Order — ECLI:EU:C:2021:108
Date: 2021-02-11
Language of the case: French
Court formation: Sixth Chamber
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights;Border checks
Procedure: Reference for a preliminary ruling
Origin: Belgium

Translation C-755/19 - 1 
Case C-755/19 
Request for a preliminary ruling 
Date lodged: 
15 October 2019 
Referring court: 
Conseil d’État (Belgium) 
Date of the decision to refer: 
1 October 2019 
Appellant: 
T.H.C. 
Respondent: 
Commissaire général aux réfugiés et aux apatrides 
  
CONSEIL D’ÉTAT (COUNCIL OF STATE), ADMINISTRATIVE 
LITIGATION DIVISION 
[…] 
JUDGMENT 
1 October 2019 
[…] 
I. Subject-matter of the application 
1 By an appeal lodged on 9 October 2018, T. H. C. requests that the judgment [...] 
of 26 September 2018 […] delivered by the Conseil du contentieux des étrangers 
(Council for asylum and immigration proceedings, Belgium) be set aside. 
II. Proceedings before the Council of State 
2 […] 
EN 
REFERENCE FOR A PRELIMINARY RULING 1. 10. 2019 – CASE C-755/19 
 
2  
[…][Or. 2] […] 
III. Facts relevant to the examination of the matter 
3 After making a first application for asylum, which was rejected [...] on 8 August 
2018, the appellant lodged a second application for international protection, which 
was declared inadmissible by a decision taken on 11 September 2018 by the 
Commissaire général aux réfugiés et aux apatrides (Commissioner General for 
Refugees and Stateless Persons) under Article 57/6(3), first subparagraph, point 
5o, of the Loi du 15 décembre 1980 sur l’accès au territoire, le séjour, 
l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on 
entry to the territory, residence, establishment and removal of foreign nationals). 
The judgment under appeal states that that decision was notified to the appellant 
‘by messenger with acknowledgement of receipt on Wednesday 12 September 
2018’ in a location, treated as a specific place, located on the border where the 
appellant was held.  
The judgment under appeal rejects the action brought by the appellant on 
18 September 2018 against the aforementioned decision of inadmissibility on the 
ground that it is out of time, and the appellant is not relying on ‘any ground of 
force majeure constituting an insurmountable obstacle to lodging his appeal within 
the statutory time limit [of five days]’ [Or. 3]  
IV.  Single plea in cassation 
Argument of the appellant 
4 The appellant raises a single plea alleging the infringement of Article 47 of The 
Charter of the Fundamental Rights of the European Union, Articles 10, 11, and 13 
of the [Belgian] Constitution, of Articles 39/2, 39/57, 39/65, 39/77/1, 48/3, 48/4 
and 57/6 of the Law of 15 December 1980 on entry to the territory, residence, 
establishment and removal of foreign nationals, read in conjunction with Article 
46 of 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 (recast), the principles of equality and non-discrimination and the 
principle of respect for the rights of the defence.  
5 In the first branch, he explains that he had a period of only ‘three working days’ to 
lodge his action, which was a manifestly unreasonable time limit and made the 
exercise of the rights of the defence and the bringing of an action ‘excessively 
difficult’, with the result that he is placed in administrative detention and, in the 
course of his second application, he has not been heard with the assistance of his 
new lawyer, who could not therefore be assumed to be familiar with the case.  
He relies on the case-law of the European Court of Human Rights (ECtHR, 
judgment Assunção Chaves v. Portugal, 31 January 2012, § 80) and of the Court 
T.H.C. 
 
3 
of Justice of the European Union (CJEU, 28 July 2011, C-69/10, Diouf, 
paragraphs 67 and 68; 20 October 2016, C-429/15, Danqua, paragraph 49), in 
support of the assertion, in essence, that the time limit in question in the present 
case, which is notably less than the time limit of 15 working days considered by 
the Court of Justice of the European Union, increased the difficulties even further 
of lodging an appeal taking into account the particular circumstances of the case, 
namely his placement in detention and the more difficult access to legal assistance 
which, in particular, is not available seven days a week in a closed centre. 
6 […] [procedural point] [Or. 4] 
7 In a second branch, he submits that the time limits for lodging an action, laid 
down in Article 39/57 of the Law of 15 December 1980 referred to above, are 
counted in calendar days, which has the effect of significantly reducing them, and 
the sanction for breaching them is the inadmissibility of the action, in contrast to 
those laid down by the same law for the opposing party or for the Council for 
asylum and immigration proceedings to give its decisions or granted to the 
registry to notify the defendant of the action, or to the defendant to lodged its file, 
which are counted in working days, namely all days except Saturday, Sunday and 
public holidays. He considers that that constitutes discrimination, which has no 
lawful justification, that adversely affects the effectiveness of an appeal.  
8 […] [procedural point]  
Argument of the respondent 
9 Regarding the first branch, the respondent observes that the time limit prescribed 
by Article 39/57 of the Law of 15 December 1980 is a matter of public policy, 
such that it cannot be deviated from except in a case of force majeure, which does 
not arise in the present case, and so the administrative court was fully entitled to 
conclude that the action was time-barred.  
It refers to the parliamentary documents relating to the loi du 17 décembre 2017 
modifiant la loi du 15 décembre 1980 sur l’accès au territoire, le séjour, 
l’établissement et l’éloignement des étrangers (Law of 17 December 2017 
amending the Law of 15 December 1980 on entry to the territory, residence, 
establishment and removal of foreign nationals) (Doc. parl, Chambre, sess. ord., 
2016-2017, Doc 54 no 2549/001) which sets out the reasons supporting the greatly 
accelerated treatment of appeals in the case concerned, based in particular on the 
‘legitimate concern of reducing as far as possible the duration for which the 
foreign nation is detained’. 
It adds that the fact that the appellant’s current lawyer was not the same lawyer 
that had assisted him in the context of the first application for asylum, and the 
appellant was not heard in the presence of his new lawyer, in no way affects the 
effectiveness of the action. On that point, it states that applicants for international 
protection have the option of designating a lawyer from the beginning of their 
REFERENCE FOR A PRELIMINARY RULING 1. 10. 2019 – CASE C-755/19 
 
