Archiv des Autors: johan-callewaert

A judicial, comprehensive and flexible Strasbourg response to climate change: judgment of the ECtHR in Greenpeace Nordic and Others v. Norway

In the case of Greenpeace Nordic and Others v. Norway (28.10.2025, 34068/21), the ECtHR handed down its fourth judgment on the duties of the Sates as regards climate change. It provides a good opportunity to compare the Strasbourg approach with the EU approach to climate change as such, as it is set out in Regulation 2021/1119 establishing the framework for achieving climate neutrality (‘European Climate Law’), implementing part of the European Green Deal.

* * *

The principal facts of this case were summarized in the ECtHR’s press release as follows (emphasis added):

“The applicants are six Norwegian nationals born between 1995 and 2001 who live in Oslo, and two non-governmental organisations, Greenpeace Nordic and Young Friends of the Earth Norway, based in Norway. The individual applicants are all current or former members of Young Friends of the Earth.

On 10 June 2016 the Ministry of Petroleum and Energy awarded ten licences to 13 private companies for petroleum gas production on the Norwegian continental shelf, where Norway’s offshore petroleum activities take place. The two applicant organisations sought a review of the validity of that decision. On 4 January 2018 the Oslo City Court held that the decision had been valid.

On 22 December 2020 the Supreme Court dismissed an appeal by the applicants, holding, by a majority of 11 votes to 4, that the decision granting the licences had been valid and finding that the effects of possible future emissions as a result of the licences awarded did not constitute an “immediate risk” and, consequently, that the issue did not fall within Article 8 of the Convention.

Relying on Articles 2 (right to life) and 8 (right to respect for private and family life), the applicants complained that, before issuing the petroleum production licences, the authorities had not conducted an environmental impact assessment (“an EIA”) of the potential impact of petroleum extraction on Norway’s obligations to mitigate climate change.”

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Greenpeace Nordic focusses on Article 8 of the Convention and the procedural obligations of the State when granting licences in the context of petroleum exploration and extraction, considered within the State’s broader duty to effectively protect individuals from serious adverse effects of climate change on their life, health, well-being and quality of life (§ 317).

Before addressing these procedural aspects, the ECtHR rejected the victim status of the individual applicants, but not that of the two NGOs, and recalled the following key substantive principles which it identified in its seminal ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. These principles are:

Under Article 8 of the Convention States must ensure effective protection of persons within their jurisdiction from serious harms to life, health, well-being, and quality of life caused by climate change.
States have a primary duty to adopt and effectively implement regulations and measures that can mitigate current and potentially irreversible future climate impacts.
States retain a wide margin of appreciation in deciding how to fulfil their climate-related obligations.
Climate protection should weigh heavily when balancing it against competing interests. (§§ 314-316)

The ECtHR then identified the following procedural requirements applicable in the context of the licencing of dangerous activities having an impact on climate change:

Before authorising any potentially dangerous activity, States must conduct an environmental impact assessment (EIA) that is adequate, timely, comprehensive, undertaken in good faith, and based on the best available science.
The purpose of the EIA is to safeguard individuals’ right to effective protection from serious climate-related risks to their life, health, well-being, and quality of life.
For petroleum production projects, the EIA must at minimum include:
- A quantification of all anticipated greenhouse gas (GHG) emissions, including combustion emissions both domestically and abroad.
- An assessment by public authorities of whether the project is compatible with national and international obligations to take effective measures against the adverse effects of climate change.
Informed public consultation must occur early, when all options remain open and pollution can still be effectively prevented at the source.

* * *

Applying these criteria to the case at hand, the ECtHR noted that Norway’s petroleum activities operated under a three-stage regulatory framework involving a strategic EIA before opening areas to exploration, no formal EIA requirement during the licensing (exploration) stage, and an EIA and public consultation – subject to possible waivers – at the Plan for Development and Operation (PDO) stage prior to extraction, with both later stages subject to judicial review.

The ECtHR found that the assessments leading to the 2016 decision were not fully comprehensive, as key climate-related impacts, including exported combustion emissions, were deferred to later stages or to general climate policy. It noted that several extraction projects had been authorised without assessing combustion emissions, a practice that could undermine the purpose of timely and comprehensive EIAs.

