CJEU - C 277/11 / Opinion
Key facts of the case:

By the question it has referred to the Court, the High Court (Ireland) in essence requests clarification of the scope of the right to be heard in the framework of the procedure for examining an application for subsidiary protection brought by a Rwandan national under Directive 2004/83/EC. (2) Subsidiary protection concerns every third country national who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned would, if returned to his country of origin, face a real risk of suffering serious harm. (3)

Under Article 78(2) TFEU, the European Union (‘EU’) has laid down criteria common to all the Member States with regard to the conditions that third country nationals must fulfil in order to qualify for international protection under Directive 2004/83. Chapter II of the directive, which deals with the individual assessment of an application for international protection, contains the following provision in Article 4(1): ‘Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.’

In this case, the referring court asks the Court whether the duty of cooperation laid down in that provision must be interpreted as requiring the authority responsible for examining the application to communicate to the applicant, before adoption of a negative decision and where an application for asylum has already been refused, the elements on which it intends to base its decision and to seek the applicant’s observations in that regard.

The request for a preliminary ruling has arisen in proceedings between, on the one hand, Mr M., a Rwandan national of Tutsi ethnicity, and, on the other, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General, concerning the legality of the procedure followed by the Irish authorities when dealing with Mr M.’s application for subsidiary protection.

Following the expiry of the student visa granted him by the Irish authorities, Mr M., on 21 May 2008, made an application for asylum to the Office of the Refugee Applications Commissioner. (4) Following rejection of that application, Mr M. then applied for subsidiary protection on 31 December 2008; on 24 September 2010 that application was rejected too. The Minister for Justice, Equality and Law Reform held that, because of the serious credibility doubts that attended Mr M.’s claim, it was not possible to establish that he would be at risk of serious harm once he returned to his country of origin, which would give grounds for granting subsidiary protection.

Mr M. brought proceedings for judicial review of the latter decision before the High Court. He submits that the competent national authorities have failed to comply with their duty of cooperation under Article 4(1) of Directive 2004/83 by not affording him any opportunity to comment upon the draft decision rejecting his application, which relied, inter alia, on a document of which Mr M. was not made aware during the procedure.

In its order for reference, the High Court states that it does not concur with Mr M.’s analysis concerning the interpretation of Article 4(1) of Directive 2004/83. In that regard it refers to its judgment of 24 March 2011 in Ahmed v Minister for Justice, Equality and Law Reform and to two of the arguments which it had set out when refuting such an interpretation. The first related to the need to avoid having a multiplicity of procedural steps. The second related to the considerable degree of interaction to have already taken place between the competent national authority and an applicant in the course of the assessment of his asylum application. The High Court pointed out that an application for subsidiary protection is not made in isolation but following a procedure in which an asylum application has been considered and in the course of which the applicant has already been heard on a number of occasions.

Nevertheless, in its order for reference, the High Court notes that the Raad van State (Council of State) (Netherlands), in a judgment of 12 July 2007, has apparently adopted a different interpretation of Article 4(1) of Directive 2004/83. In order to avoid any discrepancies in interpretation among the courts of the Member States, the High Court has decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: ‘In a case where an applicant seeks subsidiary protection status following a refusal to grant refugee status and it is proposed that such an application should be refused, does the requirement to cooperate with an applicant imposed on a Member State in Article 4(1) of … Directive 2004/83 … require the administrative authorities of the Member State in question to supply such applicant with the results of such an assessment before a decision is finally made so as to enable him or her to address those aspects of the proposed decision which suggest a negative result?’

Observations have been lodged by the parties to the dispute in the main proceedings, by the Czech and German Governments, Ireland, the French, Hungarian, Netherlands and Swedish Governments and by the European Commission.

At the hearing, Mr M.’s representative requested that the Court reformulate the question raised so as to allow it, in essence, to consider whether the examination procedure in issue ensured observance of the right to an effective judicial remedy, as embodied in Article 47 of the Charter of Fundamental Rights of the European Union. (5) Since that reformulation goes well beyond the bounds fixed by the referring court and since that question has consequently not been the subject of debate between the parties, I propose that the Court should not grant the request."

Results (sanctions) and key consequences of the case:

The duty of cooperation referred to in Article 4(1) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country national 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 the rules and procedural safeguards established in Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, must be interpreted to the effect that, where a competent national authority intends to reject an application for subsidiary protection made following rejection of an asylum application, the authority is not required to notify the applicant, before adopting its decision, of the elements on which it intends to base its decision and to seek his observations in that regard.

In accordance with Article 3 of Directive 2004/83 and Article 5 of Directive 2005/85, Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing refugee status, insofar as those standards are compatible with those directives.
Paragraphs referring to EU Charter

30-41, 43, 79-90