4  
application, whether for a first application or a later one, and thus the fact that the 
appellant did not use the option available to him under the law of calling on his 
existing lawyer when making his later application, falls within his own 
responsibility and has no impact on the effectiveness of the action under 
Article 39/57 of the Law.  
10 As to the second branch, the respondent contends that the appellant fails to explain 
how he is in a situation comparable with that of Commissioner General for 
Refugees and Stateless Persons, which is an administration responsible for 
processing a large number of requests for international protection. Furthermore, it 
considers that the appellant has no interest in alleging prejudice in terms of the 
effectiveness of the action, since, as stated in relation to the first complaint, the 
shortened time limit at issue remains reasonable and does not adversely affect the 
exercise of an action.  
Decision of the Council of State 
The first part 
11 The Law of 15 December 1980 on entry to the territory, residence, establishment 
and removal of foreign nationals provides, in particular, as follows: 
‘Article 39/2. § 1. The Council for asylum and immigration proceedings gives 
decisions, by way of judgments, on actions brought against decisions of the 
Commissioner General for Refugees and Stateless Persons. 
[…] 
Article 39/57. § 1. The actions referred to in Article 39/2 shall be brought by 
way of an application within of 30 days of notification of the decision challenged.  
[Or 6]  
The application shall be lodged within ten days of notification of the decision 
challenged: 
[OMISSIS] 
3° where the action is brought against a decision declaring the application 
inadmissible, referred to in the first subparagraph of Article 57/6(3). The action 
shall, nonetheless, be brought within five days of the notification of the decision 
challenged, where that decision concerns a decision declaring an application 
inadmissible taken on the basis of point 5° of the first subparagraph of Article 
57/6(3), and the foreign national finds himself or herself, at the time of his or her 
application, in a specific place referred to in Articles 74/8 and 74/9 or is put at the 
disposal of the government. 
[···] 
T.H.C. 
 
5 
§ 2. The time limits for bringing an action referred to in § 1 shall start to run: 
[···] 
3° where the notification is made with a confirmation of receipt, the first day 
following delivery or refusal of receipt. 
[...] 
The time limit shall include the day on which it expires. However, where that day 
is a Saturday, a Sunday or a public holiday, the day on which the time limit 
expires shall be the next working day.   
For the application of the present provision, all days except Saturday, Sunday and 
public holidays shall be regarded as working days. 
[···] 
Article 57/6. [...] 
§ 3.  The Commissioner General for Refugees and Stateless Persons may declare 
an application for international protection inadmissible where: 
[···] 
5° the applicant lodges a subsequent application for international protection for 
which no new elements or findings within the meaning of Article 57/6/2 arise or 
are presented by the applicant; 
[···] 
Article 57/6/2. § 1. After receipt of the subsequent application transmitted 
by the Minister or his or her deputy on the basis of Article 51/8, the Commissioner 
General for Refugees and Stateless Persons examines as a matter of priority 
whether any new elements or findings arise or are presented by the applicant that 
significantly increase the probability that he or she can claim recognition as a 
refugee within the meaning of Article 48/3 or as a person entitled to subsidiary 
protection within the meaning of Article 48/4. In the absence of those elements or 
findings, the Commissioner General for Refugees and Stateless Persons declares 
the application inadmissible. [...] ’. 
12 The judgment under appeal states that the contested administrative act was 
notified to the appellant ‘by messenger with acknowledgement of receipt on 
Wednesday 12 September 2018’, in a place treated as a specific place situated 
where the appellant was detained, and that the notification, which was validly 
effected, caused the time limit of five days prescribed for the lodging of the action 
against the decision of inadmissibility taken under Article 57/6, § 3, first 
subparagraph, point 5° of the Law of 15 December 1980, to start to run, and that, 
under Article 39/57, § 1, second subparagraph, point 3°, and § 2, subparagraph 1, 
REFERENCE FOR A PRELIMINARY RULING 1. 10. 2019 – CASE C-755/19 
 
