Archiv der Kategorie: European Court of Human Rights

Different but compatible approaches to international sports arbitration: comparing Semenya (ECtHR) with Royal Football Club Seraing (CJEU)

Within a single month, both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) – acting through their Grand Chambers – issued judgments regarding dispute resolution in professional sports. These cases focused on the roles played by the Court of Arbitration for Sport (CAS) and the Swiss Federal Supreme Court (FSC).

In Semenya v. Switzerland (10934/21, 10.7.2025), the ECtHR adjudicated the case of an international-level South-African athlete who complained about a set of regulations issued by World Athletics (“the DSD Regulations”) requiring her to decrease her natural testosterone level in order to be allowed to take part in international competitions in the female category.

Royal Football Club Seraing (C-600/23, 1.8.2025), decided by the CJEU, concerned a Belgian football club which had concluded financing agreements with a Maltese company. The Fédération internationale de football association (FIFA) found these agreements to be in breach of the prohibition on third parties holding players’ economic rights and therefore imposed several sanctions on the club.

Pursuant to the regulations applicable to international sports competitions, which establish the CAS as having mandatory and exclusive jurisdiction in respect of disputes arising in this area, both cases were first brought before the CAS, the awards of which were subsequently challenged, by way of a civil-law appeal, before the Swiss Federal Supreme Court, which dismissed both appeals. In both cases, the review by the FSC was limited to assessing whether the CAS award was “incompatible with public policy”, a concept which under Swiss law is even more restrictive than that of arbitrariness (Semenya, § 226).

In Semenya, the ECtHR found inter alia that the FSC had breached Article 6 § 1 of the Convention (right to a fair trial). Because of its proximity with RFC Seraing, this finding will be the focus of the following developments.

In RFC Seraing, the CJEU ruled, in substance, that in circumstances as in the case at hand, where the dispute is linked to the pursuit of a sport as an economic activity, no authority of res judicata and no probative value could be conferred within the territory of a Member State on an award made by the CAS.

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With the two European Courts pronouncing upon the same international arbitration system – one that plays an important role in the world of international sports – the question arises as to what these rulings have in common, and how domestic courts should handle them.

A first common feature of these two rulings is the understanding shown for the particularities of litigation in international sports, which may justify certain restrictions on the common procedural rights (Semenya, §§ 195-199; RFC Seraing, § 84). However, there are limits to these restrictions, not least because of the structural imbalance which often exists between sportspersons and the bodies which govern their respective sports, and because these sportspersons have no choice other than submitting to the compulsory arbitration of the CAS. It is on the definition of these limits that the two European Courts follow different approaches. While the Luxembourg approach is more formal, the Strasbourg approach is more substantial.

The CJEU draws the line where matters relating to EU public policy are involved. These matters include the competition rules and the freedoms of movement (§§ 88-89). I such cases, the second sub-paragraph of Article 19(1) TEU, read in conjunction with Article 267 TFEU and Article 47 of the EU-Charter, requires full respect of the right to an effective judicial review. In concrete terms, this means that any domestic court of a Member State called on to give effect to an arbitration award such as the one by the CAS in the present case, must review that award for consistency with EU public policy and have the possibility to refer questions for a preliminary ruling by the CJEU, pursuant to Article 267 TFEU.

By contrast, the judgment of the ECtHR, which is directly reviewing the judgment of the FSC, follows a more substantial approach. Considering the case under Article 6 § 1 of the Convention, the ECtHR first notes the nature and importance of the “civil rights” invoked by the applicant, which are in fact fundamental rights, notably the rights to privacy, bodily integrity and dignity (§§ 215, 217).

