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).