Category Archives: Recent Case Law

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.

Successive scrutiny of the same legislation in Luxembourg and Strasbourg: judgment of the ECtHR in the case of Executief van de Moslims van België and Others v. Belgium

In the case of Executief van de Moslims van België and Others v. Belgium (16760/22 and 10 Others, 13.02.2024), the European Court of Human Rights found that the Belgian law, i.e. the Flemish and Walloon regional decrees, which only allows vertebrates to be put to death in the context of ritual slaughter by using reversible non-lethal stunning, does not breach the freedom of religion enshrined in Article 9 of the Convention. This finding is very similar to the one made by the CJEU on the very same legislation in the case of Centraal Israëlitisch Consistorie van België and Others.

This similarity very well illustrates two important aspects of fundamental rights in Europe today.

First, it shows the importance of a sufficient level of consistency between the jurisprudences at national, Union and Convention level, in view of the fact that the compatibility with fundamental rights of a same piece of legislation can, as in the present case, be checked at three different successive levels, the last one being Strasbourg. As pointed out by the ECtHR, in the case at hand the scrutiny of the same Belgian legislation indeed went all the way from the Belgian Constitutional Court to the CJEU and to the ECtHR. Contradictions or incompatibilities between these levels would have damaged legal certainty as much as the authority of the invoked fundamental rights themselves, quite apart from the difficulties they would have created for the national judges dealing with that kind of issues and subject to all three levels of scrutiny.

Secondly, this case also shows how beneficial it is for the cross-system consistency of the case-law on fundamental rights when the case-law of the ECtHR is taken on board from the beginning of the journey of a case through the judicial instances. Indeed, the last stop of such a case is in Strasbourg and its ultimate benchmark is the Convention, it being understood that this benchmark only represents a minimum protection level which can be raised (Art. 53 of the Convention). 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.

So there can be no doubt that seeing the CJEU extensively rely in Centraal Israëlitisch Consistorie van België on the Strasbourg case-law and acknowledge its benchmark function by qualifying it as “the minimum threshold of protection” (§ 56; see also this post) greatly facilitated reliance by the ECtHR on the fact that, having regard to the principle of subsidiarity, it should duly take into account the outcome of the “double control” which had already taken place in Brussels and Luxembourg prior to its own scrutiny (§ 112).

Under these circumstances, it came as no surprise that, in a welcome unisono with the CJEU, the ECtHR held that the obligations imposed by the Belgian legislation at stake were not disproportionate and therefore were not in breach of Article 9 of the Convention.

Is the CJEU creating two different categories of fundamental rights? Judgment of the CJEU in the case of GN

GN is yet another case concerning the execution of a European arrest warrant (EAW). This time round, the person subject to that EAW is the mother of a young child who, at the time of the events, was also pregnant with a second child. The Belgian judicial authorities had issued a EAW in respect of her for the purpose of enforcing a custodial sentence of five years which was handed down in absentia.

After a first refusal by the Bologna Court of Appeal to surrender GN to the Belgian authorities, on the ground that the latter had never responded to its request for information concerning inter alia the arrangements for the enforcement of sentences imposed on mothers living with minor children and the measures taken in relation to GN’s minor child, the case ended up before the Italian Supreme Court of Cassation, which referred the case for a preliminary ruling by the CJEU.

Interestingly, the Supreme Court of Cassation stated in its referral request that if the Belgian legal order did not provide for measures protecting the rights of children which were comparable to those provided for by Italian law, the surrender of GN would lead to a breach of the latter’s fundamental rights protected by the Italian Constitution and the European Convention on Human Rights (§ 22). In its second question to the CJEU, the Supreme Court of Cassation explicitly raised the question of the possible incompatibility of the surrender of GN with Articles 7 and 24(3) of the EU-Charter, “also considering the case-law of the European Court of Human Rights in relation to Article 8 [ECHR] and the constitutional traditions common to the Member States”.

In its response, the CJEU follows its traditional two-step approach, consisting of a general test, on the existence of systemic or generalised deficiencies in the issuing Member State, followed by an individual test, on whether in light of such deficiencies, there are substantial grounds for believing that the persons concerned will run a real risk of breach of their fundamental rights. In the case at hand, this risk concerned the rights to respect for one’s family life and to consideration given to the child’s best interests, as laid down in Articles 7 and 24(2) of the EU-Charter respectively (§§ 45-48).

Despite the sensitive nature of the issues involved, affecting minor children, the CJEU appears determined in this case to further narrow the scope left to the executing judicial authorities for the consideration of individual circumstances which might be relevant in the assessment of the risks incurred in the issuing Member State by the persons subject to the EAW at stake.

For not only does the CJEU confirm in GN its recent case-law precluding the executing judicial authorities from applying the individual test in the absence of systemic or generalised deficiencies or from applying the two tests simultaneously (§ 46), this time round it also explicitly prohibits these authorities, in the absence of systemic or generalised deficiencies, from inquiring under Article 15(2) of Framework Decision 2002/584 about the conditions under which it is intended, in the issuing Member State, to detain persons as Ms GN and/or to take care of their children (§ 50). This only reinforces the conclusion already reached in Staatsanwaltschaft Aachen about the mere ancillary function of the individual test.

