Category Archives: Recent Case Law

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

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

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

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

Pursuant to this agreement, the applicant was returned from Germany to Greece on 4 September 2018. The order refusing him entry in Germany was based on section 18(2) point 2 of the German Asylum Act and stated that there were indications that Greece had a responsibility to take back the applicant, under the Dublin III Regulation (No 604/2013).

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

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

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

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

In its reasoning, the ECtHR stressed the following principles:

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

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

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

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

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

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

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

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

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

“The fields covered by Union law”: not outside the fields covered by the Convention – Judgment of the CJEU in the case of PT

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 2nd 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 2nd 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 2nd 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 2nd 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”.

Breakdown of reception conditions for asylum seekers: Dublin not the whole story – judgment of the CJEU in Tudmur

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 2nd 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 2nd 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), 2nd 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), 1st 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.

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

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

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

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

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

This case calls for the following six observations.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Benchmark function of the Convention stressed by the CJEU in Mirin and Real Madrid Club de Fútbol

In what is still a rather rare occurrence in the Luxembourg jurisprudence, the benchmark function of the Convention (on this notion, as opposed to the toolbox function of the Convention, see Convention control over the application of Union Law by National Judges, p. 337) has been extensively relied on in the two following Grand Chamber rulings of the CJEU.

These rulings are rather remarkable when considered against the background of a recent internal study showing that over the period 2016–2024, as at 1 November 2024 only 55 references were found during these eight years which explicitly acknowledge the benchmark function of the Convention, as established by Article 52(3) of the EU-Charter. More specifically, 34 such references concern Articles 6 (fair trial) and 13 (effective remedy) of the Convention, while the remaining 21 are divided among the other provisions of the Convention. Such explicit references therefore look like a marginal phenomenon in the Luxembourg case law. By comparison, in 2023 alone, the CJEU, excluding the General Court, delivered 723 judgments. The future will tell whether the two judgments presented below mark a new trend or are simply another swallow not making a summer. It remains the case, though, that such references greatly facilitate the job of national judges by protecting them from breaching the Convention when applying EU law.

Mirin

In Mirin (C-4/23, 4.10.2024), the CJEU ruled on the recognition by a Member State of a change of first name and gender identity which had been lawfully acquired in another Member State.

The claimant in the main proceedings was a Romanian citizen who was registered in Romania as female and, during a stay in the United Kingdom, where that person acquired British nationality, changed his first name from female to male and obtained legal recognition of his male gender identity. Back in Romania, he asked for these changes of name and sex to be recorded in his birth certificate so as to reflect his male sex. However, the Romanian administrative authorities rejected his request, considering that he should start new proceedings for a change of gender identity before the Romanian courts. The CJEU considered this regime to go against Articles 20 and 21(1) TFEU, read in the light of Articles 7 and 45 of the EU-Charter.

In so doing, the CJEU amply relied on Strasbourg case-law, notably X and Y v. Romania, considered to set a minimum protection standard applicable also under EU law, by virtue of Article 52(3) of the EU-Charter. The CJEU indeed stated in paragraph 63 of its judgment:

In that regard, as is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed in Article 7 thereof have the same meaning and the same scope as those guaranteed in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, … the latter provision constituting a minimum threshold of protection (see, by analogy, judgment of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraph 92 and the case-law cited).

Noteworthy in this connection is also the fact that contrary to previous habits (as in W.Ż. or in Orde van Vlaamse Balies and Others), the CJEU here did not refer to the autonomy of EU law as limiting the effect of Article 52(3) of the EU-Charter. This would indeed appear to be the correct approach, since after acknowledging the importance of EU law autonomy, the EU legislature in the Explanations to that provision stated: “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR”. To this extent, Article 52(3) of the Charter thus amounts to a self-imposed restriction to the autonomy of EU law.

As a result, the CJEU rightly read the relevant Strasbourg case-law as imposing, under Article 8 of the Convention (right to respect for private and family life), an obligation on States to provide for a clear and foreseeable procedure for legal recognition of gender identity which allows for a change of sex and thus of name and digital code, on official documents, in a quick, transparent and accessible manner (§ 66).

Against this background, the CJEU saw the absence in Romania of a procedure allowing for the legal recognition of a change of name and gender identity which had already been lawfully acquired in another Member State to stand in the way of an effective enjoyment of the right to free movement, as guaranteed by Articles 21 TFEU and 45 of the EU-Charter, read in the light of Article 7 of the EU-Charter (§ 68).

