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
ECLI (European case law identifier)
ECLI:EU:C:2019:339
  • CJEU Case C-556/17 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Area of freedom, security and justice — Border control, asylum and immigration — Common procedures for granting and withdrawing international protection — Judicial review of administrative decisions on application for international protection — Right to an effective remedy — Jurisdiction of the national court limited to the power to annul.

    Outcome of the case:

    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.
  • Paragraphs referring to EU Charter

    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’).

    ...

    29) In those circumstances, the Pécsi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Pécs, Hungary) decided to stay the proceedings and refer the following question to the Court 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 amend administrative decisions of the competent asylum authority refusing international protection and also to grant such protection?’

    ...

    31) This Opinion is structured as follows. I start with two initial remarks on the applicability of Directive 2013/32 ratione temporis to the present case and the terminology adopted in this Opinion (A). I will then set out the requirements flowing from the obligation to provide an effective judicial remedy, as enshrined both in Article 46(3) of the directive, as well as in Article 47 of the Charter and in EU law in general (B). I will then assess the operation of judicial review of administrative decisions in matters of international protection adopted in Hungary in the light of those requirements (C). Coming inevitably to the conclusion that such a system of judicial review is failing in particular in terms of effective judicial protection, I shall close with suggestions as to what remedy is to be applied in the circumstances of the main proceedings (D).

    ...

    38) The Court already had the opportunity of clarifying, in its recent judgment in Alheto, ( 7 ) some aspects of the requirement of effective judicial remedy under Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter (1). However, for the purpose of the present case, it is also the wider constitutional and fundamental rights considerations that are of significance (2).

    ...

    39) Article 46(3) of Directive 2013/32 ‘defines the scope of the right to an effective remedy which applicants for international protection must enjoy … against decisions concerning their application’. That provision expressly requires ‘a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs’ by a court or a tribunal. ( 8 ) In a different judgment, the Court further observed that ‘it follows that 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’. ( 9 )

    40) I recall that the first paragraph of Article 47 of the Charter ( 10 ) corresponds in principle to Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) while the second paragraph of Article 47 corresponds to Article 6(1) ECHR. ( 11 ) By virtue of the bridge in Article 52(3) of the Charter, the meaning and scope given to those provisions of the Charter should be the same as (or more extensive than) the meaning and scope of the abovementioned provisions of the ECHR.

    ...

    42) First, as stated by the Court in that judgment in response to question 6, Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, are ex ante‘blind’ as to the type of judicial review that a Member State instituted in implementing that article. The Court noted that Article 46(3) of Directive 2013/32 concerns ‘the “examination” of the appeal and does not therefore govern what happens after any annulment of the decision under appeal’. ( 12 ) It follows that in the absence of any harmonising measures, the Member States are thus free to provide for a review based on the logic of alteration or cassation.

    43) Second, important strings were nonetheless attached to that statement. The Court also added that it ‘follows from its purpose of ensuring the fastest possible processing of applications …, from the obligation to ensure that Article 46(3) [of Directive 2013/32] 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 referred to in Article 2(f) of that directive, a new decision is adopted within a short period of time and complies with the assessment contained in the judgment annulling the initial decision’. ( 13 )

    ...

    48) The clarifications given by the Court in Alheto constitute an expression, in the specific field of international protection, of more general principles related to the requirement of effective judicial remedy now enshrined in Article 47 of the Charter and referred to in the second subparagraph of Article 19(1) TEU. ( 19 )

    ...

    52) Certainly, in the division of competence within the Union, any such pronouncements are to be limited to the instances in which the Member States are implementing EU law (within the meaning of Article 51(1) of the Charter) and/or act ‘in the fields covered by Union law’ (referred to in the second subparagraph of Article 19(1) TEU).

    ...

    54) For these reasons, I entirely understand why the Court was not overly concerned, in Associação Sindical dos Juízes Portugueses, with making a surgical distinction between the scope of Article 19(1) TEU and/or Article 51(1) of the Charter. ( 25 ) To my mind, the logic as to why EU law clearly reaches into the issues of transversal, structural changes to the national judicial function is a different one: any such changes will by definition be indiscriminately applicable to any and all functions exercised by national judges. Therefore, if the salaries of national judges are being lowered, ( 26 ) or they are forced into early retirement, ( 27 ) or, purely hypothetically, they were abusively put into disciplinary proceedings, or pressurised by politically appointed presidents of their courts, or by other hijacked national judicial institutions, as well as any other transversal conditions of their work and function being affected, any suggestion that all of that only matters for their work as ‘national’ judges while, as far as their operation as ‘EU judges’ is concerned, they will remain spotlessly independent, is not even an argument to be seriously discussed.

