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:

1. The Convention applies to 46 European States, including the 27 EU Member States. Unlike EU law, it covers the entire legal system of the 27 EU Member States, including those parts which are regulated by EU law (Matthews v. the United Kingdom, Appl. No. 24833/94, judgment of 18 February 1999, § 29).
2. The Convention is not displaced by EU law when the latter applies (Bosphorus v. Ireland, Appl. No. 45036/98, judgment of 30 June 2005, § 154).

What are the effects of this overlap for the courts of the EU Member States?

The main effect 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, i.e. act without discretionary power (Bosphorus v. Ireland, cited above, §§ 155-156; Avotinš v. Latvia, Appl. No. 17502/07, judgment of 23 May 2016, § 101).

Do the Convention and EU Law protect the same fundamental rights?

In part, yes. This is because the EU Charter of Fundamental Rights, which belongs to EU primary law (Art. 6(1) TEU), has imported – albeit sometimes with a different wording – a large number of the rights contained in the Convention and its Protocols.

According to Article 52(3), first sentence, of the EU-Charter, these rights will have “the same meaning and scope” under EU law as they have under the Convention. At the same time, the second sentence of Article 52(3) reserves the possibility for EU law to “provide a more extensive protection”.

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 provision 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, the possibility for EU law to go beyond the Convention protection level (as, for example, in such areas as the protection of personal data) being no obstacle to that harmony.

However, there is an issue here on how the respective protection levels should be assessed: by considering only the substance of the rights concerned or also the methodology applied to them? Depending on the answer, results can indeed be very different (on this, see the article “Do we still need Article 6(2) TUE?“, at p. 1695 et seq.).

Is this situation generating problems for national courts of the EU Member States?

Since, as explained above, the domestic courts of the Member States must comply with the Convention when applying EU law, individuals can challenge before the European Court of Human Rights the conformity with the Convention of any application of EU law by domestic courts. The number of such cases is increasing. Examples are listed in the same article, at the bottom of this page, at p. 1710 et seq. More recent examples can also be found under the tab “recent case-law” on this portal.

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:

1. When the EU protection level is lower than the Convention level and cannot be raised under EU law. This situation can occur:
   • either in terms of the substance of the rights concerned (as in C-129/14 PPU, Spasic)
   • or in terms of the methodology applied to them (notably in the field of mutual recognition, as in joined cases C-411/10 and C-493/10, N.S. and Others; C-367/16, Piotrowski; C-158/21, Puig Gordi and Others; C-365/21, Generalstaatsanwaltschaft Bamberg)
2. 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; C-97/21, MV – 98).

However that may be, in 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). And in Bivolaru and Moldovan v. France (Appl. No. 40324/16 and 12623/17, judgment of 25 March 2021) the same Court found that the French courts had breached Article 3 of the Convention (prohibition of ill-treatment) on account of a “manifest deficiency” in complying with this provision when executing a European arrest warrant which had been issued for the purpose of the service of a prison sentence in Romania (see also the following post on this judgment).

All issues addressed on this page are explained in greater detail in the following article:

Concrete implications for national courts in a nutshell

The concrete implications of this state of affairs for national courts can be summarised as follows:

1. In the vast majority of cases, the effects of EU fundamental rights are being felt at domestic level, as the result of the application of Union law by national courts. This application comes within the scope of the European Convention on Human Rights and can therefore give rise to scrutiny by the ECtHR, as illustrated by a well-established line of case-law.
2. As a result, national judges must apply EU law in conformity with the Convention. They bear the brunt of any lack of consistency in the protection of fundamental rights, because it is at domestic level that these two sets of norms come together.
3. Consequently, the consideration of the effects of EU fundamental rights cannot stop at the border of the EU legal system and ignore the impact of the Convention on the application of EU law at domestic level. A wholistic approach is required instead.
4. Such a wholistic approach is designed to identify convergencies and divergencies between the Convention and Union law, and be clear about them, with a view to facilitating the job of national judges, who must ensure that the EU protection level does not fall below the Convention level.
5. It is not accurate to assume general convergence between the Convention and Union law. The picture is much more differentiated, with areas offering a high level of convergence (e.g. procedural rights, judicial independence) and others not (e.g. ne bis in idem, European arrest warrant).
6. Several divergencies are rooted in methodological discrepancies. Some have an impact on the level of protection offered by fundamental rights.
7. That said, the Convention ensures only a common minimum protection level, thus allowing that level to be raised. Consequently, unlike a lower or unclear EU protection level, a higher EU protection level is not problematic from a Convention point of view.

For more recent illustrations of these principles, turn to “Convention control over the application of Union law by National Judges”