However, the ECtHR gave greater weight to structural developments strengthening compliance: the Norwegian Supreme Court’s recognition of a constitutional duty not to approve PDOs inconsistent with climate considerations, the EFTA Court’s ruling requiring retrospective EIAs to remedy omissions without circumventing the law, and the Government’s assurance that combustion-emission assessments and public consultations would occur before decisions. Finding no structural deficiencies in the system and concluding that deferred EIAs could still satisfy Article 8 requirements, the ECtHR held that there had been no violation of Article 8 and that it was not necessary to examine separately the complaints under Article 2 of the Convention.

* * *

At this stage, it is worth asking what the specificity and added value of the Strasbourg approach to climate change is, when compared with the EU approach, as set out in Regulation 2021/1119. To answer this question, one should first briefly recapitulate the main elements of that Regulation.

In essence, Regulation 2021/1119 establishes a framework for achieving climate neutrality within the EU by 2050 and provides for a binding EU target of a net domestic reduction in greenhouse-gas emissions by at least 55% (compared to 1990 levels) by 2030. The relevant Union institutions and the Member States must take the necessary measures at Union and national level, respectively, to enable the collective achievement of the climate-neutrality objective. To that effect, intermediate climate targets have been defined in Article 4 of the Regulation.

Interestingly, under the Regulation it is for the European Commission to assess the progress made at national and EU level made towards achieving its goals (Art. 6 to 8). To that effect, the Commission must, inter alia, assess every 5 years the progress which the EU and the Member States have made towards the 2050 and adaptation objectives, and to assess whether the EU and national measures towards those objectives are consistent. It must also evaluate whether draft EU measures and legislation, including budgetary proposals, are consistent with the 2030 and 2040 targets and the 2050 climate-neutrality objectives.

* * *

When comparing the EU approach with the Strasbourg approach, one should first note the broad agreement between them on the need to tackle climate change through both long-term and intermediate greenhouse gas emissions reduction targets (Verein KlimaSeniorinnen Schweiz, § 550). To some extent, the targets set out in Regulation 2021/1119 therefore also represent the way chosen by the EU Member States to fulfil their obligations under Article 8 of the Convention. By setting 2050 as the target date for climate neutrality, the Member States even intend to be quicker than required by the ECtHR, which considers that this neutrality should be reached “within, in principle, the next three decades” (§ 548). That said, the ECtHR also acknowledges that current global mitigation efforts are not sufficient to meet the target of limiting the rise in temperature to 1.5° C above pre-industrial levels, as set in the Paris Agreement (§ 436).

However, the Strasbourg approach, grounded in the activity of the ECtHR, is also characterized by significant specificities that represent added value compared with the EU approach.

First, there is a fundamental difference between the ECtHR’s judicial review of States’ compliance with obligations arising from internationally protected fundamental rights, invoked by citizens and associations, and the European Commission’s non-judicial assessment of the “progress” made by Member States in achieving goals that they themselves have set. The ECtHR itself highlighted the importance of access to justice in this field (§ 639). Of course, the European Commission could theoretically initiate infringement proceedings before the CJEU under Articles 258-260 TFEU, but such a move might remain rather exceptional in this context.

At the same time, because of the complexity of the issues and the State’s margin of appreciation, the ECtHR declines to prescribe specific compliance measures and leaves it to the respondent State, under the supervision of the Committee of Ministers, to determine and implement appropriate measures in line with the judgment (§ 657).

The Strasbourg approach also constitutes confirmation, at the highest European judicial level and in line with the ICJ’s Advisory Opinion on the Obligations of States in respect of Climate Change, that the duty to protect the environment and the climate is a legal obligation directly flowing from enforceable fundamental rights, primarily Article 8 of the Convention. By contrast, Regulation (EU) 2021/1119 contains only one reference, in Recital 6 of its Preamble, to Article 37 of the EU Charter, which however does not lay down an enforceable right.

Being primarily based on Article 8 of the Convention, and thus not hinging on any legislative act interpreting that provision in the climate change context, the Strasbourg approach also allows for greater flexibility in adjusting the requirements to the national situation at hand, together with greater speed in addressing a compliance issue, including by national courts. The ECtHR indeed emphasised “the key role which domestic courts have played and will play in climate-change litigation” (§ 639). This might allow national courts and the ECtHR to hear cases brought against EU Member States under Article 8 of the Convention. For its part, however, the European Commission has the advantage of being empowered to assess the situation not only at national but also at EU level, which the ECtHR is prevented from doing.