This approach, based on the requirements of the right to free movement, is very similar to the one adopted by the CJEU in cases which concerned the recognition in a Member State of a homosexual partnership lawfully established in another Member State, as in Coman and Others where the CJEU also relied on the Strasbourg case-law (see Different ways to the same goal: Strasbourg and Luxembourg on same-sex couples).

Consequently, the present ruling by the CJEU is subject to the same limitations as those which apply to its case-law on homosexual partnerships: as it is based on the right to free movement, it can only apply to persons who made use of that right and assert in one Member State a status lawfully acquired in another one. This is an essential difference ratione personae with the Strasbourg case-law.

In conclusion, there being an overlap between the Convention and EU law standards on this score, the application by national judges of EU law, as interpreted by the CJEU, entails no risks of a breach of the Convention. However, where the person concerned has not made use of his/her right to free movement, only the Convention will apply.

Real Madrid Club de Fútbol

In Real Madrid Club de Fútbol (C-633/22, 4.10.2024), the CJEU ruled on the use of the public policy clause to refuse the enforcement of a judgment, delivered by a court of another Member State, which gives rise to an infringement of the freedom of the press.

The case in the main proceedings concerned a considerable amount of damages (300 000 and 30 000 euros) imposed by a Spanish court on a French newspaper and one journalist for the harm done to the reputation of Real Madrid and Fútbol Club Barcelona by publishing an article suggesting that the latter had had recourse to doping.

Faced with a request to enforce that judgment based on the Brussels I Regulation (Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), the French Court of cassation had doubts about the proportionality of these damages and turned to the CJEU for an answer on whether the public-policy exception provided for by Article 34(1) of that Regulation could be applied for this reason in the case at hand.

The CJEU first considered that in light of the principle of mutual trust, the refusal to enforce a judgment from another Member State should remain exceptional (§ 34). The public policy clause, laid down in Article 34(1) of the Regulation, could therefore be relied on to refuse such an enforcement “only where the recognition or enforcement of the judgment concerned in the Member State in which enforcement is sought would result in the manifest breach of a rule of law regarded as essential in the EU legal order or of a right recognised as being fundamental within that legal order and therefore in the legal order of that Member State” (§ 39).

The CJEU found this to be particularly the case when the enforcement of a judgment in the Member State concerned would give rise to a manifest breach of a fundamental right as enshrined in the EU-Charter. It therefore turned to Article 11 of the EU-Charter which protects freedom of expression and the freedom of the press, and examined the limitations to which these freedoms could be subjected.

In this context, the CJEU extensively referred, in paragraphs 52 to 65 of its judgment, with a rarely seen amount of details, to the ample and well-established Strasbourg case-law on the freedom of the press, particularly the case-law on the enhanced protection of political speech and speech on matters of public interest, thereby also illustrating the striking parallels with its own case-law. Here too, the CJEU did so after recalling that by virtue of Article 52(3) of the EU-Charter, the case-law of the ECtHR was to be considered the minimum threshold of protection under EU law (§ 52).

Interestingly, prior to relying on Article 52(3) of the EU-Charter, the CJEU also referred to the limitations which Article 52(1) of the EU-Charter allowed to be applied to Article 11. This shows that these two provisions are not mutually exclusive but complementary when Convention rights are involved.

On this basis, the CJUE concluded that the public policy clause should be applied, and the enforcement of the foreign judgment refused where it would give rise to a manifest breach of the freedom of the press. It was for the French domestic courts to assess whether, in the circumstances, this would be the case.

An upgrading of the parties to the proceedings in the system of preliminary rulings: judgment of the CJEU in KUBERA

KUBERA (C-144/23, 15.10.2024) would appear to be the first case in which the CJEU imposed an obligation on a national court against whose decisions there is no judicial remedy (Art. 267(3) TFEU) to give reasons when rejecting the request by a party to the proceedings to make a reference for a preliminary ruling by the CJEU.

Admittedly, the procedural situation was a particular one, as it concerned proceedings before the Slovenian Supreme Court on an appeal on a point of law. Under the Slovenian Code of civil procedure, the Supreme Court is not required in this particular context to make a determination on whether it should grant a request by a party that a reference for a preliminary ruling by the CJEU be made. It can thus lawfully ignore that request. It is this approach with which the CJEU takes issue in the present ruling. It remains to be seen whether this case-law will be extended to other types of procedures in the future.