    55) Thus, any such transversal, horizontal measures that will by definition affect each and every operation of the national judiciaries are a matter of EU law. And this, in my personal view, largely irrespective of whether the specific procedural point that gave rise to that litigation is or is not within the scope of EU law in the traditional sense. In that context, detailed discussion about the exact scope of Article 51(1) of the Charter when contrasted with Article 19(1) TEU looks a bit like a debate on what colour to choose for the tea cosy and the dining set to be selected for one’s house, coupled with a passionate exchange about whether that tone exactly matches the colour of curtains already selected for the dining room, while disregarding the fact that the roof leaks, the doors and windows of the house are being removed, and cracks are appearing in the walls. However, the fact that there is rain coming into the house and the walls are crumbling will always be structurally relevant to any discussion about the state of the judicial house, irrespective of whether the issue of the colour of the tea cosy will eventually be declared to be within or outside the scope of EU law under whatever provision of EU law.

    ...

    57) Born at the cross-section of these constitutional principles and a necessary element of effective and proper operation of a system of judicial protection, as well as the right to an effective remedy under the first paragraph of Article 47 of the Charter, is the issue of execution of judicial decisions. Potential disregard for the outcome of judicial review may pose issues in two respects. They are mutually non‑exclusive. They just come at the same problem from different vantage points.

    ...

    59) Second, from the perspective of an individual litigant and the protection of his fundamental rights, compliance by the public administration with the judicial decision constitutes an important element of the right of access to a court, as enshrined in the first paragraph of Article 47 of the Charter. That right cannot be reduced to the ‘input’ stage leading to a court’s decision, namely the mere possibility to ‘access the court building’, institute proceedings, and be allowed to plead one’s case. It naturally also includes certain requirements as to the ‘output’ of the entire endeavour, that is, the stage of execution of the final decision.

    ...

    66) Although I agree that in the present case, the crux of the matter is the (in)effective nature of the system of national judicial review when tested against the requirement of effectiveness and the first paragraph of Article 47 of the Charter (2), I still find it very instructive to start the analysis by a discussion of the requirement of equivalence (1). That is also because, by the scope of the discretion left to the Member States in Alheto in terms of how precisely they wish to structure their procedures under Article 46(3) of Directive 2013/32, the consideration of equivalence was in fact (re)inserted into a picture which could otherwise be seen to relate purely to the effectiveness of an EU‑law harmonising measure.

    ...

    87) What effective remedy means in the specific context of Article 46(3) of Directive 2013/32, read in the light of the first paragraph of Article 47 of the Charter, has already been stated by the Court in Alheto and outlined above in points 39 to 47 of this Opinion.

    ...

    96) Assessed on that level, a model of judicial review in matters of international protection in which the courts are endowed with a mere cassational power while the judicial guidance they issue in their annulment decisions is effectively being disregarded by the administrative bodies, clearly 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.

    ...

    106) I wish to add that, to my mind, the same conclusion also follows from the requirements of the first paragraph of Article 47 of the Charter, ( 51 ) with which the interpretation of Article 46(3) of Directive 2013/32 and the implementation thereof by the Member States ( 52 ) must comply.

    ...

    110) For these reasons, my interim conclusion is that a model of judicial review on 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.

    ...

    116) In my view, it does. As stated by this Court, ‘by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order … , rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law on the territory of that State’. ( 58 ) The principle of primacy (and direct effect ( 59 )) thus obliges the national court to set aside any national rule that frames judicial review in matters of international protection in a way that is incompatible with Article 46(3) of Directive 2013/32, as well as with the first paragraph of Article 47 of the Charter, and prevents the national court from attaining the objective sought by those rules. ( 60 )

    ...

    122) The final question concerns the moment when the primacy of EU law would trigger the abovementioned exclusionary effect. Considering the cumulative requirements of prompt review and compliance with a previous judicial decision contained in Article 46(3) of Directive 2013/32, read in the light of the first paragraph of Article 47 of the Charter, the moment at which the abovementioned power of the national judge would be triggered would correspond to the situation where (i) the clear assessment contained in a judicial decision annulling an administrative decision has been disregarded by the administrative authority, (ii) without the latter bringing any new elements that it should have reasonably and legitimately brought into consideration, thus depriving the judicial protection provided to the applicant of any practical effect.

    ...

    124) In the light of the above, my second interim conclusion is that, in order to ensure compliance with Article 46(3) of Directive 2013/32 read 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, has to 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.

    ...

    126) 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.