OPINION OF ADVOCATE GENERAL

BOT

delivered on 24 January 2018 ( 1 )

Cases C‑175/17 and C‑180/17

X

v

Belastingdienst/Toeslagen

and

X and Y

v

Staatssecretaris van Veiligheid en Justitie

(Requests for a preliminary ruling

from the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State, Netherlands))

(Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Directive 2005/85/EC — Article 39 — Directive 2008/115/EC — Article 13 — Directive 2013/32/EU — Article 46 — Charter of Fundamental Rights of the European Union — Articles 4 and 18, and Article 19(2) and Article 47 — Right to an effective remedy — Principle of non-refoulement — Decision rejecting an application for asylum and imposing an obligation to return — National legislation providing for a second level of jurisdiction in asylum matters — Automatic suspensory effect limited to the action at first instance — Exception if the legal effects of the decision annulled at first instance are maintained’)

I. Introduction

1. The present requests for a preliminary ruling overlap in substance. Consequently, these two cases will be decided together, and represent an opportunity for the Court to make a further contribution to the right to an effective remedy in asylum matters.

2. The question here is whether the law of the European Union, guaranteeing the right to an effective remedy, must be interpreted as meaning that national laws must accord automatic suspensory effect to the appeal proceedings for which they provide against decisions rejecting applications for asylum and imposing an obligation to return, where a risk of infringement of the principle of non-refoulement is invoked by the person concerned. The present cases will invite the Court to rule on the interpretation of Article 39 of Directive 2005/85/EC, ( 2 ) Article 13 of Directive 2008/115/EC ( 3 ) and Article 46 of Directive 2013/32/EU, ( 4 ) read in the light of Articles 4 and 18, and Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union. ( 5 )

3. At the end of my analysis, I shall propose that the Court rule that neither Directive 2005/85, nor Directive 2008/115, nor Directive 2013/32, nor the Charter requires Member States to provide for the automatic suspensory effect of an appeal, lodged in proceedings brought against a refusal of asylum including a return decision, even where the person who is subject to that measure invokes a risk of infringement of the principle of non-refoulement. However, the right to an effective remedy as established by those provisions precludes the legal effects of a refusal of asylum and a return decision from being maintained despite those measures having been annulled at first instance and requires that, in such a situation, the appeal be given automatic suspensory effect.

II. Legal framework

A. International law

1. The Geneva Convention

4. Article 33 of the Geneva Convention, ( 6 ) entitled ‘Prohibition of expulsion or return (“refoulement”)’, provides, in paragraph 1: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’

2. Convention for the Protection of Human Rights and Fundamental Freedoms

5. Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ( 7 ) entitled ‘Prohibition of torture’, provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

6. Article 13 of the ECHR, entitled ‘Right to an effective remedy’, is worded as follows: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’

B. EU law

1. Directive 2005/85

7. Article 3 of Directive 2005/85, entitled ‘Scope’, provides, in paragraph 1: ‘This Directive shall apply to all applications for asylum made in the territory, including at the border or in the transit zones of the Member States, and to the withdrawal of refugee status.’

8. Article 39 of that directive, entitled ‘The right to an effective remedy’, reads as follows: ‘1. Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against the following: (a) a decision taken on their application for asylum … … (e) a decision to withdraw of refugee status pursuant to Article 38. 2. Member States shall provide for time-limits and other necessary rules for the applicant to exercise his/her right to an effective remedy pursuant to paragraph 1. 3. Member States shall, where appropriate, provide for rules in accordance with their international obligations dealing with: (a) the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome; (b) the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have the effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States may also provide for an ex officio remedy … …’

2. Directive 2008/115

9. Article 13 of Directive 2008/115, entitled ‘Remedies’, provides: ‘1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. …’

3. Directive 2013/32

10. Article 46 of Directive 2013/32, entitled ‘The right to an effective remedy’, provides: ‘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, including a decision: (i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status; … 3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU [of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted ( 8 )], at least in appeals procedures before a court or tribunal of first instance. … 5. Without prejudice to paragraph 6, Member States shall allow applicants to remain in the territory until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy. 6. In the case of a decision: (a) considering an application to be manifestly unfounded in accordance with Article 32(2) or unfounded after examination in accordance with Article 31(8), except for cases where these decisions are based on the circumstances referred to in Article 31(8)(h); (b) considering an application to be inadmissible pursuant to Article 33(2)(a), (b) or (d); (c) rejecting the reopening of the applicant’s case after it has been discontinued according to Article 28; (d) not to examine or not to examine fully the application pursuant to Article 39, a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon the applicant’s request or acting ex officio, if such a decision results in ending the applicant’s right to remain in the Member State and where in such cases the right to remain in the Member State pending the outcome of the remedy is not provided for in national law. …’

C. Netherlands law

11. Under Netherlands law, an action at first instance before the rechtbank (District Court, Netherlands) against a decision of the Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, Netherlands) on an asylum matter has automatic suspensory effect. While it is possible to appeal against a judgment of the rechtbank (District Court) confirming a decision rejecting an application for asylum and imposing an obligation to return, the appeal proceedings do not have automatic suspensory effect. It is nevertheless possible to apply to the voorzieningenrechter (judge hearing applications for interim measures, Netherlands) of the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State, Netherlands) for interim measures, with a view in particular to avoiding expulsion, pending the outcome of the appeal proceedings. That application for interim measures does not itself have automatic suspensory effect. Substantively, both proceedings at first instance and appeal proceedings are heard by a court which has unlimited jurisdiction.