A striking example of the ECtHR’s greater flexibility is to be found precisely in Greenpeace Nordic, where the ECtHR inferred requirements from Article 8 of the Convention concerning procedures for granting petroleum extraction licences.

This stands in contrast to the CJEU, which is far more reluctant to treat fundamental rights, considered autonomously, as the starting point of its analysis. This might also be due to Article 51(2) of the EU-Charter, according to which the fundamental rights of the Charter are not allowed to extend the field of application of Union law beyond the powers of the Union. Moreover, as matters currently stand, the CJEU is hardly accessible by individuals or associations complaining about climate change, owing to its very strict interpretation of Article 263(4) TFEU (see the Joint Factsheet by the Registry of the ECtHR and the EU Agency for Fundamental Rights).

Finally, Greenpeace Nordic highlights another defining feature of the Strasbourg approach – once again in contrast with the Luxembourg approach – namely its openness to international law and jurisprudence. In line with Verein KlimaSeniorinnen Schweiz and many others, Greenpeace Nordic indeed extensively relies on the Advisory Opinions on climate change by the International Court of Justice, the EFTA Court, the Inter-American Court of Human Rights and the International Tribunal for the Law of the Sea (§§ 321-324). The ECtHR even indirectly added weight to the existing international law on climate change by ordering the Norwegian authorities to assess whether the planned activity is compatible with their obligations under national and international law to take effective measures against the adverse effects of climate change (§ 319).

* * *

In sum, the open-ended structure of Article 8, together with its enforceable nature, allows the ECtHR to advance legally binding case-law that addresses, in a comprehensive, flexible and timely manner, the urgent problem posed by climate change, pending any support from the CJEU in this field. That said, there is no doubt that, when faced with the immense challenge of rapidly and effectively addressing ongoing climate change, Strasbourg, Brussels, and Luxembourg – in close cooperation with national courts, as suggested by the ECtHR – must join forces.

AG 505 zum Europäischen Gerichtshof für Menschenrechte: Sitzung vom 18. Dezember 2025

Liebe Studierende,

auf der Tagesordnung unserer kommenden Sitzung stehen folgende Themen:

Todesstrafe und Todestrakt vor dem EGMR: der legendäre Fall Soering / Vereinigtes Königreich (zur Nachholung der ausgefallenen Sitzung vom 20.11.25);
Kollektivausweisungen von Migranten an der Grenze zwischen Marokko und Spanien? Rs. N.D. und N.T. / Spanien

Die betreffenden Urteile sind diesem Beitrag als Anlage beigefügt.

Ich freue mich auf anregende Diskussionen am Donnerstag.

Prof. Dr. Johan Callewaert

CASE OF SOERING v. THE UNITED KINGDOM – [German Translation] summary by N. P. Engel Verlag Herunterladen

CASE-OF-N.D.-AND-N.T.-v.-SPAIN-German-Translation-summary-by-the-Austrian-Institute-for-Human-Rights-OIM Herunterladen

AG 505 zum Europäischen Gerichtshof für Menschenrechte: Sitzung vom 27. November 2025

Liebe Studierende,

auf der Tagesordnung unserer kommenden Sitzung stehen folgende Themen:

Beendigung lebenserhaltender Maßnahmen (Rs. Lambert u.a. / Frankreich)
Abbau der Unabhängigkeit der Justiz in Polen (Rs. Dolinska-Ficek und Ozimek / Polen)

Die Urteile des EGMR in diesen Rechtssachen liegen diesem Post bei.

Ich freue mich auf anregende Diskussionen in unserer AG.

Prof. Dr. Johan Callewaert

CASE-OF-LAMBERT-AND-OTHERS-v.-FRANCE-German-Translation-summary-by-the-Austrian-Institute-for-Human-Rights-OIM Herunterladen

CASE-OF-DOLINSKA-FICEK-AND-OZIMEK-v.-POLAND Herunterladen

What a difference a composition makes… Comparing AW ‘T’ with Walesa v. Poland on the lack of judicial independence and the use of extraordinary appeals in Poland

AW ‘T’ (4.9.2025, C-225/22) is another ruling by the CJEU on the rule-of-law crisis in Poland and the consequences to be drawn of the fact that, because of serious flaws in the procedure for the appointment of its members, the Chamber of Extraordinary Review and Public Affairs (CERPA) of the Polish Supreme Court cannot be regarded as an independent and impartial court previously established by law (see, among others, Krajowa Rada Sądownictwa). This time, the issue was about the effects of a decision by the CERPA upholding an extraordinary appeal lodged by the Prosecutor General.