However, what is worrying about this strict ban on the application of an autonomous individual test, and the inquiries which may go with it, is that it may interfere with the obligations placed by the Convention on the executing judicial authorities. Given that the Convention applies to the execution of a EAW (see, among others, Bivolaru and Moldovan v. France) and that it only provides for an individual test, the question indeed arises whether the two-step approach, with the individual test made contingent on the outcome of the general test, leaves enough room for the judges of the executing Member State to conform with their duties under the Convention. This may also be the sense of the concerns expressed by the Supreme Court of Cassation concerning compliance with the Convention.

Of course, national judges are not prevented by the Convention from having regard, if appropriate, to the general context of the individual situations they must assess. However, the ultimate test to be applied by them – and indeed by the ECtHR – is always an individual test, which is autonomous and focussed on the individual situation of the person concerned. It does not need to be preceded by any prior general assessment. Even less is its validity contingent on any specific outcome of that general assessment.

It follows that under the Convention the scope of the risks capable of justifying a ban on the the extradition or deportation of a person is not limited to those risks which flow from systemic or generalised deficiencies. Risks of a violation of fundamental rights in the country of destination which are unrelated to any systemic or generalised deficiencies, such as risks stemming exclusively from the biography of the person concerned, are equally relevant. For why should a risk of breach of a fundamental right be ruled out only because it does not exist on a large scale?

Thus, as confirmed in Bivolaru and Moldovan v. France, compliance with the Convention when executing a EAW logically also requires an assessment about the personal and individual risks incurred by the person concerned in the issuing Member State. The scrutiny cannot stop after a general assessment, regardless of its result, as this would be tantamount to replacing the individual test required by the Convention by a general test which only considers the overall situation in the issuing Member State, thereby also raising the question as from when deficiencies are to be considered systemic or generalised.

Yet, it would appear that under EU law the simple finding by the executing judicial authority that no systemic or generalised deficiencies can be identified in the issuing Member State is sufficient to preclude any such individual assessment. This situation raises at least two following questions. First, is the CJEU creating two categories of fundamental rights in this area: those which stem from systemic and generalised deficiencies and are therefore relevant, and those which do not stem from such deficiencies and can be ignored? Second, are national judges being prevented by EU law from correctly applying the Convention in this area, as they are instructed to do by the Avotiņš v. Latvia and Bivolaru and Moldovan v. France jurisprudence?

Which fundamental rights exactly apply to proceedings of the EPPO? Judgment of the CJEU in the case of G.K. and Others

In the case of G.K. and Others (European Public Prosecutor’s Office) (C-281/22, 21.12.2023), the CJEU interpreted Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO) and ruled on the scope of the judicial review to be carried out by the courts of the Member States in the event of cross-border investigation measures.

In the case before the referring court, several persons were being prosecuted for fraud concerning the import of biodiesel into the Union. The EPPO conducted an investigation in Germany through a “handling European Delegated Prosecutor” (EDP) and, for the purposes of the investigation, the search and seizure of goods in Austria was ordered. The German handling EDP thus delegated the enforcement of those measures to an Austrian “assisting EDP”. The accused persons challenged those investigation measures before the Vienna court of appeal, which referred to the CJEU several questions about the extent of the judicial review which it should carry out for the purpose of authorising the investigation measures which had been assigned by the German handling EDP to the Austrian assisting EDP.

The CJEU ruled that Articles 31 and 32 of Regulation 2017/1939 limit the review by the courts of the Member State of the assisting EDP to matters concerning the enforcement of those measures, to the exclusion of matters concerning their justification and adoption, which are to be assessed by the courts of the Member State of the handling EDP. The CJEU added that the latter matters must be subject to prior judicial review in the Member State of the handling European Delegated Prosecutor in the event of serious interference with the rights of the persons concerned guaranteed by the EU-Charter.

While this ruling answers a number of important questions arising in the context of criminal proceedings by the EPPO, one equally important issue is being completely ignored by it: the status under the Convention of the national authorities involved in EPPO-proceedings, i.e. the enforcement authorities, such as police forces and investigators, and the courts entrusted with reviewing procedural acts by the EPPO and adjudicating the cases brought before them by the EPPO. Are these national authorities subject to the Convention or not, in addition to them being subject to Union law? The answer to this question will determine which fundamental rights exactly will apply to EPPO-proceedings.

While it seems clear that EDPs, acting on behalf of the EPPO, an EU institution, are not subject to the Convention, the situation is less clear as regards these national authorities. This can only be decided by the ECtHR itself. Pending this clarification by the ECtHR and focussing on the national courts involved in proceedings initiated by the EPPO, it should be recalled that the creation of the EU and its predecessor organisations did not remove the responsibility of the Member States under the Convention for their application of Union law (see, among others, Bivolaru and Moldovan v. France). Neither does Regulation 2017/1939 provide that the national courts would act as EU courts when involved in EPPO-proceedings.

It can therefore be assumed that the national courts, when involved in such proceedings, remain national courts and, in this capacity, remain bound to apply Union law in conformity with the Convention. In any event, any other solution would deprive citizens who are the subject of EPPO-proceedings of the possibility of filing an application for external review of these proceedings by the ECtHR. Their fundamental rights would in that case be less well protected than those of the persons who are subject to proceedings initiated by national prosecutors under national law, which would be unacceptable.

Thus, as things currently stand, two partially different sets of European fundamental rights apply to a single set of EPPO-proceedings, depending on the acting institution: the sole EU rights in respect of legal acts by the EDPs, and a combination of EU and Convention rights in respect of legal acts by the national courts and perhaps also by the national enforcement authorities. This distinction becomes relevant in all cases where the level of protection between EU and Convention fundamental rights differs.

