Archiv des Autors: johan-callewaert

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.

ECHR leading judgments on EU law

In the context of the launch of a new “ECHR/EU” page on its Knowledge-Sharing platform, the European Court of Human Rights recently published an overview (see below) of its leading judgments on EU law, i.e. those judgments and decisions which set out the key principles on the status of EU law under the Convention and their effects in a number of significant areas.

This is the first overview of its kind. The topics addressed by it, which are not exhaustive and will be gradually expanded, currently include:

◾ The responsibility of EU Member States under the Convention when applying EU law
◾ The absence of responsibility of the EU under the Convention
◾ The Bosphorus presumption (of “equivalent protection”)
◾ Mutual recognition in general
◾ The European arrest warrant
◾ The Dublin Regulation
◾ Child abduction (Brussels II bis Regulation)
◾ The obligation to give reasons for the refusal to make a reference for a preliminary ruling
◾ The manifest error of law

The key principle common to these leading judgments is the Convention liability of EU Member States for their apploication of EU law. It means that in applying EU law, domestic judges and prosecutors are required to ensure a level of protection of fundamental rights compatible with that of the Convention (see, for a recent illustration, M.B. v. the Netherlands). Thus, for them, EU law is not the end of the story. The said overview contains numerous examples of how this translates into everyday practice.


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The interplay between the European Convention on Human Rights and EU law in the field of migration

On the occasion of the conference on the use of the Charter of Fundamental Rights of the EU in asylum litigation, held in Luxembourg on 4-5 June by the European Council on Refugees and Exiles (ECRE), I was given the opportunity to make a presentation on “The interplay between the European Convention on Human Rights and EU law in the field of migration”. Below is the Powerpoint relating to my presentation.

While it is impossible to be exhaustive when considering the vast area of migration law, the following trends would nonetheless appear to emerge from such a comparative analysis.

  • EU law and the Convention converge as regards the main principles governing the procedures for the application of international protection, including the right for any person to make such an application at the border of a State, regardless of any formalities, and the prohibition of refoulement and pushbacks.
  • However, EU law and the Convention diverge on when there is detention of applicants for international protection and on the grounds which can justify such a detention.
  • As the CJEU itself recently noted, EU law and the Convention are on the same page when it comes to the requirements of subsidiary protection under Art. 15 of the Qualification Directive (click here for the post dealing with this issue).
  • The Dublin III Regulation, as recently applied by the CJEU in C-392/22 in respect of pushbacks and detentions at the Polish border with Belarus, gives rise to some concerns as to whether the approach thus followed might not be creating two different categories of fundamental rights and, moreover, collectivising their assessment, which would be in contrast with the Strasbourg case-law (click here for the post dealing with this issue).
  • For the sake of coherence and legal certainty, fundamental rights should be approached, not least by the European Courts, in a wholistic way, i.e. in their mutual interplay, the purpose not being uniformity but cross-system compatibility between EU law and the Convention. In this way, national judges will find it easier to apply EU law in conformity with the Convention, as they are required to do under the Convention, failing which a violation can be found, as in M.B. v. the Netherlands.
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The Convention and the Reception Conditions Directive: judgment of the ECtHR in the case of M.B. v. the Netherlands

In the case of M.B. v. the Netherlands (71008/16, 23.4.2024) the European Court of Human Rights found a violation of Article 5 § 1 of the Convention (right to liberty and security) in respect of an applicant who was detained, on the ground that he posed a threat to public order, pending the assessment of his application for asylum.

What makes this judgment interesting in terms of the interplay between the Convention and EU law is the fact that the domestic legal basis for the impugned immigration detention, the Dutch Aliens Act 2000, transposed in domestic law the EU Reception Conditions Directive (No 2013/33), which prompted the domestic courts to interpret the Aliens Act 2000 in light of that Directive and the case-law of the CJEU relating to it.

The first issue arising in this case was about the domestic legal basis for the applicant’s immigration detention. The Dutch Regional Court considered that this basis was provided by Section 59b(1)(d) of the Aliens Act 2000, which transposed into the Dutch legal system Article 8(3)(e) of the Reception Conditions Directive allowing detention of an applicant for international protection “when protection of national security or public order so requires”.  In reaching that conclusion, the Regional Court relied on the case-law of the CJEU relating to that provision, notably in the case of N. (C-601/15 PPU). At the same time, it pertinently noted that “the considerations of the CJEU do not take away from the fact that the treaty provisions in the [Convention] have independent effect in the Dutch legal order and that the court can also directly review the contested decision against Article 5 [of the Convention]” (§ 61).

The ECtHR accepted the domestic courts’ findings that Section 59b(1)(d) provided the domestic legal basis for the applicant’s detention. It thereby recalled its well-established case-law according to which, first, it is not competent to apply – or examine alleged violations of – EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention (§ 61) and, secondly, the interpretation of domestic law provisions, including its conformity with EU law, falls primarily to the national authorities, notably the courts (§ 62; in the same sense: § 64).

The second issue was about the conformity of that domestic legal basis with Article 5 § 1 f) of the Convention. The difficulty here was the fact that while Article 5 § 1 f), unlike Article 8(1) of the Reception Conditions Directive, allows the detention of an applicant for international protection for the period of time needed for the processing of his/her application (Saadi v. the United Kingdom), it does not allow, unlike Art. 8(3)(e) of that same Directive, their detention on grounds relating to the protection of national security or public order, which under Dutch law can last up to six months (Section 59b(4) of the Aliens Act 2000). The ECtHR noted in this connection:

“Although Article 8 (3) e of the Reception Conditions Directive permits, from an EU-law standpoint, detention when national security or protection of public order so requires, this has no bearing on the fact that Article 5 § 1 (f) of the Convention only allows for immigration detention to prevent unauthorised entry or to effect deportation.” (§ 72, emphasis added)

Consequently, the only chance for the applicant’s immigration detention to be found compatible with Article 5 § 1 f) of the Convention was for it to have, in the circumstances of the present case, a sufficiently close connection with the aim of preventing the applicant’s unauthorised entry. This, however, was denied by the ECtHR, on the ground that the national authorities had not used the time previously spent by the applicant in criminal law detention to take steps to further the examination of his application. The ECtHR stated inter alia:

“The Court can understand the legitimate concerns which exist when an asylum applicant is released from detention shortly after having been convicted on terrorism related charges. However, this cannot lead to “preventive detention”, nor can it absolve a State of its obligations under the Convention. It is moreover undisputed that during the applicant’s (pre-trial) detention between 30 November 2015 and 23 September 2016, no steps were taken to assess his asylum application, such as conducting interviews to enable a determination of his claim, including his possible exclusion from international protection on the basis of Article 1F of the Refugee Convention … Consequently, this immigration detention appears disproportionate, even unnecessary, as many of the steps required to assess the asylum application could have been taken during the criminal law detention without the need to subsequently keep the applicant in immigration detention.” (§ 73)

Thus, the ECtHR found the applicant’s detention to be arbitrary, for lack of a sufficiently close connection between his immigration detention and the aim of preventing his unauthorised entry, and therefore in breach of Article 5 § 1 of the Convention.

The following three conclusions can be drawn from this case regarding the interplay between the Convention and EU law:

  1. Within one single area, here the detention of applicants for international protection, the respective levels of protection can vary between the Convention and EU law depending on the aspect considered. This calls for a differentiated analysis: whereas EU law allows the detention of applicants on grounds of national security or public order, the Convention does not; but whereas EU law does not allow detention of applicants merely to facilitate the processing of their applications, the Convention does.
  2. What matters at the end of the day in Strasbourg, however, is only whether the Convention minimum protection level has been ensured by the domestic courts, without prejudice to a higher level being applied by them, notably under EU law. As the ECtHR put it, a lower level of protection, as provided e.g. by Article 8(3)(e) of the Reception Conditions Directive, has “no bearing” on the applicable higher Convention protection level.
  3. This variety of legal scenarios calls for a wholistic approach which takes into account the full range of interactions between the national, EU and Convention legal orders.

Two different categories of fundamental rights under the Dublin III Regulation? Judgment of the CJEU in the case of Staatssecretaris van Justitie en Veiligheid

In the case of Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer) (C-392/22, 29.2.2024), the CJEU ruled on whether a practice of pushbacks and detention at the border of a Member State which, under the Dublin III Regulation (No 604/2013), is responsible for the examination of an application for international protection, precludes the transfer of the applicant to that Member State.

In the case at hand pending before the Dutch courts, a Syrian national who had made an application for international protection in Poland, followed by another one in the Netherlands, challenged the request by the Dutch authorities for the Polish authorities to take back the applicant, pursuant to Article 18(1)(b) of the Dublin III Regulation.

