activity of these entities is governed by a combination of EU and national regulations (Recital 10, Art. 6 (2) and (3), Art. 58(6)).

The integration of EU and national entities, governed by both EU and national regulations, raises important questions regarding the standards which these entities must apply concerning the fundamental rights of individuals whose data come within the scope of the GDPR.

The protection of these fundamental rights indeed seems a major concerns of the drafters of the GDPR. However, despite some general statements to this effect (e.g. in Recitals 4 and 73), the GDPR itself provides limited guidance on how this concern should translate into the practical application of GDPR provisions. The following considerations may offer some help in this respect.  

First, in the framework of the GDPR, the ultimate control over respect of a data subject’s rights, including his or her fundamental rights, lies in the hands of the national courts, which are entrusted with the competence to review legally binding decisions by the controllers, processors and supervisory authorities (Art. 78-79, 82).

Secondly, it must be assumed that these national courts, along with all other national entities involved in the application of the GDPR, are subject to the Convention. This flows from the principle according to which Article 1 of the Convention does not exclude any part of the member States’ “jurisdiction”, which includes EU law, from scrutiny under the Convention (see, among others, Matthews v. the United Kingdom, § 29). As a consequence, national courts must comply with the Convention when applying the GDPR (see mutatis mutandis, among others, Bivolaru and Moldovan v. France). By contrast, the Board, as “body of the Union”, would not in principle be subject to the Convention but only to EU law, including the EU-Charter.

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This is particularly relevant in view of the abundant Strasbourg case-law on the protection of personal data, developed by the ECtHR on the basis of Article 8 of the Convention (see the Court’s case-law guide on data protection).

Thus, on the question raised by the referring court, about whether it should of its own motion, when allowing access to confidential data by authorising the lifting of bank secrecy, also ensure the security of these data at the hands of the authority requiring access to them, several key principles developed by the ECtHR would appear to be relevant.

These principles include the duty on the courts reviewing measures designed to allow access to incriminating evidence to carry out a balancing of the various competing interests, having regard, inter alia, to the seriousness of the offence at stake, the necessity and proportionality of the impugned measures, the safeguards implemented in order to confine the impact of the measures to reasonable bounds and the extent of possible repercussions on respect for the private life of the person concerned (see the case-law guide on data protection, referred to above, at §§ 170 er seq.).

As to whether this scrutiny should take place ex ante, i.e. prior to the authorisation given to access the requested data, or ex post, i.e. in the context of a judicial review carried out after any penalty has been imposed on the basis of the personal data at issue, this question is to be decided in light of the effectiveness of the ex post judicial review. It is only if the court carrying out this ex post judicial review is competent to effectively review all the factual and legal aspects of the case as described above, including the necessity and proportionality of the access thus provided to the requested data, and if this court is capable of affording appropriate redress, that such an ex post review will be considered sufficient under Article 8 of the Convention.

Thus, a purely formal legality control of a measure encroaching on a data subject’s rights, prior to the implementation of that measure, as described in § 46 of the CJEU’s judgment, might not suffice under Article 8 of the Convention, if there is no guarantee of an effective ex post facto judicial review. Whether there is such a guarantee will depend on the applicable law but also on the circumstances of the case (see e.g., mutatis mutandis, DELTA PEKÁRNY a.s. c. v. Czech Republic, at §§ 92-93, and Ships Waste Oil Collector B.V. and Others v. the Netherlands, at §§ 191 et seq., which also insists on safeguards against arbitrariness and abuse).

Interestingly, the referring court in the case at hand expressed doubts about the effectiveness of the judicial control provided under Article 79 of the GDPR and referred to the fact that Bulgarian law provides for a prior judicial review (§ 49). The CJEU, however, dismissed this concern, arguing that the judicial review provided for by Articles 78(1) and 79(1) of the GDPR is to take place after the processing of the personal data concerned (§§ 128-130). The CJEU thereby seems to minimise the role of an ex ante judicial review, at odds with the Strasbourg case-law referred to above.

The CJEU however adds that “the Member States must ensure that the practical arrangements for the exercise of the remedies provided for in Article 77(1), Article 78(1) and Article 79(1) of that regulation effectively meet the requirements arising from the right to an effective remedy enshrined in Article 47 of the Charter” (§ 136).

This brings us back to square one, with the CJEU ultimately acknowledging that the key criterion to be applied in this context is the effectiveness of the judicial review available to the data subject. Yet, while the ECtHR sees the effectiveness of the judicial review in the possible combination of an ex ante and ex post review which should also rely on substantive criteria, including a necessity and proportionality assessment, the CJEU locates the judicial review entirely in the final phase of the judicial proceedings, which can be too late, and apparently reduces its effectiveness to a matter of procedural fairness governed by Article 47 of the EU-Charter only.

