Opinion of the Advocate General — ECLI:EU:C:2025:60
Date: 2025-02-06
Language of the case: Greek
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary C-610/23 – 1 
Case C-610/23 [Al Nasiria] i 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 October 2023 
Referring court: 
Dioikitiko Protodikeio Thessalonikis (Greece) 
Date of the decision to refer: 
30 June 2023 
Applicant  
FO 
Defendant:  
Ypourgos Metanastefsis kai Asylou 
  
Subject matter of the main proceedings 
Application for annulment of the decision of the Anexartiti Epitropi Prosfygon 
(Independent Appeals Committee) of the Ypourgeio Metanastefsis kai Asylou 
(Ministry of Migration and Asylum) dismissing as manifestly unfounded the 
applicant’s appeal against the decision rejecting his application for international 
protection. 
Subject matter and legal basis of the request 
Interpretation of Article 46 of Directive 2013/32 – in conjunction with the 
provisions of Directive 2008/115 and in the light of Article 47 of the Charter of 
Fundamental Rights of the European Union – and of the principles of the 
procedural autonomy of the Member States, equivalence and effectiveness – 
Article 267 TFEU. 
 
i The name given to the present case is fictitious. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-610/23 
 
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Questions referred for a preliminary ruling 
1. Given the importance of the remedy referred to in Article 46 of Directive 
2013/32, may the legislature infer a presumption that the appeal has been 
improperly brought and, as a consequence, dismiss the appeal, without a full and 
ex nunc examination of the case, as manifestly unfounded (which also results in 
the period for voluntary departure referred to in Article 22(4) of Law 3907/2011 
and Article 7 of Directive 2008/115 not being granted) on the ground that the 
applicant [for international protection] did not appear in person before the 
committee examining the case? 
2. (a) If it were to be held that this matter is covered by the principle of the 
procedural autonomy of the Member States, should the comparable national 
procedural rules, in the context of the examination of the principle of equivalence, 
be considered to be those governing proceedings before administrative 
committees hearing appeals under national law or the procedural rules governing 
the bringing of substantive actions (or applications for annulment) before 
administrative courts? 
(b) Is it consistent with the principle of effectiveness of EU law and, in particular, 
the effective exercise of the right to an effective remedy to lay down an obligation 
to appear in person (or to send the attestation referred to in Article 78(3) of Law 
4636/2019 in the cases provided for)? In that context, furthermore, is it relevant 
whether the presumption that the right of appeal has been improperly brought, 
provided for in Article 97(2) of Law 4636/2019, corresponds to the lessons of 
general experience and, in the context of the examination (at first instance) of 
applications for international protection, that the same conduct would lead to a 
presumption of implicit withdrawal rather than a rejection of the application as 
manifestly unfounded? 
Provisions of European Union law and case-law relied on 
Treaty on the Functioning of the European Union: Article 78 
Charter of Fundamental Rights of the European Union (‘the Charter’): Article 47 
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 (OJ 2013 L 180, p. 60: Articles 28, 31(8), 32(1) and (2), 46 and 47. 
Directive 2011/95/EU of the European Parliament and of the Council of 
13 December 2011 on standards for the qualification of third-country nationals or 
stateless persons as beneficiaries of international protection, for a uniform status 
for refugees or for persons eligible for subsidiary protection, and for the content of 
the protection granted (OJ 2011 L 337, p. 9): Article 4. 
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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): 
Articles 7(4) and 11(1). 
Judgments of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335); of 
21 December 2011, NS (C-411/10 and C-439/10, EU:C:2011:865); of 31 January 
2013, D. and A. (C-175/11, EU:C:2013:45); of 7 November 2013, X and Others 
(C-199/12 to C-201/12, EU:C:2013:720); of 17 December 2015, Tall (C-239/14, 
EU:C:2015:824); of 26 February 2015, Shepherd (C-472/13, EU:C:2015:117); of 
18 October 2018, E. G. (C-662/17, EU:C:2018:847); of 19 March 2020, 
Bevándorlási és Menekültügyi Hivatal (Tompa) (C-564/18, EU:C:2020:218); and 
of 9 September 2020, Commissaire général aux réfugiés et aux apatrides 
(Rejection of a subsequent application – Time limit for bringing proceedings) 
(C-651/19, EU:C:2020:681). 
