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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
Decision date:

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.