62023CO0058
ORDER OF THE COURT (Eighth Chamber)
27 September 2023 (
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(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Area of freedom, security and justice – Asylum policy – Common procedures for granting and withdrawing international protection – Directive 2013/32/EU – Articles 22 and 23 – Right to legal assistance and representation – Article 46(4) – Reasonable period of time for lodging an appeal – Article 47 of the Charter of Fundamental Rights of the European Union – Right to an effective remedy before a tribunal – Rejection of an application for international protection as manifestly unfounded by accelerated procedure)
In Case C‑58/23 [Abboudnam], (
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REQUEST for a preliminary ruling under Article 267 TFEU from the Upravno sodišče (Administrative Court, Slovenia), made by decision of 31 January 2023, received at the Court on 6 February 2023, in the proceedings
Y.N.
v
Republika Slovenija,
THE COURT (Eighth Chamber),
composed of M. Safjan, President of the Chamber, N. Piçarra (Rapporteur) and N. Jääskinen, Judges,
Advocate General: T. Ćapeta,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1
This request for a preliminary ruling concerns the interpretation of Article 46(4) 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 (OJ 2013 L 180, p. 60), read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2
The request has been made in proceedings between Y.N. and the Republika Slovenija (Republic of Slovenia) concerning the decision of the Ministry of the Interior of that Member State (‘the Ministry of the Interior’) to reject as manifestly unfounded, by accelerated procedure, the application for international protection submitted by Y.N. (‘the decision at issue in the main proceedings’).
Legal context
European Union law
3
Recitals 20, 23, 25 and 50 of Directive 2013/32 state:
‘(20)
In well-defined circumstances where an application is likely to be unfounded …, Member States should be able to accelerate the examination procedure, in particular by introducing shorter, but reasonable, time limits for certain procedural steps, without prejudice to an adequate and complete examination being carried out and to the applicant’s effective access to basic principles and guarantees provided for in this Directive.
…
(23)
In appeals procedures, subject to certain conditions, applicants should be granted free legal assistance and representation provided by persons competent to provide them under national law. Furthermore, at all stages of the procedure, applicants should have the right to consult, at their own cost, legal advisers or counsellors admitted or permitted as such under national law.
…
(25)
In the interests of a correct recognition of those persons in need of protection as refugees within the meaning of Article 1 of the [Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545, 1954) supplemented and amended by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967,] or as persons eligible for subsidiary protection, every applicant should have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his or her case and sufficient procedural guarantees to pursue his or her case throughout all stages of the procedure. Moreover, the procedure in which an application for international protection is examined should normally provide an applicant at least with: … access to the services of an interpreter for submitting his or her case if interviewed by the authorities; … the opportunity to consult a legal adviser or other counsellor; the right to be informed of his or her legal position at decisive moments in the course of the procedure, in a language which he or she understands or is reasonably supposed to understand; and, in the case of a negative decision, the right to an effective remedy before a court or a tribunal.
…
(50)
It reflects a basic principle of Union law that the decisions taken on an application for international protection … are subject to an effective remedy before a court or tribunal.’
4
Article 12 of that directive, headed ‘Guarantees for applicants’, provides:
‘1.   With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants enjoy the following guarantees:
…
(b)
they shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary. Member States shall consider it necessary to provide those services at least when the applicant is to be interviewed as referred to in Articles 14 to 17 and 34 and appropriate communication cannot be ensured without such services. In that case and in other cases where the competent authorities call upon the applicant, those services shall be paid for out of public funds;
2.   With respect to the procedures provided for in Chapter V, Member States shall ensure that all applicants enjoy guarantees equivalent to the ones referred to in paragraph 1(b) to (e).’
5
Article 20(1) of the directive provides that Member States are to ensure that free legal assistance and representation is granted on request in the appeals procedures provided for in Article 46 of that directive.
6
Article 22(1) of that directive guarantees applicants the opportunity to consult, at their own cost, in an effective manner a legal adviser or other counsellor, admitted or permitted as such under national law, on matters relating to their applications for international protection, at all stages of the procedure, including following a negative decision.
