The question whether EU law can impose limits on the operation of the European Convention on Human Rights has already been addressed in this blog, in connection with the GN case. This was about restrictions imposed by the CJEU on the executing judicial authority in dealing with European arrest warrants.

The present post is about restrictions imposed by the EU legislature on national authorities in dealing with applications for international protection by EU citizens. These restrictions too raise issues about their compatibility with the Convention and about how they should be handled by national judges who are themselves bound by the Convention.

The triggering event for this post is, for once, a judgment by a first-instance court, handed down on 10 October 2025: Decree 8445/2023 by the First Instance Court of Bologna (“the Bologna Tribunal”), Specialized Section on Immigration, International Protection and Free Movement of EU Citizens. Because it has not been possible, despite explicit requests to that effect, to be provided with the original Italian version of Decree 8445/2023, this post is based on the information provided about it by Dr. Chiara Scissa in a commentary recently published on EU Law Analysis and titled: “Mutual trust does not supersede human rights! Italian judges unprecedently recognize the refugee status to an EU citizen”. It can be assumed to be reliable and is sufficiently detailed for the purposes of this post.

Decree 8445/2023 is presented by Dr. Scissa as the first Italian judicial decision declaring admissible and well-founded an application for international protection by an EU citizen. While it may well be challenged on appeal, its methodology and reasoning are sufficiently interesting to call for some comments on a particular aspect of the interplay between EU law and the Convention: restrictions imposed by EU law on the admissibility of fundamental rights claims.

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The facts of the case can be summarized as follows. The applicant, a Hungarian national of Roma ethnicity defining herself as transgender, left her country following a long period of continuous violence, discrimination and abuses which she suffered because of her ethnicity and gender, and which were perpetrated both by society and her family members.

Her application for international protection was first rejected by the Territorial Commission for the Recognition of International Protection of Verona, which relied on Protocol No 24 to the TFEU, on asylum for nationals of Member States of the EU.

The sole Article of this Protocol provides that in view of the level of protection of fundamental rights by the Member States of the EU, these States shall be regarded as constituting safe countries of origin in respect of each other, with the consequence that applications for asylum by nationals of EU Member States may be taken into consideration or declared admissible for processing by another Member State only in four exceptional situations. These situations arise when either a Member State avails itself of Article 15 of the Convention (on derogations from the latter), or in the context of proceedings initiated under Article 7 TEU (risk of serious breach of the values referred to in Article 2 TEU), or else when a Member State unilaterally decides to examine an application by an EU national (safeguard clause).

On appeal by the applicant, the Bologna Tribunal quashed the decision of the Territorial Commission. It first assessed the admissibility of the application, thereby going to great lengths in trying to bring the case within the scope of one of the exceptions listed by Protocol No 24. To that effect, the Bologna Tribunal relied on the Resolution of 12 September 2018 by the European Parliament initiating a procedure under Article 7(1) TEU against Hungary. In Hungary v. European Parliament, at paragraphs 39-41, it found confirmation that this Resolution had initiated the procedure laid down in Article 7(1) TEU, which allowed a Member State by way of derogation, until any decision taken pursuant to Article 7(2) TEU, to take into consideration or declare admissible any application for asylum lodged by a national of the Member State which is the subject of that procedure.

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A first set of observations in this connection concerns the general approach followed by Protocol No 24.

It may indeed seem rather surprising that the admissibility of an application for international protection – by its very nature a matter to be decided in law – should be made dependent by Protocol No 24 on the existence of a what is in essence a political decision, either by the European Parliament or by any other of the Member States or political institutions listed in Article 7(1) and (2) TEU. It is precisely the political nature of such decisions and the political majorities which they require which explain why in practice they remain extremely rare, despite the poor record of some Member States on this score.

The same holds true for derogations under Article 15 of the Convention, which are listed by Protocol No 24 as the first legal basis for a derogation from the general inadmissibility of applications from EU citizens: they are fundamentally political decisions made by Contracting States to the Convention and remain extremely rare. They are no reliable indicator of the level of compliance of the EU Member States with Article 3 of the Convention which, because it prohibits ill-treatment and non-refoulement (N.D. and N.T. v. Spain, § 188), is the relevant Convention provision in this context. Only in 2025 did the ECtHR find 28 substantial violations of that provision by EU Member States.

At any rate, the scope for derogations from the inadmissibility rule laid down by Protocol No 24 is extremely narrow. The Bologna Tribunal nonetheless considered it to be applicable to the case at hand and, in view of its own investigations and those of the European Parliament, decided to grant the applicant refugee status on account of her belonging to a social group which is the victim of systemic discrimination and persecution in Hungary.

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The question nonetheless arises as to what would happen with applications for international protection by EU citizens which do not meet the restrictive conditions for a exception under Protocol No 24, notably because the applicants are nationals of EU Member States against which no decision under Article 7 (1) or (2) TEU has been taken.

Sub-paragraph (d) of the sole Article of Protocol No 24 provides for the possibility for a Member State to “decide unilaterally in respect of the application of a national of another Member State”. This possibility may in practice turn out to be an obligation under the Convention.

