CJEU Case C-406/18 / Opinion

PG v Bevándorlási és Menekültügyi Hivatal.
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
05/12/2019
ECLI (European case law identifier)
ECLI:EU:C:2019:1055
  • CJEU Case C-406/18 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Common procedures for granting international protection — Directive 2013/32/EU — Article 46(3) — Full and ex nunc examination — Article 47 of the Charter of Fundamental Rights of the European Union — Right to an effective remedy — Powers and obligations of the first-instance court or tribunal — No power to vary the decisions of the authorities competent in the area of international protection — National legislation providing for an obligation to adjudicate within a time limit of 60 days.

    Outcome of the case:

    In the light of the considerations above, I suggest that the Court reply to the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) as follows:

    1. Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union and the right to an effective remedy enshrined therein, is to be interpreted as not precluding national legislation that does not provide the courts with the power to vary administrative decisions adopted in matters of international protection. However, the need to ensure that Article 46(3) of that directive has a practical effect and to ensure an effective remedy in accordance with Article 47 of the Charter requires that, in the event that the file is referred back to the competent administrative body, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision. Moreover, where a national court has found — after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection — that, under the criteria laid down by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, the applicant concerned must be granted such protection on the ground that he relied on in support of his application, but after which the administrative body adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court must vary that decision which does not comply with its previous judgment and substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way.
    2. Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, is to be interpreted as meaning that whether the time limit for the review laid down by the national legislation is adequate in the case pending before the national court is a matter for the national court to assess, having regard to its obligation to carry out a full and ex nunc examination, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95, while guaranteeing the applicant’s rights as defined, in particular, in Directive 2013/32. If the national court considers that those rights cannot be guaranteed, in the light of the specific circumstances of the case or the overall conditions under which that court has to carry out its tasks, such as a particularly high number of applications being lodged simultaneously, that court must disapply the applicable time limit as necessary and complete the examination as swiftly as possible after that time limit has expired.
  • Paragraphs referring to EU Charter

    14) In those circumstances, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) suspended the proceedings and referred the following questions to the Court:

    ‘(1) Can Article 47 of the Charter of Fundamental Rights [of the European Union] and Article 31 of [Directive 2013/32] be interpreted, in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that it is possible for effective judicial protection to be guaranteed in a Member State even if its courts cannot amend decisions given in asylum procedures but may only annul them and order that a new procedure be conducted?

    (2) Can Article 47 of the Charter of Fundamental Rights [of the European Union] and Article 31 of [Directive 2013/32] be interpreted, again in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?’

    ...

    18) By its first question, the referring court wishes to know, in essence, whether its lack of power to vary a decision adopted by an administrative body in an international protection procedure is compatible with the right to an effective remedy before a court or tribunal, provided for in Article 46(3) of Directive 2013/32, ( 4 ) read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). ( 5 )

    ...

    20) That provision states, at the level of secondary law, the type of review that must be carried out when a decision falling within the scope of Directive 2013/32 is challenged before a court. Naturally, the interpretation and implementation of that provision must comply with the right to an effective judicial remedy set out in Article 47 of the Charter. ( 6 )

    ...

    25) Therefore, when the court annuls a decision of an administrative body, based on an exhaustive and up-to-date examination of all the relevant elements of law and fact, and refers the case back to the administrative body for a new decision, that body no longer has a discretionary power as to the decision to grant or refuse the protection sought. Otherwise, as held by the Court, Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, as well as Articles 13 and 18 of Directive 2011/95, would be deprived of all practical effect. ( 11 )

    ...

    30) Third, the wording of the first preliminary question and the reasoning provided in the order for reference are relatively brief and abstract. They do not set out any further considerations beyond a general enquiry whether the right to an effective remedy under Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, allows for the model of judicial protection defined in Article 68(5) of the Law on the right to asylum.

    ...

    35) My first interim conclusion is therefore that Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter and the right to an effective remedy enshrined therein, must be interpreted as not precluding national legislation that does not provide the courts with the power to vary administrative decisions adopted in matters of international protection. However, in order to give practical effect to Article 46(3) of that directive and to guarantee the right to an effective remedy in accordance with Article 47 of the Charter, in the event that the file is referred back to the competent administrative body, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision. Moreover, where a national court has found — after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection — that, under the criteria laid down by Directive 2011/95 the applicant concerned must be granted such protection on the ground that he or she relied on in support of his or her application, but after which the administrative body adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court must vary that decision which does not comply with its previous judgment and substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way.

    ...

    36) By the second question, the referring court asks in substance whether Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, ( 15 ) precludes legislation laying down a single mandatory time limit of 60 days for a court to complete its review of an administrative decision in the area of international protection, irrespective of any individual circumstances and without regard to the particular features of the case.

    ...

    60) In addition to the concrete guarantees in this regard contained in the Charter (where different rights might be relevant depending on the specific configuration of each case), the required standard of review and specific procedural rights are also set out in secondary law, in particular in Directive 2013/32.

    ...

    64) The referring court does not mention whether any of those procedural rights or other rights guaranteed under EU law (and particularly by the Charter) have been infringed because of the time limit that the legislation prescribes for review.

    ...

    70) My second interim conclusion is therefore that Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, is to be interpreted as meaning that the adequacy of the time limit for review laid down by the national legislation in the case pending before the national court is a matter for the national court to assess, having regard to its obligation to carry out a full and ex nunc review, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95, while guaranteeing the applicant’s rights as defined, in particular, in Directive 2013/32. If the national court considers that those rights cannot be guaranteed, in the light of the specific circumstances of the case or in the light of the overall conditions under which that court has to carry out its tasks, such as a particularly high number of applications being lodged simultaneously, that court must disapply the applicable time limit and complete the examination as swiftly as possible after that time limit has expired.

    ...

    82) In the light of the considerations above, I suggest that the Court reply to the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) as follows:

    1. Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union and the right to an effective remedy enshrined therein, is to be interpreted as not precluding national legislation that does not provide the courts with the power to vary administrative decisions adopted in matters of international protection. However, the need to ensure that Article 46(3) of that directive has a practical effect and to ensure an effective remedy in accordance with Article 47 of the Charter requires that, in the event that the file is referred back to the competent administrative body, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision. Moreover, where a national court has found — after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection — that, under the criteria laid down by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, the applicant concerned must be granted such protection on the ground that he relied on in support of his application, but after which the administrative body adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court must vary that decision which does not comply with its previous judgment and substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way.
    2. Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, is to be interpreted as meaning that whether the time limit for the review laid down by the national legislation is adequate in the case pending before the national court is a matter for the national court to assess, having regard to its obligation to carry out a full and ex nunc examination, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95, while guaranteeing the applicant’s rights as defined, in particular, in Directive 2013/32. If the national court considers that those rights cannot be guaranteed, in the light of the specific circumstances of the case or the overall conditions under which that court has to carry out its tasks, such as a particularly high number of applications being lodged simultaneously, that court must disapply the applicable time limit as necessary and complete the examination as swiftly as possible after that time limit has expired.