This fact, in addition to the compulsory but private nature of the arbitration at stake, along with the restrictions it imposed on the rights being invoked, lead the ECtHR to hold that Article 6 § 1 required the FSC to carry out a “particularly rigorous examination” (§ 216) and an in-depth review (§ 238) of the civil-law appeal lodged with it by the applicant. Since the FSC failed to do so in respect of some key arguments of the applicant, even though the CAS itself had expressed serious concerns as regards some of the applicable DSD Regulations, the ECtHR concluded that before the SFC Ms Semenya had not benefitted from the safeguards provided by Article 6 § 1 (§ 238).

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What should be retained from this comparison?

The Luxembourg approach is limited in scope, as it applies only when a) EU law applies, b) the dispute is linked to the pursuit of a sport as economic activity, and c) matters relating to EU public policy are at stake. But when that is so, it requires full respect of the right to an effective judicial review, regardless of the concrete issues. To this extent, the Luxembourg approach is more formal but at the same time more comprehensive and more conducive to legal certainty.

By contrast, the Strasbourg approach is not limited in scope and more substantial, as it takes the importance and weight of the issues at stake before the CAS and the FSC as criterion and justification of the requisite intensity of the FSC’s scrutiny. To this extent, it is more facts-based, more selective and less conducive to legal certainty. The focus is on the essential issues in each case, which may vary in light of the concrete circumstances.

What does that mean for domestic judges? The good news is that while different, these two approaches seem compatible with each other. This is because, when applicable, the Luxembourg approach requiring full respect of the right to an effective judicial review would appear to represent a higher standard than the Strasbourg “particularly rigorous examination”, the scope and intensity of which might moreover vary from case to case. Yet, it is well-known that the Strasbourg standard is only a minimum which may be raised (Art. 53 of the Convention).

The bad news, on the other hand, is for the FSC who is being told by RFC Seraing that however compliant with Article 6 § 1 of the Convention its review of CAS awards might be in the future, it cannot legally replace within the territory of the European Union a review by a court of a Member State authorised to make a reference to the CJEU for a preliminary ruling.

What is the price of human dignity? Luxembourg (Minister for Children) and Strasbourg (Camara) interacting on extreme poverty of asylum seekers

In The Minister for Children, Equality, Disability, Integration and Youth (hereinafter “Minister for Children”, C-97/24, 1.8.2025), the CJEU applied the Reception Conditions Directive (2013/33) in the context of claims for compensation brought by two asylum seekers who complained about their treatment by the local authorities, who had left them without housing and provision of their basic needs for several months.

The emphasis on the role played by human dignity in the CJEU’s reasoning invites comparison with the approach taken by the ECHR in this area. As will be explained below, the interplay between these two approaches gives rise to some unexpected consequences, illustrating how intertwined the Convention and EU law can sometimes be.

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The facts in Minister for Children can be summarized as follows. The applicants, S.A. (an Afghan national) and R.J. (an Indian national) were denied access to material reception conditions, including housing, food, and other basic needs, for several weeks after submitting their applications. ​ The Irish authorities cited the temporary exhaustion of housing capacity due to an unprecedented influx of third-country nationals seeking protection, following the Russian invasion of Ukraine. ​ S.A. and R.J.​ were later granted retroactive allowances and eventually received accommodation, but they sought compensation for the damage caused by the lack of material reception conditions. ​The Irish authorities acknowledged the breach of EU law but argued that the situation constituted force majeure due to the sudden and unforeseeable influx of applicants.

The CJEU reasoned that under Directive 2013/33, Member States are obligated to ensure material reception conditions that meet the basic needs of applicants for international protection, including housing, food, and dignified living standards, as a requirement flowing from the fundamental right to human dignity enshrined in Article 1 of the EU Charter. ​ Even in cases of temporary exhaustion of housing capacity due to unforeseeable and unavoidable events, such as a sudden influx of applicants, Member States could not avoid liability for ensuring coverage of the basic needs of applicants for international protection. ​ The directive provided flexibility in how material reception conditions are delivered, allowing for financial allowances or vouchers as an alternative to accommodation in kind, provided they are sufficient to ensure a dignified standard of living and access to housing. ​ Failure to fulfil these obligations constituted a sufficiently serious infringement of EU law giving rise to liability for the damage thus caused. ​​

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Minister for Children appears to be the latest in a long series of cases before the European Courts about the poor treatment of applicants for international protection, due to circumstances such as the exhaustion of the housing capacities of Member States (see also Tudmur). Similar cases have been brought before the ECtHR, including M.S.S. v. Belgium and Greece, Khlaifia and Others v. Italy, M.K. v. France and Camara v. Belgium.

