Strasbourg or Luxembourg? A brief explanation

After exhausting all the legal remedies available in Hungary, many people feel that the courts have not been able to redress their human rights grievances, their court procedures have not been successful or fair. In such cases the question often arises: can I turn to an international court? The simple answer is yes. Our experiences show, however, that people seeking justice often do not know where to turn and how: ‘Strasbourg’, ‘Luxembourg’ or Brussels’? Here is a brief guide to help you.

When considering our options for international legal remedies, we can choose from several international courts. Since Hungary’s accession in 2004, many people have automatically come to assume that the EU institutions are the ones to turn to in such cases, but in reality they need to give it more thought to decide whether a particular international court can actually be the right one for them. Most people tend to confuse the Luxembourg-based Court of Justice of the European Union (CJEU) with the Strasbourg-based European Court of Human Rights (ECHR), so we set out to clarify the difference between the two.

Court of Justice of the European Union (CJEU)

The role of the Court of Justice of the European Union is to ensure that EU law is interpreted and applied the same way in every EU country and that countries and EU institutions abide by EU law. It also settles legal disputes between national governments and EU institutions. It can also, in certain circumstances, be used by individuals, companies or organisations to take action against an EU institution, if they feel it has somehow infringed their rights. So it is important to know that we cannot turn to Luxembourg directly when we seek legal remedies for infringements committed by Hungarian bodies. In other words, actions or decisions by an authority or a court, which constitute a violation of our human rights, cannot be challenged directly at the CJEU.

The Court of Justice of the European Union is divided into 2 courts. The General Court rules on actions for annulment brought by individuals, companies and, in some cases, EU governments. The Court of Justice deals with requests for preliminary rulings from national courts, certain actions for annulment and appeals.

Legal remedy from Luxembourg: to be initiated by a court only

Private individuals or companies can take action in the Court of Justice of the European Union in one of 2 ways. Indirectly through the national courts of their respective countries, providing that the national court decides to refer the case to the CJEU. This is the previously mentioned preliminary ruling procedure.

EU law is also applied by the national courts of the member states, but due to the differences in the various legal cultures and mind-sets, its interpretation can differ between the various countries. The preliminary ruling procedure is used to provide a framework for the CJEU when it is asked for clarification on how to interpret EU law. During this procedure a court of a member state can refer specific cases to the CJEU together with the questions that have arisen during the interpretation of the law. Based on these questions the CJEU makes a preliminary decision, which is then used by the applicant court to decide the original case. This legal institution is described in Article 267 of the Treaty on the Functioning of the European Union (TFEU).

The preliminary ruling procedure therefore is not a direct legal remedy, but an interim procedure during the original proceedings. The case is decided by the court of the member state, not the CJEU. Both have their specific and separate scopes of authorities in the application of EU law during the preliminary ruling procedure. The CJEU cannot apply an EU legal norm to a specific case, so it cannot make a decision in the case, only help to interpret EU law.

In Hungary the preliminary ruling procedure is regulated by Section 126 of Act CXXX of 2016 on the Code of Civil Procedure and Section 490 of Act XC of 2017 on Criminal Proceedings.

It should be noted that preliminary ruling procedures may be conducted in Luxembourg in other than the field of economic law. The EU is not merely a community of economic interests, but a cooperation between states, which is based on the respect and observation of human rights. To this end, the European Union has adopted its Charter of Fundamental Rights in 2000, which was formally proclaimed in Nice. The Charter became legally binding on the EU with the entry into force of the Treaty of Lisbon, on 1 December 2009 and thus is regarded as a supreme source of law, therefore the violation of the Charter of Fundamental Rights may be referenced during a preliminary ruling procedure.

Economic law and commercial law in focus

You can turn directly to the CJEU’s General Court in a limited number of cases, only if you directly and individually have suffered damage as a result of a decision by an EU institution. Such actions may be brought by natural or legal persons against acts of the institutions, bodies, offices or agencies of the European Union or against regulatory acts which are addressed to them or are of direct and individual concern to them.

It means in practice that the General Court primarily involved in decisions in the areas of competition law, state aids, agriculture and trade marks, as well as disputes between the institutions of the European Union and their staff concerning employment relations.

In the case of legal disputes between two natural or legal persons, therefore, we cannot turn to this court.

If you want to lodge a complaint regarding the acts of private individuals or bodies, you have to do this in your own country (at court or by using another forum available for dispute resolution).

European Court of Human Rights (ECHR): a forum for individuals who suffered grievances

On the other hand, as we have already explained in a previous blog entry What is the European Court of Human Rights of Strasbourg good for and how should we turn to it, we can turn to the Strasbourg-based European Court of Human Rights directly, bypassing the national courts. This does not mean, however, that the ECHR is a substitute for Hungarian legal forums, since we can only lodge a complaint at the ECHR after exhausting all our (efficient) legal remedy options in Hungary, including the Constitutional Court as suggested by the current practice, if our rights, included in the European Convention on Human Rights, have been violated.

The rights protected by the Convention include for example

• the right to a fair trial,
• the right to life,
• the prohibition of torture, degrading or inhumane treatment,
• the prohibition of discrimination,
• the right to respect for private and family life,
• the freedom of religion, expression, assembly and association,, and
• the right to an effective remedy.

The European Convention on Human Rights is an international agreement, signed in Rome on 4 November 1950 by the members of the Council of Europe and formally proclaimed in Hungary by Act XXXI of 1993 . The ECHR and its operational framework was established by the Convention.

The European Court of Human Rights is not an EU institution. Its mandate is exclusively the protection of human rights, included in the European Convention on Human Rights, and the “respondent” of the case is always one of the States that have signed and ratified the Convention. The role of the ECHR is to ensure that the states respect the rights and guarantees, secured by the Convention.

Personal involvement is a prerequisite, so the applicant must be, personally and directly, a victim of a violation of the Convention. General complaints about a law or a measure in the name of others and without personal involvement may not be submitted.

The ECHR is not an appeal court from domestic tribunals, it will not undertake the retrial of cases that have been concluded, therefore it may not annul or amend the decisions of the domestic courts, however, in certain cases its decisions can be used as the basis for a domestic review procedure.

The ECHR does not have a mandate to examine whether any international conventions, other than the European Convention on Human Rights, for example the Charter of Fundamental Rights of the European Union or the Universal Declaration of Human Rights have been violated.

In summary: We can submit our case to Luxembourg during the domestic court procedure by using the option of preliminary ruling procedure, providing that the Hungarian trial court is willing to suspend the case and request a preliminary ruling from Luxembourg. On the other hand, we can only turn to Strasbourg when the domestic procedure has already finished, but we can do this without the help or consent of any authority or court.

Strasbourg vs. Luxembourg: summary table