What is interesting about this novel move by the CJEU is its proximity with the well-established Strasbourg jurisprudence, according to which Article 6 of the Convention (right to a fair trial) requires any last instance court, within the meaning of Article 267(3) TFEU, which dismisses a request by a party to the proceedings that a reference for a preliminary ruling be made, to give reasons for its dismissal.

While the ECtHR, for lack of competence, does not itself assess the merits under Union law of the reasons thus given, it nonetheless must be satisfied that these reasons are built upon the relevant criteria as first set out in the Cilfit jurisprudence of the CJEU (for an overview of that Strasbourg case-law, see The obligation to give reasons for a refusal to make a preliminary reference to the Court of Justice of the European Union; see also Georgiou v. Greece)

It is significant to note, in this respect, that in establishing this new rule, the CJEU refers to Article 267 TFEU, read in the light of the second paragraph of Article 47 of the EU-Charter, which is the “counterpart” in EU law of Article 6 of the Convention, protecting the right to a fair trial. This is another indication of the new similarity between the two approaches. What they ultimately have in common is an upgrading of the role of the parties to proceedings in the system of preliminary rulings by the CJEU. This is in contrast with the traditional Luxembourg view according to which no reasons are required in this context, as preliminary rulings are part of the system of cooperation between national courts and the CJEU, with no involvement of the parties to the main proceedings.

Both Courts also concur in requiring that the said reasons be given by reference to the Cilfit jurisprudence.

Some differences are to be noted, though. The first one concerns the justification of the respective approaches. While the Strasbourg approach is primarily dictated by the right to a fair trial, which requires courts to give reasons for their decisions, as an expression of the rule of law and a guarantee against arbitrariness, the Luxembourg approach is more system-oriented, i.e. intended to preserve the effectiveness of the system of preliminary rulings, as explained by the CJEU in the following terms:

“Such legislation or national practices can thus lead to a situation in which a question concerning the interpretation or validity of a provision of EU law, despite being raised by a party before the Vrhovno sodišče (Supreme Court) or having to be raised by that court in the light of the legal issue highlighted by that party and not being a question that is covered by the exceptions referred to in paragraph 36 above, would not be submitted to the Court of Justice, contrary to the obligation imposed on that national court by the third paragraph of Article 267 TFEU.

Such a situation is capable of undermining the effectiveness of the system of cooperation between the national courts and tribunals and the Court of Justice established in Article 267 TFEU, and the achievement of the objectives which that article is intended to achieve, particularly that of preventing a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States.” (§§ 45-46)

A second difference is perhaps the fact that the ECtHR does not require the same level of reasoning in all circumstances. The ECtHR indeed considers that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints, if the matter raises no fundamentally important legal issue, or for lack of prospects of success, without dealing explicitly with the request (see, among others, Baydar v. the Netherlands, § 42).

What is now the bottom line of this for national judges? First of all, the case-law discussed above only applies to courts against whose decisions there is no domestic remedy, within the meaning of Article 267(3) TFEU. As far as these courts are concerned, they should, when rejecting a request for a preliminary ruling, always give reasons based on the Cilfit jurisprudence, so as to at least meet the Strasbourg standards which, however, are flexible as regards the level of reasoning required. As regards any Luxembourg standards, the future will tell if and how the CJEU case-law will develop in terms of its scope and its concrete requirements.

Raising and lowering of the Strasbourg standards regarding judicial review of detention – judgment of the CJEU in Stachev  

In the case of Stachev (C-15/24 PPU, 14.5.2024), the CJEU answered several questions raised by the Sofia District Court on the consequences to be drawn, under Directive 2013/48 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, from the waiver by an accused person of his right to legal assistance.

The case in the main proceedings concerned an illiterate person, CH, who was accused of robbery with violence. He signed a written statement to the effect that he did not wish to be defended by a lawyer of his choice or by a court-appointed lawyer. However, the consequences of that waiver had not been explained to him. After his arrest, during an interview by the police, he admitted participating in the commission of a robbery with violence. On this occasion, CH had been informed about his right not to incriminate himself and to refuse to give evidence, but the interview had taken place in the absence of a lawyer.

In the case at hand, the referring court, which also had jurisdiction to rule on the merits of the case (§ 29), was to decide only on the pre-trial detention of CH. The questions it submitted to the CJEU in this connection concerned the validity of the waiver by CH of his right to a lawyer and, in case the waiver would be invalid, the consequences to be drawn from his incriminating statements made without the assistance of a lawyer, i.e. in breach of Directive 2013/48.