In the latter case, which concerned an asylum seeker who lived in extreme poverty in the streets of Brussels, the applicant raised complaints under Articles 3 (ill-treatment) and 6 (fair trial) of the Convention. The ECtHR found a violation of Article 6, on account of the non-execution of a judgment by a domestic court ordering the Belgian State to provide him with accommodation and material support, but declared the complaint under Article 3 inadmissible for non-exhaustion of domestic remedies (on this, see below).

What all these cases have in common is their reliance on the notion of human dignity, often in combination with the notion of ill-treatment, as justification of the refusal of any exceptions to the minimum protection standards to which asylum seekers are entitled to cover their basic needs. This also applies to Minister for Children (see §§ 37, 46 and 53).

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The Convention, for its part, does not explicitly protect human dignity. However, the ECtHR has long recognised that “the very essence of the Convention is respect for human dignity and human freedom” (see, among many others, Pretty v. the United Kingdom, § 65). Moreover, it has established a close link between respect for human dignity and the prohibition of ill-treatment (Article 3 of the Convention). Thus, in Khlaifia and Others v. Italy, the ECtHR stated:

“The Court can only reiterate its well-established case-law to the effect that, having regard to the absolute character of Article 3, an increasing influx of migrants cannot absolve a State of its obligations under that provision …, which requires that persons deprived of their liberty must be guaranteed conditions that are compatible with respect for their human dignity.” (§ 184)

The ECtHR however added:

“While the constraints inherent in such a crisis cannot, in themselves, be used to justify a breach of Article 3, the Court is of the view that it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose. In its assessment, the Court will thus bear in mind, together with other factors, that the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time”. (§ 185)

In M.S.S. v. Belgium and Greece too, which concerned an asylum-seeker living in extreme poverty in the streets of Athens, much like the conditions at stake in Minister for Children, the ECtHR held:

“The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention.” (§ 263)

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Yet, while the approach of both European Courts to the extreme poverty in which asylum seekers may find themselves, with its reliance on respect for human dignity, would appear to be rather similar, Minister for Children may have an impact going beyond the sphere of EU law. It is another – and somewhat different – illustration of possible repercussions of the interplay between the Convention and EU law.

The question put before the CJEU was only about liability under EU law. One may wonder whether S.A. and R.J. did not also try proceedings capable of putting an end to the violation of their rights, but no information on this appears to be available. Thus, Minister for Children was only about whether the shortcomings of the Irish authorities in complying with the requirements of the Reception Directive were sufficiently serious to trigger Ireland’s liability under EU law.

After setting out the relevant criteria, the CJEU concluded that Ireland “may not avoid liability under EU law by pleading temporary exhaustion of the housing capacity normally available in its territory for applicants for international protection, owing to an influx of third-country nationals seeking temporary or international protection; an influx which, because of its significant and sudden nature, was unforeseeable and unavoidable.”

Thus, the CJEU acknowledged that EU Member States incur liability under EU law when they fail to cover the basic needs of asylum seekers to an extent as in Minister for Children. As a logical consequence, asylum seekers undergoing such treatment must be guaranteed access effective remedies for compensation. Which has a significant impact on the application of the Convention.

This is because according to Camara v. Belgium (see above), a complaint under Article 3 of the Convention challenging the treatment suffered by an asylum seeker who was denied accommodation is inadmissible for non-exhaustion of domestic remedies (Art. 35 § 1 of the Convention), if the applicant did not avail him- or herself of an existing and effective compensatory remedy against the respondent State (§ 132; in the same sense, M.K. v. France, §§ 168-170).