This is because EU law does not displace the Convention and because the latter covers the entire legal systems of the EU Member States, including EU law. Moreover, there is no primacy of EU law over the Convention. As a consequence, national judges must apply EU law in conformity with the Convention (Bivolaru and Moldovan v. France; M.B. v. the Netherlands) and, more importantly in the present context, such EU law restrictions have no impact on the scope of the Convention.

In respect of applications for international protection by EU citizens, this means that the inadmissibility of such an application under Protocol No 24 does not remove the obligation on national judges to examine the same application under Article 3 of the Convention. While the right to asylum is not as such protected by the Convention as it is by Article 18 of the EU-Charter, its Article 3 largely coincides with the principle of non-refoulement which prohibits the deportation of a person to a country where he or she would run a real risk of being the victim of ill-treatment (N.D. and N.T. v. Spain, § 188). Such ill-treatment can, for example, result from serious levels of persecution and discrimination on account of the ethnicity or the sexual orientation of a person (as in V.C. v. Slovakia, M.C. and A.C. v. Romania or Hanovs v. Latvia), as it can result from horrible conditions of detention (as in Bivolaru and Moldovan v. France) .

In the latter Strasbourg cases, all directed against EU Member States, the ECtHR found violations of Articles 3 and 14 of the Convention which were not isolated cases but rather the result of certain widespread patterns of behaviour or structural problems in the EU Member States concerned. Yet none of these Member States has been targeted so far by decisions taken on the basis of Article 7 TEU. Consequently, any application for international protection by nationals of these Member States challenging their forced transfer back to their home country would, under EU law, have to be automatically rejected as inadmissible, with no consideration of their merits.

However, if the persecutions and discriminations invoked can be assumed to reach the minimum level of severity required under Article 3 of the Convention, in addition to being sufficiently widespread to constitute a serious risk affecting a group of people to which the applicant belongs (see, to that effect, Khasanov and Rakhmanov v. Russia, §§ 95 et seq.), automatically rejecting such an application as inadmissible for lack of decisions under Article 7 TEU would amount to a potential violation of this Article 3. The nationality of the applicant indeed plays no role under the Convention.

In concrete terms, if a Roma applicant like the one in V.C. v. Slovakia had left this country because of a serious risk of forced sterilisation or other form of ill-treatment and was to be forcibly returned to her home country, the judge of the country of residence could not without breaching Article 3 reject her application for international protection as being inadmissible under EU law.

This is where sub-paragraph (d) of the sole Article of Protocol No 24 turns out to be helpful. It saves national judges from breaching EU law as a consequence of their compliance with the Convention. Indeed, when the other exceptions from the general inadmissibility under Protocol No 24 do not apply, while Article 3 of the Convention nonetheless prohibits the return of a EU citizen to his/her home country, relying on sub-paragraph (d) is no longer a discretionary option but becomes a necessity prompted by the obligation to comply with the Convention.

That said, even without sub-paragraph (d) compliance with the Convention would be mandatory for national judges, in the absence of primacy of EU law over the Convention.

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Three short conclusions emerge from the above:

• EU law does not displace the Convention; rather, EU law must be applied in conformity with the Convention.
• With no primacy of EU law over the Convention, EU law restrictions on the scope of fundamental rights have no impact on the scope of the Convention.
• Consequently, national judges rejecting an application for international protection by an EU citizen in accordance with sub-paragraphs (a), (b) and (c) of Protocol No 24 to the TFEU are not dispensed from examining the case under Article 3 of the Convention and, as the case may be, applying the safeguard clause in sub-paragraph (d).

In a judgment dated 1 December 2020 (2 BvR 1845/18 and 2 BvR 2100/18) the German Federal Constitutional Court allowed, for breach of Article 4 of the EU-Charter (prohibition of ill-treatment), constitutional complaints against judgments by ordinary courts allowing the execution of two European arrest warrants (EAW). It thereby specified the methodology to be applied by German courts when dealing with such matters.

One of the striking elements of this methodology is the global perspective underlying it, i.e. its endeavour to apply Union law while at the same time have due regard to the requirements of the European Convention on Human Rights (the Convention) and national constitutional law. The result is an integrated approach combining and harmonizing the application to the facts of the case of those three co-existing sources of fundamental rights, thereby respecting the specificities of each of them. Key considerations of the judgment regarding the methodological issues raised by the case include:

• The field of the EAW has been entirely regulated by Union law. Consequently, compliance with the fundamental rights of the persons concerned is to be assessed in light of the EU Charter only, to the exclusion of the national Constitution.
• The Constitutional Court is competent to assess that compliance on the basis of the EU Charter, unless a referral for a preliminary ruling by the CJEU is required (Art. 267 TFEU). This assessment is to be done having regard to the case-law of the European Court of Human Rights (Art. 52(3) of the EU-Charter) and of the Constitutional and Supreme Courts of the other EU Member States (Art. 52(4) of the EU-Charter)
• In the case at hand the requirements of Art. 4 of the EU-Charter, as set out by the CJEU, are in line with:
  • Art. 3 of the Convention, as interpreted by the European Court of Human Rights (Art. 52(3) of the EU-Charter)
  • The constitutional requirement of respect for human dignity (Art. 1 (1) of the German Constitution)
• Consequently, Art. 4 of the EU-Charter can be applied as such to the present case.