The facts of the case can be summarized as follows. In 2004, AW ‘T’ filed a lawsuit against other companies claiming infringement of industrial property rights and unfair competition related to crossword puzzle magazines. After years of litigation, the Cracow Court of Appeal issued a final judgment in 2006. However, in 2020, the Prosecutor General filed an extraordinary appeal against the 2006 judgment, arguing procedural violations. The CERPA upheld the appeal in 2021, overturned the 2006 judgment, and referred the case back to the Court of Appeal for re-examination. The Court of Appeal referred the matter to the CJEU, seeking clarification on whether EU law allowed it to disregard the CERPA’s decision because of the serious flaws in the procedure which had led to the appointment of its members, thus raising doubts about its independence.

In essence, the CJEU ruled that the principle of the primacy of EU law requires national courts to disregard national rules or decisions that conflict with EU law, including those of constitutional courts. Consequently, decisions by judicial bodies which do not meet the EU law requirements of independence, impartiality, and lawful establishment must be regarded as null and void by lower courts. Thus, the Cracow Court of Appeal should assess, in light of the criteria listed by the CJEU, whether the CERPA meets these requirements. If not, it is prevented under EU law from carrying out the re-examination ordered by the CERPA.

Interestingly, in Wałęsa v. Poland (23.11.2023, 50849/21), the ECtHR also had to deal with an extraordinary appeal lodged by the Polish Prosecutor General before the CERPA. This time, the CERPA had reversed a Court of Appeal judgment in favour of the applicant in a defamation case and had dismissed the latter’s claim. The applicant is a former leader of the “Solidarity” (Solidarność) trade union, a former President of Poland (from 1990 to 1995) and laureate of the 1983 Nobel Peace Prize.

AW ‘T’ and Wałęsa v. Poland thus provide a good opportunity to compare the Luxembourg and Strasbourg approaches on the legal consequences of the CERPA not being an independent and impartial court, which is an essential issue in the context of the rule-of-law crisis in Poland, with implications for similar constellations in other European countries.

* * *

A first observation in this context is the consensus between the two European Courts on the fact that the CERPA lacks the necessary independence and impartiality for it to be considered a proper court for the purposes of the Convention and EU law.

In AW ‘T’, the CJEU recalled its ruling in Krajowa Rada Sądownictwa (C-718/21, 21.12.2023) in which it explicitly followed the conclusion reached by the ECtHR in Dolińska-Ficek and Ozimek v. Polandto the effect that because of the manner in which its members had been appointed, the CERPA could not have the status of an independent and impartial tribunal previously established by law, for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the EU-Charter (§ 49).

In Dolińska-Ficek and Ozimek v. Poland, the ECtHR indeed concluded as follows:

“The breaches of the domestic law that [the ECtHR] had established, arising from non-compliance with the rule of law, the principle of the separation of powers and the independence of the judiciary, inherently tarnished the impugned appointment procedure. A procedure for appointing judges disclosing undue influence of the legislative and executive powers on the appointment of judges was per se incompatible with Article 6 § 1 of the Convention and, as such, amounted to a fundamental irregularity adversely affecting the whole process and compromising the legitimacy of a court composed of the judges so appointed. In sum, the breaches in the procedure for the appointment of judges to the CERPA of the Supreme Court were found to have been of such gravity that they impaired the very essence of the applicants’ right to a ‘tribunal established by law.’” (§§ 348-350)

Consequently, according to the CJEU, the competent panel of the CERPA had not met the requirements of effective judicial protection, as prescribed by the above provisions. Its composition was “such as to give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of those judges and the panel in which they sit to external factors, in particular the direct or indirect influence of the national legislature and executive and their neutrality with respect to the interests before them. Those factors were thus capable of leading to a lack of appearance of independence or impartiality on the part of those judges and that body likely to undermine the trust which justice in a democratic society governed by the rule of law must inspire in those individuals” (§ 50).

