CJEU Case C-50/24 / Opinion

X and Others v Commissaire général aux réfugiés et aux apatrides (Danané)
Deciding body type
Court of Justice of the European Union
Deciding body
Opinion of Advocate General Emiliou
Type
Opinion
Decision date
26/06/2025
ECLI (European case law identifier)
ECLI:EU:C:2025:493

Title VI: Justice

Article 47 - Right to an effective remedy and to a fair trial

VIEW FULL CASE
  • CJEU Case C-50/24 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling – Border controls, asylum and immigration – Procedures for granting international protection – Border procedures – Directive 2013/32/EU – Article 43 – Place of detention during a border procedure – Detention ensuing after the four-week limitation period for border procedures – Priority examination of an application for international protection – Continuation of the border procedure as an ordinary procedure – Ex officio powers of the national court

    Outcome of the case:

    Having regard to all the foregoing considerations, I propose that the Court answer the questions referred by the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium) as follows:

    1. Article 43 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 (‘the Procedures Directive’)

      does not preclude the examination, under a border procedure, of an application for international protection made at the border or in a transit zone when the applicant is detained in a facility that is geographically inland.

    2. The examination of an application for international protection does not fall within the scope of Article 43 of the Procedures Directive after the expiry of the four-week time limit laid down in that provision, irrespective of the applicant’s potential continued detention and the legal classification, whether at the border or in the territory, of the place of that detention.

       

    3. Article 43 of the Procedures Directive

      must be interpreted as allowing a determining authority to continue the examination of an application for international protection, initiated under the border procedure, after the four-week time limit laid down in that provision, as a matter of priority and to rely on investigative steps taken under that procedure, in circumstances such as the ones at issue in the present cases, provided that the basic principles and guarantees set out in Chapter II of the Procedures Directive are respected, as applicable throughout each stage of the process.

    4. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, and the Procedures Directive,

      do not preclude a practice such as that at issue in the main proceedings – essentially consisting in maintaining in detention, beyond a four-week period, an applicant whose application was initially subject to the border procedure, in what is physically the same location, on the basis of a different ground for detention – provided that any measure of detention has been duly adopted on the basis of an individualised assessment of necessity and proportionality and is maintained only for as long as the relevant ground of detention continues to apply.

    5. Article 46(3) of the Procedures Directive, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,

      must be interpreted as meaning that, where an action is brought before a national court against a decision rejecting an application for international protection, which was initially examined under an Article 43 border procedure, that court must, as part of its full and ex nunc review, examine, of its own motion and on the basis of the information brought to its attention during the proceedings before it, a failure to adopt a decision within the four-week time limit laid down in Article 43(2) of the Procedures Directive.

  • Paragraphs referring to EU Charter

    77. Since the question’s reference to ‘such an application of national legislation’ is rather vague, I can only understand it as encompassing the entire sequence of steps followed by the Belgian authorities, as they have applied it in all seven cases at issue, with a particular emphasis on the detention of the applicants. The reference to the general objective of the Procedures Directive also appears unclear in this context, considering that the main objective of that directive, as stated in recital 12 thereof, is ‘to further develop the standards for procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the Union’. The referring court may, rather, be understood as referring to the directive’s further aim, as set out in recital 60 thereof, which is ‘to ensure full respect for human dignity and to promote the application of [certain fundamental rights under] the Charter’, including notably the respect for human dignity, the prohibition of torture and inhuman or degrading treatment and the right to asylum.

    ...

    86. By its fifth and final question, the referring court asks, in essence, whether, Article 31(7), Article 31(8) and Articles 43 and 46 of the Procedures Directive, in conjunction with Article 47 of the Charter, must be interpreted as meaning that, when hearing an action against a decision taken in a procedure initiated at the border, it must raise of its own motion the failure to adopt that decision with the four-week time limit laid down in Article 43(2) of the Procedures Directive. ( 49 ) It appears from the case file that this question is only relevant with respect to the applicants in two of the seven cases who do not appear to have raised such an admissible plea before the referring court. ( 50 )

    ...

    90. Notwithstanding the foregoing, the Court has also observed that Article 46(3) of the Procedures Directive, read in the light of Article 47 of the Charter, which guarantees applicants the right to an effective remedy, requires that a national court, before which a decision relating to an application for international protection is contested, is required to carry out ‘a full and ex nunc examination of both facts and points of law’. The Court has held that such a full and ex nunc examination must include an ex officio review of certain procedural aspects – to the extent that they have been brought to the attention of the national court – which are liable to have an impact on the examination procedure applied to such applications. ( 53 )

    ...

    92. Consequently, if the Court decides to answer the fifth question, I would propose that it provide an answer to the effect that Article 46(3) of the Procedures Directive, read in the light of Article 47 of the Charter, must be interpreted as meaning that, where an action is brought before a national court against a decision rejecting an application for international protection, which was initially examined under an Article 43 border procedure, that court must, as part of its full and ex nunc review, examine, of its own motion, on the basis of the information brought to its attention during the proceedings before it, a failure to adopt a decision within the four-week time limit laid down in Article 43(2) of the Procedures Directive.

  • Paragraphs referring to EU Charter (original language)