Opinion of the Advocate General — ECLI:EU:C:2018:34
Date: 2018-01-24
Language of the case: Dutch
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary – Judgment of the Court (Fourth Chamber), 26 September 2018 1. Judicial proceedings – Oral part of the procedure – Reopening – Absence of obligation to reopen the oral part of the procedure in order to allow the parties to submit observations on points of law raised in the Advocate General’s Opinion (Art. 252, second para., TFEU; Rules of Procedure of the Court of Justice, Art. 83) 2. Questions referred for a preliminary ruling – Jurisdiction of the Court – Questions concerning measures of EU law, the application of those acts to the main proceedings being in dispute – Included – Condition – Challenge inextricably linked to the answers to be given to the questions referred (Art. 267 TFEU) 3. Border controls, asylum and immigration – Asylum policy – Procedure for the grant or withdrawal of refugee status in Member States – Directive 2005/85 – Right to an effective judicial remedy – Decision rejecting an application for international protection and imposing an obligation to return – National legislation providing for an appeal with no suspensory effect against such a decision – Lawfulness – Limits – Respect for the principles of equivalence and effectiveness (Charter of Fundamental Rights of the European Union, Arts 18, 19(2) and 47; Council Directive No 2005/85, Art. 39; European Parliament and Council Directive 2008/115, Art. 13) 4. Fundamental rights – Right to effective judicial protection – Enshrinement in Article 47, first paragraph, of the Charter of Fundamental Rights of the European Union and Article 13 of the European Convention on Human Rights – Identical meaning and scope – Level of protection provided for by the Charter not infringing that guaranteed by that convention (Charter of Fundamental Rights of the European Union, Art 47, first para., 52(3) and 53) 1. See the text of the decision. (see paras 20, 21) 2. See the text of the decision. (see paras 22-24) 3. 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. Thus, while the provisions of Directives 2005/85 and 2008/115 require the Member States to provide for an effective remedy against decisions rejecting an application for international protection and against return decisions, none of those provisions requires the Member States to grant a right to appeal to applicants for international protection whose appeals against the decision refusing their application have been unsuccessful at first instance, let alone that the exercise of such a right should be given automatic suspensory effect. No more can such requirements be inferred from the scheme or purpose of those directives. 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). 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). 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). In that connection, it should be stated that the introduction of a second level of jurisdiction against decisions rejecting an application for international protection and against return decisions, as well as the decision to give that level of jurisdiction, where appropriate, automatic suspensory effect, constitute — contrary to the argument relied upon by the Belgian Government set out in paragraph 22 of the present judgment — procedural rules implementing the right to an effective remedy against such decisions provided for in Article 39 of Directive 2005/85 and Article 13 of Directive 2008/115. While such procedural rules are a matter for the domestic legal order of the Member States pursuant to the principle of procedural autonomy of the latter, the Court has pointed out that those rules must observe the principles of equivalence and effectiveness (see, by analogy, judgment of 17 July 2014, Sánchez Morcillo and Abril García, C-169/14, EU:C:2014:2099, paragraphs 31, 36 and 50 and the case-law cited, and order of 16 July 2015, Sánchez Morcillo and Abril García, C-539/14, EU:C:2015:508, paragraph 33). (see paras 28, 29, 31, 32, 34, 38, 48, operative part) 4. See the text of the decision. (see para. 35)