The referring court interrogated the CJEU on whether such a take back could at all be requested, despite “objective, reliable, specific and properly updated information [showing] that the Republic of Poland has, for a number of years, systematically infringed a number of fundamental rights of third-country nationals by subjecting them to pushbacks [to Belarus], regularly accompanied by the use of violence, and by systematically detaining, in what are described as ‘appalling’ conditions, third-country nationals who enter its territory illegally.” (§ 20)

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In substance, the CJEU answered that the transfer of a third-country national to the Member State responsible for examining his or her application for international protection is precluded only if there are substantial grounds for believing that he or she would, during his or her transfer or thereafter, face a real risk of being subjected to pushbacks and detentions, and that those practices are capable of placing that third-country national in so grave a situation of extreme material poverty that it may be equated with the inhuman or degrading treatment prohibited by Article 4 of the EU-Charter.

In its reasoning, the CJEU first recalled the requirements of mutual trust between the Member States and explained why pushbacks as well as detention for the sole reason that a person is seeking international protection are contrary to EU law, notably Directives 2013/32 and 2013/33.

It then stated that while such practices constitute “serious flaws” in the asylum procedure and in the reception conditions for applicants, only “systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter make [the transfer of the person concerned] impossible”, those two conditions being cumulative (§§ 57-58). Article 3(2), second sub-paragraph, of the Dublin III Regulation, indeed reads:

“Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are 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], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.“

Thus, the CJEU seems to interpret this provision not as an illustration of the kind of scenarios which could render such a transfer “impossible” but as limiting them to those which would entail a risk that Article 4 of the EU-Charter be breached because of “systemic flaws” in the Member State primarily designated as responsible for the examination of an application .

As to what constitutes inhuman or degrading treatment in this context, the CJEU referred to practices of pushback and detention which would be such as to expose the person concerned “to a situation of extreme material poverty that would not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that would undermine his physical or mental health or put him in a state of degradation incompatible with human dignity, placing him in a situation of such gravity that it may be equated with inhuman or degrading treatment”. (§ 63) This definition seems to draw on M.S.S. v. Belgium and Greece, §§ 253-264, which concerned the take back of a homeless applicant for international protection who, however, was never made the subject of any detention.

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This approach would appear to significantly restrict the effect of fundamental rights of migrants at the border with third countries, when compared with the Convention case-law. For at least two reasons.

1. First, because Article 3(2), second sub-paragraph, of the Dublin III Regulation, as interpreted by the CJEU, seems to limit the categories of risks precluding the take back of an applicant for international protection to risks of a breach of Article 4 of the EU-Charter. Risks of a breach of any other of an applicant’s fundamental rights seem to be irrelevant in this context.

Even detention by the local authorities at the border, which is one of the risks alleged by the applicant in the case at hand, would appear to have no chance of being considered relevant if it is not giving rise to ill-treatment within the meaning of Article 4 of the EU-Charter. This might also be the reason why the CJEU does not address the issue of arbitrary detentions as such but only as part of pushbacks exposing applicants to a situation of extreme material poverty (§ 63). The individual guarantees, which the CJEU suggests could be asked, seem limited to ill-treatment too (§ 80).

This approach seems to be ignoring the fact that several other fundamental rights issues can arise in the context of such pushbacks, as illustrated, inter alia, by Ilias and Ahmed v. Hungary and N.D. and N.T. v. Spain. Only recently was the case of C.O.C.G. and Others v. Lithuania, concerning pushbacks at the Lithuanian border with Belarus, brought before the Grand Chamber of the ECtHR for a determination of whether Articles 2 (right to life), 3 (prohibition of ill-treatment), 5 (right to liberty and security), 13 (right to an effective remedy) and 34 (right to individual petition) of the Convention, as well as Article 4 of Protocol No 4 (prohibition of collective expulsions) have been breached.

Given that, in addition to Article 3, Articles 2, 5 and 13 of the Convention, and 4 of Protocol No 4, have also found their way into the EU-Charter, i.e. in Articles 2, 6, 47(1) and 19(1) respectively, and in light of Article 52(3) of that same EU-Charter, one may wonder whether the Dublin III Regulation can legally restrict the impact of that Charter on the practices described above, to the extent that they come within the scope of EU law (Art. 51(1) of the EU-Charter). Thus, here too, EU law seems to be creating two different categories of fundamental rights, depending on their capacity to be invoked under the Dublin III Regulation, even though Recital 39 of the Preamble of that same Regulation states in its first sentence: “This Regulation respects the fundamental rights and observes the principles which are acknowledged, in particular, in the Charter of Fundamental Rights of the European Union.”