It would therefore appear that the Luxembourg approach to the judicial review to which data subjects are entitled under the GDPR in a case like the present one offers a lower protection level than the Strasbourg approach. Since the CJEU in this case does not properly interpret any of the EU-Charter rights, it can be left open whether its approach is compatible with Article 52(3) of the EU-Charter.

However that may be, though, this case shows that national judges and prosecutors are well advised in having regard to the Strasbourg case-law when applying the GDPR. If, as in the case at hand, the Strasbourg protection level turns out to be higher than the Luxembourg level, there is nothing to prevent them, in the absence of any primacy of EU law over the Convention, from applying the Strasbourg protection level. National law offering a lower protection level cannot stand in the way of the Strasbourg level either. Thus, by applying the latter, judges and prosecutors not only better protect citizens, but they also protect themselves from being found in breach of the Convention by the ECtHR.

At the heart of the case of EPPO (judicial review of procedural acts) (C-292/23, 8.4.2025) was the interpretation by the CJEU of Article 42(1) of Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (“the EPPO”), which regulates the judicial review available under that Regulation.

In the case at hand, two directors of a Spanish company were suspected of subsidy fraud with EU funds. Their lawyers appealed against the decision by the European Delegated Prosecutors handling the case to summon another person, Y.C., as a witness. The referring court, before which the appeal was lodged, asked the CJEU about whether it had jurisdiction under EU law to deal with this appeal.

The CJEU first notes that under Article 42(1) of the Regulation, “procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties” are subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. After applying an autonomous and extensive interpretation of the concepts of “procedural acts” and “third parties”, the CJEU states that the question whether such acts produce binding legal effects should be assessed in concreto, i.e. on a case-by-case basis, having regard to the circumstances of each case.

The existence of such binding legal effects will, in the CJEU’s opinion, vary according to the procedural rights to which a suspect or accused person is entitled in a given case. This is because, first, the purpose of the judicial review is precisely to ensure that the EPPO observes the fundamental rights of the persons in respect of whom these procedural acts produce such effects, notably the right to procedural fairness and the rights of the defence, in accordance with Articles 47 and 48 of the EU-Charter; and because, secondly, pursuant to Article 41 of the Regulation, these procedural rights cover not only those laid down by EU law, but also those granted by national law, which vary depending on the Member State concerned (§§ 70-72).

Thus, the scope of the procedural acts by the EPPO producing legal effects on (the rights of) third parties can vary accordingly. This is why the CJEU considers national courts to be best placed to assess the effects of a decision to summon a witness on the rights of a person who is the subject of an investigation, the criterion being whether that decision brings about a distinct change in the legal position of the person concerned, notably by affecting his or her procedural rights (§§ 73, 75).

If that is the case, the question arises as to whether the judicial review to which that person is entitled under Article 42(1) of the Regulation must necessarily be carried out by way of a direct appeal or whether it can also take the form of an incidental question dealt with by the criminal trial court. According to the CJEU, an incidental question is an acceptable option, provided that it is an effective remedy allowing all relevant questions of law and fact, in particular any breaches of rights and freedoms guaranteed by EU law, to be properly addressed (§§ 79-80).

However, pursuant to the principle of equivalence, it would not be acceptable for a direct appeal against acts of the European Delegated Prosecutors to be excluded in a national legal order if the latter provides for the possibility of a direct appeal against analogous acts of a national investigating judge (§ 88).

Observations

First of all, this ruling is a useful confirmation of – and elaboration on – the competence of national courts to carry out a judicial review of acts of the Delegated European Prosecutors. It is also a reminder of the role played by national procedural rights, along with EU procedural rights, in the context of such a judicial review (§ 71).

At the same time, the European Convention on Human Rights is obviously the elephant in the room in this judgment. Unlike EU and national law, it is nowhere being referred to. Yet it seems clear that next to these two last-named sources, the Convention also applies to any judicial review carried out by national courts under Article 42(1) of the Regulation (see No case to answer for the European Public Prosecutor?). There are two reasons for this. First, the Convention is an integral part of the domestic legal system of virtually all Member States of the EU, where it has a major impact on precisely the procedural rights in criminal proceedings. For the sake of clarity, this fact alone should have prompted the CJEU, when identifying the national legal systems as a source of procedural fundamental rights in this context, to at least also flag the role of the Convention in these national legal systems, which the national judges themselves cannot ignore.

