Opinion of the Advocate General — ECLI:EU:C:2015:531
Date: 2015-09-03
Language of the case: French
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fourth Chamber), 17 December 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the purpose of the main action (Art. 267 TFEU) 2. 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 — National legislation not conferring suspensory effect on an appeal brought against a decision not to further examine a subsequent application for asylum — Lawfulness — Conditions (Charter of Fundamental Rights of the European Union, Arts 19(2) and 47; Council Directive 2005/85, Arts 32, 34 and 39(1)(c)) 1. See the text of the decision. (see para. 34) 2. Article 39 of Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status, read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which does not confer suspensory effect on an appeal brought against a decision not to further examine a subsequent application for asylum. It should be stated that a second application for asylum must be regarded as a ‘subsequent application’ for the purposes of Article 32 of Directive 2005/85 and that the refusal of a competent authority to take that application into consideration corresponds to a ‘decision not to further examine the subsequent application’ for the purposes of Article 39(1)(c) of that directive. In that regard, it is apparent from Article 39(1)(c) of Directive 2005/85 that Member States must ensure that applicants for asylum have the right to an effective remedy against a decision not to further examine the subsequent application pursuant to Articles 32 and 34 of that directive. Furthermore, where an applicant for asylum makes a subsequent application for asylum without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure and they should have a choice of procedure involving exceptions to the guarantees normally enjoyed by the applicant. Accordingly, the lack of suspensory effect of an appeal brought against a decision not to further examine a subsequent application for asylum is, in principle, compatible with Articles 19(2) and 47 of the Charter. Although such a decision does not allow a third-country national to receive international protection, the enforcement of that decision cannot, as such, lead to that national’s removal. It follows that the lack of a suspensory remedy against such a decision, the enforcement of which is not likely to expose the national concerned to a risk of ill-treatment contrary to Article 3 of the European Convention of Human Rights, does not constitute a breach of the right to effective judicial protection as provided for in Article 39 of Directive 2005/85, read in the light of Articles 19(2) and 47 of the Charter. (see paras 40, 45, 46, 56, 59, 60, operative part)