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CJEU Case C-556/17/ Opinion

Aleksziij Torubarov 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:
30/04/2019

Introduction

1. Table tennis (or, under a trade name, Ping-Pong) is a popular sport, the origins of which seem to stretch back to 19th or early 20th century England. ‘The object [of the game] is to hit the ball so that it goes over the net and bounces on the opponent’s half of the table in such a way that the opponent cannot reach it or return it correctly.’ To this basic definition, Encyclopædia Britannica adds an intriguing historical fact: ‘the first world championships were held in London in 1926, and from then until 1939 the game was dominated by players from central Europe, the men’s team event being won nine times by Hungary and twice by Czechoslovakia’. (2)

2. There exists, unfortunately, another variety of the game, which is generally less enjoyable. In Czech judicial slang, but perhaps not just there, ‘judicial’ or ‘procedural ping-pong’ refers to the undesirable situation in which a case is repeatedly shuttled back and forth between courts within a judicial structure, or, in the context of administrative justice, between the courts and administrative authorities.

3. The present case and the issues it reveals could warrant the hypothesis that the popularity of the game in central Europe, unfortunately in its latter judicial variety, is not yet confined to history books and encyclopedias.

4. In 2015, the Hungarian legislature changed the competence that courts had when reviewing administrative asylum decisions from having the possibility to directly alter a decision, to the power to merely annul and remit. As a result, national courts cannot replace such decisions when they find them to be unlawful. They can merely annul the decision and refer the case back to the administrative authority for a new decision.

5. Mr A. Torubarov (‘the Applicant’) applied for international protection in Hungary in 2013. His application was rejected by the administrative authority twice. Both of those rejection decisions were annulled, for different reasons, by the referring court. The administrative authority then rejected that application for a third time, apparently in disregard of judicial guidance that had been issued by the referring court in the second judgment annulling the second administrative decision.

6. The referring court is now deciding on the matter for the third time. Faced with the problem of an administrative authority unwilling to abide by a judicial decision, that court wishes to ascertain whether it can derive the power to alter the administrative decision at issue from EU law, and more specifically from Directive 2013/32/EU on common procedures for granting and withdrawing international protection (‘Directive 2013/32’), (3) read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

7. Yes, it can.

Conclusion

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

  • 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, in conjunction with the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, is to be interpreted as meaning that a model of judicial review in matters of international protection in which the courts are endowed with a mere cassational power but in which the judicial guidance they issue in their annulment decisions is effectively being disregarded by the administrative bodies when deciding on the same case again, such as demonstrated in the case in the main proceedings, fails to meet the requirements of effective judicial review set out in Article 46(3) of Directive 2013/32 and interpreted in the light of the first paragraph of Article 47 of the Charter.
  • A national court, deciding in circumstances such as those in the case in the main proceedings, must set aside the national rule limiting its power to the mere annulment of the relevant administrative decision. That obligation arises when the clear assessment contained in a judicial decision annulling a previous administrative decision has been disregarded by the administrative authority deciding the same case anew, without the latter bringing any new elements that it could have reasonably and legitimately brought into consideration, thus depriving the judicial protection provided for under the invoked provisions of any practical effect.