Secondly, the Convention applies, in general, to any application of EU law by the domestic courts of the Member States (see, among others, Bosphorus v. Ireland, § 137) and Article 6 of the Convention (right to a fair trial), in particular, is more than likely to apply in its criminal limb to judicial review proceedings conducted before national courts against acts of the EPPO (see, mutatis mutandis, Vera Fernández-Huidobro v. Spain, §§ 108-114), subject to confirmation by the ECtHR when a first case concerning a judicial review under Article 42(1) of the Regulation is brought before it.

Against this background, it seems rather misleading to present, as in paragraphs 79, 80 and 84 of the judgment, the effectiveness of a judicial remedy under Article 42(1) of the Regulation to be sufficiently ensured when the sole procedural rights laid down by EU law are respected. Such a system-focussed – and therefore partial – presentation is at odds with the reality on the ground which is that the national courts entrusted with this kind of judicial review must also apply the procedural rights enshrined in their own national law and/or in the Convention.

This is particularly so in view of the fact that there is, to date, far more Strasbourg case-law on procedural rights in criminal proceedings than there is Luxembourg case-law on that topic, which might sometimes make the former more relevant in practice. Admittedly, the Directives on procedural rights in criminal proceedings seek to reflect a significant part of the Strasbourg case-law on the right to a fair trial in criminal proceedings. However, they contain lacunae (e.g. in Spetsializirana prokuratura) and their interpretation sometimes gives rise to protection drops (e.g. in VB II).

Thus, contrary to the presentation by the CJEU, a wholistic look at the reality on the ground tells us that EU law alone cannot be decisive for the effectiveness of a remedy before domestic criminal courts carrying out judicial review under Article 42(1) of the Regulation. Genuine effectiveness in this field can only be the result of national courts complying also with their own national as well as the Convention procedural rights, along with the relevant EU procedural rights, as indeed suggested by Article 41(3) of the Regulation itself.

In the case of Deldits (C-247/23, 13.3.2025), the CJEU ruled on the right to rectification of incorrect personal data appearing in a public register, as provided for by Article 23 of Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“General Data Protection Regulation”, “GDPR”).

In the case at hand, VP, an Iranian national who had obtained refugee status in Hungary, unsuccessfully applied for the rectification in the asylum register of their gender identity from female to male. VP’s application, which relied on Article 16 of the GDPR (right to rectification of inaccurate personal data), was rejected by the Hungarian asylum authority on the ground, inter alia, that VP had not proved that they had undergone gender reassignment surgery.

In light of Article 5(1)(d) of the GDPR (principle of the accuracy of personal data), the CJEU first holds that since the purpose of collecting personal data is to identify the data subject, these data should relate to VP’s gender identity at the time of their registration in the asylum register and not the gender identity assigned to them at birth. National law cannot stand in the way of the right to have incorrect data rectified accordingly, pursuant to Articles 8(2) of the EU-Charter and 16 of the GDPR (§§ 32-37).

The CJEU then examines, in light of Article 23 of the GDPR, which regulates the restrictions which can be applied to the rights and obligations laid down in the GDPR, the Hungarian administrative practice according to which the exercise of the right to rectification of the personal data relating to the gender identity of a natural person is conditional upon the production of evidence of, in particular, gender reassignment surgery.

The CJEU finds this practice not to fulfil the requirements of Article 23 and, consequently, to be incompatible with the right to rectification of personal data, within the meaning of Article 16, because a) the said practice is not provided for by a legislative act, and b) the only evidence accepted in support of the request for rectification of the person’s gender identity is evidence of a gender reassignment surgery.

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What is noteworthy, from a Convention point of view, is the CJEU’s reasoning leading to that conclusion, notably on the question whether the restrictions entailed by the said practice respect the essence of the fundamental rights and freedoms involved and are necessary and proportionate, as required by Article 23. In holding that this is not the case, because the said practice undermines the essence of, in particular, the right to the integrity of the person and the right to respect for private life, as enshrined in Articles 3 and 7 of the EU-Charter, the CJEU also refers to case-law of the ECtHR to the same effect, notably X and Y v. Romania and Garcon and Nicot v. France.

The CJEU thereby relies on Article 52(3) of the EU-Charter, according to which the rights guaranteed by the Charter have the same meaning and the same scope as the corresponding rights guaranteed by the Convention, the latter constituting a minimum threshold of protection (§ 46).

The impact of such references by the CJEU in the application of the GDPR should not be underestimated, as they confirm the relevance of the Convention in this legal area, more particularly in making clear that restrictions under the GDPR not only must comply with the Charter but also should not lower the Convention protection level. Such an indication is even more significant in view of the fact that the GDPR itself makes no reference to the Convention, except in Recital 73 dealing with restrictions. This somehow suggests that the EU lawmaker considered the Convention to be of little importance for the GDPR.