Thus, if it can be assumed that liability under EU law for treatment of the kind at issue in Minister for Children logically entails the obligation for EU Member States to make available compensatory remedies, these will have to be exhausted by applicants before filing an application under Article 3 before the ECtHR. Under this scenario, the task of the ECtHR will be limited to assessing whether the treatment endured, assuming it reaches the threshold of severity, was adequately compensated. In light of Camara v. Belgium, this effectively eliminates any possibility for asylum seekers invoking Article 3 against an EU Member State to obtain anything other than financial compensation in Strasbourg, over and above what may have been granted at national level.

This, in the end, raises a more fundamental question: is financial compensation alone an adequate response to breaches of human dignity? It may perhaps depend on the amount of the compensation. In M.S.S. the applicant was awarded more than 25,000 euros. In Camara the ECtHR held that the finding of a violation of Article 6 constituted in itself sufficient just satisfaction.

At any rate, this is an illustration of how much the Convention and EU law are intertwined and interacting, sometimes in rather unexpected ways. Here again, it will be for national judges and prosecutors to bear the brunt of coming to terms with this interaction, by dealing with claims for compensation under EU law, while having regard to the Strasbourg standards, thereby always asking the same question: what is the price of human dignity?

European Courts united in ensuring an effective access to procedures of international protection: judgment of the ECtHR in H.Q. and Others v. Hungary

In the case of H.Q. and Others v. Hungary (46084/21, 40185/22 and 53952/22, 24.6.2025), the ECtHR found violations of Articles 4 of Protocol No. 4 (prohibition of collective expulsion of aliens), as well as Articles 13 (right to an effective remedy) and 3 (prohibition of ill-treatment – procedural aspect) of the Convention, in respect of two Afghan nationals and one Syrian national who had applied for asylum in Hungary.

This judgment is only the last in a long series of Strasbourg and Luxembourg judgments dealing with the flaws of the Hungarian asylum system, especially the lack of access of asylum seekers to an effective asylum procedure. After the so-called “transit zone system” was found, notably in Ilias and Ahmed v. Hungary, Shahzad v. Hungary, S.S. and Others v. Hungary and European Commission v. Hungary (Reception of applicants for international protection) (C-808/18) to breach the Convention and Union law, the Hungarian authorities replaced it by the so-called “embassy procedure”, which is at the heart of H.Q. and Others. According to this procedure, an international-protection procedure could be initiated only after a successful preliminary procedure at the Hungarian embassy in Serbia or Ukraine. A failure to proceed in this way entailed as a consequence the automatic removal of the asylum seeker concerned from Hungary to Serbia without examination of the individual circumstances.

The Hungarian embassy procedure was already examined by the CJEU in European Commission v. Hungary (Procedure for international protection) (C-823/21) and found to be in breach of Articles 6 (access to the procedure) and 9 (right to remain in the Member State pending the examination of the application) of the Asylum Procedures Directive (2013/32) as well as of Article 18 of the EU-Charter (right to asylum).

In dealing with H.Q and Others, the ECtHR relied on European Commission v. Hungary (Procedure for international protection) and, in substance, shared its conclusions, but with some differences, as set out below.

The fundamental rights dimension

As already noted in a previous post concerning European Commission v. Hungary (Procedure for international protection), one key difference lies in the fact that, by being addressed by the ECtHR as matters of fundamental rights, the issues raised in H.Q. and Others v. Hungary are given a different character and greater significance: they are not merely breaches of secondary European law, but violations of fundamental rights. This imparts greater authority and urgency to the obligations that must be fulfilled.

Access to international protection

Yet, as regards access to international protection, the outcome of the analysis by the ECtHR is rather similar to the one by the CJEU, though with some specifications and particularities.