III. The facts of the main proceedings and the questions referred for a preliminary ruling

12. While the two requests for a preliminary ruling are, in substance, identical, they do not have the same factual basis and were not formulated in the same way by the referring court. They should, therefore, be distinguished from one another at this stage of my Opinion, notwithstanding the fact that my analysis will be common to both cases.

A. Case X (C‑175/17)

13. On 11 February 2008, X, an Iraqi national, obtained a residence permit for persons granted asylum, for a limited period and with retroactive effect from 3 October 2007, the date on which his application was lodged, on the basis of the group-specific protection policy. ( 9 ) On 19 January 2011, the Minister voor Immigratie, Integratie en Asiel (Minister for Immigration, Integration and Asylum, Netherlands), now replaced by the State Secretary for Security and Justice, withdrew that residence permit from the applicant in the main proceedings, on the grounds that the group-specific protection applicable to nationals of Central Iraq had been terminated, with retroactive effect, as of 22 November 2008. That decision, of 19 January 2011, also contained a return decision urging the person concerned to leave the Netherlands prior to the expiry of the time limit for bringing proceedings. X contested that decision before the rechtbank Den Haag (District Court, The Hague, Netherlands) which annulled it on the grounds of a failure to state reasons.

14. On 1 July 2011, the Minister for Immigration, Integration and Asylum again withdrew the right of residence of the applicant in the main proceedings, refusing to grant him refugee status or subsidiary protection. X brought an action against that decision. By judgment of 5 June 2012, the rechtbank Den Haag (District Court, The Hague) once more declared the action well founded and annulled the decision of 1 July 2011 whilst maintaining its effects, as provided for by Netherlands law which gives the administrative court the power to decide that the legal effects of the annulled decision are partly or wholly maintained.

15. X appealed against the judgment of 5 June 2012, but did not apply for an interim ruling that he should not be expelled before a decision had been delivered on that appeal. By judgment of 25 February 2013, which became final, the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State) declared X’s appeal to be unfounded, so that X consequently had had no right of residence in the Netherlands since 22 November 2008.

16. In parallel with those proceedings in relation to the right of residence of the person concerned, on 11 April and 5 June 2009 he applied for a contribution to his rental and healthcare costs. By decision of 29 December 2011, the Belastingdienst/Toeslagen (Tax and Customs Administration/Benefits, Netherlands) granted the person concerned advances on those contributions for 2012. However, by decision of 12 April 2013, the Tax and Customs Administration/Benefits set at EUR 0 the advances previously granted, given that X had had no right of residence since 22 November 2008. By decision of 28 March 2014, the Tax and Customs Administration/Benefits definitively set at EUR 0 those advances for contributions to rental and healthcare costs.

17. By judgment of 27 October 2015, which is the subject of an appeal before the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State), the referring court, the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) held that the applicant in the main proceedings had no entitlement to a contribution to rental and healthcare costs for 2012, since he had been lawfully resident only during the period from 1 July 2011 until the judgment of 5 June 2012, and was therefore obliged to repay them. According to the rechtbank Amsterdam (District Court, Amsterdam), that period of lawful residence is of no assistance for the purposes of his application for a contribution to rental and healthcare costs. That court emphasises in this regard that Netherlands law requires that such a period of lawful residence on procedural grounds follows immediately after a period of lawful residence on the basis of a residence permit of limited or unlimited duration. There is no question of such a subsequent period of residence in the present case, because X was not lawfully resident between 22 November 2008 and 1 July 2011 due to the withdrawal with retroactive effect of the residence permit which had been granted to him.

18. The main proceedings relate to this second set of proceedings, brought by X before the referring court against the judgment of the rechtbank Amsterdam (District Court, Amsterdam), confirming the obligation to repay the contributions at issue. The referring court considers that X is not obliged to repay the contributions received up until the judgment of the rechtbank Amsterdam (District Court, Amsterdam), in the proceedings relating to his residence permit, since the automatic suspensory effect of that action renders his residence lawful and confers on X a right to those contributions. That court states that, if the appeal proceedings relating to that withdrawal were also required to have automatic suspensory effect, that would imply that, under the national system, during the appeal proceedings, the person concerned would continue to be entitled to those contributions.

19. The referring court points out that, under national law, the repayment obligation at issue depends on whether or not the appeal proceedings brought by X against the judgment at first instance, which confirmed the rejection of his application for asylum, have automatic suspensory effect. It adds that the procedure by which the residence permit was withdrawn from X gave rise to a decision on an application for asylum, within the meaning of Article 3 of Directive 2005/85, and that that decision also includes a return decision, within the meaning of Directive 2008/115.