Nowhere else is there any explicit indication by the EU lawmaker that the GDPR does not intend to lower the Convention protection level, as one can find in numerous other pieces of secondary legislation, e.g. in their non-regression clauses. Admittedly, Recital 4 states that the GDPR “respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties”. But can such a general formulation in a recital be equated with a proper non-regression clause?

The value of such non-regression or equivalent clauses becomes clear when considering that pursuant to Articles 78 and 79 of the GDPR, national courts are competent to deal with the judicial remedies which data subjects are entitled to use against supervisory authorities, controllers or processors acting on the basis of the GDPR. As with any other EU law context, when applying the GDPR these national courts must also comply with the Convention (see, among others, Bivolaru and Moldovan v. France). Mutatis mutandis, this, in principle, also holds true for all other national bodies or agents entrusted with the performance of duties under the GDPR, since no part of the legal systems of the EU Member States is outside the scope of the ECtHR’s jurisdiction as determined by Article 1 of the Convention (Bosphorus v. Ireland, § 153).

The CJEU can therefore only be commended for referring in this important area to Article 52(3) of the EU-Charter and the threshold function it confers on the Convention in EU law (on this function, see Optionality of the Convention). First, this is a useful reminder that the application of the GDPR by national authorities is not outside the scope of the Convention. Secondly, the reference to the threshold function of the Convention is also an indication that while it can perhaps be assumed that the GDPR is generally not lowering the Convention protection level, this should nonetheless, by virtue of Article 52(3) of the EU-Charter, be double-checked at national level in case of doubt in a concrete case, if necessary by referring the issue to the CJEU for a preliminary ruling under Article 267 TFEU.

In the case of VB II (Information on the right to a new trial; C-400/23, 16.1.2025), the CJEU interpreted Articles 8 and 9 of Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (“the Directive”). These provisions deal with criminal convictions in absentia.

In the case before the referring court, the Sofia City Court, criminal proceedings had been initiated against VB on drug-related charges. Since the prosecution authorities did not manage to locate VB, he was not formally notified of the charges, nor was he informed of the date and place of the trial or of the consequences of his non-appearance. With its request for a preliminary ruling, the referring court inquired about the rights to which VB would be entitled in the event of a conviction in absentia to a custodial sentence.

One of the particularities of Bulgarian law relevant in this case is that after the expiry of the time limit for lodging an appeal against a decision rendered in absentia, the only available legal remedy is the submission of a request for a new trial to the Supreme Court of cassation, the only court with jurisdiction to deal with such matters. The referring court therefore inquired, inter alia, about whether it was compatible with Article 8(4), 2^nd sentence, of the Directive, read in conjunction with Article 9, to entrust another court than the trial court with ruling on a request to reopen the criminal proceedings.

In answering this question, the CJEU considers that the said provisions of the Directive do not preclude a system whereby exclusive jurisdiction to consider requests for a new trial is entrusted to another court than the one which convicted a person in absentia, provided that the proceedings before the latter court observe the principles of equivalence and effectiveness.

The latter principle entails, inter alia, a guarantee that the proceedings relating to the request to reopen criminal proceedings lead to the recognition of the right to a new trial in all cases where none of the conditions laid down in Article 8(2) of that Directive are satisfied (§§ 53 and 59). According to the latter provision, a criminal trial can take place in the absence of the suspect or accused person if either the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance, or if that person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.

Thus, the concern of the CJEU is that the court deciding on a new trial should be left with no discretion on whether to reopen the proceedings in all cases where none of the conditions laid down in Article 8(2) are met. In other words, if none of the conditions laid down in Article 8(2) are met, the right to a new trial is automatic. Conversely, there is no right to a new trial if the absent suspect or accused person was either properly informed about the trial and the consequences of not attending it, or represented by a lawyer at that trial.

While this finding does not come as a surprise, being the result of a faithful interpretation of the relevant Articles of the Directive, it nonetheless raises some questions from a Convention point of view. They relate to the approach followed by these provisions in dealing with absent suspects or accused persons, notably as regards the question whether and, if so, when these persons can be considered to have waived their right to be present at their trial, thus precluding any new trial.

In this context, it is to borne in mind that, along with many other provisions of the Directives on procedural rights in criminal proceedings, Articles 8 and 9 of the Directive initially sought to codify the case-law of the ECtHR (see the Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings), here the one on criminal convictions in absentia. It would appear, though, that these provisions limit the right to a new trial to a greater extent than under Article 6 of the Convention, notably by precluding any new trial if the suspect or accused person has been “informed, in due time, of the trial and of the consequences of non-appearance”.