Provisions of national law relied on 
Syntagma tis Elladas (Constitution of Greece): Articles 8, 20(1), 87 and 89(2). 
Nomos 4636/2019, Peri Diethnous Prostasias kai alles diatakseis (Law 4636/2019 
on international protection and other provisions) (Government Gazette I/169 of 
1.11.2019): Articles 2, 4, 5(1), 9(1), 15, 78(3) and (9), 81, 92, 95(1) and 97(2). 
Nomos 4375/2016, Organosi kai leitourgia Ypiresias Asylou, Archis Prosfygon, 
Ypiresias Ypodochis kai Taftopoiisis, systasi Genikis Grammateias Ypodochis, 
prosarmogi tis Ellinikis Nomothesias pros tis diatakseis tis Odigias 2013/32/ΕΕ 
tou Evropaikou Koinovouliou kai tou Symbouliou ‘schetika me tis koines 
diadikasies gia ti chorigisi kai anaklisi tou kathestotos diethnous prostasias 
(anadiatyposi)’ (EE 2013 L 180), diatakseis gia tin ergasia dikaiouchon diethnous 
prostasias kai alles diatakseis (Law 4375/2016 on the organisation and operation 
of an Asylum Service, Refugee Authority and Reception and Identification 
Service, establishing a General Secretariat for Reception and harmonising Greek 
legislation with the provisions of Directive 2013/32/EU of the European 
Parliament and of the Council on common procedures for granting and 
withdrawing international protection (recast) (OJ 2013 L 180), provisions 
governing the work of beneficiaries of international protection and other 
provisions (Government Gazette, I/51 of 3.4.2016) as amended by Nomos 
4399/2016 (Law 4399/2016): Article 4(1). 
Nomos 3907/2011, Idrysi Ypiresias Asylou kai Ypiresias Protis Ypodochis, 
prosarmogi tis ellinikis nomothesias pros tis diatakseis tis Odigias 2008/115/EK 
schetika me tous koinous kanones kai diadikasies sta krati-meli gia tin epistrophi 
ton paranomos diamenonton ypikoon triton choron kai loipes diatakseis (Law 
3907/2011 establishing an Asylum and First Reception Service, harmonising 
Greek legislation with the provisions of Directive 2008/115/EC on common 
standards and procedures in Member States for returning illegally staying third-
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-610/23 
 
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country nationals and other provisions (Government Gazette, I/7 of 26.1.2011): 
Article 22(4). 
Brief summary of the facts and procedure 
1 On 28 February 2019, the applicant in the main proceedings, an Iraqi national, 
lodged an application for international protection with the Samos Regional 
Asylum Office, stating that he had left his country of origin because his life was 
threatened by the militia due to a sectarian conflict. 
2 After it was established that he had been the victim of a serious physical violence, 
the applicant met with the Thessaloniki Regional Asylum Office on 24 February 
2020. There he stated, with regard to the reasons that had forced him to leave his 
country of origin, that he had been having a sexual relationship with a girl and that 
this put his life at risk, since a tribal decision had been taken that he should be 
killed. For that reason, the applicant left Iraq, flew to Türkiye and from there 
entered Greece. 
3 During the administrative procedure for examining his application, the applicant 
produced a document addressed to all the tribes ordering his death for misconduct 
involving the tribe. The applicant indicated that he did not wish to return to his 
country of origin because, if he returned, he would be killed. 
4 His application was rejected by decision of the Thessaloniki Regional Asylum 
Office of 18 May 2020, because his claims were considered unreliable, and the 
abovementioned document was not admitted as full evidence. 
5 On 27 August 2021, the applicant lodged an administrative appeal with the 
Independent Appeals Committee against that decision. When he lodged the 
appeal, he was informed that the date set for its examination was 11 October 2021 
and that he would have to appear in person on that date before the competent 
Independent Appeals Committee, unless he was lawfully staying in a Reception 
and Identification Centre (Kentro Ypodochis kai Taftopoiisis, 'KYT') or had been 
subject to a restriction on movement or an obligation to stay in a place outside the 
region of Attica. 
6 However, the applicant did not appear in person before the committee on the date 
of the hearing. Therefore, after verifying that the applicant was not staying in a 
KYT, and had not been subject to a restriction on movement and that there were 
no force majeure grounds, the committee adopted a decision dismissing the appeal 
as manifestly unfounded, without examining the substance of the case, and 
imposed on him a return order without voluntary departure from the country. 
7 The applicant brought an action for annulment before the referring court against 
the decision of the Independent Appeals Committee (‘the contested decision’). 
AL NASIRIA 
 
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The essential arguments of the parties in the main proceedings 
8 The applicant claims, in particular, that the contested decision was adopted 
without a lawful and sufficient statement of reasons. Specifically, he submits that 
his application was unlawfully rejected on the sole ground that he was absent from 
the hearing and that the substance of the application was not adequately examined, 
since he was unable to appear at the hearing for reasons of force majeure, namely 
financial hardship that prevented him from travelling from Thessaloniki, where he 
lives, to Athens. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 Directives 2011/95 and 2013/32, which form part of the Common European 
Asylum System, were transposed into the national legal system by Law 
4363/2019. Pursuant to Article 92 of that law, which corresponds to Article 46 of 
Directive 2013/32 on the right to an effective remedy before a court or tribunal, an 
applicant for international protection has the right to lodge an administrative 
appeal against a decision rejecting an application for international protection at 
first instance. 
10 Article 4(1) of Law 4375/2016, as amended by Law 4399/2016, established the 
Independent Appeals Committees, which are competent to hear appeals by 
applicants for international protection, in order to review, in law and in substance, 
decisions rejecting them at first instance. 
11 In order to provide the required procedural guarantees, provision was made for the 
majority of those committees, described as ‘quasi-judicial bodies’, to be composed 
of judges currently in office (judges of the ordinary administrative courts). The 
members of the committees are to enjoy personal and functional independence in 
the performance of their duties. 
12 In addition, the principle of impartiality is guaranteed, since committees have a 
third-party status in relation to the parties involved and do not represent the 
administration. 
13 The decisions given by those committees on administrative appeals, following a 
thorough examination of the law and substance and on the basis of a 
comprehensive, specific and precise statement of reasons, are binding on the 
parties, since they may only be overturned by means legal proceedings, namely an 
action for annulment before an administrative court. 
14 In view of the above, while the Independent Appeals Committees are not courts or 
tribunals within the meaning of the Constitution, they are nevertheless committees 
exercising judicial functions within the meaning of Article 89(2) of the 
Constitution. 
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15 Furthermore, Article 97(2) of Law 4636/2019 provides that, during the procedure 
before the Independent Appeals Committees, the applicant must be present in 
person. The only cases in which the applicant is not required to appear in person 
are listed in Article 78(3). These are cases in which the applicant for international 
protection is staying in a reception or hosting centre or has been subject to a 
restriction on movement or an obligation to stay in a particular place, in which 
case he or she may either be represented by a lawyer or may send an attestation 
stating that one of these cases applies. If the applicant for international protection 
does not appear in person (or does not send the attestation referred to in 
Article 78(3) of the law), his or her appeal is dismissed as manifestly unfounded, 
since it is presumed that the applicant brought the appeal merely in order to delay 
or frustrate the enforcement of an earlier or imminent decision to expel or 
otherwise remove him. 
16 In that regard, the referring court points out that, according to settled case-law, 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 
states that everyone whose rights and freedoms guaranteed by the law of the 
Union are violated has the right to an effective remedy before a tribunal in 
compliance with the conditions laid down in that article (judgment of 18 October 
2018, E.G., C-662/17, EU:C:2018:847, paragraph 47 and the case-law cited). 
17 Moreover, in the absence of EU rules on the matter, it is for the national legal 
order of each Member State to establish procedural rules for actions intended to 
safeguard the rights of individuals, in accordance with the principle of procedural 
autonomy, on condition, however, that those rules are not less favourable than 
those governing similar domestic situations (the principle of equivalence) and that 
they do not make it excessively difficult or impossible in practice to exercise the 
rights conferred by EU law (the principle of effectiveness) (judgments of the 
Court of Justice of 19 March 2020, Bevándorlási és Menekültügyi Hivatal 
(Tompa), C-564/18, EU:C:2020:218, paragraph 63, and of 9 September 2020, 
Commissaire général aux réfugiés et aux apatrides (Rejection of a subsequent 
application – Time limit for bringing proceedings) C-651/19, EU:C:2020:681, 
paragraph 34). 
18 Directive 2013/32 does not contain any specific rules on the appearance of 
applicants before the body examining the effective remedy referred to in 
Article 46 of the Directive or to the consequences of failure to comply with that 
procedural obligation. It may therefore be concluded that the obligation to appear 
in person laid down in Article 97(2) of Law 4636/2019 (or to send the attestation 
referred to in Article 78(3) of that law) and the provision for the dismissal of the 
action as manifestly unfounded in the event of non-compliance is encompassed by 
the principle of the procedural autonomy of Member States and may be examined 
further only as regards compliance with the principles of equivalence and 
effectiveness. 
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19 Pursuant to Article 32 of Directive 2013/32, a prerequisite for a finding that an 
application for international protection is manifestly unfounded is that it be 
declared to be unfounded, that is to say, the application must be examined on its 
merits. However, for the purposes of Article 97(2) of Law 4636/2019, if the 
applicant does not appear in person at the hearing of the appeal, the application is 
rejected as manifestly unfounded, but the merits of the application are not 
examined. Furthermore, according to a combined reading of Article 46(1) and (3) 
of Directive 2013/32 and Article 97 of Law 4636/2019, the effective remedy 
provided for by Greek law, by means of an administrative appeal, must ensure a 
full and ex nunc examination of both facts and points of law. That is not the case 
where the applicant does not appear in person before the appellate body, namely 
the Independent Appeals Committee. It is therefore necessary to consider whether 
Article 97(2) of Law 4636/2019 is compatible with Article 46 of Directive 
2013/32. 
20 With regard to compliance with the principle of equivalence, it should be noted 
that, in so far as the Independent Appeals Committees exercise judicial powers but 
are not recognised as courts or tribunals within the meaning of the Constitution, it 
is necessary to consider the determination of the comparable procedure under 
national law with which the procedure at issue before those committees are to be 
compared. 
21 Specifically, the question arises as to whether the rules at issue will be reviewed in 
relation to the procedure before other administrative authorities dealing with 
administrative appeals (where there is no uniform framework of procedural rules, 
but different rules for each institution, and where, in any event, the applicant does 
not have to appear in person at the appeal hearing, but may be represented by a 
lawyer or a third party), or in relation to the procedure for bringing an appeal on 
the merits or an action for annulment before an administrative court (a procedure 
in which, on the one hand, the party does not have to appear in person but may be 
represented by an authorised lawyer and, on the other hand, as regards an appeal 
on the merits, a second appeal may be brought, under certain conditions, if the 
first is dismissed). 
22 That question comes down to the interpretation of Article 46 of Directive 2013/32, 
that is to say, to a judgment as to the true nature of the procedure for examining 
the effective remedy provided for in that article, and not to a simple examination 
of the similarity of the corresponding procedural rules, which is a matter for the 
referring court (see judgment of the Court of Justice of 9 September 2020, 
Commissaire général aux réfugiés et aux apatrides (Rejection of a subsequent 
application – Time limit for bringing proceedings) (C-651/19, EU:C:2020:681, 
paragraphs 37-38)). 
23 Moreover, as regards compliance with the principle of effectiveness, it may be 
argued that the contested provision of Article 97(2) of Law 4636/2019 is justified 
on grounds of the orderly and expeditious conduct of the procedure for the 
examination of applications for international protection, since it ensures that 
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applicants for international protection are still interested in the fate of their 
application and are still on Greek territory, so that valuable time is not spent on 
the substantive examination of applications that are not of interest to the 
applicants themselves, thus speeding up the examination of other appeals. 
24 On the other hand, it may also be argued that that provision makes the application 
of EU law impossible or excessively difficult. First, it imposes a disproportionate 
burden on applicants for international protection, since they are required (unless 
they fall within one of the exceptions provided for in Article 78(3) of Law 
4636/2019) to travel to the headquarters of the Independent Appeals Committees 
in Athens merely in order to register their presence and not to be heard, and 
cannot be represented by a lawyer or other authorised person for that purpose. 
Second, it provides that, as a consequence of failure to comply with that 
procedural requirement, there is a presumption that the action has been improperly 
brought and, therefore, that the appeal must be dismissed as manifestly 
unfounded. 
25 As regards, in particular, the dismissal of the appeal as manifestly unfounded 
without an examination of the merits of the case, it should be noted, first, that 
under Directive 2013/32 failure to comply with an obligation to communicate 
with the authorities is linked to the presumption of implicit withdrawal of the 
application for international protection and not to the rejection of the application 
as manifestly unfounded. 
26 Second, according to the express wording of Article 32(2) of Directive 2013/32, a 
precondition for the rejection of an application for international protection as 
manifestly unfounded is that the application is, at least, unfounded. Such a 
precondition does not appear in Article 97(2) of Law 4636/2019, which governs 
only the procedure before the Independent Appeals Committees and provides for 
the appeals referred to in Article 46 of Directive 2013/32 to be dismissed as 
manifestly unfounded. That consequence entails the dismissal of appeals under 
national law as inadmissible, that is to say, for formal reasons, without any 
examination of the substance of the case. 
27 Third, the rejection of an application as manifestly unfounded has broader 
consequences, since it results in third-country nationals not being granted a period 
for voluntary departure and having an entry ban imposed on them (see 
Articles 7(4) and 11(1)(a) of Directive 2008/115). 
28 Fourth, the factual basis of the presumption in Article 97(2) of Law 4636/2019 
does not appear to correspond to common experience or logic, since failure to 
appear in person before the Independent Appeals Committee may be due to 
reasons unconnected with an intention to frustrate or delay the enforcement of a 
previous or imminent expulsion order or removal of the applicant in another 
manner, in particular in view of the fact that the decisions of the committees are 
not taken on the same day and that, consequently, the appearance of applicants for 
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international protection before them on the day of the meeting does not in any way 
facilitate the enforcement of the return order if the appeal is dismissed. 
29 Fifth, and lastly, Article 46(11) of Directive 2013/32 provides that Member States 
may lay down the conditions for presuming the implicit withdrawal or 
abandonment of the appeal and the procedure to be followed, whereas it does not 
contain any rules on the possibility of dismissing appeals as manifestly 
unfounded. 
30 Therefore, it is not clear whether what has been said above regarding the 
possibility of presuming an implicit withdrawal or rejection as manifestly 
unfounded of an application for international protection applies either directly or 
by analogy to appeals. 
31 In view of the foregoing difficulties of interpretation as to the meaning of the 
relevant provisions of EU law, the referring court considers that it is necessary to 
refer the questions to the Court of Justice for a preliminary ruling.