Are the European Court of Human Rights and the Court of Justice of the EU moving closer together? Or do new divergences emerge? The enclosed revised version of “Trends 2021–26”, updated as of 1 October 2026, examines convergences and divergences between the European Convention on Human Rights and EU law. It covers the following areas:
Areas of Convergence
- Judicial Independence – Rule of law
- Migration
- Subsidiary protection (risk of ill-treatment)
- Sexual orientation and gender identity
- Age discrimination
- Obligation to give reasons for a refusal to make a preliminary reference
- Freedom of religion (ritual slaughter)
- Right to be forgotten
Areas of Divergence
- Criminal procedure
- The European arrest warrant
- International child abduction
- Ne bis in idem
- Protection of personal data
- Freedom of religion (wearing of overt signs of religious affiliation)
- The Dublin Regulation
- Judicial review of detention
- Subsidiary protection (risk of breach of private and family life)
- Sports arbitration
- Environment and climate change
The main developments reflected in this revised version are:
- Procedural rights in criminal proceedings can no longer be regarded as an area of convergence. The judgments in Baralo, Khuzdar and Höldermann significantly lower the level of protection afforded by the CJEU compared with Strasbourg standards.
- Judicial independence: In Rzecznik Praw Obywatelskich, the CJEU appears to adopt a more context-based approach, in contrast to the ECtHR’s focus on the very essence of judicial independence.
- The duty to give reasons for refusing a request for a preliminary ruling: Convergence between Strasbourg and Luxembourg is growing.
- Ne bis in idem: In Jesus Pinhal v. Portugal, the ECtHR partly aligned itself with the Luxembourg approach, yet, somewhat surprisingly, introduced new divergences.
- Personal data protection: In Comdribus, concerning the systematic collection of biometric data for law-enforcement purposes, the CJEU achieved a degree of complementarity with Strasbourg.
- Finally, Mincu Pătrașcu Brâncuși v. EPPO provides a further illustration of the structural challenge that hybrid institutions such as the European Public Prosecutor’s Office pose for the Convention system of human rights protection.
All in all, little progress seems to have been made over the past ten months towards aligning the levels of protection afforded in Strasbourg and Luxembourg. If anything, the trend seems to have gone in the opposite direction. Beyond increasing the burden on national judges, this situation only serves to undermine the authority of fundamental rights themselves.