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The Venice Commission, formally known as the European Commission for Democracy through Law, plays an important role in shaping standards of European constitutionalism. By providing expert advice to Council of Europe member states, but also a number of non-European countries; reviewing (draft) laws to assess their compatibility with European standards in the field of democracy, human rights and the rule of law; and by adopting important soft law documents such as its rule of law checklist, the Venice Commission (hereinafter: VC) has increasingly gained political salience and has influenced the lawmaking agenda in a growing number of countries. The EU’s rule of law crisis has similarly shown the increasing importance attached to the VC at the EU level. To give a single example, the VC is mentioned more than 160 times across the 32 rule of law reports published by the European Commission in July 2025. By contrast, the VC was “merely” referenced 68 times in the first edition of the EU’s rule of law report in 2020.

When it comes to specific instances of rule of law backsliding, the VC has acted as an important player and has been recognized as such by both backsliding authorities and EU institutions. From the very start of Poland’s rule of law crisis, for instance, it was striking to see the Polish government promptly asking for an opinion of the VC regarding a law of 22 December 2015 concerning the Constitutional Tribunal (a few days later, however, this manifestly unconstitutional law on 28 December 2015 was promulgated). Subsequently, the European Commission repeatedly recommended that Polish authorities work closely with the VC and made extensive references to its opinions within the framework of the pre-Article 7 and Article 7(1) proceedings it initiated in January 2016 and December 2017 respectively.

With greater influence, however, should come greater responsibility. As this post will outline, the VC suffers from one institutional flaw which concerns the method of selecting its members, a flaw which has been made worse by an unwillingness to enforce its own membership requirements and principles of conduct.

As per the (revised) Statute of the Venice Commission, it is for each member state concerned to appoint two “independent experts” (one member and one substitute). It is furthermore provided that these two members “shall have the qualifications required”, i.e., “have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science”. However, there are no mechanisms to review whether the appointees meet – or continue to meet – these qualifications.

The case of Poland shows the urgency of addressing this gap. With the term of Poland’s two (unbecoming) members soon coming to an end, this post will reflect on the VC’s failure to enforce the most basic standards when it comes to qualifications and behaviour, and further submit that the VC ought to make itself immune to autocratic contamination by (i) establishing a mechanism akin to the CJEU’s “255 Committee” and (ii) enforcing its code of conduct without tergiversations. In essence, we urge the VC to assess its own resilience to autocratic capture, and compliance with its duty to take full account of relevant CJEU and ECtHR judgments. The VC’s authority can only but suffer in a context where it is (rightly) stressing the crucial importance of the obligation to execute judgments of international courts while failing to police VC members who engage in a systemic violation of this obligation.

Impact of Poland’s rule of law crisis on VC membership

Prior to Poland’s rule of law crisis, Poland’s standing expert was Hanna Suchocka. A former Prime Minister and an eminent constitutional expert, she served in the VC between 1991 and 2016. In April 2016, the Polish government decided not to re-appoint her, in part due to the sharply critical VC opinion adopted in March 2016 in respect of the Polish government’s legislative attempts to capture Poland’s Constitutional Tribunal. This led the VC to (unusually) appoint Hanna Suchocka as its honorary president.

Mindful of the strategic importance of the VC with respect of its then ongoing attempts to implement the backslider’s playbook, the Polish government appointed Bogusław Banaszak as VC member and Mariusz Muszyński as VC substitute. Although they were both professors of law and could meet the criteria of “contribution to the enhancement of law” on paper, their (lack of) independence could be seriously questioned. At the time of his appointment, M. Muszyński was already well known as one of the framers of, and participants in, the changes which made Poland the world’s top autocratising country by 2020. He was also one of the irregularly appointed “judges” (so-called “double judges”) to the Constitutional Tribunal. Even after the ECtHR in May 2021 found his appointment to violate the very essence of the right to a tribunal established by law, due to multiple irregularities amounting to grave breaches of relevant domestic law, the VC did not budge.

Given that active participation in activities which the ECtHR characterised as “an affront to the rule of law” was deemed insufficient to call into question M. Muszyński’s VC substitute status, it is not surprising that B. Banaszak’s membership was not called into question either. A well-established law professor and academic author, he was also one of the key supporters of the (unconstitutional) changes which led to the effective capture of Poland’s Constitutional Tribunal. For example, he co-authored a July 2016 report that was highly critical towards the VC and the (not yet captured) Constitutional Tribunal. The combined efforts of M. Muszyński and B. Banaszak paved the way for the Constitutional Tribunal’s transformation into a discredited body which no longer meets the requirements of an independent and impartial tribunal established by law, as most recently confirmed by the CJEU.