Fortunately, in criminal proceedings more than in any other area, the CJEU seems to be taking greater care in avoiding discrepancies with the Strasbourg case-law, which is beneficial to the coherence of the European standards in criminal procedure and facilitates the challenging task of national judges (see Greater convergence). However, some differences remain, e.g. with the application of the ne bis in idem principle (see Convention control, at p. 342) or with some aspects of the right to legal assistance such as the free choice of a lawyer.

What is helpful in this context, though, is that Article 41(2) of Regulation 2017/1939 provides that suspected or accused persons shall, “at a minimum”, have the procedural rights provided for in Union law enumerated in that provision (§ 76). This seems to indicate that the level of protection guaranteed by the latter can be raised if need be.

At the same time, this duality of European sources of fundamental rights can prove useful, as it will allow national judges to also rely on the Strasbourg case-law on the right to a fair trial in criminal matters which, being developed since more than 70 years, is indeed richer and more comprehensive than the Luxembourg case-law on these issues and, in any event, by virtue of Article 52(3) of the EU-Charter, represents a mandatory minimum protection standard which is also applicable under EU law.

Even so, the fact nonetheless remains that under the scheme put in place by Regulation 2017/1939, such “double standards” distort the uniformity which should in principle characterize, throughout criminal proceedings, the fundamental rights applied to the latter. For how coherent is it for an accused to be entitled to claim a level of protection which did not apply to the prosecutor in the very same case? Both should rather play by the same rules. If not, and in the event, as a result, of a failure by national courts to comply with the Convention, the Member State concerned would, in addition, incur liability in Strasbourg for action by an independent EU institution over which it has no control. The only way to minimize the impact of such distortions would be for the EU to become a Contracting Party to the Convention, along with its own Member States (for a more detailed analysis of the impact of the Convention on criminal proceedings of the EPPO, turn to No case to answer).

One can only regret that the authors of Regulation 2017/1939 did not adopt a wholistic approach which would have allowed them to address these important issues and help avoid yet another layer of complexity in this area.

Preventive Convention control by the ECtHR over the execution of European arrest warrants

The case of Arsene v. Italy (39817/23) provides a good opportunity to draw attention to the preventive control exercised by the ECtHR, under Rule 39 of its Rules of Court, over the execution of European arrest warrants (EAW) which are challenged by applicants under Article 3 of the Convention (prohibition of ill-treatment).

In this case, the ECtHR decided on 10 November 2023 not to indicate to the Italian Government the interim measure which the applicant was seeking under Rule 39 of the Rules of Court and which would have temporarily stopped his surrender to Romania on the basis of the EAW issued against him. The interim measures indicated under this provision are indeed legally binding (Mamatkulov and Askarov v. Turkey).

Arsene v. Italy is only the most recent in a series of cases in which applicants requested the ECtHR to stop the execution of a EAW by reason of a serious risk of violation of Article 3 of the Convention in the issuing Member State. Other such cases include Caragea v. Italy and Romania (11773/20), Coarda v. Sweden (18732/20), Ursu v. Italy (54281/20) and Cretu v. United Kingdom (9749/22).

In all the above cases the applicants had been convicted to custodial sentences by Romanian courts and were the subject of EAWs issued for the purpose of the service of these sentences in Romania. The applicants challenged the execution of these EAWs before the ECtHR, thereby referring to the pilot judgment in Rezmiveș and Others v. Romania, in which the ECtHR found that the persisting structural problems of overcrowding and poor conditions of detention in Romania amounted to a practice incompatible with Article 3 of the Convention and requested the Romanian authorities to urgently remedy that situation.

Yet, all requests in the above cases for the indication of interim measures were rejected by the ECtHR on their merits, i.e. after a thorough examination of the circumstances of each case by the duty judge. In line with established practice concerning Rule 39, no reasons were given by the ECtHR for these dismissals. However, a striking feature which all these cases have in common are formal and individualised assurances given by the Romanian authorities regarding the places of detention of the persons concerned and respect for their rights under Article 3, which the authorities of the executing States considered trustworthy, in the absence of any evidence showing that the Romanian authorities had ever breached assurances of this type in the past.

In Dorobantu, the CJEU ruled that in the presence of deficiencies which affected certain places of detention, the executing judicial authority is bound to determine, specifically and precisely, whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender of a person to the issuing Member State under a EAW, he/she will run a real risk of being subject in that Member State to inhuman or degrading treatment, because of the conditions for his detention envisaged in the issuing Member State (§§ 52, 55). However, the CJEU was somewhat ambivalent on whether the executing judicial authority should just ask the issuing authority for information on the conditions in which it is intended that the individual concerned will be detained in that Member State, or for proper assurances concerning respect for the individual’s fundamental rights, or for both (§§ 67-69).

Be that as it may, what is clear in the light of the ECtHR’s practice in exercising a preventive control under Rule 39 over intended surrenders under a EAW is that formal and reliable assurances by the authorities of the issuing Member State concerning respect for the fundamental rights of the persons concerned would appear to make a difference, not only in the executing Member States but also in Strasbourg (on the requirements to be fulfilled by such assurances, see Othman (Abu Qatada) v. the United Kingdom).