In European Commission v. Hungary (Procedure for international protection), the CJEU requires an “effective, easy and rapid access to the procedure for granting international protection” (§§ 46 and 51) and considers the embassy procedure to be “a manifestly disproportionate interference with the right of those persons to make an application for international protection upon their arrival at a Hungarian border, as enshrined in Article 6 of Directive 2013/32, and their right to be able, in principle, to remain in the territory of that Member State during the examination of their application, in accordance with Article 9(1) of that directive.” (§ 59)

The access issue is addressed by the ECtHR under Article 4 of Protocol No 4 (prohibition of collective expulsion), which requires States to ensure access to legal entry and to secure the right to request international protection in a genuine and effective manner, particularly protection requested on the basis of Article 3 of the Convention (§§ 120-121). In this connection, the ECtHR also notes:

“The “embassy procedure” – from the time when a declaration of intent is submitted to the time when a decision on entry is issued – is not clearly regulated and lacks adequate safeguards, leading to uncertainty, a lack of transparency and, most importantly, the risk of arbitrary application. … The Court is particularly struck by the fact that there appears to be no requirement in domestic law for a decision refusing entry to Hungary in order to apply for asylum to be reasoned, and that the factors intended to determine the outcome of the process remain unclear.” (§ 122, emphasis added) Moreover, the ECtHR reiterates that access to means of legal entry should in principle be provided at border crossings for those arriving at the border (§ 123).

Suspensive effect

As regards the right for an applicant for international protection to remain in the territory of a Member State during the examination of his or her application (Art. 9 of the Asylum Procedures Directive), a similar right is in effect being acknowledged under Article 13 of the Convention which states the right to an effective legal remedy and requires, when, as in H.Q. and Others, there is a risk of expulsion and ill-treatment in the country of destination, that remedy to have automatic suspensive effect (§ 158).

Non-refoulement

Unlike the CJEU, the ECtHR in H.Q. and Others also addresses the principle of non-refoulement. It arose in respect of two of the applicants, who complained that they had been expelled to Serbia without any assessment of the consequences of their removal for their right enshrined in Article 3 (prohibition of ill-treatment), in breach of the procedural obligations under this provision.

The ECtHR found a violation of Article 3, in its procedural aspect. It reiterated that in all cases of removal of an asylum seeker from a Contracting State to a third country without examination of the asylum application on the merits, regardless of whether that third country is a State Party to the Convention, it is the duty of the removing State to examine thoroughly the question of whether there is a real risk of the asylum-seeker being denied access, in that third country, to an adequate asylum procedure protecting him or her against refoulement (§ 136).

Article 46

Last but not least, in view of the large scale of the shortcomings of the Hungarian asylum procedure, and given that the violations found stem directly from the application of the domestic legislation, the ECtHR, in a rather exceptional move, decided to make an indication under Article 46 of the Convention (binding force and execution of judgments) and to stress “the urgent need for the Hungarian authorities to take immediate and appropriate measures to prevent any further instances of collective expulsions and ensure genuine and effective access to the international protection procedure for those seeking such protection.” (§ 164) It will be for the Committee of Ministers of the Council of Europe, acting under Article 46 of the Convention, to step up the pressure on the Hungarian authorities accordingly.

Faced with a similar failure by Hungary to implement European Commission v. Hungary (Reception of applicants for international protection), the European Commission too decided to increase the pressure on Hungary by instituting infringement proceedings under Article 258 TFEU, which gave rise to European Commission v Hungary (Reception of applicants for international protection II). In this judgment, the CJEU ordered Hungary to pay a fine of 200 million euros, in addition to a daily penalty payment of 1 million euros, owing to the systematic breach of EU legislation concerning the reception of applicants for international protection.

