Archiv der Kategorie: European Court of Human Rights

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:

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.
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.
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.

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:

Whereas the areas of convergence are a reason for satisfaction, the areas of divergence represent a challenge for national judges and prosecutors.
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.
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.
Fundamental rights are in essence individual rights. They call for an individual test, which can be complemented but not replaced by a general test.
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.

Preventive Convention control by the ECtHR over the execution of European arrest warrants

The case of Arsene v. Italy (39817/23) provides a good opportunity to draw attention to the preventive control exercised by the ECtHR, under Rule 39 of its Rules of Court, over the execution of European arrest warrants (EAW) which are challenged by applicants under Article 3 of the Convention (prohibition of ill-treatment).

In this case, the ECtHR decided on 10 November 2023 not to indicate to the Italian Government the interim measure which the applicant was seeking under Rule 39 of the Rules of Court and which would have temporarily stopped his surrender to Romania on the basis of the EAW issued against him. The interim measures indicated under this provision are indeed legally binding (Mamatkulov and Askarov v. Turkey).

Arsene v. Italy is only the most recent in a series of cases in which applicants requested the ECtHR to stop the execution of a EAW by reason of a serious risk of violation of Article 3 of the Convention in the issuing Member State. Other such cases include Caragea v. Italy and Romania (11773/20), Coarda v. Sweden (18732/20), Ursu v. Italy (54281/20) and Cretu v. United Kingdom (9749/22).

In all the above cases the applicants had been convicted to custodial sentences by Romanian courts and were the subject of EAWs issued for the purpose of the service of these sentences in Romania. The applicants challenged the execution of these EAWs before the ECtHR, thereby referring to the pilot judgment in Rezmiveș and Others v. Romania, in which the ECtHR found that the persisting structural problems of overcrowding and poor conditions of detention in Romania amounted to a practice incompatible with Article 3 of the Convention and requested the Romanian authorities to urgently remedy that situation.

Yet, all requests in the above cases for the indication of interim measures were rejected by the ECtHR on their merits, i.e. after a thorough examination of the circumstances of each case by the duty judge. In line with established practice concerning Rule 39, no reasons were given by the ECtHR for these dismissals. However, a striking feature which all these cases have in common are formal and individualised assurances given by the Romanian authorities regarding the places of detention of the persons concerned and respect for their rights under Article 3, which the authorities of the executing States considered trustworthy, in the absence of any evidence showing that the Romanian authorities had ever breached assurances of this type in the past.

In Dorobantu, the CJEU ruled that in the presence of deficiencies which affected certain places of detention, the executing judicial authority is bound to determine, specifically and precisely, whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender of a person to the issuing Member State under a EAW, he/she will run a real risk of being subject in that Member State to inhuman or degrading treatment, because of the conditions for his detention envisaged in the issuing Member State (§§ 52, 55). However, the CJEU was somewhat ambivalent on whether the executing judicial authority should just ask the issuing authority for information on the conditions in which it is intended that the individual concerned will be detained in that Member State, or for proper assurances concerning respect for the individual’s fundamental rights, or for both (§§ 67-69).

Be that as it may, what is clear in the light of the ECtHR’s practice in exercising a preventive control under Rule 39 over intended surrenders under a EAW is that formal and reliable assurances by the authorities of the issuing Member State concerning respect for the fundamental rights of the persons concerned would appear to make a difference, not only in the executing Member States but also in Strasbourg (on the requirements to be fulfilled by such assurances, see Othman (Abu Qatada) v. the United Kingdom).

Migrants at the border: fundamental rights at stake or just another breach of secondary law? Comparing “European Commission v. Hungary” with “N.D. and N.T. v. Spain”

In the case of European Commission v. Hungary (Déclaration d’intention préalable à une demande d’asile) (C-823/21, 22.6.2023), the CJEU applied Article 6 of Directive 2013/32 (the Procedures Directive), which regulates access to the procedure for international protection, to the situation of migrants at the State border.