2. Secondly, to the extent that a complaint can be considered relevant under the Dublin III Regulation because it genuinely relates to Article 4 of the EU-Charter, it will be confronted with another restriction to the effect that the only abuses at the State border which that complaint will be capable of preventing are systemic flaws which “concern, generally, the asylum procedure and the reception conditions applicable to applicants for international protection or, at the very least, … certain groups of applicant for international protection as a whole, such as the group of persons seeking international protection after crossing or having attempted to cross the border between Poland and Belarus.” (§ 59)

Thus, the CJEU drew here on the two-step methodology which it developed in the field of the European arrest warrant. It requires the existence of systemic or generalised deficiencies in the issuing Member State as a pre-condition to any individual assessment of the risks incurred by the person concerned (e.g. in GN). One may wonder whether, by requiring such systemic or generalised flaws, this approach does not come down to replacing risk by certainty as a condition for the protection of a person’s fundamental rights in the context of a transfer. In any event, it considerably increases the burden of proof to be discharged by the person concerned.

This seems in contrast with the approach adopted in M.S.S. v. Belgium and Greece, in which the ECtHR, while taking note of the fact that the very poor situation in which the applicant found himself in Greece existed “on a large scale” (§ 255), did not require it to be in any way “systemic” or “generalised”, and even less made the individual assessment of whether the applicant’s fundamental rights had been complied with hinging on such a preliminary finding. In other words, this finding served merely as evidence in support of an individual assessment, not as a pre-condition to the latter.

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How should national courts 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. Failure to do so 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. In other words, a wholistic approach is called for here.

The very essence or mere appearances? Judgment of the CJEU in the case of Krajowa Rada Sądownictwa

In the case of Krajowa Rada Sądownictwa (C-718/21, 21.12.2023), a Grand Chamber of the CJEU ruled that a request for a preliminary ruling from the Polish Supreme Court (Chamber of Extraordinary Control and Public Affairs, “the CECPA”) was inadmissible, on account of the fact that the panel of judges of the CECPA which submitted that request was not 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 Article 47 of the EU-Charter. This was because of the procedure which had led to the appointment of the three judges composing that panel. Consequently, it did not constitute a “court or tribunal” within the meaning of Article 267 TFEU.

The CJEU insisted that it is alone responsible for interpreting EU law and must consider the issue in the light of its own case-law (§§ 40, 46 and 58). At the same time, it amply relied in its reasoning on the judgment of the ECtHR in the case of Dolińska-Ficek and Ozimek v. Poland, which concerned the dismissal by the CECPA of the appeals against resolutions of the National Council of the Judiciary (“the NCJ”, referred to as the “KRS” by the CJEU) on the non-recommendation of judges to posts at higher courts. It also referred to the judgment of the Polish Supreme Administrative Court of 21 September 2021, which had annulled Resolution No 331/2018 proposing the appointment of some of the judges of the CECPA.

What is noteworthy about this ruling is, first, the convergence between Strasbourg and Luxembourg in considering that the CECPA is not a “tribunal established by law”. According to both European Courts, this is because members of the CECPA were appointed following a procedure characterised by undue influence of the legislative and executive powers on the appointment of judges: the recommendation of candidates for judicial appointment to the CECPA was entrusted to the NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. In addition, and in breach of the rule of law and the separation of powers, the members of the CECPA had been appointed by the President of the Republic in spite of a stay of execution which had been decided by the Supreme Administrative Court pending its examination of the lawfulness of the Resolution which had recommended the appointment of the judges concerned. The ECtHR called this an act of “utter disregard for the authority, independence and role of the judiciary” (§ 330).

The importance of that convergence between the two European Courts on principles as fundamental for democratic societies as the rule of law and judicial independence can hardly be overestimated.

Some differences between the reasoning of the ECtHR and the CJEU on these issues should however be noted. The first one relates to the concepts being relied on by the two Courts. In Dolińska-Ficek and Ozimek the ECtHR considered the two main shortcomings mentioned above, i.e. the nomination by a non-independent body and the appointment by the President of the Republic in disregard of a court order, to be sufficiently serious, as such, to impair the very essence of the applicant’s right to a “tribunal established by law” (§ 350).