While indeed the ECtHR also relies on the fact that an absent person has been properly informed about the trial in order to conclude that he/she has waived his/her right to be present at his/her trial, this circumstance is not necessarily decisive, as room is nonetheless left for the possibility that his/her absence might be due to circumstances beyond the control of the person concerned, like health issues, or indeed to force majeure and, consequently, for an explanation to that effect by that person. A Grand Chamber of the ECtHR indeed ruled in Sejdovic v. Italy:

Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial …. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance … Furthermore, it must not run counter to any important public interest ….

Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be…

A person charged with a criminal offence must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure … At the same time, it is open to the national authorities to assess whether the accused showed good cause for his absence or whether there was anything in the case file to warrant finding that he had been absent for reasons beyond his control (§§ 86-88, emphasis added).

The ECtHR also considers that:

In view of the prominent place held in a democratic society by the right to a fair trial …, Article 6 of the Convention imposes on every national court an obligation to check whether the defendant has had the opportunity to apprise himself of the proceedings against him where … this is disputed on a ground that does not immediately appear to be manifestly devoid of merit (Somogyi v. Italy, § 72).

Articles 8 and 9 of the Directive do not appear to allow for special circumstances justifying non-appearance of a duly informed accused at his/her trial, nor does the interpretation by the CJEU in the present case, which ignores the more flexible and therefore more protective Strasbourg case-law on these issues. Admittedly, the CJEU insists on the right for the accused to be heard on whether the conditions laid down in Article 8(2) of the Directive were satisfied (§ 66). However, the scope of that hearing seems limited to these objective conditions, nothing being said by the CJEU about any possibility for the accused to “show good cause” in this context.

This is somewhat surprising in view of recitals 47 and 48 of the Directive, referred to by the CJEU (§ 68), which require the Convention and the EU-Charter to be taken into account. It is even more surprising in view of the non-regression clause laid down in Article 13 of the Directive and Article 52(3) of the EU-Charter, both to the same effect, these provisions being simply ignored by the CJEU. This is only one more confirmation that in EU law the Convention is only optional (see EU accession as logical answer to the optionality of the Convention in EU law).

Thus, what we see here amounts to a reduction of the Strasbourg protection afforded to absent suspects or accused persons. It is the result of an objectivation and autonomization of only some of the Strasbourg criteria, which are made to suffice as the sole basis for concluding on the existence of a waiver by the accused of the right to be present at trial, thereby leaving no room for exceptional or personal circumstances capable of excusing his/her non-appearance at the trial. In other words, the assessment becomes a mechanical rather than an individualised operation.

This may also be the reason why at no point in the Directive or the present judgment reference is made to the notion of “waiver”: because waiver is a rather subjective notion, referring to the intentions of an accused person which objective criteria only help identify. Here is the main difference between the Strasbourg and Luxembourg approach: while objective criteria such as the non-appearance at trial, in spite of proper information about it, are used by the ECtHR as a means to find out about the intention of the accused to waive his/her right or to escape justice, these criteria are being autonomized by the Directive, as interpreted by the CJEU, in the sense that they are made to suffice in justifying the holding of a trial without the accused person, regardless of the latter’s intentions and circumstances.

In sum, while the issue under the Convention is the waiver of the right to attend one’s trial, the issue under the Directive is only whether the objective test of its Article 8(2) is met. This also transpires from Spetsializirana prokuratura (trial of an absconded suspect; C-569/20, 19.5.2022).

Yet it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (Taxquet v. Belgium, § 93).

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The present judgment only confirms the risks involved in trying to codify the case-law of the ECtHR on the fairness of criminal proceedings (Article 6 of the Convention), which is what the Directives on fundamental rights in criminal proceedings seek to do. These risks range from freezing the case-law to leaving gaps (as in Spetsializirana prokuratura (trial of an absconded suspect)) or, as in the present case, lowering the Strasbourg protection level.

It is precisely in respect of such deficits that the non-regression clauses featuring in all these Directives, along with Article 52(3) of the EU-Charter, play an essential role in preventing the protection level of the Directives to fall below the Strasbourg level. However, this can only work if these safeguard-provisions are duly applied and seen as allowing or indeed calling for a departure from a purely textual and positivistic interpretation of some provisions of the Directives, so as to make them match at least the Strasbourg protection level.

In this connection, it is indeed striking to see the CJEU in the present case being far more creative and “protective” on the modalities of the proceedings before the Supreme Court of cassation, which are not regulated as such by the Directive, than on the more fundamental issue of the conditions to be met for the reopening of the proceedings, which are governed by that Directive.

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Be that as it may, national judges who apply their domestic law transposing Articles 8 and 9 of the Directive may be confronted with the fact that for the reasons stated above, the Convention standards on the waiver by an accused person of the right to attend trial are more protective than those of the Directive. In view of the obligation on domestic courts to apply EU law in compliance with the Convention (see M.B. v. the Netherlands), and in order to avoid their judgment being successfully challenged before the ECtHR, these judges should therefore preferably apply the Convention standards, of course without prejudice to the application by them of Article 267 TFEU.

In this connection, it is clear that, as repeatedly indicated by the CJEU, the Convention not being part of EU law, the CJEU does not have jurisdiction to assess the compatibility of EU legislation with the Convention (see, among others, Åkerberg Fransson, § 44). One may however wonder whether Article 52(3), 1^st sentence, of the EU-Charter might not have the potential, if explicitly relied on in a referral request, to allow the CJEU to at least indirectly verify to what extent EU law complies with the minimum Convention protection level. Domestic courts might want to test this.

In the case of PT (agreement between the Prosecutor and the perpetrator of an offence) (C-432/22, 28.11.2024), the CJEU ruled on the compatibility with EU law of provisions of Bulgarian criminal procedure relating to plea-bargaining, i.e. a mechanism providing for the possibility to impose a more lenient penalty on an accused who pleads guilty.

In the main proceedings, 41 persons were accused of drug related offenses in one set of proceedings. Two of them entered into a plea-bargaining agreement with the Public Prosecutor.

The first question submitted to the CJEU by the referring court, a Specialised Criminal Court, related to a provision according to which it is for an ad hoc court, and not the court responsible for the case, to rule on an agreement for settlement of the case entered into by a defendant and the public prosecutor, where other defendants are also prosecuted in the same proceedings. The second question concerned a provision which, in criminal proceedings brought against several defendants on the basis that they had participated in the same organised criminal group, makes the judicial approval of an agreement for settlement of the case, entered into by one of the defendants and the public prosecutor, subject to the consent of all the other defendants.

The CJEU detected no incompatibilities between these provisions and EU law. In its opinion, the first of these provisions was justified by the need to preserve the impartiality of the trial court which will have to assess the guilt of the other defendants, whereas the second provision sought to preserve their rights of the defence.

What is particularly noteworthy about this case, from a Convention point of view, is the CJEU’s reasoning as regards its own jurisdiction.

In a first step, the CJEU indeed considered that the provisions of the Bulgarian Code of Criminal Procedure at stake in the present case did not come within the scope of the EU-Charter, because they did not constitute “implementation of Union law”, for the purposes of Article 51(1) of the EU-Charter, in respect of the relevant provisions of Framework Decisions 2004/757 (laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking) and 2008/841 (on the fight against organised crime).

In other words, in the absence of an EU law obligation to legislate on the settlement of criminal cases, at issue in the present case, there was no sufficient “degree of connection” between the relevant national and EU law provisions. Consequently, the CJEU did not have jurisdiction to answer the questions submitted by the referring court in so far as they concerned Article 5 of Framework Decision 2004/757, Article 4 of Framework Decision 2008/841, the first and second paragraphs of Article 47 and Article 52 of the Charter (§ 43).

Interestingly, however, the CJEU then decided to consider the case under the 2^nd subparagraph of Article 19(1) TEU, the provision which “gives concrete expression to the value of the rule of law affirmed in Article 2 TEU” and which to date has been mainly applied as enshrining the requirement of judicial independence, as e.g. in Inspecţia Judiciară. According to this provision, which has direct effect (§ 54), the Member States shall provide remedies sufficient to ensure effective legal protection “in the fields covered by Union law”.

In this connection, the CJEU recalled that the 2^nd subparagraph of Article 19(1) TEU is intended, inter alia, to apply to any court or tribunal which can rule on questions concerning the interpretation or application of EU law and which therefore falls within the fields covered by that law, irrespective of any implementation of Union law (§§ 45-46). As this was the case with the referring court, the CJEU had jurisdiction, under that provision, to deal with the two first questions submitted by that court.

The CJEU then inferred from the 2^nd subparagraph of Article 19(1) TEU some new and specific requirements concerning the impartiality of the courts and the rights of the defence in the context of plea-bargaining proceedings, which were considered as fulfilled by the Bulgarian provisions at stake.

