Opinion of the Advocate General — ECLI:EU:C:2013:714
Date: 2013-11-07
Language of the case: English
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary — Judgment of the Court (Fourth Chamber), 8 May 2014 1. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — National procedural rule under which an application for subsidiary protection may be considered only after an application for refugee status has been refused — Lawfulness — Conditions — Observance of the principle of effectiveness — Application for asylum and application for subsidiary protection submitted at the same time — Consideration of the application for subsidiary protection within a reasonable period of time (Charter of Fundamental Rights of the European Union, Art. 41; Council Directive 2004/83) 2. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Procedure for examining an application for subsidiary protection — National authorities informing the applicant that they are considering making a deportation order before the application is considered — Breach of the principle of good administration — Breach of the requirement of impartiality — Absence (Charter of Fundamental Rights of the European Union, Art. 41; Council Directive 2004/83) 1. Council Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refuges or as persons who otherwise need international protection and the content of the protection granted, the principle of effectiveness and the right to good administration do not preclude a national procedural rule under which an application for subsidiary protection may be considered only after an application for refugee status has been refused, provided that, first, it is possible to submit the application for refugee status and the application for subsidiary protection at the same time and, second, the national procedural rule does not give rise to a situation in which the application for subsidiary protection is considered only after an unreasonable length of time, which is a matter to be determined by the referring court. First, subsidiary protection is complementary and additional to the protection of refugees enshrined in the Geneva Convention. Second, given that a person seeking international protection is not necessarily in a position to ascertain the kind of protection applicable to their application and that refugee status offers greater protection than that conferred by subsidiary protection, an application for subsidiary protection should not, in principle, be considered before the competent authority has reached the conclusion that the person seeking international protection does not qualify for refugee status. Moreover, such a rule must ensure that persons seeking subsidiary protection are actually in a position to avail themselves of the rights conferred on them by the directive. (see paras 32, 34-36, 42, 57, operative part) 2. Where a Member State implements EU law, the requirements pertaining to the right to good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union and reflecting a general principle of law, including the right of any person to have his or her affairs handled impartially and within a reasonable period of time, are applicable in a procedure for granting subsidiary protection conducted by the competent national authorities. As regards national legislation under which an application for subsidiary protection must be covered by a separate procedure and can be made only after an asylum application has been refused, the fact that, before commencing the examination of an application for subsidiary protection, the national authorities inform the applicant that they are considering making a deportation order cannot, of itself, be construed as a lack of objective impartiality on the part of those authorities. It is in fact common ground that the reason for that disclosure on the part of the competent authorities is that it has been found that a third country national does not qualify for refugee status. That finding does not, therefore, mean that the competent authorities have already adopted a position on whether that third country national satisfies the requirements for being granted subsidiary protection. The procedural rule concerned is not, therefore, at odds with the requirement of impartiality pertaining to the right to good administration. (see paras 49-51, 53-55)