Indeed, the presence, in the judicial body concerned, of a single judge appointed in such circumstances is sufficient to deprive that body of its status as an independent and impartial tribunal previously established by law (§ 57).

The remarkable consequence drawn from this conclusion by the CJEU is that, having regard to the primacy of EU law, the Court of Appeal should disregard, as being null and void, the decision by the CERPA ordering the Court of Appeal to re-examine the case in which the same Court of Appeal had already handed down a final judgment, regardless of the fact that this decision had the force of res judicata.

Accordingly, there was no need for the CJEU to engage in an assessment of the extraordinary appeal as such, as the decision of the CERPA to uphold it was null and void and could be disregarded. That was already the end of the story for the CJEU.

* * *

Not so in Wałęsa v. Poland. The res judicata at stake here was not, as in AW ‘T’, the one attaching to the decision of the CERPA but the one attaching to the final judgment of the Court of Appeal which was set aside by the CERPA. Thus, the issue before the ECtHR was not only, as for the CJEU, the independence and impartiality of the CERPA, but whether there had been an abuse of the extraordinary appeal by the CERPA, making that appeal an ordinary appeal in disguise.

This difference has everything to do with the different position of the ECtHR and the different timing of its intervention in the judicial process, as pertinently observed by Advocate General Spielmann in paragraph 82 of his Opinion in AW ‘T’:

“The role of the Court of Justice when giving a preliminary ruling is to give national courts ex ante indications on how to apply EU law and not to determine ex post the existence of an infringement in a specific case, as is the case with the European Court of Human Rights. Thus, with regard to the requirements relating to an independent and impartial tribunal previously established by law, the Court has entrusted the national courts, as ordinary courts operating under EU law, with the task of monitoring compliance with those requirements and, where necessary, restoring the effectiveness of judicial protection in the Member States concerned.”

In other words, in AW ‘T’, the preliminary ruling by the CJEU disqualifying the CERPA prevented, at the level of the Cracow Court of Appeal, the extraordinary appeal from having any effect. By contrast, in Wałęsa v. Poland, the extraordinary appeal led to a judgment by the CERPA overturning the final judgment of the Court of Appeal and dismissing the applicant’s claims. The ECtHR was therefore called on to rule on the use and the effects of the extraordinary appeal in this case.

The ECtHR did not prohibit in the abstract any use of extraordinary appeals. Neither did it consider the composition of the CERPA as automatically entailing an abusive use of an extraordinary appeal. Rather, the flawed composition of the CERPA was only one aspect to be taken into account by the ECtHR, next to other criteria such as the public bodies authorised by law to lodge an extraordinary appeal, the grounds for lodging an extraordinary appeal, the time-limits for lodging an extraordinary appeal and the powers and characteristics of the adjudicating body (§§ 228-239).

In light of these criteria, the ECtHR found that the extraordinary appeal procedure as currently operating in Poland was incompatible with the fair trial standards and the principle of legal certainty under Article 6 § 1. This was because the circumstances of the case indicated an abuse of the extraordinary appeal by the State authority in pursuance of its own political opinions and motives. Accordingly, the ECtHR found no circumstances of a substantial and compelling nature that would justify the departure from the principle of res judicata in respect of the overturned judgment (§§ 254-255).

However, in contrast with the CJEU judgment in AW ‘T’, where the overturned final judgment was protected in the end, the judgment in Walesa v. Poland does not (yet) have the effect of restoring the overturned judgment.

It may nonetheless have a wider impact, since in view of the systemic nature of the violations found, the ECtHR decided to apply the pilot-judgment procedure (Rule 61 of the Rules of Court) as well as Article 46 of the Convention. Under the latter provision, the ECtHR indeed gave rather clear indications on the measures to be taken by the Polish government in order to remedy the situation on a larger scale, under the supervision of the Committee of Ministers of the Council of Europe (§§ 328-332).

This approach resulted from the fact that, in the ECtHR’s opinion, the violations found of Article 6 § 1 of the Convention originated in the interrelated systemic problems connected with the malfunctioning of domestic legislation and practice caused by several factors, including (a) a defective procedure for judicial appointments involving the National Council of the Judiciary, (b) the resulting lack of independence on the part of the CERPA, (c) the exclusive competence of the CERPA in matters involving a plea of lack of independence on the part of a judge or a court, (d) the defects of the extraordinary-appeal procedure, and (e) the exclusive competence of the CERPA to deal with extraordinary appeals.

