Opinion of the Advocate General — ECLI:EU:C:2012:253
Date: 2012-04-26
Language of the case: English
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary — Judgment of the Court (First Chamber), 22 November 2012 Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — National legislation establishing two separate procedures, one following upon the other, for examining applications for refugee status and applications for subsidiary protection — Obligation to ensure that a person has the right to be heard in each of those procedures (Council Directive 2004/83, Art. 4(1)) The requirement that a Member State cooperate with an applicant for asylum, as stated in the second sentence of Article 4(1) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, cannot be interpreted as meaning that, where a foreign national requests subsidiary protection status after he has been refused refugee status and the competent national authority is minded to reject that second application as well, the authority is on that basis obliged – before adopting its decision – to inform the applicant that it proposes to reject his application and notify him of the arguments on which it intends to base its rejection, so as to enable him to make known his views in that regard. However, in the case of a national system a feature of which is that there are two separate procedures, one following upon the other, for examining applications for refugee status and applications for subsidiary protection respectively, it is for the national court to ensure observance, in each of those procedures, of the applicant’s fundamental rights and, more particularly, of the right to be heard in the sense that the applicant must be able to make known his views before the adoption of any decision that does not grant the protection requested. In such a system, the fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection. The right to be heard in all proceedings, which is affirmed by Articles 41, 47 and 48 of the Charter of Fundamental Rights of the European Union, must apply in all proceedings which are liable to culminate in a measure adversely affecting a person and must be observed even where the applicable legislation does not expressly provide for such a procedural requirement. Consequently, that right must apply fully to the procedure in which the competent national authority examines an application for international protection pursuant to rules adopted in the framework of the Common European Asylum System. When a Member State has chosen to establish two separate procedures, one following upon the other, for examining asylum applications and applications for subsidiary protection, it is important that the applicant’s right to be heard, in view of its fundamental nature, be fully guaranteed in each of those two procedures. (see paras 74, 82, 85, 86, 89, 91, 95, operative part)