The CJEU ruled that Hungary had failed to fulfil its obligations under Article 6 of Directive 2013/32 because it had made the possibility, for certain third-country nationals or stateless persons present in the territory of Hungary or at its borders, of making an application for international protection subject to the prior lodging of a declaration of intent at a Hungarian embassy located in a third country and to the granting of a travel document enabling them to enter Hungarian territory. Thus, these people have to leave Hungary and come back with papers delivered by a Hungarian embassy abroad before being able to apply for international protection.

In essence, the CJEU’s ruling is based on the following five considerations.

1. Article 6 of Directive 2013/32 allows any third-country national or stateless person to make an application for international protection, including at the borders of a Member State (Art. 3(1)), by expressing his or her wish to benefit from international protection to one of the authorities referred to in that article, without the expression of that wish being subject to any administrative formality. That right must be recognised even if that person is staying illegally on the territory of the Member State concerned and irrespective of the prospects of success of such a claim (§ 43).

2. The obligation imposed on migrants at the border by the impugned Hungarian legislation is not provided for by Article 6 of the Directive and runs counter to the objective pursued by it, which is to ensure effective, easy and rapid access to the procedure for granting international protection (§ 51).

3. This obligation also deprives migrants of their right, under Article 18 of the EU-Charter, to effectively seek asylum (§ 52).

4. A Member State cannot unjustifiably delay the time at which the person concerned is given the opportunity to make his or her application for international protection (§ 47).

5. The public health and public policy and security grounds invoked by the Hungarian government as justification for this scheme are ill-founded (§§ 54-69).

Interestingly, , in the landmark case of N.D. and N.T. v. Spain a unanimous Grand Chamber of the European Court of Human Rights recently dealt with the same topic, i.e. the forcible return of migrants from the Spanish border surrounding the enclave of Melilla. It did so under Articles 4 of Protocol No. 4 (prohibition of collective expulsion) and 3 of the Convention (prohibition of ill-treatment, including refoulement). In that same judgment, the ECtHR set out its doctrine about the rights and duties of migrants at the border of Contracting States. It is based on the following five principles, listed hereinafter with relevant excerpts from the judgment.

1. No formalities are required for a valid application for asylum

In the specific context of migratory flows at borders, the wish to apply for asylum does not have to be expressed in a particular form. It may be expressed by means of a formal application, but also by means of any conduct which signals clearly the wish of the person concerned to submit an application for protection. (N.D. and N.T., § 180)

2. The non-admission of a refugee is to be equated with refoulement

The “non-admission” of a refugee is to be equated in substance with his or her “return (refoulement)”. Consequently, the sole fact that a State refuses to admit to its territory an alien who is within its jurisdiction does not release that State from its obligations towards the person concerned arising out of the prohibition of refoulement of refugees. (§ 181)

3. The protection of the Convention is not subject to formal considerations

The protection of the Convention cannot be dependent on formal considerations such as whether the persons to be protected were admitted to the territory of a Contracting State in conformity with a particular provision of national or European law applicable to the situation in question. The opposite approach would entail serious risks of arbitrariness, in so far as persons entitled to protection under the Convention could be deprived of such protection on the basis of purely formal considerations, for instance on the grounds that, not having crossed the State’s border lawfully, they could not make a valid claim for protection under the Convention. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions cannot go so far as to render ineffective the protection afforded by the Convention, and in particular by Article 3. (§ 184)

4. Expulsion is to be understood as any forcible removal of an alien from a State’s territory

The term “expulsion” is to be interpreted in the generic meaning in current use (“to drive away from a place”), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border. (§ 185)

5. States must make available genuine and effective access to means of legal entry, in particular border procedures

With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen Area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case, the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4 § 1 of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution. (§ 209)

However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (§ 210)

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

The good news is that in terms of their outcome, i.e. the obligations of States regarding the treatment of migrants at the border, the two rulings appear to be very similar in that in essence, they both require the effective possibility for migrants at the border to make an application for international protection.