Luxembourg not the end of the story on freedom of religion in the workplace? Judgment of the CJEU in the case of Commune d’Ans

The case of Commune d’Ans (C-148/22, 28.11.2023) concerned an employee of a Belgian municipality who performs her duties as head of office primarily without being in contact with users of the public service and who was prohibited from wearing an Islamic headscarf in her workplace. In the wake of that decision, the municipality amended its terms of employment, now requiring its employees to observe strict neutrality. As a consequence, any form of proselytising is prohibited and the wearing of overt signs of ideological or religious affiliation is prohibited for any worker, including those who are not in contact with the administered. The employee concerned complained before a Belgian Labour Court about breaches of her right to freedom of religion and of the prohibition of discrimination.

Before the Labour Court and the CJEU, the case was dealt with as a case about indirect discrimination on grounds of religion or belief. Consequently, Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation applied. Given that Article 51(2) of the EU-Charter does not allow the latter to extend the field of application of Union law and therefore obviously precluded direct reliance on Article 10 of the EU-Charter (freedom of thought, conscience and religion), Directive 2000/78 allowed the case to nonetheless be brought within the scope of Union law. On that basis, the CJEU interpreted Article 2(2)(a) of that Directive as meaning that:

“An internal rule of a municipal authority prohibiting, in a general and indiscriminate manner, the members of that authority’s staff from visibly wearing in the workplace any sign revealing, in particular, philosophical or religious beliefs may be justified by the desire of the said authority to establish, having regard to the context in which it operates, an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of that context and taking into account the various rights and interests at stake”.

One of the striking features of this ruling is that the weighing-up of the rights and interests at stake in this case is done at a collective level, not at the level of the individual complaining about discrimination. While the CJEU leaves to the Member States a “margin of discretion” and therefore accepts in principle the policy of “exclusive neutrality” which the municipality concerned wants to pursue (§§ 33-34), the assessment of whether any indirect difference in treatment generated by this policy is objectively justified and proportionate must be done, according to the CJEU, with regard to the right to freedom of thought, conscience and religion not of the complainant considered individually but of the entire municipal staff which, because they are all subject to the same exclusive neutrality policy at stake, is being considered as a single, undifferentiated entity.

In other words, the required assessment is to be based not on the individual but on the collective circumstances of the case. Logically, the fundamental rights being referred to under this approach are those of the entire collectivity of the staff concerned, not those of the complainant considered individually (see §§ 28 and 40).

The Strasbourg approach is different, based as it is on the individual rights flowing from Article 9 of the Convention, considered alone or in conjunction with Article 14 (prohibition of discrimination), as the case may be. The assessment of the justification of any interference with these rights must have regard to the particular circumstances of the case, which include the particular circumstances of the applicant. Thus, an examination in concreto rather than in abstracto, as in Commune d’Ans.

This was the case e.g. in Ebrahimian v. France. In finding no violation of Article 9 in this case, the ECtHR had regard to such general circumstances as the French secular model or the policy of strict neutrality imposed on the staff of the hospital concerned, but also to individual circumstances such as the difficulties she had encountered in her unit, the refusal by the applicant to apply for another function which was open to her within the same institution, the impact of her attire on the exercise of her duties, as well as the procedural safeguards and judicial remedies from which she had benefitted in her dealings with her employer (see also, following a similar approach, Eweida and Others v. United Kingdom).

It would therefore appear that such rulings as Commune d’Ans are not necessarily the end of the story for the persons concerned. This is because, being focussed on discrimination, Directive 2000/78 does not exhaust the issue of freedom of religion in the workplace. At best, it only exhausts the issue under Union law. Thus, in the event of significant and relevant individual circumstances not addressed under Directive 2000/78, these circumstances could in principle still be invoked, under Article 9 of the Convention, alone or in conjunction with Article 14, as the case may be, before the domestic courts and, after exhaustion of domestic remedies, before the ECtHR.

In other words, the Union law elements of a case like Commune d’Ans do not displace its Convention elements. Rather, on condition that Article 9, alone or in conjunction with Article14, have been lawfully invoked before the domestic courts, they remain to be assessed by these courts and, ultimately, by the ECtHR, along with the compatibility of the Commune d’Ans jurisprudence with these provisions, since the application of Union law must be Convention compliant (see, mutatis mutandis, Bivolaru and Moldovan v. France, § 103).

From this perspective, Commune d’Ans is also an example of an issue capable of being addressed both under Union law and under the Convention, with slightly different outcomes depending on the legal basis invoked. This illustrates the importance of the choice by the parties to judicial proceedings and the adjudicating judges of the legal basis for the claims being made.

Two steps of unequal weight? Judgment of the CJEU in the case of Staatsanwaltschaft Aachen

In the case of Staatsanwaltschaft Aachen (C-819/21, 9.11.2023), the CJEU addressed the concerns of a German Regional Court regarding the enforcement in Germany of a custodial sentence imposed on a Polish national (M.D.), resident in Germany, by a Polish District Court after a hearing in absentia.

The referring court asked the CJEU whether, under Framework Decision 2008/909 (on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty), it could refuse to declare the custodial sentence imposed on M.D. in Poland to be enforceable in Germany, because of systemic or generalised deficiencies in the Polish judicial system, in violation of the second paragraph of Article 47 of the Charter and of Article 2 TEU. The referring court relied inter alia on the reasoned proposal of the European Commission of 20 December 2017 submitted on the basis of Article 7(1) TEU regarding the rule of law in Poland (COM(2017) 835 final), and to the recent case-law of the CJEU on that matter (§ 14).