Depending on the subject matter, the answers given by the CJEU would appear to both raise and lower the protection level ensured by the Convention in this area.

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Strasbourg standard raised

The CJEU raised the Strasbourg protection level by applying Directive 2013/48 to proceedings for the judicial review of the lawfulness of a detention on remand, which under the Convention is governed by its Article 5. While Directive 2013/48 does not specify whether its scope, described in Article 2(1) as being criminal proceedings on the merits, also covers the judicial review of detentions on remand, the CJEU answers that question in the affirmative, relying notably on the Preamble to the Directive. Accordingly, the full range of requirements flowing from the right to a fair trial and the rights of the defence apply to the judicial review of detentions on remand (§§ 77, 88-91).

As a consequence, the rules concerning the waiver of the right to legal assistance, laid down in Art. 9 of Directive 2013/48, also apply to the proceedings on the lawfulness of the detention on remand in the case at hand, it being understood that regard is thereby to be had to the vulnerability of CH, in accordance with Art. 13 (§ 78).

This acknowledgment of a general right to legal assistance in proceedings for the judicial review of detentions on remand would appear to raise the Strasbourg protection level. It is indeed the case that the procedural guarantees under Article 5 of the Convention (right to liberty and security) are not necessarily the same as those provided for by Article 6 (right to a fair trial). As the ECtHR put it:

The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (A. and Others v. the United Kingdom [GC], 2009, § 203; Idalov v. Russia [GC], 2012, § 161).

The ECtHR does not go any further than the consideration that in proceedings concerning the lawfulness of detention “it may also be essential that the individual concerned … should also have the effective assistance of his lawyer” (Cernák v. Slovakia, § 78).

Strasbourg standard lowered

By contrast, on the question how to handle incriminating statements which were made, after an invalid waiver, without the assistance or presence of a lawyer, the CJEU seems to be lowering the Strasbourg protection level, which is much more problematic.

The CJEU does so by relying on the test of the criminal proceedings considered as a whole when addressing the question of the inferences which a domestic court assessing the lawfulness of a detention on remand must draw from the fact that evidence has been gathered in disregard of the requirements of Directive 2013/48, i.e. in the absence of legal assistance. The CJEU indeed stated:

In accordance with the case-law of the European Court of Human Rights, which, as stated in recitals 50 and 53 of Directive 2013/48, must be taken into account where a procedural defect has been identified, it is for the national courts to assess whether that procedural shortcoming has been remedied in the course of the ensuing proceedings. …   

Thus, in the event that evidence has been collected in disregard of the requirements of that directive, it must be determined whether, despite that lacuna, at the time of the decision to be taken by the court hearing the case, the criminal proceedings as a whole may be regarded as fair, taking into account a number of factors, including whether the statements taken in the absence of a lawyer are an integral or significant part of the probative evidence, as well as the strength of the other evidence in the file (see, by analogy, ECtHR, 13 September 2016, Ibrahim and Others v. the United Kingdom, CE:ECHR:2016:0913JUD005054108, § 273 and 274). (§§ 96-97)

What is noteworthy here is the fact that while the CJEU refers to Strasbourg case-law in support of its approach, it would appear to misrepresent that case-law in a twofold way.

First, there is misrepresentation of the said case-law in the sense that it is being transposed by the CJEU to an area, the deprivation of liberty, where it is not applied by the ECtHR. The test of the proceedings as a whole is being applied by the ECtHR in the field of Article 6 of the Convention, to assess the fairness of proceedings on the merits. It is not applied when it comes to assessing under Article 5 § 4 the lawfulness of deprivations of liberty.

Under the latter provision, proceedings for the judicial review of the lawfulness of detentions, by reason of the intensity of the interference which detentions represent, are considered under a separate provision, i.e. autonomously, not as just another element of the proceedings on the merits to be assessed under Article 6 of the Convention.

Moreover, because exceptions to the general principle, laid down in Article 5, that everyone has the right to liberty must be interpreted strictly (Buzadji v. Moldova, § 84), they do not lend themselves to the application of the test of proceedings as a whole.

Thus, to nonetheless apply this test to the judicial review of a person’s detention amounts to a reduction of the level of protection afforded under Article 5 of the Convention.

But what the CJEU has in mind here when referring to that test is, as quoted above, the possibility for incriminating statements made by an accused in breach of his right to a lawyer to nonetheless be taken into account (“not disregarded”) by the judge deciding on the accused’s detention, because of other corroborating available evidence. Only evidence on which a party is not in a position to comment effectively should be excluded from the criminal proceedings (§ 98). This brings us to the second misrepresentation of the Strasbourg case-law in this ruling.

