Key facts of the case:
Reference for a preliminary ruling: Supreme Court - Ireland.
Directive 2004/83/EC - Minimum standards for granting refugee status or subsidiary protection status - Directive 2005/85/EC - Minimum standards on procedures in Member States for granting or withdrawing refugee status - National procedural rule under which an application for subsidiary protection may be considered only after an application for refugee status has been refused - Lawfulness - Procedural autonomy of the Member States - Principle of effectiveness - Right to good administration - Charter of Fundamental Rights of the European Union - Article 41 - Impartiality and expeditiousness of the procedure.
Outcome of the case:
In the light of the above considerations, I propose that the Court answer the question asked by the Supreme Court as follows:
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, read in the light of, on the one hand, the rules and procedural safeguards laid down in Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and, on the other, the principle of good administration, must be interpreted as not precluding a national procedural rule that makes the consideration of an application for subsidiary protection subject to the prior refusal of an application for refugee status.
2) Specifically, the Supreme Court (Ireland) asks the Court whether a national procedural rule that makes the consideration of an application for subsidiary protection subject to the prior refusal of an application for refugee status satisfies the requirements of Directive 2004/83/EC ( 4 ) and, in particular, the principle of good administration laid down in Article 41 of the Charter of Fundamental Rights of the European Union. ( 5 )
9) In so far as that national procedural rule raises concerns relating to the effectiveness, impartiality and length of the procedure, the Supreme Court has decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Does ... Directive 2004/83 ..., interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided by Article 41 of the Charter ..., permit a Member State to provide in its law that an application for subsidiary protection status can be considered only if the applicant has applied for and been refused refugee status in accordance with national law?’
23) I would point out that, by its question, the referring court in essence asks the Court whether a national procedural rule making the consideration of an application for subsidiary protection subject to the prior refusal of an application for refugee status satisfies the requirements of Directive 2004/83 and, in particular, the principle of good administration laid down in Article 41 of the Charter.
26) First, the question asked by the national court requires consideration to be given to rules of law other than those expressly mentioned by the Supreme Court in its order for reference. ( 11 ) While the Supreme Court focuses its question on the rights conferred on an applicant for asylum by Directive 2004/83 and by Article 41 of the Charter, I take the view that mention must also be made of the rules on procedures for granting international protection laid down in Directive 2005/85/EC. ( 12 )
36) Furthermore, the Member States are required to ensure observance of fundamental rights and the general principles of Union law when they adopt decisions falling within the ambit of EU law. That is the case with decisions relating to the examination of an application for subsidiary protection. ( 18 ) There is therefore no doubt that the Irish authorities must ensure respect for the right to good administration enjoyed by the persons concerned, not only because that right constitutes a general principle of EU law, ( 19 ) but also because it is a fundamental right affirmed in Article 41 of the Charter. Although the wording of Article 41(1) of the Charter refers to relations between individuals and the ‘institutions, bodies and agencies of the Union’, ( 20 ) I think that the right to good administration is incumbent in the same way on the Member States when they are implementing EU law. ( 21 )
63) In accordance with Article 41(1) of the Charter, the right to good administration requires ‘the right to have his or her affairs handled impartially, fairly and within a reasonable time’. Under Article 41(2) of the Charter, this right ‘includes’ the right of every person to be heard before any individual measure which would affect him or her adversely is taken, ( 39 ) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions. As the Court found in M., that provision is, by its wording, of general application. ( 40 )
79) In the light of those considerations, I take the view that, in so far as the procedural rule in question requires a prior examination of the application for international protection by the yardstick of the conditions for qualifying for refugee status, it observes the principle of good administration as laid down in Article 41 of the Charter.