In addition to the multiple presentations of individual judgments on this platform, a regular stock-taking of the general situation of the interplay between Strasbourg and Luxembourg, and its evolution, might be useful in order to have an overview of the current situation and an idea of the direction of travel.

This is the purpose of the short paper below, which is an updated and complemented version of the 2024 edition. It sets out, with many case-law illustrations listed by area, the main trends characterising that interplay since 2021.

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 conclusions emerge from this paper:

1. The areas of divergence are confirmation of the optionality of the Convention in EU law, resulting in the benchmark function of the Convention being only occasionally acknowledged (see Optionality of the Convention).
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. Compliance with the Convention in the application of EU law can be made the subject of an application before the ECtHR resulting in the finding of a violation of the Convention, as in Bivolaru and Moldovan v. France, M.B. v. the Netherlands and H.T. v. Germany and Greece.
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. 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.