A striking difference, though, lies in the approach followed by each of the two European Courts. Whereas the CJEU adopted a rather textual approach based on the wording of Articles 6 and 3(1) of Directive 2013/32 and previous case-law, the ECtHR adopted a more principled approach, thereby going to great lengths, notably with a thorough analysis of the current state of international law, to explain that what is at stake in such cases are two basic fundamental rights of migrants, i.e. the right not to be subject to refoulement or collective expulsion. By contrast, nothing is said about these fundamental rights in Commission v. Hungary, despite the suggestion by the Commission that this case is in fact about refoulement (§ 23). The resulting impossibility for migrants at the Hungarian border to seek asylum is mentioned only incidentally by the CJEU (§ 52).

This is indeed the paradox of Commission v. Hungary and several other similar rulings: it is ultimately about basic fundamental rights, but nothing is said about them. Instead, the matter is addressed on the basis of a textual interpretation of “ordinary” provisions of secondary law of a rather technical nature. These provisions may perhaps have the same concrete impact in practice, but they also have the effect of trivialising the issues at stake and ignoring what is their very essence.

While the main issue characterising the situation of migrants at the Hungarian and other State borders is ultimately one of basic fundamental rights, i.e. one of refoulement and collective expulsion, as recently confirmed in S.S. and Others v. Hungary, this issue is being ignored in European Commission v. Hungary and treated as just another breach of an ordinary provision of EU law. The Strasbourg case-law therefore seems a good reminder of the deeper issues behind these ordinary provisions.

The practical relevance of this distinction is that, being of a higher rank and less easily modifiable, fundamental rights can be expected to provide a better protection in the long run. Moreover, they raise the importance of the issues involved, preventing them from being considered as purely technical matters.

Different ways to the same goal: Strasbourg and Luxembourg on same-sex couples

In the case of Koilova and Babulkova v. Bulgaria (40209/20, 5.9.2023), the European Court of Human rights found a violation of Article 8 of the Convention (right to respect for private and family life) on account of the failure by the Bulgarian authorities to set up a legal framework allowing same-sex couples to be granted adequate recognition and protection of their relationship.

The applicants, two women who married in the United Kingdom and live in Sofia, were denied the right to have their marriage entered in the Bulgarian civil status register, on the ground that under the Bulgarian legal system a marriage could only be between a man and a woman.

This case provides a good opportunity to compare with each other the Strasbourg and Luxembourg approaches to same-sex couples. While the former is based on the right to respect for private and family life, the latter relies on the right of EU citizens to move and reside freely within the territory of the Member Sates.

In essence, what Article 8 of the Convention requires is, as confirmed by Koilova and Babulkova, that Member States provide a “legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship”, there being some margin of appreciation in determining the exact nature of the legal regime to be put in place. It does not necessarily have to take the form of a marriage (Fedotova and Others v. Russia, §§ 178 and 188).

The CJEU, for its part, developed its own case-law on the legal recognition of same-sex couples under Union law, notably in Coman and Othersand Stolichna obshtina, rayon “Pancharevo”.

Coman and Others was about a same-sex couple which married in Belgium, where they lived for a couple of years, and wanted to settle back in Romania, the country of origin of Mr Coman. His husband, however, was denied a resident permit on the ground that the Romanian legal order did not allow same-sex marriages. The CJEU ruled in essence that this refusal was in breach of Article 21(1) TFEU which enshrines the right for every citizen of the Union to move and reside freely within the territory of the Member states. It stated, inter alia:

Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those of the main proceedings, a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that State has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months.

Stolichna obshtina, rayon ‘Pancharevo’, for its part, was about a minor child who is a Union citizen and whose birth certificate, issued by the Spanish authorities, designated as that child’s parents two persons of the same sex. The Bulgarian authorities refused to issue identity papers to the child on the basis of the Spanish birth certificate, arguing that this would contravene the Bulgarian public order which only allowed a man and a woman to be registered as the parents of a child. The CJEU ruled inter alia that the Member State of which that child is a national, i.e. Bulgaria, was obliged to recognise the document from the host Member State, i.e. Spain, which permits that child to exercise, with each of those two persons, his or her right to move and reside freely within the territory of the Member States.

