Category Archives: New publications

Trends 2021-2026: what is the current state of the interplay between Strasbourg and Luxembourg?

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.

Trends 2021-26.2Download PDF

European Case-Law on Sport: Challenges for European Judges

The following paper is the text of a presentation given on 17 April 2026 at the University of Liverpool in the context of a workshop on the impact of the Strasbourg and Luxembourg Courts on Lex Sportiva. Based on Semenya v. Switzerland and Royal Football Club Seraing, it deals with the challenges resulting from these judgments for national judges.

European case-law on sport, challenges for national judges (speaking notes)Download PDF

Impact of Strasbourg and Luxembourg Courts on Lex Sportiva – ProgrammeDownload PDF

Combining and Reconciling European Laws

“Combining and Reconciling European Laws” is the title of my address (enclosed) at a Conference held on 12 March 2026 at the French Court of cassation on the occasion of the 30th anniversary of the landmark judgment by the CJEU in the case of Brasserie du Pêcheur (programme below).

First of all, a particular note of appreciation for the methodological wisdom of the Court of cassation: by taking issues of State liability under EU law – as crystallised in Brasserie du Pêcheur – as a starting point, the discussion was thoughtfully extended to encompass State liability under the European Convention on Human Rights in situations involving the application of EU law.

Several speakers emphasised the need for national judges to combine these two legal orders and gave examples of how they achieve this in their daily practice. This genuinely trilateral perspective – as opposed to the traditional bilateral perspective – remains relatively rare in academic and judicial conferences, yet it reflects the real conditions under which national judges operate. As the programme of the conference aptly stated, “the national judge is the crucible in which the European sources of law – namely European Union law and the law of the European Convention on Human Rights – converge“.

In my own intervention, I offered a brief overview – illustrated with some case-law examples – of the key principles governing the relationship between EU law and the Convention. These principles are as follows:

EU law must remain compatible with the Convention
The Convention predates the EU and continues to bind all Member States. This means:
→ Applying EU law must not lead to a violation of the Convention
→ The Convention sets a minimum level of protection which EU law must respect

Legal tensions due to asymmetries
Two structural asymmetries complicate matters:
→ Member States are bound by the Convention, but the EU itself is not (yet)
→ EU law has primacy over national law, but not over the Convention

The “floor” principle: the Convention as mandatory baseline
EU law itself provides the solution:
→ Article 52(3) of the EU-Charter establishes the Convention protection level as binding under EU law
→ EU law may go beyond this level — but never below it
→ Consequently, to their own protection, national judges cannot be forced by EU law to breach the Convention

EU law is autonomous but national judges are not
EU law claims autonomy, but national judges cannot. EU law cannot render national judges autonomous vis-à-vis the Convention. They remain bound by the Convention when applying EU law.

In practice: the Convention turned into a mere option
In practice, the Convention’s role as a minimum standard is applied inconsistently in CJEU case law, turning the Convention into a mere option rather than a general safeguard (see Optionality of the Convention). More systematic and explicit references by the CJEU to the Convention as mandatory minimum protection level would assist national judges in navigating this complexity.

For an overview of convergencies and divergencies between the Convention and EU law, go to Trends 2021-26.

Programme – Colloque 30 ans après l’arrêt Brasserie du pêcheurDownload PDF
Combiner et concilier les droits européensDownload PDF

Watch the video of the conference on Youtube: https://www.youtube.com/watch?v=gUPQ8i9vVD0

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

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

This paper 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 also attached below.

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

L’adhésion, réponse logique à l’optionalité de la Convention en droit de l’UEDownload 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