Opinion of the Advocate General — ECLI:EU:C:2011:102
Date: 2011-03-01
Language of the case: French
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

Summary of the Judgment 1. Border controls, asylum and immigration – Asylum policy – Procedures in Member States for granting and withdrawing refugee status – Directive 2005/85 – Right to an effective judicial remedy (Council Directive 2005/85, Art. 39(1)) 2. Border controls, asylum and immigration – Asylum policy – Procedures in Member States for granting and withdrawing refugee status – Directive 2005/85 – Right to effective judicial protection (Council Directive 2005/85, Arts 23 and 39) 3. Border controls, asylum and immigration – Asylum policy – Procedures in Member States for granting and withdrawing refugee status – Directive 2005/85 – Right to effective judicial protection (Council Directive 2005/85, Art. 39) 4. Border controls, asylum and immigration – Asylum policy – Procedures in Member States for granting and withdrawing refugee status – Directive 2005/85 – Right to effective judicial protection (Council Directive 2005/85, Art. 39) 1. It is clear from the wording of Article 39(1)(a) of Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status and, in particular, from the non-exhaustive list of decisions contained therein, that the concept of a ‘decision taken on [the] application for asylum’ covers a series of decisions which, because they entail rejection of an application for asylum or are taken at the border, amount to a final decision rejecting the application on the substance. The same is true of the other decisions which, under Article 39(1)(b) to (e) of Directive 2005/85, are expressly made subject to the right to an effective judicial remedy. Accordingly, the decisions against which an applicant for asylum must have a remedy under Article 39(1) of Directive 2005/85 are those which entail rejection of the application for asylum for substantive reasons or, as the case may be, for formal or procedural reasons which preclude any decision on the substance. It follows that decisions that are preparatory to the decision on the substance or decisions pertaining to the organisation of the procedure are not covered by that provision. Moreover, if the wording of Article 39 of Directive 2005/85 were interpreted as meaning that ‘a decision taken on [the] application’ referred to any decision given in relation to an application for asylum and as also referring to decisions in preparation for the final decision on the application for asylum, or decisions pertaining to the organisation of the procedure, that would not be consistent with the interest in the expediency of procedures relating to applications for asylum. That interest in a procedure in that domain being, in accordance with Article 23(2) of Directive 2005/85, concluded as soon as possible, without prejudice to an adequate and complete examination, is, as is clear from recital 11 to the directive, common to both Member States and applicants for asylum. (see paras 41-44) 2. On a proper construction, Article 39 of Council Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and the principle of effective judicial protection, do not preclude national rules under which no separate action may be brought against the decision of the competent national authority to deal with an application for asylum under an accelerated procedure, provided that the reasons which led that authority to examine the merits of the application under such a procedure can in fact be subject to judicial review in the action which may be brought against the final decision rejecting the application – a matter which falls to be determined by the national court. The decision relating to the procedure to be applied for the examination of the application for asylum, viewed separately and independently from the final decision which grants or rejects the application, is a measure preparatory to the final decision on the application. Accordingly, the absence of a remedy at that stage of the procedure does not constitute an infringement of the right to an effective remedy, provided, however, that the legality of the final decision adopted in an accelerated procedure – and, in particular, the reasons which led the competent authority to reject the application for asylum as unfounded – may be the subject of a thorough review by the national court, within the framework of an action against the decision rejecting the application. The effectiveness of such an action would not be guaranteed if – because of the impossibility of bringing an appeal against the decision of the competent authority to examine an asylum application under an accelerated procedure – the reasons which led that authority to examine the merits of the application under such a procedure could not be reviewed by a court, when those reasons are the same as those which led to the application being rejected. Such a situation would render review of the legality of the decision impossible, as regards both the facts and the law. What is important, therefore, is that the reasons justifying the use of an accelerated procedure may be effectively challenged at a later stage before the national court and reviewed by it within the framework of the action that may be brought against the final decision closing the procedure relating to the application for asylum. It would not be compatible with European Union law if national rules were to be construed as precluding all judicial review of the reasons which led the competent administrative authority to examine the application for asylum under an accelerated procedure. As regards the interpretation of national law by the national court, the principle that national law must be interpreted in conformity with European Union law requires national courts to do whatever lies within their jurisdiction in order to ensure that Directive 2005/85 is fully effective and achieves an outcome consistent with the objective pursued by it The objective of Directive 2005/85 is to establish a common system of safeguards serving to ensure that the Geneva Convention and the fundamental rights are fully complied with. The right to an effective remedy is a fundamental principle of European Union law. In order for that right to be exercised effectively, the national court must be able to review the merits of the reasons which led the competent administrative authority to hold the application for international protection to be unfounded or made in bad faith, there being no irrebuttable presumption as to the legality of those reasons. It is also within the framework of that remedy that the national court hearing the case must establish whether the decision to examine an application for asylum under an accelerated procedure was taken in compliance with the procedures and basic guarantees laid down in Chapter II of Directive 2005/85, as provided for in Article 23(4) of the directive. (see paras 55-58, 60-61, 70, operative part) 3. When, under national rules concerning the procedures for granting and withdrawing refugee status, the time-limit for bringing an action against the final decision on an asylum application is 15 days in the case of an accelerated procedure, whereas it is one month in the case of a decision adopted under the ordinary procedure, the important point is that the period prescribed must be sufficient in practical terms to enable the applicant to prepare and bring an effective action. With regard to abbreviated procedures, a 15-day time limit for bringing an action does not seem, generally, to be insufficient in practical terms to prepare and bring an effective action and appears reasonable and proportionate in relation to the rights and interests involved. It is, however, for the national court to determine – should that time‑limit prove, in a given situation, to be insufficient in view of the circumstances – whether that element is such as to justify, on its own, upholding the action brought indirectly against the decision of the competent national authorities to examine an application for asylum under an accelerated procedure, so that, in upholding the action, the national court would order that the application be examined under the ordinary procedure. (see paras 66-68) 4. Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status does not require there to be two levels of jurisdiction. All that matters is that there should be a remedy before a judicial body, as is guaranteed by Article 39 of Directive 2005/85. The principle of effective judicial protection affords an individual a right of access to a court or tribunal but not to a number of levels of jurisdiction. (see para. 69)