Article 18 - Right to asylum
Article 19 - Protection in the event of removal, expulsion or extradition
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Directive 2005/85/EC — Article 39 — Directive 2008/115/EC — Article 13 — Charter of Fundamental Rights of the European Union — Article 18, Article 19(2) and Article 47 — Right to an effective remedy — Principle of non-refoulement — Decision rejecting an application for asylum and imposing an obligation to return — National legislation providing for a second level of jurisdiction — Automatic suspensory effect limited to the action at first instance.
Outcome of the case:
On those grounds, the Court (Fourth Chamber) hereby rules:
Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and Article 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in the light of Articles 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non-refoulement.
1) This request for a preliminary ruling concerns the interpretation of Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) and of Article 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98), read in the light of Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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6 Recitals 5 and 8 of Directive 2005/85 state:
‘(5) The main objective of this Directive is to introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status.
…
(8) This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter].’
9) Recitals 2, 4 and 24 of Directive 2008/115 state:
(24) This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter].’
18) In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Must Article 13 of Directive 2008/115 …, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of that directive, the legal remedy of an appeal has automatic suspensory effect where the third-country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement? In other words, in such a case, should the expulsion of the third-country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third-country national concerned being required to submit a separate request to that effect?
(2) Must Article 39 of Directive 2005/85 …, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for asylum within the meaning of Article 2 of that directive, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of the asylum-seeker concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the asylum-seeker concerned being required to submit a separate request to that effect?’
24) As regards the question of whether the bringing of an appeal against judgments delivered at first instance concerning such decisions, and the decision to confer on that remedy, where appropriate, automatic suspensory effect, come within the exclusive remit of the Member States, that question is inextricably linked to the answers to be given to the questions referred for a preliminary ruling, since they relate specifically to the scope of the right to an effective remedy provided for in Article 39 of Directive 2005/85 and in Article 13 of Directive 2008/115, read in the light of the guarantees provided in Articles 18, 19(2) and 47 of the Charter. In those circumstances, the Court has jurisdiction to answer those questions (see, to that effect, judgment of 7 March 2017, X and X, C‑638/16 PPU, EU:C:2017:173, paragraph 37 and the case-law cited).
25) By its questions, which it is appropriate to examine together, the referring court is asking, in essence, whether Article 39 of Directive 2005/85 and Article 13 of Directive 2008/115, read in the light of Articles 18, 19(2) and 47 of the Charter, must be interpreted as precluding national legislation which, whilst making provision for appeals against judgments at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even where the person concerned invokes a serious risk of infringement of the principle of non-refoulement.
31) Nevertheless, it should be pointed out that the interpretation of Directive 2008/115 or of Directive 2005/85, must — as is apparent from recital 24 of the former and recital 8 of the latter — be consistent with the fundamental rights and principles recognised, in particular, by the Charter (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 51).
32) In that respect, it is settled case-law of the Court that when a Member State decides to return an applicant for international protection to a country where there are substantial grounds for believing that he will be exposed to a real risk of ill-treatment contrary to Article 18 of the Charter, read in conjunction with Article 33 of the Convention relating to the Status of Refugees, as supplemented by the Protocol, or to Article 19(2) of the Charter, the right to an effective remedy provided for in Article 47 of the Charter requires that that applicant should have available to him a remedy enabling automatic suspension of enforcement of the measure authorising his removal (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 54 and the case-law cited).
34) Nevertheless, it is apparent from the Court’s case-law that neither Article 39 of Directive 2005/85, nor Article 13 of Directive 2008/115, nor Article 47 of the Charter, read in the light of the safeguards laid down in Articles 18 and 19(2) of the Charter, requires that there be two levels of jurisdiction. The only requirement is that there must be a remedy before a judicial body (see, to that effect, judgments of 28 July 2011, Samba Diouf, C‑69/10, EU:C:2011:524, paragraph 69, and of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 57).
35) In that connection, it should also be recalled that, in so far as the Charter contains rights corresponding to rights guaranteed by the ECHR, Article 52(3) of the Charter seeks to ensure the necessary consistency between the rights contained in it and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (see, to that effect, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 47, and of 14 September 2017, K., C‑18/16, EU:C:2017:680, paragraph 50 and the case-law cited). According to the explanations on Article 47 of the Charter, the first paragraph of that article is based on Article 13 of the ECHR. The Court must, accordingly, ensure that its interpretation of the first paragraph of Article 47 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 13 of the ECHR, as interpreted by the European Court of Human Rights (see, by analogy, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 77, and of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 62).
37) It follows that the protection conferred on an applicant for international protection by Article 39 of Directive 2005/85 and Article 13 of Directive 2008/115, read in the light of Article 18, Article 19(2) and Article 47 of the Charter, against a decision rejecting an application for international protection and imposing an obligation to return is confined to the existence of a single judicial remedy.
47) As regards the principle of effectiveness, the view must be taken that this does not, in the present case, involve requirements going beyond those deriving from fundamental rights — in particular from the right to an effective remedy — guaranteed by the Charter. Since, as is apparent from paragraph 34 of the present judgment, Article 47 of the Charter, read in the light of the guarantees contained in Articles 18 and 19(2) thereof, requires only that an applicant for international protection whose application has been refused, and in respect of whom a return decision has been adopted, should be able to enforce his rights effectively before a judicial authority, the mere fact that an additional level of jurisdiction, provided for by national law, does not have automatic suspensory effect, does not justify a finding that the principle of effectiveness has been disregarded.
48) In the light of the foregoing, the answer to the questions referred for a preliminary ruling is that Article 39 of Directive 2005/85 and Article 13 of Directive 2008/115, read in the light of Articles 18, 19(2) and 47 of the Charter, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non-refoulement.
49) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