6  
point 3°, and subparagraphs 2 and 3 of that law, the time limit for bringing an 
action started to run the day following the day on which the decision was notified 
to the appellant, namely Thursday 13 September 2018, and expired on Monday 
17 September 2018 at midnight.  
13 The rules on the admissibility of legal actions, in particular ratione temporis, are 
matters of public policy. In the present case, the Council for asylum and 
immigration correctly decides that the notification of the administrative act, by 
messenger with acknowledgement of receipt, was valid and caused the time limit 
for bringing the action to start to run, and with no situation of force majeure 
having been invoked, the action brought by registered letter on 18 September 
2018, namely outside the prescribed 5 day time limit, which expired on 17 
September 2018, is out of time. 
14 In cassation, however, the appellant submits that, in the present case, the time 
limit for bringing proceedings laid down by the national law is contrary to several 
provisions of EU law which guarantee the right to an effective remedy.  
He relies on Article 47 of the Charter of Fundamental Rights of the European 
Union which provides 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’, and also on Article 46 of 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 (recast), which is worded as 
follows: 
‘... 
Article 46 Right to an effective remedy 
Member States shall ensure that applicants have the right to an effective remedy 
before a court or tribunal, against the following: 
(a) a decision taken on their application for international protection ... 
... 
4. Member States shall provide for reasonable time limits and other necessary 
rules for the applicant to exercise his or her right to an effective remedy pursuant 
to paragraph 1. The time limits shall not render such exercise impossible or 
excessively difficult. 
[...]’. 
15 The ‘right [of access to] a tribunal’ enshrined in Article 47 of the Charter, referred 
to above, is an particular aspect of the right of access to the courts also guaranteed 
by Article 6(1) of the Convention for the Protection of Human Rights and 
Fundamental Freedoms. [Or 8]  
T.H.C. 
 
7 
According to the case-law of the European Court of Human Rights, to which 
reference can be made for the interpretation of Article 47, referred to above, since 
that article draws on Articles 6 and 13 of the European Convention for the 
Protection of Human Rights and Fundamental Freedoms, the right to a fair trial is 
subject to limitations permitted by implication, in particular as regards the 
conditions of admissibility of an action, since by its very nature it calls for 
regulation by the State, which enjoys, in that regard, a certain margin of 
appreciation. However, those limitations must not restrict or reduce a litigant’s 
access in such a way or to such an extent that the very essence of that right is 
impaired (ECtHR, 18 October 2016, Miessen v. Belgique). 
16 The first branch of the plea in cassation raises the question of whether the Council 
for asylum and immigration proceedings has infringed the right to an effective 
remedy and to a fair trial enshrined inter alia in Article 47 of the Charter of 
Fundamental Rights of the European Union by declaring the appellant’s action 
inadmissible on the ground referred to in the judgment under appeal, namely that 
it was not brought within the time limit, and by basing its decision on a legal 
provision, even if it is a matter of public policy, which establishes a time limit, 
within which the foreign national must bring his or her action, of five calendar 
days from the notification of the decision against which the action is brought, in 
particular where the appellant is held in administration detention, which may 
make access to an effective remedy and exercise of the rights of the defence more 
difficult. 
[…] [Stay of proceedings, procedural point] 
ON THOSE GROUNDS , 
THE COUNCIL OF STATE HEREBY ORDERS: 
[…] [stay of proceedings] [Or. 9]  
[…] 
In application of the third paragraph of Article 267 of the Treaty on the 
Functioning of the European Union, the following question for a preliminary 
ruling is referred to the Court of Justice of the European Union: 
‘Must Article 46 of 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 (recast), according to which applicants 
must have the right to an effective remedy against ‘a decision taken on their 
application for international protection’, and Article 47 of the Charter of 
Fundamental Rights of the European Union, be interpreted as precluding a 
national rule of procedure, such as Article 39/57, paragraph 1, subparagraph 
2, point 3°, second sentence, of the loi du 15 décembre 1980 sur l’accès au 
territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 
15 December 1980 on entry to the territory, residence, establishment and 
REFERENCE FOR A PRELIMINARY RULING 1. 10. 2019 – CASE C-755/19 
 
8  
removal of foreign nationals), read in conjunction with Article 57/6, 
paragraph 3, subparagraph 1, point 5°, and Article 57/6/2, paragraph 1, of 
the same law, which fixes at five ‘calendar’ days, from the notification of 
the administrative decision, the time limit for bringing an action against a 
decision that a subsequent application for international protection by a third 
country national, where the “foreign national is located, at the time of his 
application, in a specific place referred to in Articles 74/8 and 74/9 [of the 
same Law], or is put at the disposal of the government”?’ 
[…] [procedural point, costs] 
[…] [signatures]