When comparing those two approaches, the following observations would appear relevant:

First of all, Koilova and Babulkova is another example of the ECtHR correcting the effects of mistakes made at domestic level in assessing Union law requirements. In this case, the Bulgarian administrative courts had indeed stated that their position was in line with Union law, as well as the Convention (§ 6). One may wonder why the Bulgarian courts did not make a reference for a preliminary ruling by the CJEU.
The CJEU case-law is based on the right of EU citizens to move and reside freely within the territory of the Member States (Art. 21(1) TFEU and 45(1) of the EU-Charter). Thus, it would appear not to apply to situations where the legal status the recognition of which is sought in a EU Member State has been granted outside the EU.
Furthermore, the recognition in a Member State of the status granted in another Member State is imposed for the effective enjoyment of the right to move and reside freely within the EU. By its very nature, it presupposes that the EU citizen concerned made effective use of that right, notably by living in another Member State than the one which granted the status the recognition of which is being sought. As such, a person’s status is a matter which indeed falls within the exclusive competence of the Member States (Coman and Others, § 37).
These are notable differences with the Strasbourg case-law based on Article 8 of the Convention. The latter indeed applies to the entire jurisdiction of the Contracting States and to all persons subject to their jurisdiction, regardless of their biography or nationality.
However, as stated above, Article 8 does not require the benefit of a specific status for same-sex couples, but only an adequate recognition and protection of their relationship, i.e. an effective protection of their right to private and family life (Koilova and Babulkova, § 46). By contrast, EU law requires the recognition of the specific status which was granted by the host Member State. This may entail an obligation to recognise a same-sex marriage, at least for the purpose of the exercise of the right to move and reside freely, as in Coman and Others.
Finally, one should note the references made by each European Court to the case-law of the other, which testifies of the cross-fertilisation taking place between the two in this area.

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The requirement of consent by the data subject declared compatible with the Convention: Judgment of the ECtHR in Jehovah’s Witnesses v. Finland

In the case of Jehovah’s Witnesses v. Finland (31172/19, 9.5.2023), a Finnish religious community, Jehovah’s Witnesses, complained inter alia under Article 9 of the Convention (religious freedom) about an order prohibiting any notes being taken by individual Jehovah’s Witnesses for their personal use in the context of their door-to-door preaching activities without the consent of the data subject.

The requirement of consent by the data subject is laid down in Article 7 of the Data Protection Directive (95/46) which was transposed into the Finnish legal system through inter alia the Personal Data Act. The latter was relied on by the Finnish administrative courts when confirming the impugned order. In this context, the Supreme Administrative Court asked for a preliminary ruling in which the CJEU confirmed that the Data Protection Directive could be applied to the facts of the case.

In its judgment, the ECtHR extensively relied on that ruling by the CJEU. It also noted in this connection:

The Court observes that the Personal Data Act transposed the Data Protection Directive into Finnish law (see paragraph 14 above). Before the Supreme Administrative Court reached its final conclusion on the matter, it sought guidance from the CJEU on the interpretation of the Data Protection Directive. The Court has regularly emphasised the importance, for the protection of fundamental rights in the EU, of the judicial dialogue conducted between the domestic courts of EU member States and the CJEU in the form of references from the former for preliminary rulings by the latter (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 164, ECHR 2005‑VI; Avotiņš v. Latvia [GC], no. 17502/07, §§ 105 and 109, ECHR 2016; and Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 150). (§ 85)

On the central issue in the case, i.e. the requirement of consent by the data subject, as prescribed by Article 7 of the Data Protection Directive, the ECtHR held:

The requirement of consent by the data subject is to be considered an appropriate and necessary safeguard with a view to preventing any communication or disclosure of personal and sensitive data inconsistent with the guarantees in Article 8 of the Convention in the context of door‑to‑door preaching by individual Jehovah’s Witnesses. In the absence of any convincing arguments by the applicant community, the Court cannot discern how simply asking for, and receiving, the data subject’s consent would hinder the essence of the applicant community’s freedom of religion. (§ 95)

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