Drawing a parallel between Framework Decision 2008/909, at stake in the present case, and Framework Decision 2002/584 on the European arrest warrant, the CJEU first recalled its case-law about the limitations of the principles of mutual recognition and mutual trust which can be made in exceptional circumstances and which derive from the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU, notably the prohibition of ill-treatment enshrined in Article 4 of the EU-Charter ( as in Aranyosi und Căldăraru) and the right to a fair trial laid down in the second paragraph of Article 47 of the EU-Charter (as in Minister for Justice and Equality (Deficiencies in the system of justice), and Openbaar Ministerie (Tribunal established by law in the issuing Member State)).

Addressing the methodology to be applied in such cases, the CJEU recalled the well-known obligation on the competent authority of the executing Member State to carry out a two-step examination.

As a first step, that authority must “determine whether there is objective, reliable, specific and duly updated material indicating that there is a real risk of breach, in the issuing Member State, of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of that Member State’s judiciary”. (§ 29, emphasis added)

The CJEU then went on to say: “If that is the case, the competent authority of the executing Member State must, as a second step, determine, specifically and precisely, to what extent the deficiencies identified in the first step may have had an impact on the functioning of the courts of the issuing Member State which have jurisdiction over the proceedings brought against the person concerned and whether, having regard to that person’s personal situation, the nature of the offence for which he or she was tried, and the factual context of the sentence in respect of which recognition and enforcement are requested, and, where appropriate, to additional information provided by that Member State pursuant to that framework decision, there are substantial grounds for believing that such a risk has actually materialised in the present case”. (§ 30, emphasis added)

The opening words “if that is the case” in the above quotation read as a condition and suggest that it is only if the existence of systemic or generalised deficiencies is confirmed in the context of the first step of the examination that, as a second step, it can be assessed whether these deficiencies may have had a concrete impact on the individual concerned in terms of the fairness of the criminal proceedings which led to his conviction.

Assuming this interpretation is correct, it would mean that conversely, in the absence of such systemic or generalised deficiencies, no such individual assessment would be permissible. This would be in line with the CJEU’s approach in Puig Gordi and Others where a similar question was asked to the CJEU in relation to the execution of a European arrest warrant for the purpose of conducting criminal proceedings against the person concerned. In that case too, the CJEU denied the possibility for the executing authority to apply an individual test in the absence of systemic or generalised deficiencies (§ 111), the only difference being that in Staatsanwaltschaft Aachen the referring court had itself found such systemic or generalised deficiencies to exist.

Applied in this way, the two steps of this methodology appear of unequal weight and not on the same footing. Rather, the individual test seems subordinated to the general test, performing an ancillary function compared to that of the general test. Unlike the general test, the individual test is indeed not autonomous in the sense that it could on its own justify a conclusion as regards the existence of a risk of breach of a fundamental right – here the right to a fair trial – in the issuing State, as it can do under the European Convention on Human Rights.

Under this approach the individual test can only operate to validate or not the findings under the general test that systemic or generalised deficiencies do exist. But if the general test is negative about the existence of such deficiencies, this is the end of the story: no assessment of the individual situation of the person concerned can be allowed to rebut the conclusions regarding the general situation.

This, in fact, amounts to allowing the general test to replace the individual test and strongly reminds of the position taken by the CJEU in N.S. and Others to the effect that only systemic flaws could justify an exception based on Article 4 of the EU-Charter to the Dublin Regulation (§§ 82-86). Here too, efficiency considerations were allowed to prevail over fundamental rights.

In essence, however, fundamental rights are individual rights and call for an autonomous individual assessment. It can be complemented but not replaced by a general assessment. This is also reflected in the central position in the Convention system of the right of individual petition which, by definition, calls for an individual assessment. The way to handle this in a mutual recognition context has been set out by the ECtHR in Avotiņš v. Latvia, in the following terms:

[The Court] must verify that the principle of mutual recognition is not applied automatically and mechanically … to the detriment of fundamental rights – which, the CJEU has also stressed, must be observed in this context …. Where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law. (§ 116, emphasis added)

The CJEU argues that “allowing the competent authority of the executing Member State to suspend, on its own initiative, the mechanism laid down in Framework Decision 2008/909 by refusing, in principle, to give effect to all the requests seeking recognition of judgments and enforcement of criminal sentences from the Member State concerned by those deficiencies would call into question the principles of mutual trust and mutual recognition which underpin that framework decision” (§ 34).

However, this is no answer to the question why an individual test should not be allowed to be applied in the absence of systemic or generalised deficiencies. By definition, the result of such a test would be limited to the individual case concerned and could therefore not call into question the entire system of mutual recognition. Under the Avotins approach referred to above, it would at the same time remain exceptional, in line with the CJEU’s doctrine on mutual recognition.

Conditions for granting subsidiary protection “fully compatible” with – but not “more extensive” than – Strasbourg : judgment of the CJEU in the case of Staatssecretaris van Justitie en Veiligheid

In the case of Staatssecretaris van Justitie en Veiligheid (Notion d’atteintes graves) (C-125/22, 9.11.2023), the CJEU ruled on the requirements to be fulfilled for the granting of subsidiary protection under Article 15 of Directive 2011/95/EU (“Qualification Directive”).