Unaccountability, no matter what

Following B. Banaszak’s sudden death in January 2018, the Polish government decided to appoint Marcin Warchoł, a professor of law who served at that time as the Deputy Minister of Justice. His VC membership was so manifestly incompatible with the VC’s basic qualification and conduct requirements that one of the present authors wrote to the then-President of the VC in July 2018 and January 2020. In his response dated 13 July 2018, Mr Buquicchio accepted that “some recent appointments … raise questions” only to indicate that “it is the task of the member states to ensure that the individual members fulfil the criteria defined by the [VC]’s Statute”. In other words, there was seemingly “no procedure by virtue of which the [VC] can exclude or suspend” a member in any circumstances. In his response dated 27 January 2020 to the second letter which highlighted inter alia the Supreme Court of Ireland’s severe criticism of M. Warchoł’s behaviour in a specific case, Mr Buquicchio just repeated that “there is no procedure for excluding individual members if they act contrary” to the objectives of the VC, even when VC members challenge the legitimacy of the VC itself.

In short, the VC leadership was unwilling to contemplate any formal action, even in a situation where rulings from both the ECtHR and CJEU had repeatedly found relevant VC members to have been illegally appointed to the roles listed on the VC’s website and belonging to bodies found incompatible with basic rule of law requirements; bodies which remain mentioned to this day on the VC’s website without any qualifications.

The lack of accountability in respect of both M. Warchoł and M. Muszyński, who served their full terms until 2022, has similarly characterised the VC’s modus operandi in respect of their successors. To begin with law professor Joanna Lemańska, she was appointed to the VC while presiding over a body masquerading as a court and formally known as the Chamber of Extraordinary Control and Public Affairs, which is located in the (captured) Supreme Court. In this case as well, the VC failed to take any account of several CJEU and ECtHR rulings finding inter alia Lemańska’s Supreme Court appointment to have been made “in blatant defiance of the rule of law”, and of her role as president of a body which does not constitute a lawful court either in ECHR or EU law.

As for the new VC substitute member, Mr Justyn Piskorski, he is one of the so-called “double double judges” of Poland’s “Constitutional Tribunal”, i.e., he was irregularly selected when one of the original “double judges”, elected in 2015, died. The current VC therefore includes not one but two pseudo judges belonging to two pseudo courts. And yet, the VC has just been quietly waiting for Mrs Lemańska and Mr Piskorski to finish their four-year term due to expire in March 2026.

Shielding the VC from unbecoming “experts”

Poland’s episode of severe rule of law backsliding has brought to the fore many weak spots in Europe’s rule of law ecosystem, which have been exploited by those seeking to undermine the rule of law while encountering little to no resistance from gatekeepers.

In the case of the VC, it is not the toolbox which has been blamed for the lack of action over its manifestly unbecoming members, but the absence of a procedure for excluding or suspending individual members. Leaving aside the validity of the arguments raised by the VC leadership to justify inaction, a more formal filtering process of national appointments ought to be prioritised. The current rule preventing a VC member from voting on issues concerning the country appointing him/her is evidently insufficient to prevent “autocratic contamination” via the participation of manifestly compromised “experts” or agents of backsliding regimes, to the work of the VC.

As early as 2019, a network of rule of law experts (including one of the present coauthors) cautioned against any systemic involvement of the VC in the EU’s rule of law toolbox as long as the Council of Europe fails to establish a filtering panel akin to the Article 255 TFEU panel and starts “taking the vetting of aspirant [VC] members seriously”. Instead, the VC has sought refuge in revised but unenforced “principles of conduct” while re-electing in December 2021 Mr András Zs Varga as a Vice-Chair of its sub-commission for constitutional justice, the “President” of Orbán’s (captured) Supreme Court, who has since been busy threatening independent judges.

In 2013, PACE called for a reinforcement of the selection procedures for experts of key Council of Europe human rights monitoring mechanisms (such as the ECRI), at both national and international levels. Among the general minimum standards proposed by PACE, one may mention the need for transparent and competitive national selection procedures, as well as the possibility for the Assembly to reject lists of candidates who do not meet the criteria of competence, integrity and independence. While the Venice Commission was not explicitly referenced in this process, it seems obvious that the current status quo, coupled with a failure to apply to itself the standards it demands of others, endangers the VC’s authority.

