CJEU Case C-556/17/ Judgment

lekszij Torubarov v Bevándorlási és Menekültügyi Hivatal
Policy area
Justice, freedom and security
Asylum and migration
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Grand Chamber)
Type
Opinion
Decision date
06/11/2019
ECLI (European case law identifier)
ECLI:EU:C:2019:626
  • CJEU Case C-556/17/ Judgment

    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 — Extent of the powers of the first-instance court or tribunal — No power to vary — Refusal by the competent administrative or quasi-judicial body to comply with a decision of that court or tribunal.

    Outcome of the case:

    On those grounds, the Court (Grand Chamber) hereby rules:

    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 conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances, such as those at issue in the main proceedings, where a first-instance court or tribunal 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, that applicant 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 or quasi-judicial 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 or tribunal 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.

  • Paragraphs referring to EU Charter

    1) The request for a preliminary ruling concerns the interpretation of 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 (OJ 2013 L 180, p. 60), read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

    ...

    11 Recitals 18, 50 and 60 of Directive 2013/32 are worded as follows:

    ‘(18) It is in the interests of both Member States and applicants for international protection that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out.

    (50) It reflects a basic principle of Union law that the decisions taken on an application for international protection … are subject to an effective remedy before a court or tribunal. 

    (60) This Directive respects the fundamental rights and observes the principles recognised by the Charter. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 18, 19, 21, 23, 24, and 47 of the Charter and has to be implemented accordingly.’

    ...

    36) In such a situation, the referring court considers that Hungarian law does not guarantee the right to an effective remedy enshrined in Article 46(3) of Directive 2013/32 and Article 47 of the Charter. It asks, therefore, whether those provisions of EU law allow it to vary a decision such as the decision at issue through the disapplication of the national legislation that denies it that power.

    37) In those circumstances, the Pécsi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Pécs) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 46(3) of [Directive 2013/32], in conjunction with Article 47 of [the Charter], to be interpreted as meaning that the Hungarian courts have the power to vary administrative decisions of the competent asylum authority refusing international protection, and also to grant such protection?’

    ...

    38) By its question the referring court asks, in essence, whether Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as conferring, in circumstances such as those in the main proceedings, on a first-instance court seised of an appeal against a decision rejecting an application for international protection, the power to vary that administrative decision and to substitute its own decision for that of the original administrative body that adopted it.

    ...

    55) While Directive 2013/32 affords Member States some discretion inter alia in the determination of rules for thus dealing with an application for international protection where the original decision of such a body is annulled by a court or tribunal, it is important however to note, in the first place, that notwithstanding that discretion Member States are required, when implementing that directive, to comply with Article 47 of the Charter which enshrines the right to an effective remedy before a tribunal for everyone whose rights and freedoms guaranteed by EU law are infringed (see, to that effect, judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 30 and the case-law cited). The characteristics of the remedy provided for in Article 46 of Directive 2013/32 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 (see, to that effect, judgments of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 31, and of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 114).

    56) In the second place, it should be recalled that Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78). In view, in particular, of the matters recalled in the preceding paragraph, the same must hold true for Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter.

    ...

    59) Consequently, even though the purpose of Directive 2013/32 is not to render uniform, in a specific and exhaustive manner, the procedural rules that must be applied within Member States where the power to adopt a new decision on an application for international protection after the annulment of the original decision rejecting such an application, it nevertheless follows from its purpose of ensuring the fastest possible processing of applications of that nature, from the obligation to ensure that Article 46(3) is effective, and from the need, arising from Article 47 of the Charter, to ensure an effective remedy, that each Member State bound by that directive must order its national law in such a way that, following annulment of the initial decision and in the event of the file being referred back to the quasi-judicial or administrative body, a new decision is adopted within a short period of time and that it complies with the assessment contained in the judgment annulling the initial decision (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 148).

    ...

    61) In that regard, it must be observed, first of all, that the text of Article 109(4) of the Law on administrative procedure appears, subject to verification by the referring court, to satisfy the obligation on the part of Member States pursuant to Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, and recalled in paragraph 59 above, of guaranteeing that, following the annulment of a decision on an application for international protection and in the event of the referral of the case file back to the administrative body that had adopted it, the new decision of that body is to comply with the determination contained in the judgment declaring the annulment.

    ...