For even in the event that this evidentiary rule could be applied under Article 5 of the Convention, which is doubtful for the reasons explained above, it is also being stripped of an essential element to which the ECtHR attaches great importance.

According to the ECtHR’s well-established case-law relied on by the CJEU, notably Ibrahim and Others v. United Kingdom, the absence of a lawyer during the interrogations of a suspect or an accused person is acceptable only if there are compelling reasons justifying that absence. Failing such reasons, “the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice” (§ 265). In practical terms, there will be a rebuttable presumption that the proceedings as a whole were unfair.

Against the background of this case-law, to simply drop the assessment of whether there are compelling reasons for the absence of a lawyer (as also provided for by Article 3(6) of Directive 2013/48), and the procedural consequences to be drawn from this assessment, is a misrepresentation lowering the protection level of the Strasbourg case-law on criminal proceedings on the merits which, it is erroneously suggested, can be transposed to proceedings for the judicial review of detentions. This is not just the application of Strasbourg case-law “by analogy”. This is a selective reading of that case-law.

On the contrary, this approach is raising a problem in terms of compliance with Art. 14 of the Directive and its Recitals 50 and 53, in addition to Articles 6 and 52(3) of the EU-Charter, which all require the EU protection level not to fall below the Strasbourg protection level.

For a recent Strasbourg case on an unvalid waiver of the right to legal assistance and its consequences under the Convention, see Bogdan v. Ukraine.

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In light of the above, the question arises what lawyers should plead and what national judges should decide in proceedings for the judicial review of detentions on remand, where the Convention and EU law go different ways.

Given the obligation to apply EU law in compliance with the Convention (Bivolaru and Moldovan v. France, § 103; M.B. v. the Netherlands) and the legal possibility for the Strasbourg protection standard to be raised by EU law (Art. 52(3) of the EU-Charter and Art. 53 of the Convention), lawyers and judges should go for the higher of the two standards, thereby differentiating between the issues.

This means, in concrete terms, that they should go for Directive 2013/48 whenever it sets a higher standard, but that they should go for the Strasbourg standard when the issue is about incriminating statements made without the assistance of a lawyer. This is of course without prejudice to any obligations on domestic courts under Article 267 TFEU.

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

In the case of Ilva and Others (C-626/22, 25.6.2024), the CJEU dealt with the serious environmental pollution caused by the Ilva steelworks, Europe’s largest iron and steel works located in Taranto, which had previously also be at the centre of proceedings before the European Court of Human Rights because of the same concerns regarding the health of the residents of the polluted area.

The toxic emissions produced by the Ilva steelworks have indeed been the subject of several legal proceedings at European level in recent years. Thus, in 2011, in Commission v. Italy (C-50/10), the CJEU held that Italy had failed to adopt in respect of the Ilva steelworks the measures required under Directive 2008/1 (concerning integrated pollution prevention and control). In 2014 the European Commission gave a reasoned opinion urging the Italian authorities to take measures in order to bring the operation of the Ilva plant into compliance with Directive 2010/75 on industrial emissions, which replaced Directive 2008/1, and other applicable EU environmental law (IP/14/1151).

The ECtHR, for its part, held in Cordella and Others v. Italy (54414/13 and 54264/15, 24.1.2019) that the 180 applicants in these cases had been the victims of violations of Articles 8 (right to respect for private and family life) and 13 (right to an effective remedy) of the Convention.

As regards Article 8, the ECtHR highlighted the failure of national authorities to effectively address the environmental pollution caused by the Ilva steel plant. It noted that despite various initiatives since 2012 aimed at reducing the plant’s environmental impact, the necessary measures had not been implemented, leading to legal action by the European Union. Additionally, the environmental remediation plan approved in 2014 had been delayed until August 2023. The Government’s interventions had focused on maintaining the plant’s operations, even though judicial authorities had identified serious health and environmental risks. Thus, this prolonged pollution endangered public health and violated the right to privacy, with authorities failing to properly balance individual and societal interests.

In addition, the ECtHR found a violation of Article 13 of the Convention, on account of the absence of an effective remedy enabling the applicants to obtain measures ensuring the decontamination of the areas affected by the harmful emissions from the plant.