After undermining the VC on the back of repeated and manifestly unsuitable appointments, Poland has an opportunity to strengthen the VC by applying the general minimum standards for selection procedures advocated by the Assembly. In the past two years, Polish authorities have already organised the competitive and transparent selection of candidates for the roles of ECtHR judge, CPT member and ECRI member. The time has come to finally return to the VC genuine, eminent, and independent experts. It is furthermore suggested that relevant texts are amended to provide for an automatic membership suspension in any situation where a VC member has been found to have been illegally appointed or belongs to a body which is not – or is no longer – a lawful court as established by either the ECtHR or the CJEU. Beyond the VC, we urge all relevant European associations, bodies or networks, such as the Presidents of the Supreme Judicial Courts of EU Member States, not to turn a blind eye on their illegal or compromised members. It is at the very least inconsistent to warn against rule of law regression and violations while failing to police one’s own membership. We are where we are because too many in senior positions who had and have the power to act have failed to do so.

The post Immunising the Venice Commission Against Autocratic Contamination appeared first on Verfassungsblog.

As the New York Times reported, President Trump and NATO have reached the framework of a deal that would grant the US sovereign bases over territories of Greenland. One of the officials present at the negotiations compared the proposed bases to the British Sovereign Base Areas (SBAs) in Cyprus, a comparison that has also been analysed by Marc Weller in a recent blog post. We argue that establishing such bases constitutes a violation of international law and cannot validly be agreed to by Denmark or NATO. This conclusion draws support from two distinct lines of argument: one relating to the (il)legality of establishing sovereign bases; and the other to indigenous rights.

Who May Consent to Sovereign Bases?

The first line of argument draws on the ICJ’s Chagos Archipelago Advisory Opinion. In this, the Court explained that the detachment of part of a non-self-governing territory must be based on the free and genuine will of the people of the concerned territory. If one is concerned about respecting “the free and genuine will of the people”, identifying said people is crucial. Denmark’s title to Greenland is uncontested in modern practice and has been expressly recognised by the United States in the 1951 Defense of Greenland Agreement and its 2004 update. While Denmark’s claim to Greenland has been described as “unimpeachable,” Greenlanders are constitutionally recognised as a “people” with a right to self‑determination, including a lawful pathway to independence by referendum and subsequent negotiation. If anyone were to consent to the creation of US sovereign bases, therefore, it would have to be them. It is not for Denmark to reach such an agreement, and it is certainly not for the NATO Secretary General.

Denmark’s sovereignty over Greenland was abruptly questioned when President Trump declared that the US had to own the island and did not rule out using force to achieve this. In light of such threats, it is clear that if a transfer of sovereignty were to take place, it would not be the result of “the free and genuine will of the people”. Also supporting this argument is the fact that a threat of the use of force by the US violates Article 2(4) of the UN Charter, which is a ius cogens norm. Thus, any transfer of sovereignty of part of Greenland’s territory to the US, as a result of such a threat, would be null and void.

Modelling the proposed US bases on the SBAs in Cyprus does not enhance their credibility. The SBAs are a remnant of Cyprus’ colonial history, but even when seen through this light, they are arguably illegal. The Treaty of Establishment 1960 that created the SBAs allowed the UK to retain its sovereignty over the two large bases, while at the same time, granted independence to the rest of the island. Yet, the UK’s sovereignty is not unlimited: Appendix O of the Treaty (which Cyprus considers to be legally binding, but the UK does not) declares the UK’s intention “[n]ot to set up or permit the establishment of civilian commercial or industrial enterprises”; prohibits the creation of “custom posts or other frontier barriers” between the SBAs and the rest of the island; and mandates that UK law in the SBAs will “mirror” that of the Republic of Cyprus. As one of us has already argued (here and here), even with such restrictions on the UK’s sovereignty, the SBAs remain of doubtful international legality, precisely because they were established in contravention of the principles set out in Chagos.

The establishment of SBAs might have been considered acceptable in the era of decolonisation, but not anymore. Contemporary practice to establish military bases overwhelmingly no longer grants this type of enclave sovereignty within the host state, but only grants defined functional (exclusively military) rights to the sending state. Problematically, what President Trump envisions in Greenland are not just SBAs, but “SBAs plus”, which would allow the US to not merely use the bases for military purposes, but also develop them commercially. Thus, any future Greenland “framework” built on sovereignty transfers would in our view not just “trade short‑term optics for long‑term legal uncertainty”. Instead, it would constitute an overt violation of international law.

Indigenous Rights, Environmental Due Diligence, and Climate Obligations

The second line of argument for why US sovereign bases in Greenland would be illegal relates to the protection of indigenous rights. Where indigenous lands, territories or resources are affected, the UN Declaration on the Rights of Indigenous People, as customary international law, requires processes oriented toward Free, Prior and Informed Consent for large‑scale, high‑impact measures. Such consent must be supported by prior environmental and social impact assessments and equitable benefit‑sharing. A sovereignty carve‑out for enclaves would plainly qualify; without demonstrably robust consent from Greenlandic/Inuit institutions, it would conflict with today’s Indigenous‑rights baseline. The International Law Association’s 2020 Guidelines likewise affirm duties of rational, sustainable and safe resource management with particular regard for indigenous rights, and embed transparency, public participation, access to information and justice, and benefit‑sharing.

The ICJ’s 2025 Climate Advisory Opinion closes remaining gaps by integrating fields that once were siloed. The Court confirmed that environmental treaties, the customary no‑harm rule and duty to cooperate, and international human rights obligations operate cumulatively. It articulated a stringent due‑diligence standard, required impact assessments for activities posing significant environmental risks, recognised the right to a clean, healthy and sustainable environment, and characterised key obligations as erga omnes (for an accessible synthesis of the Advisory Opinion, see here). Applied to Greenland, a sovereignty enclave that removes areas from Danish/Greenlandic jurisdiction would impede the host’s ability to carry out due‑diligence controls, run cumulative EIA/ESIA processes with public participation, and secure the clarified human‑rights baseline – problems that do not arise when access is organised under host‑state sovereignty through normal international treaties for stationing of foreign militaries and their bases. This is exacerbated by US law, which does not treat sovereign bases such as Guantanamo as US territory, i.e. neither US domestic nor international law would fully apply.

Rather than starting a resource “race to the Arctic”, States should embrace the spirit of the Arctic Council.¹⁾ While most Arctic Council outputs are non-binding recommendations, Member States could potentially conclude a new binding instrument associated with the Council focused on de-militarization. Such an agreement could limit military use of the Arctic Ocean in the spirit of the BBNJ agreement, similar to how the Antarctic Treaty operates. Indigenous representatives on the Arctic Council participate fully in its drafting.²⁾ It feels deeply disturbing that one of the countries that has withdrawn from the constitution of climate change in the form of the Paris Agreement would use the warming of the Arctic Ocean as an excuse to lay sovereignty claims on Greenland.

In twenty-first-century international law, carving out a sovereign enclave, “forever” as President Trump called it, constitutes multiple breaches of international law. Any move towards US sovereign enclaves in Greenland would contravene the UN Charter and ius cogens norms, the right of self-determination, and the rights of indigenous peoples; it would undermine Denmark’s and Greenland’s ability to discharge binding environmental and human‑rights duties, and it would depart from prevailing practice for military bases. It should be ruled out.

The post Why US Sovereign Bases in Greenland Would Violate International Law appeared first on Verfassungsblog.

Within the recurring use of the two-step test in EU criminal judicial cooperation (and possibly soon in its civil counterpart), Advocate General (“AG”) Richard de la Tour’s Opinion, delivered on 22 January 2026, suggests a new role for the test: ensuring that the execution of a European Arrest Warrant (“EAW”) safeguards the proportionality principle under Article 49(3) of the EU Charter of Fundamental Rights (“CFR”). While this development strengthens exceptions to mutual trust, it also exposes the test’s limits in addressing proportionality breaches, revealing an uneven protection of fundamental rights.

Facts of the case and Opinion of the Advocate General

In 2024, a Romanian court (“issuing court”) issued an EAW against the defendant convicted of importing small quantities of cannabis and MDMA. For this offence, Romanian law prescribes a minimum sentence of seven years’ imprisonment, which the EAW sought to enforce. Although the drugs were for personal use and no trafficking intent was found, the sentence was not reduced since it already corresponded to the statutory minimum. The defendant opposed his surrender, arguing that the sentence was disproportionate under Article 49(3) CFR. The Dutch court (“executing court”) receiving the EAW stayed the proceedings and asked the European Court of Justice (“ECJ” or “Court”) whether Article 1(3) of the Framework Decision on the EAW (“FDEAW”) required it to assess if surrender would expose the defendant to a disproportionate sentence under Article 49(3) CFR, what test applies, and whether mandatory minimums or assurances from Romania could remove the risk.

The AG analysed these questions together. He held that an EAW cannot be refused solely because of sentence disproportionality, since the FDEAW provides no such refusal ground (para. 33), and ECJ case law places primary responsibility for proportionality on the issuing court (paras. 34-37). Allowing executing courts to review proportionality would risk turning them into appellate bodies or paralysing the EAW system (paras. 42-47). However, surrender may be exceptionally refused where there is a serious risk of a manifestly disproportionate sentence (para. 48). To determine this, the AG proposed resorting to the two-step test (para. 56), a judicially administered framework developed by the Court in 2016 to protect individuals against inhuman and degrading treatment under Article 4 CFR, and which has since been applied to other fundamental rights.

In the case of proportionality under Article 49(3) CFR, the executing court must first assess whether the issuing Member State’s legal system systematically prevents courts from individualising sentences based on the offence and personal circumstances – a concern largely excluded where judicial individualisation rules and appeal mechanisms exist (paras. 71-73). Second, if deficiencies are found, the executing court must assess whether they create a real risk of a fundamental rights breach (para. 59). A breach arises only where the sentence clearly exceeds what is necessary to punish the offence (para. 75). Disproportionality cannot be inferred from differences between national sentencing levels alone, as Article 49(3) CFR establishes an autonomous EU law standard (para. 76), nor does it require conditions severe enough to breach Article 4 CFR (para. 78).

Applying the test, the AG found no systemic deficiency, as the issuing court could individualise sentences (paras. 79-83). Since the court was legally able (but chose not) to reduce the sentence below its statutory minimum imposed by Romanian law, any alleged disproportionality concerned the court’s discretionary judgment and could be challenged by domestic appeal (para. 84).

An eternal struggle

This Opinion showcases the enduring tension between the goal of swift judicial cooperation, and the requirement to comply with fundamental rights. The two-step test has now become the standard mechanism for assessing whether execution of an EAW (but also other instruments, see here and here) should be refused due to a serious risk of a fundamental rights’ breach. Its origins relate to the limited refusal grounds listed in the FDEAW which, in turn, reflect the instrument’s core purpose: ensuring fast extradition procedures based on mutual trust between Member States’ legal systems (recital 5). However, mutual trust cannot override fundamental rights obligations – an issue the EAW is silent on when it comes to non-execution.

To address this gap, with its landmark Aranyosi e Căldăraru judgment, the ECJ interpreted the obligation to respect fundamental rights under Article 1(3) FDEAW as a refusal ground. This obligation has been enforced through a two-step test where the executing court must identify systemic or generalised deficiencies in the issuing Member State’s protection of a particular right and, if found, assess whether they expose the individual to a real risk of a breach. Initially applied to detention conditions under Article 4 CFR, the test has since encompassed other rights, including the right to a fair trial under Article 47 CFR (see here), and the right to private and family life and the rights of the child under Articles 7 and 24 CFR (see here). According to the AG, the same reasoning applies to proportionality under Article 49(3) CFR.

The test’s angles morts

Despite the benefit of extending the test’s application to another fundamental right, its current formulation may still fail to capture evident violations of proportionality. The AG held that, for the first step to be satisfied, the issuing court must not retain the possibility to individualise the sentence. Otherwise, that discretion alone, even if limited, excludes finding systemic deficiencies (para. 74). It does not matter that, in practice, this individualisation cannot take place because the sentence was already reduced to its minimum (just seven years of detention: the defendant should consider himself lucky, because the minimum penalty has now been increased to ten years). Of course, the AG notes that the FDEAW cannot harmonise national criminal laws (para. 47), therefore proportionality and mutual trust must be balanced cautiously. Nonetheless, as currently defined, the first step fails to address evident breaches of Article 49(3) CFR. For instance, if the minimum sentence for a minor offence were increased to twenty, thirty or forty years, the inability to depart below that would still not appear as systemic deficiency under this approach. The AG acknowledges that executing courts may consider whether a foreign sentence “clearly exceeds what is necessary to punish an offence” (para. 75). However, this only forms part of the second step, which cannot be reached unless the first is satisfied.

Two safeguards emerge from the Opinion against disproportionate sentencing: EU-level harmonisation of substantive criminal law, and the availability of appellate review in the issuing Member State. Yet, neither convincingly remedies the problem. Minimal harmonisation typically allows Member States to adopt stricter national standards, and anyway EU law does not harmonise penalties for personal drug use. Similarly, while the AG treats the existence of an appellate mechanism as a fortiori evidence that sentences can be individualised, this assumption ignores that courts might refuse to deviate from legislative rules, as in this case. In a judicial system where, as the executing court itself observes, questions on the EAW execution could have also been framed from the perspective of the issuing court’s independence vis-à-vis the legislature (see the preliminary ruling request itself on point 2.2.7), the mere availability of appeals does not appear as a persuasive guarantee of sentence individualisation.

From a fundamental rights perspective, this outcome raises concerns. Although sentencing certainly remains a national matter in the absence of EU law harmonisation, once it acquires an EU dimension through judicial cooperation instruments, it should comply with EU law protections. However, the current framework could enable Member States to impose penalties that potentially breach Article 49(3) CFR without activating the protection granted by the two-step test.

One test, many applications

Scholars have long questioned the practicality of the two-step test (see here), warning that it may even encourage Member States to weaken their fundamental rights protections (see here). Although the Court frequently resorts to the test as a safety valve against all fundamental rights breaches, this Opinion highlights a newly emerging symptom affecting its functioning.

The application of the two-step test under Article 4 CFR requires an executing court to determine the existence of (i) systemic or generalised deficiencies in detention conditions in the issuing Member State that could expose detainees to inhuman or degrading treatment and, if so (ii) a real risk of such treatment for the individual. While the issuing court is under an obligation to provide this evidence, and it might even be incentivised to do so to avoid responsibility for additional detainees, it is complex for an executing court to perform this analysis. In the E.D.L. judgment, the ECJ dispensed with the first step and moved directly to the individual assessment given the person’s particular health needs. For an absolute right such as Article 4 CFR, the Court has thus recognised exceptions to the otherwise mandatory first step, a necessity also acknowledged by the AG (paras. 61-64). Under Article 47 CFR, the two-step test requires the executing court to determine the existence of (i) systemic or generalised deficiencies affecting the independence of the judiciary in the issuing Member State and, if so (ii) a real risk of a fair-trial breach for the individual. While demanding, the test enables executing courts to consider the entirety of the operation of the issuing Member State’s justice system. Its rigour perhaps reflects the close link between Article 47 CFR and the value of the rule of law under Article 2 TEU, which is increasingly protected by the ECJ.

For Articles 7 and 24 CFR, the two-step test becomes more restrictive. The executing court must determine the existence of (i) systemic or generalised deficiencies in the issuing Member State affecting an identifiable group (such as detained mothers or children with disabilities) that may breach Articles 7 or 24 CFR and, if so (ii) a real risk of such a breach for the individual concerned or their children. This narrows the test’s scope and sits uneasily with situations involving highly individualised vulnerabilities, such as specific health conditions or caregiving needs. Therefore, for rights that are neither absolute nor tied to Article 2 TEU values, no relaxation of the test applies – if anything, it suffers from more constraints. Finally, for Article 49(3) CFR the two-step test appears least effective in protecting fundamental rights as, apart from the regular difficulties, its analysis even excludes key factors (such as the sentence’s minimum duration). Beyond not qualifying as an absolute right, Article 49(3) CFR touches on criminal policy, a domain in which the EU holds only shared competence and where interference is seen as highly intrusive, likely explaining the caution exercised by the AG.

Altogether, this results in divergent applications of the two-step test depending on the right invoked, increasingly narrowing the executing court’s discretion in its assessment. While distinctions between absolute and non-absolute rights may be justified, the more thorough application of the two-step test under Article 47 CFR compared to Articles 7, 24, and 49(3) CFR – all non-absolute rights – suggests the existence of an implicit hierarchy. Moreover, as already pointed out here, the test’s application could interfere with the obligations stemming from the European Convention of Human Rights, which do not admit subjecting an individualised assessment to a more generalised one (see here). The narrow application of the two-step test under Article 49(3) CFR is also somewhat paradoxical, given the executing court’s doubts on whether to approach fundamental rights protection from the perspective of sentence proportionality or judicial independence. Had the court formulated its referral differently, the Opinion might have provided different content to the test (perhaps offering a more robust scrutiny of proportionality), despite the same facts.

Conclusion

The AG’s Opinion highlights two core issues. First, the current formulation of the two-step test may prove insufficient to capture even clear breaches of proportionality under Article 49(3) CFR. Second, the test’s protective strength seems to vary depending on the fundamental right at stake, which might decrease legal certainty and risk arbitrary prioritisations. With the matter now before the ECJ, the Court will have an opportunity to uphold or redefine the balance between national sentencing discretion and the protection of Article 49(3) CFR – ideally reaffirming that the implementation of EU law must adhere to EU-mandated standards of fundamental rights protection.

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