By contrast, the CJEU saw the problem more as one concerning appearances of independence and impartiality and “reasonable doubts in the minds of individuals as to the imperviousness of the persons concerned and the panel in which they sit with regard 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” (§ 61, 62, 68 and 77).

The explanation for this reliance by the CJEU on appearances and doubts, rather than on the “very essence” of the right to a tribunal, may be found in the fact that here independence and impartiality are considered together by the CJEU, impartiality being the concept for the assessment of which the ECtHR itself relies on appearances and reasonable doubts (e.g. in Morice v. France, §§ 76-78). While there is of course a link between these two notions (see Dolińska-Ficek and Ozimek, §§ 315-316), they nonetheless cover different requirements.

However that may be, one may wonder whether the massive interference of the legislative and executive powers in the appointment of judges, as described in the case at hand, is only a problem of appearances and doubts, or whether it affects the substance of the rights concerned, leaving no room for any possible doubts or mere appearances. In other words, the problem should perhaps not be reduced to one of mere appearances and doubts. Rather, as indicated by the ECtHR, it goes to the heart of the rule of law, the separation of powers and judicial independence. These principles do not only appear to have been ignored in the case at hand. Rather, they were actually disregarded and therefore the very essence of judicial independence was genuinely affected.

Secondly, while the ECtHR saw the two main shortcomings mentioned above, in addition to the absence of adequate legal remedies, as sufficient to support its conclusion of a violation of the right to a tribunal established by law, the CJEU relied on several additional circumstances, such as the extent of the jurisdiction of the CECPA, the adoption by the Polish legislature of a new law limiting the possibility to challenge decisions by the NCJ,  or the annulment by the Supreme Administrative Court of Resolution No 331/2018 (§§ 65-76).

This could be interpreted as suggesting that under EU law the two main shortcomings identified by the ECtHR are not sufficient and require the combination of all mentioned additional circumstances to lead to a conclusion of incompatibility with Article 19(2), second sub-paragraph, TEU, read in the light of Article 47 of the EU-Charter. This, in turn, could be seen as offering a lesser protection of the right to a tribunal established by law.

Should this be the case, and in view of the fact that the Convention represents in this field the minimum protection standard also applicable under EU law (Art. 52(3) of the EU-Charter), the circumstances listed in Dolińska-Ficek and Ozimek should be considered sufficient to deny a national court the status of a “tribunal established by law”.

Mutual recognition before the European Court of Human Rights

Mutual recognition is an area characterised by some significant methodological differences between the Strasbourg and Luxembourg case-law (see Convention control and Trends 2021-24) which go to the heart of the notion of fundamental rights and of how fundamental rights should be assessed: individually and/or collectively?

On 21 March last, I made an online presentation at the Training Workshop, held at the University of Barcelona, devoted to “Mutual trust and judicial independence in the EAW Framework“. The workshop was part of the European Commission’s funded project TRIIAL 2 (TRust, Independence, Impartiality and Accountability of Legal Professionals under the EU-Charter).

My presentation, titled: “Mutual recognition before the European Court of Human Rights“, was based on the following considerations.

  1. The mutual recognition mechanisms have been accepted in principle by the ECtHR (Avotiņš v. Latvia);
  2. While the ECtHR also approved of the two-step methodology of the CJEU in principle, it reaffirmed its own one-step methodology “which place[s] the national authorities under a duty to ascertain whether there is a real risk, specifically assessed, to the individual concerned, of treatment contrary to [the Convention]” (Bivolaru and Moldovan v. France, § 114);
  3. The general situation occurring in a country is not ignored by the ECtHR, but used as evidence in the assessment of individual risks rather than as an autonomous test;
  4. According to the latest Luxembourg case-law (C-158/21, C-819/21,C-261/22), national judges should not, in the absence of systemic or generalised deficiencies, apply an individual test as regards risks of breaches of fundamental rights in the issuing Member State;
  5. This comes down to: a) replacing the individual test by a general test, thus accepting that fundamental rights can be assessed collectively rather than individually, and b) dividing fundamental rights into two categories, those arising from systemic deficiencies, considered relevant, and the others, which can be ignored in the field of mutual recognition;
  6. However, it is doubtful whether national judges can be precluded by EU law from applying the Convention as legally required, which includes an assessment of the individual risks incurred by the person concerned in the issuing Member State.
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Trends 2021-24: Taking stock of the interplay between the European Convention on Human Rights and EU Law

After many presentations of individual judgments in recent years, time has come for a stock-taking of the general situation of the interplay between Strasbourg and Luxembourg.