In terms of the execution of its judgment, the ECtHR noted under Article 46 of the Convention that it was not its role to provide detailed, prescriptive recommendations to the Government. Instead, it was the responsibility of the Committee of Ministers of the Council of Europe under Article 46 of the Convention to advise the Government on the practical measures needed to implement the judgment. However, the ECtHR emphasized the urgent and critical importance of proceeding with the decontamination of the plant and the surrounding area affected by environmental pollution. The approved environmental plan, which outlined the necessary actions to protect the environment and public health, had to be executed as quickly as possible. To date, the monitoring of the execution of the ECtHR’s judgment by the Committee of Ministers has already produced some results but could not be completed yet.

In Ilva and Others, the CJEU was confronted with basically the same problem, but from a different angle, that of Directive 2010/75 on industrial emissions, read in the light of Article 191 TFEU and Articles 35 (health care) and 37 (environmental protection) of the EU-Charter. This Directive adopts a more procedural approach by mainly focussing on pre-defined requirements for the granting or reconsidering of a permit to operate an industrial installation. On the basis of Directive 2010/75, the CJEU notably held that:

a) the procedures for the grant and reconsideration of an operating permit had to include a prior assessment of the effects of the activity of an installation such as the Ilva steelworks on the environment and on human health;

b) in the reconsideration procedure all polluting substances linked to the installation’s activity had to be taken into account, even those which were initially not assessed;

c) as provided for by Article 8(2) of the Directive, where the activity of the installation concerned presents serious and significant risks to the integrity of the environment and human health, the operation of that installation had to be suspended.

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What conclusions can be drawn from a comparison of these two approaches?

First, it seems clear that the ultimate goal of both rulings is the immediate reduction of the impugned emissions to a level which is no longer harmful to the environment and the health of the persons living in the area concerned. Under EU law this may require the suspension of the operation of the steelworks.

However, this goal is being pursued in different ways, depending on the legal basis being relied on. For the ECtHR, the decontamination of the area is the way to the achievement of that goal, and the concrete measures to that effect are to be left to the assessment of the Committee of Ministers, which is in charge of the execution of the ECtHR’s judgments (Art. 46). The CJEU, for its part, focusses on a comprehensive and thorough assessment of the risks of pollution which must be carried out by the domestic authorities and serve as a basis for the assessment, prior to the delivery or renewal of an operating permit, as to whether the Ilva plant meets the European standards regarding emissions, failing which the operation of the Ilva plant may have to be suspended.

Thus, at the risk of over-simplifying, one could say that Strasbourg sets an obligation of result, whereas Luxembourg goes for an obligation of means.

The Strasbourg approach is based on general provisions enshrining fundamental rights. It is therefore more flexible in that it more easily allows for the final objectives regarding the protection of the environment in a given area to be defined on a case-by-case basis, in light of the circumstances of each individual case. It should be borne in mind, in this connection, that Article 8 is indeed the basis for a whole line of case-law addressing a large variety of different forms of local pollution (see the case-law guide on the environment). By contrast, the Luxembourg approach is more detailed and prescriptive, but also more foreseeable, based as it is on detailed provisions of secondary law setting, category by category, pre-defined standards applicable in the same way to all polluting activities belonging to one of the categories concerned.

Yet, judged by their efficiency, none of these two approaches seems preferable or more successful, as despite some partial improvements, the overall situation in Taranto following Commission v. Italy and Cordella and Others v. Italy remains unsatisfactory. This shows the limits of European judicial review in the face of recalcitrant national authorities.

But at least can these different approaches be said to be complementary. First, because they are not incompatible with each other. On the contrary: the more general Strasbourg objectives, which are systematically monitored by the Committee of Ministers, can usefully be complemented and concretised by the specific procedural steps required under EU law, the enforcement of which however requires infringement proceedings to be launched on a case-by-case basis by the European Commission.

Secondly, together the two sets of proceedings surely brought already more pressure to bear on the local authorities to take remedial action than if only one European authority had acted. In other words, the current situation could well have been worse without the combined intervention of the CJEU, the ECtHR, the European Commission and the Committee of Ministers of the Council of Europe. Could this perhaps be a blueprint for other similar cases in the future?

What is now the bottom line of all the above? In other words, and in practical terms, what should be the approach by national judges and prosecutors in this field? In response, it would appear that since the prescriptions of the rulings in Ilva and Cordella are compatible with each other, national judges and prosecutors do not need to have any reservations in applying either of them as required.

