Article 18 - Right to asylum
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling – Common procedures for granting and withdrawing international protection – Directive 2013/32/EU – Article 33(2)(d) and Article 40(2) and (3) – Subsequent application – Conditions for rejecting such an application as inadmissible – Concept of ‘new elements or findings’ – Judgment of the Court on a question of interpretation of EU law – Article 46 – Right to an effective remedy – Jurisdiction of the national court or tribunal to rule on such an application on the merits in the event of illegality of the decision rejecting an application as inadmissible – Procedural safeguards – Article 14(2).
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
1. Article 33(2)(d) and Article 40(2) and (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
must be interpreted as meaning that any judgment of the Court of Justice of the European Union, including a judgment which is limited to interpreting a provision of EU law already in force at the time that a decision on a previous application was adopted, constitutes a new element, within the meaning of those provisions, irrespective of the date on which it was delivered, if it significantly adds to the likelihood of the applicant qualifying as a beneficiary of international protection.
2. Article 46(1)(a)(ii) of Directive 2013/32
must be interpreted as allowing – but not requiring – Member States to authorise their courts or tribunals, where those courts or tribunals annul a decision rejecting a subsequent application as inadmissible, to rule themselves on that application, without having to refer the examination of that application back to the determining authority, provided that those courts comply with the safeguards provided for by the provisions of Chapter II of that directive.
39 That conclusion is explained by the fact that the practical effect of the right recognised to an applicant for international protection, such as is enshrined in Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and given specific expression by Directives 2011/95 and 2013/32, to obtain the status of beneficiary of international protection, provided that the conditions required by EU law are met, would be seriously compromised if a subsequent application could be declared inadmissible on the ground referred to in Article 33(2)(d) of Directive 2013/32, when the rejection of the first application constituted an infringement of EU law. In fact, such an interpretation of that provision would have the consequence that the incorrect application of EU law might be repeated in each further application for international protection without any possibility of providing the applicant with an examination of his or her application that was not vitiated by the infringement of EU law. Such an obstacle to the effective application of the rules of EU law in relation to the procedure for the grant of international protection cannot reasonably be justified by the principle of legal certainty (see, to that effect, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraphs 192, 196 and 197).
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43 After all, an interpretation according to which a judgment of the Court can constitute a new element, within the meaning of Article 33(2)(d) and Article 40(2) and (3) of Directive 2013/32, only on condition that it finds that a provision of national law on the basis of which the decision on the previous application was adopted is incompatible with EU law, would not only compromise the practical effect of the right recognised to an applicant for international protection, enshrined in Article 18 of the Charter and recalled in paragraph 39 of the present judgment, but would also disregard the erga omnes effect of preliminary rulings and the nature of the procedure laid down in Article 267 TFEU and its objective of ensuring the uniformity of interpretation of EU law.
61 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 a previous decision on that application is annulled by a court or tribunal, it is important however to note 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. 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. It follows that each Member State bound by that directive must order its national law in such a way that, following annulment of that previous decision and in the event of file being referred back to the determining authority, a new decision is adopted within a short period of time and that it complies with the assessment contained in the judgment annulling the previous decision (see, to that effect, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraphs 55 and 59).