7
The first subparagraph of Article 23(1) of Directive 2013/32 specifies that that legal adviser or other counsellor must have ‘access to information in the applicant’s file upon the basis of which a decision is or will be made’.
8
Paragraphs 1 and 4 of Article 46 of that directive, which is headed ‘The right to an effective remedy’, state:
‘1.   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.’
Slovenian law
9
The first sentence of Article 70(1) of the Zakon o mednarodni zaščiti (Law on international protection) of 4 March 2016 (Uradni list RS, No 16/17; ‘the ZMZ‑1’) establishes that an appeal may be lodged against an administrative decision of a competent body before the Upravno sodišče (Administrative Court, Slovenia) within 15 days of notification of that administrative decision. Where such a decision is adopted by accelerated procedure, the second sentence of Article 70(1) reduces that period to three days from notification of that decision.
10
It is clear from Article 111(2) and (4) of the Zakon o pravdnem postopku (Code of Civil Procedure) of 15 March 1999 (Uradni list RS, No 73/07), read in conjunction with Article 22(1) of the Zakon o upravnem sporu (Law on administrative disputes) of 28 September 2006 (Uradni list RS, No 105/06), that if a period is set in days, that period is to start to run from the first day following the day of notification or of communication of that decision. If the last day of that period is a Saturday, Sunday, public holiday or other non-working day provided for in national law, that period expires at the end of the first working day thereafter.
The dispute in the main proceedings and the question referred for a preliminary ruling
11
The decision at issue in the main proceedings, by which the Ministry of the Interior rejected as manifestly unfounded the application for international protection made by Y.N., a Moroccan national, was adopted by accelerated procedure. In accordance with the second sentence of Article 70(1) of the ZMZ-1, the period for lodging an appeal against such a decision is reduced from 15 days to 3 days from the notification of that decision.
12
Y.N. lodged an appeal before the Upravno sodišče (Administrative Court), the referring court, against the decision at issue in the main proceedings and argued, first, that since that decision had been notified to him on 23 December 2022, the day before a weekend containing a public holiday, the actual period for bringing an appeal had been reduced to one working day. Second, although he speaks only Arabic, no interpreter was available to him and, therefore, he was not able to communicate effectively with his representative, with their conversations taking the form of exchanges of SMSs composed with the aid of an electronic translation tool. The circumstances meant that he was unable to prepare his appeal effectively, which constituted an infringement of his right to an effective remedy.
13
The referring court confirms that, in the present case, the last day of the period prescribed for lodging an appeal, which started to run on 24 December 2022, was 26 December 2022, a public holiday in Slovenia, with the result that that period had expired at the end of the first working day thereafter, namely 27 December 2022.
14
That court notes, furthermore, that the circumstances of the case in the present instance are different from those in the case that gave rise to the judgment 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), in which the Court found that Article 46 of Directive 2013/32, read in the light of Article 47 of the Charter, does not preclude national legislation that makes the lodging of an appeal against a decision rejecting as inadmissible a subsequent application for international protection subject to a limitation period of 10 days, including public holidays and non-working days, from the date of notification of such decision, provided that applicants for international protection can, within that period, effectively enforce the procedural guarantees and exercise the procedural rights afforded to them by Directive 2013/32.
15
While acknowledging that the period for lodging an appeal against a decision rejecting an application for international protection as manifestly unfounded can be shorter than the 15-day period prescribed in the ordinary procedure, the referring court nevertheless takes the view that the 3-day period prescribed in the accelerated procedure is disproportionately less favourable than the period prescribed in the ordinary procedure.
16
In those circumstances, the Upravno sodišče (Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 46(4) of [Directive 2013/32], read in conjunction with Article 47 of the Charter, be interpreted as precluding a national procedural rule, such as the second sentence of Article 70(1) of the ZMZ-1, which provides, for the lodging of an appeal against a decision by which the competent authority rejects an application as manifestly unfounded under an accelerated procedure, a time limit of three days from the notification of such a decision, including public holidays, which may expire at the end of the first working day thereafter?’