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

In the cases of NW and PQ (C-420/22 and C-528/22, 25.4.2024), the CJEU ruled on the withdrawal, on the basis of classified information, of the residence permit of a third-country national bringing up a child who is a Union citizen. It found in essence that this withdrawal must be subject to an effective remedy.

This ruling naturally invites to a comparison with the case of Muhammad and Muhammad v. Romania (80982/12) which was decided by a Grand Chamber of the ECtHR on 15.10.2020. It concerned proceedings as a result of which the applicants, Pakistani nationals living lawfully in Romania, were declared undesirable and deported, here too on the basis of classified information to which they had been denied access.

The set up of legal remedies in Europe is such as to allow decisions made by domestic courts of EU Member States on the basis of CJEU preliminary rulings to be made the subject of an application before the ECtHR. This is no different in the present case: domestic decisions implementing the ruling in NW and PQ can be challenged in Strasbourg on the basis of, notably, Muhammad and Muhammad. This makes a comparison of these two jurisprudences all the more interesting.

In NW and PQ, the CJEU based its reasoning on Article 20 TFEU (on citizenship of the Union), Directive 2003/109 concerning the status of third-country nationals who are long-term residents and Article 47 of the EU-Charter (right to an effective remedy and to a fair trial). In Muhammad and Muhammad, the ECtHR applied Article 1 of Protocol No. 7 to the Convention, on procedural safeguards relating to the expulsion of aliens.

Despite these quite different legal provisions, the two European Courts appear to agree to a very large extent on the guiding principles to be applied in respect of the expulsion of aliens on the basis of classified information to which access was denied in full or in part.

As the ECtHR put it:

Under Article 1 of Protocol No. 7, a right is secured to the alien to be informed, preferably in writing and in any event in a way allowing an effective defence, of the content of the documents and the information relied upon by the competent national authority which is deciding on the alien’s expulsion, without prejudice to the possibility of imposing duly justified limitations on such information if necessary. Article 1 § 1 of Protocol No. 7 requires in principle that the aliens concerned be informed of the relevant factual elements which have led the competent domestic authorities to consider that they represent a threat to national security and that they be given access to the content of the documents and the information in the case file on which those authorities relied when deciding on their expulsion. (§§ 128-129)

The CJEU, for its part, stated:

It follows from the Court’s settled case-law that if the judicial review guaranteed by the first paragraph of Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information, so as to make it possible for the person concerned to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question. (§ 81)

As regards the possibility of restrictions on these rights on grounds of national security, the two Courts are on the same line too.

The ECtHR indeed ruled:

Nevertheless, any limitations of the rights in question must not negate the procedural protection guaranteed by Article 1 of Protocol No. 7 by impairing the very essence of the safeguards enshrined in this provision (see, mutatis mutandis, Regner, cited above, § 148). Even in the event of limitations, the alien must be offered an effective opportunity to submit reasons against his expulsion and be protected against any arbitrariness. (§ 133)

The CJEU, for its part, stated:

Although the Member States may, in particular where national security so requires, decide not to grant the person concerned direct access to the entirety of his or her file in the context of a procedure relating to Article 20 TFEU, they cannot, without acting in breach of the principle of effectiveness, the general principle of sound administration and the right to an effective remedy, place the person concerned in a situation where neither that person nor his or her representative would be able to gain effective knowledge, where applicable in the context of a specific procedure designed to protect national security, of the substance of the decisive material contained in that file. (§ 97)

There is also convergence on how this is to be achieved in terms of the procedures to be followed. Both European Courts indeed concur in considering that there should be an independent review of the justification for the non-disclosure of the evidence for reasons of State security, and of the grounds on which the expulsion of the person concerned was decided. However, whereas the CJEU requires a judicial review, the ECtHR states that the review “should be entrusted to an authority, judicial or not, which is independent from the executive body seeking to impose the limitation” (§ 140).

Similarities, however, stop here. Some differences indeed appear as regards the modus operandi of this independent review. While both European Courts identify the same two possible scenarios, depending on whether the reviewing authority agrees, or not, with the impugned restrictions on the applicant’s access to the classified information and evidence, these scenarios give rise to different consequences.

In the event that the reviewing authority disagrees with the authority competent in matters of national security (“the competent authority”) as regards the need not to disclose some information to the person concerned, the ECtHR indeed requires the reviewing authority to be entitled to either declassify itself the classified information or invite the competent authority to review the said classification, failing which there will be a violation of Art. 1 of Protocol no. 7 (§ 142).