By having due regard to the requirements of the Convention when applying EU law and EU fundamental rights, the German Constitutional Court in fact, though not explicitly, takes into account the well-established Strasbourg case-law according to which the application of Union law has to be compliant with the Convention and can be made the subject of an application before the European Court of Human Rights (see, as regards a EAW, the judgments by the European Court of Human Rights in the cases of Pirozzi v. Belgium, 17.4.2018, no. 21055/11and Romeo Castaño v. Belgium, 9.7.2019, no. 8351/17). This is also one of the main reasons why Article 52(3) of the EU-Charter requires that in respect of the rights which the EU-Charter and the Convention have in common, the level of protection guaranteed by the Charter should not fall below the Convention level. Otherwise, domestic courts applying EU law might indeed see their judgments being found in breach of the Convention because the latter’s standards are higher than those of the EU.

In two landmark judgments dated 6.11.2019 the German Constitutional Court (Bundesverfassungsgericht – hereinafter „GCC“) dealt with the „right to be forgotten“ and thereby clarified the relationship between the fundamental rights of the national Constitution (Grundgesetz), the EU Charter of Fundamental Rights and the European Convention on Human Rights.

In the first judgment (“Right to be forgotten I” – 1 BvR 16/13) the GCC stated that in areas not fully regulated by EU law it was to be assumed that the EU legislature allowed for some variety also in the field of fundamental rights. In such areas, the GCC would therefore only apply the fundamental rights of the Constitution, even when the EU Charter also applied by virtue of its Article 51(1). It would do so on the basis of a presumption that the level of protection of the EU Charter is already included in the protection afforded by the fundamental rights of the Constitution (§ 55). This presumption, which could be rebutted on a case-by-case basis (§ 63), was rooted not least in the European Convention on Human Rights which is both binding on the EU member States and being relied upon by the TEU (Art. 6(3)) as well as by the Charter itself (Preamble and Art. 52(3) and 53) (§ 56-57). In this connection, the GCC highlighted the role of the European Convention on Human Rights, which was to ensure an overarching minimum pan-european protection as a basis underlying both the national and the EU protection of fundamental rights (§ 62).

The applicant in this case claimed a right to have newspaper articles on his criminal conviction dating back 30 years removed from online archives. The GCC considered that the facts of the case were not entirely regulated by the applicable EU law (Directive 94/46 on the protection of individuals with regard to the protection of personal data; now replaced by the GDPR, 2016/679) in that the latter left some discretion to the member States in applying the so-called media privilege laid down in Articles 9 of the Directive and 85 of the GDPR (§ 12). It thus solely applied the fundamental rights of the Constitution, thereby leaving open the question whether the EU Charter also applied to the facts of the case by virtue of its Article 51(1). At the same time, the GCC took the view that there was no reason to assume that the protection level of the EU Charter would not be respected by its judgment, since the latter relied on the case-law of the European Court of Human Rights which, by virtue of Article 52(3) of the Charter, was decisive in interpreting the Charter (§ 154).

By contrast, in the second judgment (“Right to be forgotten II” – 1 BvR 276/17) the GCC stated that in areas fully regulated by EU law only the EU fundamental rights were to be applied, provided they were sufficiently effective. Departing from its previous case-law, the GCC ruled in this context that it would henceforth assess itself compliance of domestic judgments with EU fundamental rights, including the EU Charter, and that it would do so in cooperation with the CJEU, pursuant to Article 267 TFEU (§ 68). The applicant in this case claimed a right to have a hyperlink to an unfavourable media report removed from the list of results provided by a search engine operator (Google). As, unlike in the first judgment (above), the facts of the case did not give rise to the application of the so-called media privilege, the GCC considered that the issue at stake was fully regulated by EU law (Directive 94/46 and the GDPR, as above) and that therefore only the EU fundamental rights, including the EU Charter, applied. It then went on to apply in particular Articles 7, 8 and 16 of the EU Charter, thereby referring to the case-law of the CJEU and, by virtue of Article 52(3) of the Charter, to that of the ECHR. Having regard to those two sets of case-law, the GCC concluded that in the absence of any unsettled issues concerning the interpretation of EU law, there was no need to make a preliminary reference to the CJEU under Article 267 TFEU (§ 137).

One of the striking features of those two judgments is their detailed analysis of how the national Constitution, the EU Charter and the Convention interact in practice and of the consequences at domestic level of the substantive link established by Article 52(3) of the EU Charter between the latter and the Convention. It plays a role notably for the assessment of whether domestic protection levels match EU protection levels (Right to be forgotten I) and of whether a preliminary reference to the CJEU is called for (Right to be forgotten II).