Procedure before the Court
The request that the reference be dealt with under the urgent preliminary ruling procedure
17
By separate document, lodged at the Registry on 6 February 2023, the referring court asked that the case be dealt with under the urgent preliminary ruling procedure, arguing, first, that the interpretation of Article 46(4) of Directive 2013/32, in respect of which it sought clarity from the Court, had an effect on how it would examine similar appeals lodged before it and, second, that since the matter of law raised in the present case related the right to an effective remedy, it justified, on account of its very nature, a response in the shortest time possible.
18
By decision of 16 February 2023, the Third Chamber of the Court, designated in accordance with Article 108(1) of the Rules of Procedure of the Court of Justice, refused that request on the ground that the condition relating to urgency had not been satisfied.
19
As regards the first ground relied on by the referring court, the Third Chamber of the Court found that the large number of persons or legal situations that were potentially concerned by the decision that a referring court must issue after having made a reference to the Court for a preliminary ruling cannot, as such, constitute an exceptional circumstance capable of justifying the application of the urgent preliminary ruling procedure. As regards the second ground, in which the referring court argues that any request for a preliminary ruling concerning the interpretation of a provision relating to the right to an effective remedy requires a response to be provided rapidly by the Court, that chamber found that such a ground is not sufficient, in itself, to justify dealing with a case under the urgent preliminary ruling procedure, since that procedure is a procedural instrument intended to respond to a situation of extraordinary urgency.
20
The Third Chamber of the Court has recalled, moreover, that the main criterion for determining whether the urgency criterion is satisfied is whether the applicant in the main proceedings is being deprived of his or her liberty (judgment of 12 January 2023, MV (Formation of a cumulative sentence), C‑583/22 PPU, EU:C:2023:5, paragraph 45) and found that it was clear from the documents available to the Court that that applicant was not the subject of any measure depriving him of his liberty. It also observed that since, under national law, the applicant could not be deported until the decision on the application for a residence permit had become final, the risk that he would be removed to another country where he could be at risk of death, torture or other penalties or treatment that were inhumane or degrading could be ruled out.
The request for an expedited procedure
21
The referring court also requested that the present case be dealt with under the expedited procedure, in accordance with Article 105 of the Rules of Procedure, on grounds identical to those put forward in support of the request that the reference be dealt with under the urgent preliminary ruling procedure, as set out in paragraph 17 of the present order. That request was refused by decision of the President of the Court of Justice of 1 March 2023 on the same grounds as those set out in paragraph 19 of the present order.
Consideration of the question referred
22
Under Article 99 of its Rules of Procedure, where, inter alia, the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to such a question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.
23
The decision was taken to apply that provision to the present case.
24
By its question, the referring court asks, in essence whether Article 46(4) of Directive 2013/32, read in the light of the first paragraph of Article 47 of the Charter, must be interpreted as precluding national legislation that lays down a period of three days, including public holidays and non-working days, for lodging an appeal against a decision rejecting as manifestly unfounded an application for international protection adopted by accelerated procedure.
25
Article 46(1) and (4) of that directive, read in the light of recital 50 thereof, requires Member States to lay down reasonable time limits for bringing appeals and other necessary rules for the applicant for international protection to be able to exercise his or her right to an effective remedy before a court or tribunal. That provision also stipulates that those time limits must not render such exercise impossible or excessively difficult.
26
The characteristics of the remedy provided for in Article 46(4) of Directive 2013/32 must be determined in a manner consistent with Article 47 of the Charter, which states that any person whose rights and freedoms guaranteed by EU law are violated should have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article (judgment 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 27). Article 46(4) of that directive precludes any national measure which impedes the effective exercise of the remedies laid down in paragraph 1 of that article (see, by analogy, judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings), C‑660/21, EU:C:2023:498, paragraph 37).