Even more interesting, from a Convention perspective, is the link established by the CJEU between the 2^nd subparagraph of Article 19(1) TEU and Articles 47, second paragraph, of the EU-Charter and 6 § 1 of the Convention. Considering that the principle of effective judicial protection was a general principle of EU law which was enshrined in the second paragraph of Article 47 of the EU-Charter, and considering that according to the Explanations relating to the EU-Charter, the second paragraph of Article 47 corresponds to Article 6 § 1 of the Convention, the CJEU indeed concluded that, pursuant to Article 52(3) of the EU-Charter, it had to ensure that its interpretation “in the present case” ensured a level of protection which did not disregard that guaranteed by Article 6 § 1 of the Convention, as interpreted by the ECtHR (§§ 51-52).

This would appear to be the first time the CJEU considers the Convention as a benchmark when applying Article 19(1) TEU (on the benchmark function of the Convention in EU law, see The Recent Luxembourg Case-Law on Procedural Rights in Criminal Proceedings and Benchmark function of the Convention stressed by the CJEU in Mirin and Real Madrid Club de Fútbol).

Not only does this approach serve to ensure consistency of the CJEU case-law with that of the ECtHR. It also allows the national judges applying this rather novel Luxembourg case-law to be satisfied that by doing so, they also comply with the Strasbourg case-law, in respect of which they can be held liable in an application before the ECtHR.

The “fields covered by Union law” are indeed not outside the “fields covered by the Convention”. As the ECtHR put it, inter alia in Bosphorus v. Ireland, § 153: “A Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention”.

In the case of Tudmur (19.12.2024, joined cases C‑185/24 and C‑189/24) the CJEU ruled on the unilateral suspension by the Italian authorities of the transfer to Italy of asylum seekers under the Dublin III Regulation (“the Regulation”).

The referring court, a Higher German Administrative Court dealing with two applications for asylum for which Italy was responsible under the Regulation, was confronted with the decision by the Italian authorities to temporarily suspend all transfers of asylum seekers to Italy under that Regulation, because of the unavailability of reception facilities as a result of the high number of arrivals and the lack of available reception places. In that context, the referring court requested the CJEU to clarify the interpretation of the Regulation, notably as regards the existence of systemic flaws in Italy.

According to the CJEU, the fact that a Member State had unilaterally suspended the taking charge of asylum seekers was not capable, in itself, of justifying the finding of systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection, to the effect that the latter could not be transferred to the Member State responsible for the processing of the application for asylum.

However, it nonetheless remained for the referring court to assess whether the conditions for an exception to the transfer to Italy of the two asylum seekers concerned, as laid down in the 2^nd sub-paragraph of the Article 3(2) of the Regulation, were met. This will only be the case if, first, in the asylum procedure and the reception conditions of the Member State designated as responsible there are systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the EU-Charter and, secondly, if these systemic flaws result in a risk, for the person concerned, of being exposed to such a treatment (§§ 35-38).

Thus, systemic flaws precluding the transfer of an asylum seeker cannot be the result of a unilateral legal act by that Member State but are a factual circumstance the existence of which must be assessed “following a specific analysis based on information that is objective, reliable, specific and properly updated” (§ 40).

To this extent, the present case bears a striking resemblance with M.S.S. v. Belgium and Greece which concerned the transfer under the Dublin Regulation (No. 343/2003/EC) of an Afghan asylum seeker by Belgium to Greece, where the asylum system had broken down, which resulted in the applicant living in the streets of Athens in a state of extreme material poverty and being exposed to a risk of refoulement. In that case, the ECtHR found several violations of the Convention, notably of Article 3 of the Convention (prohibition of ill-treatment), taken alone and in conjunction with Article 13 (right to an effective remedy), on account of the dire living conditions of the applicant in Athens and the serious flaws in the Greek asylum procedure.

With Italy refusing any more transfers because of a lack of reception places as a consequence of a massive influx of migrants, the asylum seekers in the present case, RL and QS, can hardly expect any better conditions than M.S.S. could expect in Greece. Yet the ECtHR’s approach in M.S.S. differs from Tudmur in at least three different respects: the scope of the problem, the test to be applied and the burden of proof.

The scope of the problem

As regards, first, the scope of the problem, it is to be noted that in M.S.S. the relevant risks to the fundamental rights of the applicant were not limited to the risk of finding himself in a state of extreme material poverty incompatible with human dignity, as seems to be the case in Tudmur (§ 37).

By contrast, the ECtHR found in M.S.S. a violation of Article 13 of the Convention, in conjunction with Article 3, “because of the deficiencies in the Greek authorities’ examination of the applicant’s asylum request and the risk he faces of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy” (§ 321).