By contrast, the CJEU does not consider the possibility of a declassification to be required by Article 47 of the Charter, provided that the reviewing court has the power to draw “appropriate conclusions” from the refusal to declassify, i.e. the power to disregard any information which was not disclosed to the person concerned when making its decision on the residence permit at stake, which seems a more radical solution (§§ 113-115).

But what if the reviewing authority agrees with the non-disclosure of all or part of the classified information? The European Courts concur in considering that this conclusion can only be the result of a weighing up, by the reviewing authority, of the national security interests against the alien’s interests, the purpose being to ensure that the very essence of the rights of the person concerned is preserved and that the substance of the grounds for the impugned decision is communicated to that person (Muhammad and Muhammad § 143, 145; NW and PQ, § 111, relying on ZZ).

How is this to be achieved? The CJEU is completely silent on this. Yet it is clear that such decisions which confirm the impugned expulsion on the basis of non-disclosed classified information are likely to be challenged on the merits, as happened e.g. in Muhammad and Muhammad and, mutatis mutandis, before the Belgian Supreme Administrative Court (Conseil d’Etat) in the case which gave rise to the Advisory Opinion on Request no. P16-2023-001.

This is an important aspect for national judges and authorities, as it raises the question of the test to be applied by the reviewing authority under Article 1 of Protocol no. 7, which is also the test which will be applied by the ECtHR in the event of an application against a final domestic judgment, regardless of whether it is compliant with the CJEU’s case-law.

According to the ECtHR, this test is about whether, in the light of the proceedings as a whole, the very essence of the rights secured to the alien by Article 1 § 1 of Protocol no. 7 has been preserved (§ 157). Consequently:

Should the national authorities have failed to examine – or have insufficiently examined and justified – the need for limitations on the alien’s procedural rights, this will not suffice in itself to entail a violation of Article 1 § 1 of Protocol No. 7. In any event, the Court will also ascertain whether any counterbalancing measures have been applied in the case at hand and, if so, whether they were sufficient to mitigate the limitations of the alien’s procedural rights, such as to preserve the very essence of those rights. (§ 144)

As non-exhaustive examples of such counterbalancing measures, the ECtHR mentions those which relate to the relevance of the information actually disclosed to the alien, the information provided as to the conduct of the domestic proceedings, the representation of the alien and the powers of the reviewing independent authority (§§ 151-157).

Applying these criteria in Muhammad and Muhammad v. Romania, the ECtHR found a violation of Article 1 of Protocol No. 7, on the ground that the limitations imposed on the applicants’ enjoyment of their rights under that provision had not been counterbalanced in the domestic proceedings such as to preserve the very essence of those rights (§ 206).

In its Advisory Opinion on Request no. P16-2023-001 “on whether an individual may be denied authorisation to work as a security guard or officer on account of being close to or belonging to a religious movement”, the ECtHR relied on the same criteria in respect of the classified information which had not been disclosed to a claimant who challenged the refusal by the administration to give him the authorisation to work as a security guard. In this case, the Belgian Supreme Administrative Court, despite having the power to consult the classified documents compiled by the State Security Service, had not made use of it until after the ECtHR’s Advisory Opinion which considered this power to be an important safeguard, along with others (§§ 48 and 117).

In sum, both the Convention and EU law accept that information and evidence serving as the basis for a decision to expel an alien may need to remain undisclosed for State security reasons, but only on condition that the very essence of the defence rights of the person concerned is preserved, which requires a review by an independent authority. However, unlike the CJEU, the ECtHR is much more explicit about the test, the criteria and the safeguards to be applied by that authority, the decisions of which can, if final, be made the subject of an application in Strasbourg.

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In light of the above, the question arises what lawyers should plead and what national judges should decide in proceedings challenging the use of classified documents to which access has been denied.

Given the obligation to apply EU law in compliance with the Convention (Bivolaru and Moldovan v. France, § 103; M.B. v. the Netherlands) and the legal possibility for the Strasbourg protection standard to be raised by EU law (Art. 52(3) of the EU-Charter and Art. 53 of the Convention), lawyers and judges should go for the higher of the two standards, thereby differentiating between the issues.

This means, in concrete terms, that judges could be allowed, under EU law, to simply disregard documents the classification of which they consider unjustified in the circumstances but that, as regards the examination of whether a justified classification has nonetheless preserved the rights of the defence to a sufficient degree, they should rely on the Strasbourg criteria. This is of course without prejudice to any obligations on domestic courts under Article 267 TFEU.