    66) It follows from the foregoing, as the Advocate General observed in essence in points 102 to 105, 107 and 108 of his Opinion, that where a court or tribunal rules exhaustively on an appeal by an applicant for international protection and makes, on that occasion, an up-to-date examination of the ‘international protection needs’ of that applicant on the basis of all the relevant elements of fact and law, following which it reaches the conclusion that the applicant must be granted the status of refugee or person eligible for subsidiary protection status, in accordance with the criteria laid down in Directive 2011/95, for the reasons that he or she relies on in support of his or her application and that court or tribunal annuls the decision of the administrative or quasi-judicial body rejecting that application and refers the case file back to that body, the latter is, subject to matters of fact or law arising that objectively require a new up-to-date assessment, bound by the decision of that court or tribunal and the grounds that support it. Therefore, in the context of such a referral back, that body no longer has a discretionary power as to the decision to grant or refuse the protection sought in the light of the same grounds as those that were submitted to that court or tribunal, otherwise 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 their practical effect.

    ...

    69) In that regard, as is clear from paragraphs 54 and 59 above, while Article 46(3) of Directive 2013/32 does not require Member States to confer the power referred to in paragraph 67 above on courts or tribunals with jurisdiction to hear appeals covered by that provision, it remains the case that Member States are required to ensure, in each case, that the right to an effective remedy enshrined in Article 47 of the Charter is complied with (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 65 and the case-law cited).

    ...

    72) A national law that results in such a situation in practice deprives the applicant for international protection of an effective remedy, within the meaning of Article 46(3) of Directive 2013/32, and fails to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter, since the judgment of a court, delivered after an assessment complying with the requirements of Article 46(3) and following which that court decided that the applicant satisfied the conditions laid down by Directive 2011/95 to be granted the status of refugee or person eligible for subsidiary protection, remains ineffective, for lack of any remedy whatsoever by means of which that court may ensure compliance with its judgment.

    73) In such circumstances, any provision of a national legal system and any legislative, administrative or judicial practice that might impair the effectiveness of EU law by withholding from the national court with jurisdiction to apply that law the power to do everything necessary at the moment of its application to set aside national legislative provisions that might prevent EU rules which have direct effect, such as Article 46(3) of Directive 2013/32 read in conjunction with Article 47 of the Charter, from having full force and effect are incompatible with those requirements, which are the very essence of EU law (see, to that effect, judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraph 22, and of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 52 to 62).

    74) Therefore, in order to guarantee that an applicant for international protection has an effective judicial remedy within the meaning of Article 47 of the Charter, and in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU, a national court or tribunal seised of an appeal is required to vary a decision of the administrative or quasi-judicial body, in the present case the Immigration Office, that does not comply with its previous judgment and to substitute is own decision on the application by the person concerned for international protection by disapplying, if necessary, the national law that prohibits it from proceeding in that way (see, by analogy, judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraph 62).

    75) Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted in that way in the first place because, as is clear from paragraph 50 of this judgment, where an applicant for international protection fulfils the conditions laid down by Directive 2011/95 to qualify for the status of refugee or person eligible for subsidiary protection, Member States are required to grant the person that status and do not have any discretion in that regard, it being possible for, inter alia, a judicial body to grant that status, according to the wording of Article 14(1) and (4), and Article 19(1) and (2) of that directive.

    ...

    77) Consequently, it is necessary, in the present case, to find that, where, as it appears from the indications given in the order for reference, the referring court in fact conducted, in its judgment of 25 February 2017, a full and ex nunc examination of the ‘international protection needs’ of Mr Torubarov in accordance with Directive 2011/95 in view of all the relevant elements of fact and law, following which the court held that such protection must be granted to him, but that judgment has not been complied with by the Immigration Office, without it being established in the decision at issue, in that respect, that new elements had arisen which required a new assessment, which it is for the national court to verify, that court must, pursuant to Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, vary the decision at issue that does not comply with its previous judgment, and substitute its own decision as to the international protection that Mr Torubarov must benefit from under Directive 2011/95, while disapplying the national law prohibiting it from proceeding in that way (see, by analogy, judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 79, and of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 66).

    78) It follows from all the foregoing considerations that Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that, in circumstances, such as those at issue in the main proceedings, where a first-instance court or tribunal 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, that applicant 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 or quasi-judicial 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 or tribunal 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.

    ...

    79) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. 

    On those grounds, the Court (Grand Chamber) hereby rules: 

    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 conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances, such as those at issue in the main proceedings, where a first-instance court or tribunal 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, that applicant 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 or quasi-judicial 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 or tribunal 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.