It remains to be seen whether in the end financial sanctions are more effective than a procedure before the Committee of Ministers of the Council of Europe in disciplining a recalcitrant State. What is sure, though, is that both protection systems ultimately rely on respect for the rule of law and that no procedure can compensate for the lack of such respect in the long run. Upholding this respect is therefore a major challenge for the protection of fundamental rights in the years to come.

Conclusion

Both European Courts appear united in fighting for an effective access to procedures of international protection. In spite of the different legal bases relied on, they broadly agree on the substance of the requirements which this access entails. Yet, by examining the facts through the lens of fundamental rights, the Strasbourg judgments provide added value by underscoring the particular significance of the issues at stake, not only for the individuals, but also for the legal systems concerned. This alone should be sufficient reason for national judges and prosecutors to take both approaches into account.

Domestic courts to verify Schengen Borders Code compliance: ECtHR ruling in Mansouri v. Italy

In Mansouri v. Italy (63386/16, 29.4.2025), a Grand Chamber of the ECtHR declared inadmissible, for non-exhaustion of domestic remedies, several complaints raised by the applicant relating to his confinement on board an Italian cruise ship responsible for returning him to Tunis following a refusal-of-entry order issued by the Italian authorities. The ECtHR thereby also addressed the impact of the Schengen Borders Code (Regulation 2016/399).

The applicant, a Tunisian national, arrived in Italy by cruise ship from Tunis and was refused entry due to lacking a valid visa and having an expired residence permit. He was then confined to a locked cabin on the ship for the seven-day return voyage to Tunis. The Italian authorities justified the action under EU and national law, emphasizing the ship’s duty to return refused entrants and claiming the applicant was housed appropriately under security supervision.

The ECtHR first determined that Italy had exercised jurisdiction under Article 1 of the Convention, thereby engaging its responsibility towards the applicant. It then considered that, even assuming that the applicant’s confinement on board the ship amounted to a deprivation of liberty, the complaints he raised under Article 5 §§ 1 and 2 of the Convention and which challenged the lawfulness of his confinement were inadmissible, because he had failed to exhaust at least one of two available and effective domestic remedies cited by the Government.

In this connection, the ECtHR, in a rare move, added the following extensive obiter:

The Court notes, lastly, that the present case is closely connected to issues that fall within the ambit of EU law and that the circumstances alleged by the applicant formed part of the process of refusing admission to national territory governed by the provisions of the Schengen Borders Code and Annex V thereto … .

In the light of the functioning of the system for policing the external borders of the Schengen Area, the return by the carrier – which is required to take the necessary measures for such return on pain of sanctions – of a third-country national who does not fulfil all the entry conditions forms an integral part of the process of refusing admission to national territory and originates in the refusal-of-entry order … . This being so, the question arises, in particular, whether the refusal-of-entry order constituted the legal basis for the restrictions to which the applicant claimed to have been subjected while being returned, even assuming that these restrictions amounted in substance to a “deprivation of liberty”. However, in the absence of proceedings before them, the Italian courts have not had the opportunity to examine, whether on the basis of arguments put forward by the parties or of the courts’ own motion, any issue as to the interpretation of the provisions of the Schengen Borders Code and Annex V thereto or its compatibility with fundamental rights, while seeking, if appropriate, a preliminary ruling from the CJEU. (§§ 114-115)

This finding, which obviously the ECtHR considers important enough as to justify an extensive obiter, calls for the following observations.

(1) As it did already in N.D. and N.T. v. Spain, the ECtHR emphasised of its own motion its competence to review the application of the Schengen Borders Code, notably its regulations concerning the refusal of entry to the territories of the EU Member States. While in N.D. and N.T. the issue was the compatibility of these regulations with Article 4 of Protocol No 4 (prohibition of collective expulsion) (§ 209), in Mansouri the issue could have been their compatibility with Article 5 of the Convention (right to liberty and security), assuming this provision applied to the facts of the case and had been invoked before the domestic courts (see below). In that case, this issue would indeed have arisen because, as the ECtHR noted, the return by the carrier of a third-country national who does not fulfil all the entry conditions “forms an integral part of the process of refusing admission to national territory and originates in the refusal-of-entry order”. Thus, the ECtHR would have had to inquire whether the conditions of the applicant’s forced return amounted to a deprivation of liberty, in breach of Article 5, and, if so, what the legal basis for this deprivation, possibly linked to the Schengen Borders Code, was.