Interrestingly, the deficiencies thus identified to a large extent stem from the Polish laws which, in Commission v. Poland (Indépendance et vie privée des juges) (5.6.2023, C-204/21), the CJEU found in infringement proceedings to be in breach of EU law. One may therefore expect, as in the cases of Ilva and Cordella (see Two Courts, Two Paths: Comparing Europe’s Environmental Jurisprudence), some “synergies” between the European Commission and the Committee of Ministers of the Council of Europe in their efforts to bring the Polish judiciary in line with their common European standards.

Meanwhile, on 17 November 2025, the processing of currently about 1100 applications pending before the ECtHR concerning the “rule-of-law crisis” in Poland has been further adjourned until 23 November 2026, at the request of the Polish government, to give it more time to adopt general measures following the Wałęsa v. Poland pilot judgment (see the press release to that effect).

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When asking what the bottom line of the above considerations is, the following considerations come to mind.

Both European Courts are determined to fight populist agendas aiming at weakening the rule of law and judicial independence. They agree on the substance of the requirements which these values entail (on this, see also Populism on Trial: The European Courts’ Response to a Common Challenge).
The AW ‘T’ ex ante approach seems like a quick fix, protecting the res judicata of judgments being challenged through extraordinary appeals. From an applicant’s perspective it represents a preventive and therefore higher protection standard, which is entirely compatible with the Convention (see Art. 53). It may however leave the national judges applying the AW ‘T’ doctrine and disregarding judgments of a higher court in a somewhat delicate, unprotected position in the Polish judiciary.
By contrast, the Strasbourg ex post approach is slower but more comprehensive, thus benefiting a greater number of victims of the abuse of the extraordinary appeal. Indeed, 1100 applications concerning this systemic problem are currently pending before the ECtHR. However, this approach is also requiring a higher level of cooperation by the domestic authorities.
Both approaches in the end reinforce each other and are therefore to be welcomed.

AG 505 zum Europäischen Gerichtshof für Menschenrechte: Sitzung vom 20. November 2025

Liebe Studierende,

auf der Tagesordnung unserer nächsten Sitzung stehen folgende Punkte:

Debriefing über die mündliche Verhandlung vom 19. November 2025, vor der Großen Kammer des EGMR, in der Rs. Grande Oriente d’Italia / Italien;
Todesstrafe und Todestrakt vor dem EGMR: der legendäre Fall Soering / Vereinigtes Königreich. Das Urteil liegt dieser Ankündigung bei. Das Handout der Referentin finden Sie auf OLAT.

Ich freue mich auf einen spannenden Austausch mit Ihnen.

Prof. Dr. Johan Callewaert

CASE OF SOERING v. THE UNITED KINGDOM – [German Translation] summary by N. P. Engel Verlag Herunterladen

AG 505 zum Europäischen Gerichtshof für Menschenrechte: Sitzung vom 13. November 2025

Liebe Studierende,

auf der Tagesordnung unserer kommenden Sitzung stehen folgende Punkte:

Allgemeine Einführung in die Rolle und die Funktionsweise des EGMR;
Briefing über die mündliche Verhandlung, der wir am 19. November in Straßburg beiwohnen werden. Die Pressemitteilung zu dieser Verhandlung sowie das Kammerurteil in der betreffenden Rechtssache liegen bei.

Ich freue mich auf einen spannenden Austausch mit Ihnen.

Prof. Dr. Johan Callewaert

Forthcoming hearing in November 2025 Herunterladen

CASE OF GRANDE ORIENTE D’ITALIA v. ITALY Herunterladen

AG 505 zum Grundrechtsschutz durch den Europäischen Gerichtshof für Menschenrechte: erste Sitzung am 6. November 2025

Liebe Studierende,

im Hinblick auf die erste Sitzung der Arbeitsgemeinschaft zum Grundrechtsschutz durch den Europäischen Gerichtshof für Menschenrechte (Donnerstag 6.11.25 um 18 Uhr in HS 5), bei der Sie sich auch jeweils ein Urteil des EGMR zur Präsentation und Besprechung in der AG aussuchen sollten, finden Sie anbei die Themenliste, aus der Ihre Auswahl erfolgen soll.