This is the purpose of the short paper below. It sets out, with many case-law illustrations listed by area, the main trends characterising that interplay since 2021. These areas are: procedural rights in criminal proceedings, judicial independence, freedom of religion, the right to be forgotten, migration, the European arrest warrant, abduction of children, non bis in idem and the protection of personal data.

It is sometimes claimed that the protection of fundamental rights in Luxembourg and Strasbourg is virtually similar, any differences being negligible. This is an over-simplification of the issue. The real picture is much more differentiated, with significant consequences at domestic level, because of their impact on the precise level of protection which judges and prosecutors will apply and, ultimately, citizens will benefit from. This is indeed where the effects of this interplay are being felt on a daily basis.

The following five conclusions emerge from this paper:

  1. Whereas the areas of convergence are a reason for satisfaction, the areas of divergence represent a challenge for national judges and prosecutors.
  2. The EU legal system is autonomous, but the national judges and prosecutors are not, because they remain subject to the Convention and must apply EU law in compliance with it, which requires a comparison of the respective levels of protection.
  3. Consequently, in the field of fundamental rights, EU law is not the end of the story. Rather, a wholistic approach is called for, which takes into account the interplay between EU law and the Convention.
  4. Fundamental rights are in essence individual rights. They call for an individual test, which can be complemented but not replaced by a general test.
  5. As Executief van de Moslims van België shows, the last possible stop of a case as regards fundamental rights is Strasbourg and its ultimate benchmark is the Convention, as minimum standard. From this perspective, it makes little sense not to take into account from the start what is going to be the ultimate benchmark at the end anyway. The goal is not uniformity but cross-system compatibility of the case-law.
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Successive scrutiny of the same legislation in Luxembourg and Strasbourg: judgment of the ECtHR in the case of Executief van de Moslims van België and Others v. Belgium

In the case of Executief van de Moslims van België and Others v. Belgium (16760/22 and 10 Others, 13.02.2024), the European Court of Human Rights found that the Belgian law, i.e. the Flemish and Walloon regional decrees, which only allows vertebrates to be put to death in the context of ritual slaughter by using reversible non-lethal stunning, does not breach the freedom of religion enshrined in Article 9 of the Convention. This finding is very similar to the one made by the CJEU on the very same legislation in the case of Centraal Israëlitisch Consistorie van België and Others.

This similarity very well illustrates two important aspects of fundamental rights in Europe today.

First, it shows the importance of a sufficient level of consistency between the jurisprudences at national, Union and Convention level, in view of the fact that the compatibility with fundamental rights of a same piece of legislation can, as in the present case, be checked at three different successive levels, the last one being Strasbourg. As pointed out by the ECtHR, in the case at hand the scrutiny of the same Belgian legislation indeed went all the way from the Belgian Constitutional Court to the CJEU and to the ECtHR. Contradictions or incompatibilities between these levels would have damaged legal certainty as much as the authority of the invoked fundamental rights themselves, quite apart from the difficulties they would have created for the national judges dealing with that kind of issues and subject to all three levels of scrutiny.

Secondly, this case also shows how beneficial it is for the cross-system consistency of the case-law on fundamental rights when the case-law of the ECtHR is taken on board from the beginning of the journey of a case through the judicial instances. Indeed, the last stop of such a case is in Strasbourg and its ultimate benchmark is the Convention, it being understood that this benchmark only represents a minimum protection level which can be raised (Art. 53 of the Convention). From this perspective, it makes little sense not to take into account from the start what is going to be the ultimate benchmark at the end anyway.

So there can be no doubt that seeing the CJEU extensively rely in Centraal Israëlitisch Consistorie van België on the Strasbourg case-law and acknowledge its benchmark function by qualifying it as “the minimum threshold of protection” (§ 56; see also this post) greatly facilitated reliance by the ECtHR on the fact that, having regard to the principle of subsidiarity, it should duly take into account the outcome of the “double control” which had already taken place in Brussels and Luxembourg prior to its own scrutiny (§ 112).

Under these circumstances, it came as no surprise that, in a welcome unisono with the CJEU, the ECtHR held that the obligations imposed by the Belgian legislation at stake were not disproportionate and therefore were not in breach of Article 9 of the Convention.