Why is there an overlap between the scope of EU Law and that of the Convention?
This overlap is the result of two different factors:
- While the Convention covers 47 Contracting States and EU law only 28, the scope of the Convention covers the entire legal system of those 28 EU Member States, including those parts of it which are regulated by EU law (Matthews v. the United Kingdom, Appl. No. 24833/94, judgment of 18 Feb. 1999).
- The Convention is not displaced by EU law wherever EU law applies.
What are the implications of this overlap for the courts of the EU Member States?
The main implication is that the domestic courts of the EU Member States must act in compliance with the Convention when applying EU law. This compliance can be assessed by the European Court of Human Rights in the context of an application under Article 34 of the Convention directed against the Member State concerned.
However, for the sake of facilitating European integration, the European Court of Human Rights will assume – until proof of the contrary, to be adduced on a case-by-case basis – that the EU Member States act in compliance with the Convention when they do no more than execute their obligations under EU law (Bosphorus v. Ireland, Appl. No. 45036/98, judgment of 30 June 2005; Avotinš v. Latvia, Appl. No. 17502/07, judgment of 23 May 2016).
Do the Convention and EU Law protect the same fundamental rights?
In part, yes. This is because the EU Charter of Fundamental Rights, which is a part of EU primary law (Art. 6(1) TEU), has imported – albeit with a different wording – a large number of the rights contained in the Convention and its Protocols. In doing so, the Charter stated in its Article 52(3) that those rights will have “the same meaning and scope” under EU law as they have under the Convention. At the same time, it reserved the possibility for EU law to raise the level of protection of those Convention rights.
As a result, the rights of the Convention which have been imported into the EU-Charter can be divided into two categories: those which ensure the same level of protection as the Convention and those which raise that level. A list of those two categories has been included in the Explanations relating to Article 52(3) of the EU-Charter.
The effect of this mechanism is that while, as regards the rights imported from the Convention, their level of protection can always be raised under EU law, it can never be allowed to fall below the level of protection guaranteed by the Convention. A great deal of legal harmony between the Convention and EU law has been achieved on this basis, including with the possibility for EU law to go beyond the Convention protection level (as was done, for example, in respect of the protection of personal data or access to classified information in court files).
However, there is an issue here as to how the relevant level of protection should be assessed, by focussing only on the substance of the rights or by also including the methodology being applied to them (on this, see the article at the bottom of this page, at p. 1695 et seq.).
Has this situation already created problems for national courts of the EU Member States?
The number of cases before the European Court of Human Rights challenging the application of EU law by domestic courts is increasing. Examples of such cases are listed in the article at the bottom of this page, at p. 1710 et seq.
Typically, problems arise for the domestic courts of the EU Member States when they have to combine fundamental rights under EU and Convention law which set different protection levels. In such a situation, it is safe to assume, as the result of a combination of Art. 52(3) of the EU-Charter and Art. 53 of the Convention, that domestic courts should apply the higher of the two levels.
However, problems can nonetheless arise:
- when the EU protection level is lower than under the Convention and is not allowed to be raised
- on the substance (a rare occurrence, as in C-129/14 PPU, Spasic, EU:C:2014:586)
- or in terms of the methodology applied to fundamental rights (especially in the field of mutual recognition, as in C-367/16, Piotrowski, EU:C:2018:27)
- or when it is difficult to identify which is the higher level of protection to be applied, because of complex methodological differences between the Convention and EU law (as in C-524/15, Menci, EU:C:2017:667).
However that may be, in the case of Avotins v. Latvia (see above), the European Court of Human Rights ruled that if a serious and substantiated complaint is raised before the domestic courts of the EU Member States 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). In this case, the European Court of Human Rights almost found a violation of the Convention because the domestic courts had applied the Brussels I Regulation (No. 44/2001) without having regard to the requirements of Article 6 of the Convention (right to a fair trial). A finding of a violation could only be avoided because the Court of its own motion satisfied itself that those requirements had been met.
All issues addressed on this page are explained in greater detail in the following article:
and summarised in the following documents: