Article 19 - Protection in the event of removal, expulsion or extradition
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Request for a preliminary ruling under Article 267 TFEU from the Tribunal du travail de Liège (Belgium), made by decision of 7 May 2014, received at the Court on 14 May 2014, in the proceedings Abdoulaye Amadou Tall v Centre public d’action sociale de Huy.
1. This request for a preliminary ruling concerns the interpretation of Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13; corrigendum OJ 2006 L 236, p. 36) and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
Results (sanctions) and key consequences of the case:
...the Court (Fourth Chamber) hereby rules:
Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which does not confer suspensory effect on an appeal brought against a decision, such as the one at issue in the main proceedings, not to further examine a subsequent application for asylum.
51. Accordingly, the characteristics of the remedy provided for in Article 39 of that directive must be determined in a manner that is consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection and provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article (see, by analogy, judgment in Abdida, C‑562/13, EU:C:2014:2453, paragraph 45 and the case-law cited).
52. In that regard, it is apparent from the explanations relating to Article 47 of the Charter that the first subparagraph of that article is based on Article 13 ECHR.
53. It should also be noted that Article 19(2) of the Charter states, inter alia, that no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment.
54. It is apparent from the case-law of the European Court of Human Rights, which must be taken into account, pursuant to Article 52(3) of the Charter, in order to interpret Article 19(2) thereof, that, when a State decides to return a foreign national to a country where there are substantial grounds for believing that he will be exposed to a real risk of ill-treatment contrary to Article 3 ECHR, the right to an effective remedy provided for in Article 13 ECHR requires that a remedy enabling suspension of enforcement of the measure authorising removal should, ipso jure, be available to that foreign national (see, inter alia, judgments of the European Court of Human Rights in Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 67, ECHR 2007-II, and Hirsi Jamaa and Others v. Italy, no. 27765/09, § 200, ECHR 2012-II).
55. However, it should be noted that, in the present case, the dispute in the main proceedings concerns only the lawfulness of a decision not to further examine a subsequent application for asylum for the purposes of Article 32 of Directive 2005/85.
56. The lack of suspensory effect of an appeal brought against such a decision is, in principle, compatible with Articles 19(2) and 47 of the Charter. Although such a decision does not allow a third-country national to receive international protection, the enforcement of that decision cannot, as such, lead to that national’s removal.
57. By contrast, if, in the context of the examination of an application for asylum which pre-dates or post-dates a decision such as the one at issue in the main proceedings, a Member State adopts a return decision against the third-country national concerned pursuant to Article 6 of Directive 2008/115, that national must be able to exercise his right to an effective remedy against that decision in accordance with Article 13 of that directive.
58. In that regard, it follows from the case-law of the Court of Justice that, in any event, an appeal must necessarily have suspensory effect when it is brought against a return decision whose enforcement may expose the third-country national concerned to a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, thereby ensuring that the requirements of Articles 19(2) and 47 of the Charter are met in respect of that third-country national (see, to that effect, judgment in Abdida, C‑562/13, EU:C:2014:2453, paragraphs 52 and 53).
59. It follows that the lack of a suspensory remedy against a decision such as the one at issue in the main proceedings, the enforcement of which is not likely to expose the third-country national concerned to a risk of ill-treatment contrary to Article 3 ECHR, does not constitute a breach of the right to effective judicial protection as provided for in Article 39 of Directive 2005/85, read in the light of Articles 19(2) and 47 of the Charter.
60. Having regard to all of the foregoing, the answer to the question referred is that Article 39 of Directive 2005/85, read in the light of Articles 19(2) and 47 of the Charter, must be interpreted as not precluding national legislation which does not confer suspensory effect on an appeal brought against a decision, such as the one at issue in the main proceedings, not to further examine a subsequent application for asylum.