A similar risk can hardly be ruled out in respect of RL and QS. It should therefore also be dealt with, at least under the Convention, by the referring court, provided of course that it has been raised by RL and QS. Strangely enough, though, the CJEU does not address that aspect of the situation, despite the wording of the 2^nd sub-paragraph of Article 3(2) of the Regulation and Article 47(1) of the EU-Charter which also protects the right to an effective remedy. Is this another illustration of the categorisation of fundamental rights under the Regulation (see Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer)) ?

One can indeed easily imagine a situation whereby the reception conditions in the responsible Member State might not be such as to reach the point of extreme material poverty, while the flaws in the asylum procedure of that same State nonetheless represent a risk which is relevant under Article 13 in conjunction with Article 3 of the Convention.

The test to be applied

Secondly, under the Convention the existence of “systemic flaws” is not a necessary pre-condition the absence of which precludes any finding as regards the individual risks incurred by a person subject to a transfer, as is the case under the Regulation (§§ 38-39). In other words, under the Convention any general assessment cannot represent an obstacle to the application of an individual test. Rather, widespread shortcomings – not necessarily “systemic flaws” – are only used by the ECtHR as evidence serving as a basis for an individualised finding concerning the risks incurred by the applicant, as illustrated by paragraph 255 of M.S.S.:

“The Court notes in the observations of the Council of Europe Commissioner for Human Rights and the UNHCR, as well as in the reports of non-governmental organisations (see paragraph 160 above) that the situation described by the applicant exists on a large scale and is the everyday lot of a large number of asylum-seekers with the same profile as that of the applicant. For this reason, the Court sees no reason to question the truth of the applicant’s allegations.”

Consequently, the absence of widespread shortcomings in the country of destination of a transfer does not dispense the ECtHR from inquiring about individual risks incurred by the person concerned, as recently confirmed in Khasanov and Rakhmanov v. Russia (§§ 95-101). Even where the application of a general test is mandatory under EU law, the ECtHR’s only determination is individualised, focussed on the personal situation of the applicant (see Bivolaru and Moldovan v. France). This is because by virtue of the right to individual petition (Article 34 of the Convention), any individual application requires an individual determination based on an individual assessment, regardless of the general circumstances.

Thus, under the Convention domestic judges are not dispensed from applying an individual test when applying the Dublin Regulation, there being no primacy of EU law over the Convention.

The burden of proof

Finally, on the burden of proof, paragraph 39 of the Tudmur ruling seems to suggest that it is for the asylum seeker to provide the initial evidence establishing the risks which he or she would incur in the event of a transfer to responsible Member State, whereupon the domestic courts “must take into consideration, on their own initiative, relevant information of which they are aware”. In this connection, it might be worth recalling the following well-established principles of the Strasbourg case-law, as reiterated in paragraphs 125-126 of F.G. v. Sweden:

“It is in principle for the person seeking international protection in a Contracting State to submit, as soon as possible, his claim for asylum with the reasons in support of it, and to adduce evidence capable of proving that there are substantial grounds for believing that deportation to his or her home country would entail a real and concrete risk of exposure to a life‑threatening situation covered by Article 2 or to treatment in breach of Article 3.However, in relation to asylum claims based on a well-known general risk, when information regarding such a risk is freely ascertainable from a wide number of sources, the obligations incumbent on the States under Articles 2 and 3 of the Convention in expulsion cases entail that the authorities carry out an assessment of that risk of their own motion.” (emphasis added)

In F.G. v. Sweden, the failure by the authorities to inquire of their own motion about such well-known general risks concerning the applicant amounted to a breach of their procedural obligations under Articles 2 and 3 of the Convention.

Conclusion

On all three aspects addressed above, the Convention would appear to guarantee a higher level of protection for Dublin asylum seekers than the Regulation. In view of the obligation on domestic courts to apply EU law in compliance with the Convention (see M.B. v. the Netherlands), these courts should therefore preferably take the above aspects into account when applying Article 3(2), 2^nd sub-paragraph, of the Regulation, of course without prejudice to the application by them of Article 267 TFEU.

In this connection, it is clear that, as repeatedly indicated by the CJEU, the Convention not being part of EU law, the CJEU does not have jurisdiction to assess the compatibility of EU legislation with the Convention (see, among others, Åkerberg Fransson, § 44). One may however wonder whether Article 52(3), 1^st sentence, of the EU-Charter might not have the potential, if explicitly relied on in a referral request, to allow the CJEU to at least indirectly verify to what extent EU law complies with the minimum Convention protection level. Domestic courts might want to test this.