27
It follows that, when Member States set the periods for lodging appeals in accordance with a provision of EU law such as Article 46(4) of that directive, they are obliged, under Article 51(1) of the Charter, to ensure observance of the right to an effective remedy before a tribunal, enshrined in Article 47 of the Charter, to which specific expression is given by Article 46 (see, to that effect, judgments of 19 December 2019, Deutsche Umwelthilfe, C‑752/18, EU:C:2019:1114, paragraph 34, and of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings), C‑660/21, EU:C:2023:498, paragraph 40).
28
As follows from recital 20 of Directive 2013/32, such time limits must, in all situations, remain reasonable and must not adversely affect the adequate and complete examination of the application submitted or the effective exercise, by the applicant, of the rights that that directive grants him or her. Furthermore, as is set out in recital 25 of that directive, every applicant should have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his or her case and sufficient procedural rights to pursue his or her case throughout all stages of the procedure.
29
Moreover, it follows from a combined reading of Article 12(1)(b) and (2) of Directive 2013/32 that, as regards appeals procedures, all applicants must enjoy, whenever necessary, guarantees equivalent to those for which provision is made for the administrative treatment of applications for international protection, that is to say, in particular, the services of an interpreter for submitting their case to the competent authorities.
30
Furthermore, in order to allow applicants to exercise their right to an effective remedy before a tribunal, Article 22 of Directive 2013/32, read in conjunction with recital 23 of that directive, guarantees those applicants the right to enjoy, at all stages of the procedure, legal assistance and representation, which may be free under Article 20 of that directive, including following a negative decision. Moreover, Article 23 of that directive guarantees legal advisers of those applicants access to the information in the file on the basis of which a decision is or will be made (judgment 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 62).
31
It follows that, in order to comply with the requirements under Article 46(4) of Directive 2013/32, read in the light of the first paragraph of Article 47 of the Charter, a period for lodging an appeal can be regarded as being sufficient in practical terms in order to prepare and lodge an effective appeal before a tribunal only if the applicant is in a position to exercise effectively, during that period, the procedural rights referred to in the preceding paragraph of the present order.
32
It follows from the request for a preliminary ruling that since the Ministry of the Interior did not make an interpreter available to the representative of the applicant in the main proceedings during the period for lodging an appeal, the conversations between the representative and the applicant took the form of exchanges of SMSs composed with the aid of an electronic translation tool. It is equally clear from that request that the Ministry of the Interior did not reply to the request to have access to the information in the file relating to the applicant in the main proceedings which was lodged by that applicant’s representative; according to the referring court, that is a result of the decision at issue in the main proceedings having been notified to the applicant shortly before a non-working day.
33
In such circumstances, subject to the checks which it is incumbent on the referring court to perform, a period for lodging an appeal, such as the one at issue in the main proceedings, which is such as to deprive, in practical terms, an applicant of his or her right to the services of an interpreter so as to be able to present his or her arguments to the competent authorities, as guaranteed in Article 12(1)(b) and (2) of Directive 2013/32, of his or her right to legal assistance and representation, as guaranteed in Article 22 of that directive, and of his or her right to have access to the information in his or her file, as provided for in Article 23 of that directive, does not guarantee the right to an effective remedy before a tribunal for which provision is made in Article 47 of the Charter.
34
In the light of the grounds set out above, the answer to the question referred is that Article 46(4) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation that lays down a period of three days, including public holidays and non-working days, for lodging an appeal against a decision rejecting as manifestly unfounded an application for international protection, delivered by accelerated procedure, where that period is such as to constitute a restriction on the effective exercise of the rights guaranteed in Article 12(1)(b) and (2), and Articles 22 and 23 of that directive.
Costs
35
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds, the Court (Eighth Chamber) hereby orders:
Article 46(4) 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, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as precluding national legislation that lays down a period of three days, including public holidays and non-working days, for lodging an appeal against a decision rejecting as manifestly unfounded an application for international protection, delivered by accelerated procedure, where that period is such as to constitute a restriction on the effective exercise of the rights guaranteed in Article 12(1)(b) and (2), and Articles 22 and 23 of that directive.
[Signatures]
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)	Language of the case: Slovenian.
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)	The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.