Damit können Sie sich schon mit den in der AG anstehenden Themen etwas vertraut machen und vielleicht auch schon eine Vorauswahl treffen. Die einzelnen Themen werde ich in der AG auch noch näher erläutern.

Ich freue mich darauf, Sie am 6. November persönlich kennenzulernen.

Prof. Dr. Johan Callewaert

Themenliste AG 505 WS 2025-26 Herunterladen

Populism on Trial: The European Courts’ Response to a Common Challenge

How do the two European Courts courts address the challenges posed by populism in today’s Europe? What strategies do they share, and where do they differ?

These were the central questions I explored in a presentation entitled “Populism: A Common Challenge for the European Courts”, delivered on 20 October at a conference organized by the Pompeu Fabra University of Barcelona on “Europe’s Constitutional Stress Test: Judicial Resilience in an Age of Populism” (see the programme below).

The presentation began from the premise that populist movements focus their attacks on both democratic values – such as the rule of law, human dignity, freedom of expression, the protection of minorities, and the prohibition of hate and violence – and democratic institutions, including national courts and parliaments.

Accordingly, the analysis compared the case law of the European Court of Human Rights and the Court of Justice of the European Union with respect to each of these “targets,” supported by numerous illustrative excerpts from relevant judgments.

The findings revealed that the two European Courts pursue similar strategies. When democratic values are challenged, their common approach is to reaffirm these values by emphasizing their essential role in preserving the democratic character of European societies. When national courts and parliaments come under attack, the Courts’ focus shifts to safeguarding their proper functioning as a means of fostering citizens’ trust in democratic institutions.

The main conclusions of the presentation can be summarized as follows:

The ECtHR addresses a somewhat broader range of issues drawn from the democratic acquis.
On matters of shared concern, there is substantial alignment between Strasbourg and Luxembourg, notwithstanding some differences in formulation (on these differences and their importance, see also The very essence or mere appearances?). Given divergences in other legal domains, this convergence is noteworthy and commendable.
Judicial independence is the area of greatest convergence between the two Courts, which is unsurprising, as it is also the area most directly targeted by populist attacks.
Three significant challenges remain: the execution of European judgments, the spread of fake news and disinformation, and the composition of the European Courts themselves.
Finally, even acting in concert, the European Courts cannot ultimately succeed in defending democracy without the sustained support of a democratic majority among citizens.

Full details of the analysis, along with case law references and relevant excerpts, can be found in the accompanying PowerPoint presentation.

Populism, a common challenge for the European Courts Download PDF

UPF JUDIPOP Confrence_EUROPE CONSTITUTIONAL STRESS TEST_JUDICIAL RESILIENCE IN AN AGE OF POPULISM Herunterladen

In search of a missing holistic approach: judgment of the CJEU in Nuratau

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two Courts, Two Paths: Comparing Europe’s Environmental Jurisprudence

How do the European Court of Human Rights and the Court of Justice of the European Union go about protecting the environment? What common features do they share, and what sets them apart? Are their rulings and approaches in conflict, or do they complement each other?

These were the questions I addressed in a presentation given at the conference organised by the Academy of European Law (ERA) on “Recent Judgments on Fundamental Rights and Environmental Protection” (online, 23–24 September 2025).

The analysis focused on a concrete example: the severe air pollution caused by the Ilva steelworks in Taranto (Italy), the largest industrial steelworks in Europe. Since both European Courts recently dealt with this issue—Cordella and Others v. Italy (54414/13) before the ECtHR and Ilva and Others (C-626/22) before the CJEU—this case-law provided an excellent opportunity to compare the Strasbourg and Luxembourg approaches to environmental pollution.

The comparison shows that the approaches of the two European Courts differ considerably in terms of their legal basis, scope, methodology and impact. While the Strasbourg approach, based on fundamental rights, is more general and comprehensive, the Luxembourg approach, mainly based on secondary legislation, is more specific and detailed. However, these two approaches complement each other. Their mutually reinforcing effect even seems indispensable when addressing complex situations such as those arising from the Ilva case.

The details of the comparison can be found in the enclosed PowerPoint presentation.

Comparing Ilva (CJEU) with Cordella (ECtHR)Download PDF

On this topic, see also Environmental pollution caused by the Ilva steelworks