(2) In this context, the ECtHR insists on the subsidiarity of the Convention system, which requires that national courts be given “an opportunity to interpret domestic law and prevent or put right Convention violations through their own legal system.” (§ 113) Hence the ECtHR’s strict approach as regards the obligation on applicants to exhaust domestic remedies (Article 35 § 1 of the Convention), the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile not being a valid reason for failing to pursue that avenue of redress (§ 99).

(3) The ECtHR makes it clear that, had the national courts been seized by the applicant, they would have had to examine “any issue as to the interpretation of the provisions of the Schengen Borders Code and Annex V thereto or its compatibility with fundamental rights”. Obviously, the fundamental rights which the ECtHR has in mind can only be those of the Convention, the only ones in respect of which the ECtHR is competent. However, the scrutiny by national courts also extends to the fundamental rights protected under EU law, provided they do not offer a lower protection than the Convention (Art. 52(3) of the EU-Charter).

(4) Interestingly, the ECtHR does not rule out that national courts may have to carry out this examination of their own motion.

(5) At the same time, the ECtHR advises national courts to seek preliminary rulings from the CJEU when necessary, highlighting the need to involve the CJEU in their assessments.

Overall, this ruling, even though not on the merits of the case, contains a useful reminder of the basic principles that should govern the handling of EU law issues by national courts:

  • Parties to the proceedings should exhaust available and effective domestic remedies
  • The assessment by national courts should cover the issues arising in relation to the interpretation of EU law and its the compatibility with the Convention
  • This assessment may have to be done ex officio
  • National courts should, where appropriate, consult the CJEU with a request for a preliminary ruling.

Trends 2021-25: Taking stock of the interplay between the European Convention on Human Rights and EU Law

In addition to the multiple presentations of individual judgments on this platform, a regular stock-taking of the general situation of the interplay between Strasbourg and Luxembourg, and its evolution, might be useful in order to have an overview of the current situation and an idea of the direction of travel.

This is the purpose of the short paper below, which is an updated and complemented version of the 2024 edition. It sets out, with many case-law illustrations listed by area, the main trends characterising that interplay since 2021.

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 conclusions emerge from this paper:

  1. The areas of divergence are confirmation of the optionality of the Convention in EU law, resulting in the benchmark function of the Convention being only occasionally acknowledged (see Optionality of the Convention).
  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. Compliance with the Convention in the application of EU law can be made the subject of an application before the ECtHR resulting in the finding of a violation of the Convention, as in Bivolaru and Moldovan v. France, M.B. v. the Netherlands and H.T. v. Germany and Greece.
  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. 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.
Trends 2021-25Download PDF

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

In the case of H.T. v. Germany and Greece (13337/19, 15.10.2024) the ECtHR ruled on the transfer of an asylum seeker from Germany to Greece under the Dublin III Regulation (604/2013).

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

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

Pursuant to this agreement, the applicant was returned from Germany to Greece on 4 September 2018. The order refusing him entry in Germany was based on section 18(2) point 2 of the German Asylum Act and stated that there were indications that Greece had a responsibility to take back the applicant, under the Dublin III Regulation.

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

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

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

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

In its reasoning, the ECtHR stressed the following principles:

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

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

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

*              *              *

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

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

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

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

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

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

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

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

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

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

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

This case calls for the following six observations.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*              *              *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As the ECtHR put it:

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

The CJEU, for its part, stated:

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

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

The ECtHR indeed ruled:

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

The CJEU, for its part, stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*              *              *

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

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

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