Under that provision, the “serious harm” justifying the granting of subsidiary protection can consist of either the death penalty or execution (a), or torture or inhuman or degrading treatment or punishment of an applicant in the country of origin (b), or serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (c).

The main issue raised in this case was about the criteria to be used for the assessment of whether any of these three situations materialised in a given case: only the general situation in the country concerned or also the individual position and personal circumstances of the applicant for subsidiary protection?

In essence, the CJEU ruled that the application of Article 15 (a) and (b) required a “clear degree of individualisation” (§§ 37, 72), whereas under Article 15 (c), one had to distinguish between exceptional and less exceptional situations.

According to this approach, the exceptional situations are those which occur when the applicant for subsidiary protection comes from an area of a given country hit by “the most extreme cases of general violence”, within the meaning of the judgment of the ECtHR in NA. v. United Kingdom. In such cases, substantial grounds would exist for believing that a civilian, returned to the relevant country or region, would, solely on account of his or her presence on the territory of that country or region, face a real risk of being subject to a serious and individual threat to his or her life or person (§§ 58, 63). Therefore, the existence in such cases of a risk of a “serious and individual threat”, within the meaning of Article 15(c), is not conditional on the applicant proving that he or she is specifically affected by reason of factors particular to his or her personal circumstances (§ 41).

By contrast, in the “less exceptional situations”, factors relating to the individual position and personal circumstances of the applicant are relevant, to the effect that the more the applicant is able to show that he or she is specifically affected by reason of factors particular to his or her individual position or personal circumstances, the lower the level of indiscriminate violence required for him or her to be eligible for subsidiary protection (§ 42). Consequently, in such cases more relevant personal elements are needed to justify subsidiary protection than just the fact of coming from an area where “the most extreme cases of general violence” occur (§ 65).

What is very helpful in this ruling is that the CJEU takes care of indicating that by virtue of Articles 6(3) TEU and 52(3) of the EU-Charter, the case-law of the ECtHR on Article 3 of the Convention (prohibition of ill-treatment) must be taken into account “as the minimum threshold of protection”, when interpreting Directive 2011/95 and Article 4 of the EU-Charter (§§ 59-60).

What is perhaps even more remarkable as a result, and regrettably still very rare in the Luxembourg jurisprudence (one isolated example being Menci, § 62), is a clear statement by the CJEU about its interpretation of EU law being “fully compatible” with the corresponding Strasbourg case-law, here on Article 3 of the Convention (§ 66). Such a useful clarification – which indeed corresponds to reality – can only facilitate the task of domestic judges who, when they apply EU law, must also comply with the Convention (see Bivolaru and Moldovan v. France, § 103).

Somewhat surprisingly, though, the CJEU adds that its interpretation of Article 15(c) would provide applicants for international protection a more extensive protection than that offered by Article 3 of the Convention (§ 66). As such, this would not be a problem, as the Convention is open to its own standards being raised at domestic level (Art. 53 of the Convention) and Article 52(3) of the EU-Charter allows EU law to do the same.

However, this statement would appear to be a misrepresentation of the situation. It seems based on the following false assumption by the CJEU:

The Court has already held that it is Article 15(b) of Directive 2011/95 which corresponds, in essence, to Article 3 ECHR. By contrast, Article 15(c) of that directive is a provision, the content of which is different from that of Article 3 ECHR, and the interpretation of which must, therefore, be carried out independently, in order, inter alia, to ensure that that provision has its own field of application, although with due regard for the fundamental rights guaranteed under the Charter and the ECHR (§ 62)

This analysis seems to be missing the fact that while the wording of Article 3 of the Convention is reflected only in Article 15 (b), the ECtHR has interpreted Article 3 so as to extend its scope to most of the situations described in Article 15 (c), thereby applying both individual and general criteria for the assessment of whether an individual can be considered to be at a risk relevant under Article 3 if returned to his or her country of origin. For instance, in Khasanov and Rakhmanov v. Russia, the ECtHR stated:

The risk assessment must focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances …. It must be considered whether, having regard to all the circumstances of the case, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. If the existence of such a risk is established, the applicant’s removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two. (§ 95, emphasis added)

These are exactly the kind of situations described in paragraphs 63 and 64 of the ruling which, according to the CJEU, come with the scope of Article 15 (c) of Directive 2011/95. In other words, under the current case-law Article 3 of the Convention covers the situations coming within the scope of Article 15 (b) or (c), the level of personal circumstances being required for Article 3 to kick in hinging on the nature of the risk at stake. This means, as a consequence, that the CJEU is not dispensed from complying with the Convention minimum standard under Article 3 when interpreting Article 15 (c) of the Directive.

Last but not least, another useful clarification made by the CJEU is about the burden of proof, the CJEU stating that although, under Article 4(1) of Directive 2011/95, Member States may require the applicant, during the first of those stages, to submit as soon as possible all elements needed to substantiate the application for protection, the authorities of the Member States must, if necessary, actively cooperate with him or her in order to determine and supplement the relevant elements of the application, those authorities being often better placed than the applicant to gain access to certain types of documents (§ 47). This is very much in line with the Strasbourg approach as described in J.K. and Others v. Sweden.

Migrants at the border: fundamental rights at stake or just another breach of secondary law? Comparing “European Commission v. Hungary” with “N.D. and N.T. v. Spain”

In the case of European Commission v. Hungary (Déclaration d’intention préalable à une demande d’asile) (C-823/21, 22.6.2023), the CJEU applied Article 6 of Directive 2013/32 (the Procedures Directive), which regulates access to the procedure for international protection, to the situation of migrants at the State border.

