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

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

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

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

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

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

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

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

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

Populism, a common challenge for the European CourtsDownload PDF

UPF JUDIPOP Confrence_EUROPE CONSTITUTIONAL STRESS TEST_JUDICIAL RESILIENCE IN AN AGE OF POPULISMHerunterladen

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

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

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

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

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

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

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

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

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

Accession of the European Union to the European Convention on Human Rights: a logical response to the optionality of the European Convention on Human Rights in EU Law

The paper below is the English translation of an article with the title: „L’adhésion de l’Union européenne à la Convention européenne des droits de l’homme : une réponse logique à l’optionalité de la Convention européenne des droits de l’homme en droit de l’Union européenne“, published in the Revue trimestrielle des droits de l’homme, 2025, p. 9, and available at www.rtdh.eu.

The main findings of this paper can be summed up as follows:

The benchmark function formally conferred on the European Convention on Human Rights by the Union legislature is rendered optional in the practice of Union law. As a result, the minimum level of protection which the Convention ensures in the Member States and which the EU legislature sought to extend to Union law is more often than not ignored, in favour of a more frequent use of the Convention as a mere „toolbox“, i.e. as a source of inspiration or non-binding interpretation. This optionality of the Convention leads to significant reductions in protection, introduces double standards into procedures involving hybrid structures and causes conflicts of loyalty for national judges who are both Union and Convention judges. The resulting dysfunctions are a source of fragmentation and weaken European fundamental rights. They make it imperative for the EU to accede to the Convention.

Optionality of the Convention in EU lawDownload PDF

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.


ECHR-Leading-judgments-on-EU-LawDownload PDF

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.
The-Interplay-between-the-ECHR-and-EU-Law-in-the-field-of-migrationDownload PDF

Mutual recognition before the European Court of Human Rights

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

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

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

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

Trends 2021-24: Taking stock of the interplay between the European Convention on Human Rights and EU Law

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

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

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

The following five conclusions emerge from this paper:

  1. Whereas the areas of convergence are a reason for satisfaction, the areas of divergence represent a challenge for national judges and prosecutors.
  2. The EU legal system is autonomous, but the national judges and prosecutors are not, because they remain subject to the Convention and must apply EU law in compliance with it, which requires a comparison of the respective levels of protection.
  3. Consequently, in the field of fundamental rights, EU law is not the end of the story. Rather, a wholistic approach is called for, which takes into account the interplay between EU law and the Convention.
  4. Fundamental rights are in essence individual rights. They call for an individual test, which can be complemented but not replaced by a general test.
  5. As Executief van de Moslims van België shows, the last possible stop of a case as regards fundamental rights is Strasbourg and its ultimate benchmark is the Convention, as minimum standard. From this perspective, it makes little sense not to take into account from the start what is going to be the ultimate benchmark at the end anyway. The goal is not uniformity but cross-system compatibility of the case-law.
Trends 2021-24.2Download PDF

The interplay between the European Convention on Human Rights and the EU-Charter of Fundamental Rights

The enclosed Powerpoint relates to a presentation given on the occasion of the launch at the Council of Europe, on 13 November last, of the HELP Course on the Interplay between the European Convention on Human Rights and the EU-Charter of Fundamental Rights. It is accessible here.

This course is one of the very few commendable initiatives undertaken so far to comprehensively explain, in an on-line format, the interplay between these two major European sources of fundamental rights. It is a very promising tool designed to help legal practitioners come to terms with that duality which, while globally ensuring quite some convergence between Strasbourg and Luxembourg, e.g. in the field of procedural rights or judicial independence, also generates some differences which should not downplayed, given their impact on the respective protection levels in several important areas.

The key to more convergence is a wholistic approach. It should allow European law-makers and caselaw-makers alike, while remaining within their own competences, to nonetheless look beyond the limits of their respective legal systems and to ensure as much compatibility as possible between the co-existing sources of fundamental rights, which will help domestic judges discharge their complex task of applying those sources simultaneously. The on-going judicial dialogue between the two European Courts is a major contribution towards achieving this.

The enclosed presentation gives an overview of recent case-law relating to this interplay, with an emphasis on judgments by the European Court of Human Rights illustrating the control exercised by the latter over compliance with the European Convention on Human Rights when domestic courts apply Union law. Interestingly, the breaches of the Convention identified in this case-law result not only from faithful applications of EU law, as in Bivolaru and Moldovan v. France or Šneersone and Kampanella v. Italy, but also from shortcomings in the application of EU law, as in Veres v. Spain or Spasov v. Romania.

Interplay-between-ECHR-and-EU-Charter-HELP-Strasbourg-13.11.2023Download PDF