The CJEU ruled that Hungary had failed to fulfil its obligations under Article 6 of Directive 2013/32 because it had made the possibility, for certain third-country nationals or stateless persons present in the territory of Hungary or at its borders, of making an application for international protection subject to the prior lodging of a declaration of intent at a Hungarian embassy located in a third country and to the granting of a travel document enabling them to enter Hungarian territory. Thus, these people have to leave Hungary and come back with papers delivered by a Hungarian embassy abroad before being able to apply for international protection.

In essence, the CJEU’s ruling is based on the following five considerations.

1. Article 6 of Directive 2013/32 allows any third-country national or stateless person to make an application for international protection, including at the borders of a Member State (Art. 3(1)), by expressing his or her wish to benefit from international protection to one of the authorities referred to in that article, without the expression of that wish being subject to any administrative formality. That right must be recognised even if that person is staying illegally on the territory of the Member State concerned and irrespective of the prospects of success of such a claim (§ 43).

2. The obligation imposed on migrants at the border by the impugned Hungarian legislation is not provided for by Article 6 of the Directive and runs counter to the objective pursued by it, which is to ensure effective, easy and rapid access to the procedure for granting international protection (§ 51).

3. This obligation also deprives migrants of their right, under Article 18 of the EU-Charter, to effectively seek asylum (§ 52).

4. A Member State cannot unjustifiably delay the time at which the person concerned is given the opportunity to make his or her application for international protection (§ 47).

5. The public health and public policy and security grounds invoked by the Hungarian government as justification for this scheme are ill-founded (§§ 54-69). 

Interestingly, , in the landmark case of N.D. and N.T. v. Spain a unanimous Grand Chamber of the European Court of Human Rights recently dealt with the same topic, i.e. the forcible return of migrants from the Spanish border surrounding the enclave of Melilla. It did so under Articles 4 of Protocol No. 4 (prohibition of collective expulsion) and 3 of the Convention (prohibition of ill-treatment, including refoulement). In that same judgment, the ECtHR set out its doctrine about the rights and duties of migrants at the border of Contracting States. It is based on the following five principles, listed hereinafter with relevant excerpts from the judgment.

1. No formalities are required for a valid application for asylum

In the specific context of migratory flows at borders, the wish to apply for asylum does not have to be expressed in a particular form. It may be expressed by means of a formal application, but also by means of any conduct which signals clearly the wish of the person concerned to submit an application for protection. (N.D. and N.T., § 180)

2. The non-admission of a refugee is to be equated with refoulement

The “non-admission” of a refugee is to be equated in substance with his or her “return (refoulement)”. Consequently, the sole fact that a State refuses to admit to its territory an alien who is within its jurisdiction does not release that State from its obligations towards the person concerned arising out of the prohibition of refoulement of refugees. (§ 181)

3. The protection of the Convention is not subject to formal considerations

The protection of the Convention cannot be dependent on formal considerations such as whether the persons to be protected were admitted to the territory of a Contracting State in conformity with a particular provision of national or European law applicable to the situation in question. The opposite approach would entail serious risks of arbitrariness, in so far as persons entitled to protection under the Convention could be deprived of such protection on the basis of purely formal considerations, for instance on the grounds that, not having crossed the State’s border lawfully, they could not make a valid claim for protection under the Convention. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions cannot go so far as to render ineffective the protection afforded by the Convention, and in particular by Article 3. (§ 184)

4. Expulsion is to be understood as any forcible removal of an alien from a State’s territory

The term “expulsion” is to be interpreted in the generic meaning in current use (“to drive away from a place”), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border. (§ 185)

5. States must make available genuine and effective access to means of legal entry, in particular border procedures

With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen Area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case, the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4 § 1 of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution. (§ 209)

However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (§ 210)

What conclusions can be drawn from a comparison of these two rulings?

The good news is that in terms of their outcome, i.e. the obligations of States regarding the treatment of migrants at the border, the two rulings appear to be very similar in that in essence, they both require the effective possibility for migrants at the border to make an application for international protection.

A striking difference, though, lies in the approach followed by each of the two European Courts. Whereas the CJEU adopted a rather textual approach based on the wording of Articles 6 and 3(1) of Directive 2013/32 and previous case-law, the ECtHR adopted a more principled approach, thereby going to great lengths, notably with a thorough analysis of the current state of international law, to explain that what is at stake in such cases are two basic fundamental rights of migrants, i.e. the right not to be subject to refoulement or collective expulsion. By contrast, nothing is said about these fundamental rights in Commission v. Hungary, despite the suggestion by the Commission that this case is in fact about refoulement (§ 23). The resulting impossibility for migrants at the Hungarian border to seek asylum is mentioned only incidentally by the CJEU (§ 52).

This is indeed the paradox of Commission v. Hungary and several other similar rulings: it is ultimately about basic fundamental rights, but nothing is said about them. Instead, the matter is addressed on the basis of a textual interpretation of “ordinary” provisions of secondary law of a rather technical nature. These provisions may perhaps have the same concrete impact in practice, but they also have the effect of trivialising the issues at stake and ignoring what is their very essence.

While the main issue characterising the situation of migrants at the Hungarian and other State borders is ultimately one of basic fundamental rights, i.e. one of refoulement and collective expulsion, as recently confirmed in S.S. and Others v. Hungary, this issue is being ignored in European Commission v. Hungary and treated as just another breach of an ordinary provision of EU law. The Strasbourg case-law therefore seems a good reminder of the deeper issues behind these ordinary provisions.

The practical relevance of this distinction is that, being of a higher rank and less easily modifiable, fundamental rights can be expected to provide a better protection in the long run. Moreover, they raise the importance of the issues involved, preventing them from being considered as purely technical matters.

The CJEU goes for the Strasbourg test of the “proceedings as a whole”: Judgment of the CJEU in K.B. and F.S.

In the case of K.B. and F.S. (C-660/21, 22.6.2023), two suspects had been arrested in flagranti by the French police and interrogated without having been previously informed about their rights, notably the privilege against self-incrimination, the right to remain silent and the right to legal assistance by a lawyer. While this was a clear breach of Article 6 of the Convention (see Ibrahim and Others v. United Kingdom, § 273) and Article 3(1) and 4(1) of Directive 2012/13 on the right to information in criminal proceedings, French trial judges are prevented by Article 385 of the Code of Criminal Procedure, as interpreted by the Court of cassation, from raising that failure of their own motion in cases where it is open to the suspect or their lawyer to raise it themselves before the trial court with a view to the annulment of the procedure. The trial court in the case at hand interrogated the CJEU about the compatibility of this prohibition with EU law.

Relying on Salduz v. Turkey, the CJEU replied in substance that Union law did not preclude such a prohibition, provided that the suspect or the accused person concerned had had a practical and effective opportunity to have access to a lawyer (Art. 3 of Directive 2013/48/EU), had obtained legal aid if necessary (Directive 2016/1919) and had had access to their file and the right to invoke that breach within a reasonable period of time (Art. 8(2) of Directive 2012/13, read in the light of Articles 47 and 48(2) of the EU-Charter).

This solution is very much in line with the Strasbourg case-law on Article 6 of the Convention (right to a fair trial). In the landmark case of Ibrahim and Others v. United Kingdom, explicitly relied on by the CJEU, the ECtHR indeed stated:

In the light of the nature of the privilege against self-incrimination and the right to silence, the Court considers that in principle there can be no justification for a failure to notify a suspect of these rights. … Immediate access to a lawyer able to provide information about procedural rights is likely to prevent unfairness arising from the absence of any official notification of these rights. However, where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer and his right to silence and privilege against self-incrimination takes on a particular importance. (§ 273; in the same sense: Beuze v. Belgium, § 121)

This convergence with the Strasbourg case-law does not come as a surprise, since the CJEU had previously indicated that by virtue of Article 52(3) of the EU-Charter, when interpreting the rights guaranteed by the first and second paragraphs of Article 47 (right to an effective remedy and to a fair trial) and Article 48(2) of the EU-Charter (presumption of innocence and rights of the defence), it must take account of the corresponding rights guaranteed by Articles 6 and 13 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (§ 41).

Perhaps more surprising is what the CJEU added on how to handle a failure to properly inform a suspect on their right to remain silent:

Under the case-law of the European Court of Human Rights, where a procedural defect has been identified, it falls to the domestic courts to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial according to Article 6 ECHR (ECtHR, 28 January 2020, Mehmet Zeki Çelebi v. Turkey, …, § 51). Thus, where a suspect has not been informed in due time of the privilege against self-incrimination and the right to remain silent, it is necessary to assess whether, notwithstanding this failure, the criminal proceedings as a whole can be considered fair, taking into account a series of factors, including whether the statements taken without such information having been given formed an integral or significant part of the probative evidence, and the strength of the other evidence in the case (see, to that effect, ECtHR, 13 September 2016, Ibrahim and Others v. The United Kingdom, …, §§ 273 and 274). (§ 48)

The CJEU here goes for the lower Strasbourg protection standard, i.e. the test of the “proceedings as a whole”, even though under EU law there is no obligation to do so and there would be room for a higher protection standard, such as the finding that any failure to comply with any of the safeguards laid down in the invoked directives on procedural rights would entail a breach of EU law, with all consequences in terms of procedural acts to be annulled as a result.

It is indeed the case that while the directives on procedural rights to a large extent draw on the Strasbourg case-law relating to Article 6 of the Convention (right to a fair trial), they do not explicitly deal with the consequences of a breach of their provisions. The CJEU now seems to have identified that lacuna and, as already in HYA and Others, to be willing to fill it by adopting the “proceedings as a whole” approach, which is not explicitly laid down in the Convention either but rather is the result of the interpretation by the ECtHR of the notion of fair trial.

However that may be, the approach now adopted by the CJEU makes it easier for national judges to deal with breaches of procedural fundamental rights, as there is convergence between Strasbourg and Luxembourg on the need to consider the fairness of domestic proceedings as a whole when assessing the legal consequences of such breaches.

Theoretically, though, a “breach-by-breach” approach, which in the past was not without any support in the Strasbourg case-law (see the discussion in Beuze v. Belgium, §§ 140-141), would have been possible too, as it would represent a higher protection standard for the suspect and both Article 52(3) of the EU-Charter and Article 53 of the Convention, as well as the non-regression clauses featuring in the directives on procedural rights, all allow the application of higher protection standards. That said, under the Convention there is of course no obligation on any State to raise the minimum Convention standard.