20. While it considers that neither national law, nor the case-law of the European Court of Human Rights, on Articles 3 and 13 of the ECHR, require that appeals against judgments at first instance confirming the rejection of an application for asylum and imposing an obligation to return have automatic suspensory effect, the referring court asks, in the two cases under consideration, whether EU law imposes such automatic suspensory effect, more specifically in view of Article 39 of Directive 2005/85, Article 13 of Directive 2008/115 and Article 46 of Directive 2013/32, read in the light of Articles 4 and 18, and Article 19(2) and Article 47 of the Charter.

21. With regard to the rejection of an application for international protection, the referring court considers, by reference to the judgment of the Court of 28 July 2011, Samba Diouf, ( 10 ) that Article 39 of Directive 2005/85 does not require that provision be made for an appeals procedure. Nonetheless, according to the referring court, this does not mean that the reasons for which an action at first instance has automatic suspensory effect cannot be used to justify the decision by a Member State to provide an appeal remedy which also has such automatic suspensory effect, provided that, until the appeal has been decided, it cannot be established that the applicant would not face any risk, within the meaning of Article 4 of the Charter, if he were returned to his country of origin.

22. With regard to the obligation to return, the referring court considers that Article 13 of Directive 2008/115 does not make any requirement for automatic suspensory effect. The Court nonetheless held, in its judgments of 18 December 2014, Abdida, ( 11 ) and of 17 December 2015, Tall, ( 12 ) that an action must necessarily have automatic suspensory effect where it is brought against a return decision whose enforcement may expose the applicant to a serious risk of being subjected to the death penalty, torture or other degrading treatment or punishment, thus ensuring compliance with the requirements set down by Article 19(2) and Article 47 of the Charter. The referring court considers that, although an appeals procedure is not mandatory, it is conceivable that it be given automatic suspensory effect, if national law makes provision for an appeals procedure.

23. In those circumstances, the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Must Article 13 of Directive 2008/115 …, read in conjunction with Articles 4 [and] 18, [and Article] 19(2) and [Article] 47 of the [Charter], be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of [that directive], the legal remedy of an appeal has automatic suspensory effect where the third-country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement? In other words, in such a case, should the expulsion of the third-country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third-country national concerned being required to submit a separate request to that effect? (2) Must Article 39 of … Directive 2005/85 …, read in conjunction with Articles 4 [and] 18, [and Article] 19(2) and [Article] 47 of the [Charter] be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for asylum within the meaning of Article 2 of [that directive], the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of the asylum-seeker concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the asylum-seeker concerned being required to submit a separate request to that effect?’

B. Case X and Y (C–180/17)

24. X and Y, Russian nationals, submitted applications for asylum, claiming that they would be at risk of persecution in the Russian Federation as a result of their homosexuality. In his decisions of 11 November 2016, the State Secretary for Security and Justice recognised the credibility of those arguments, but rejected their applications for asylum, taking the view that the alleged risks were not connected to their homosexuality and, consequently, could not justify the grant of a residence permit for persons granted asylum. Those decisions also contain return decisions, urging the persons concerned to leave the Netherlands voluntarily prior to the expiry of the time limit for bringing proceedings against those decisions. On 15 December 2016, the rechtbank Den Haag (District Court, The Hague) declared that the actions brought by the applicants in the main proceedings against those decisions of 11 November 2016 were unfounded. The persons concerned brought an appeal against the decisions of the rechtbank Den Haag (District Court, The Hague) before the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State) and also applied for interim rulings that they should not be expelled before a decision had been delivered on their appeal.

25. On 11 January 2017, the voorzieningenrechter (judge hearing applications for interim measures) of the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State), ruling on the application for interim measures, decided that the persons concerned could not be expelled before a decision had been delivered on their appeal. That decision was based on the fact that, by decision of 20 December 2016, the Raad van State (Council of State, Netherlands) had examined the consequences, for the Netherlands system of suspensory effect in asylum matters, of the judgment of the European Court of Human Rights of 5 July 2016, A.M. v. the Netherlands. ( 13 ) The decision of 11 January 2017 was inspired, in particular, by the desire to avoid the expulsion of the applicants before the Court had been able to rule on the questions to be referred for a preliminary ruling in order to resolve the present case.

26. The referring court then repeats, in substance, the reasoning adopted in the request for a preliminary ruling submitted in Case X (C‑175/17) which is set out at points 19 to 21 of this Opinion.

27. In those circumstances, the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Must Article 13 of Directive 2008/115 …, read in conjunction with Articles 4 [and] 18, [and Article] 19(2) and [Article] 47 of the [Charter], be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of [that directive], the legal remedy of an appeal has automatic suspensory effect where the third-country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement? In other words, in such a case, should the expulsion of the third-country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third-country national concerned being required to submit a separate request to that effect? (2) Must Article 46 of Directive 2013/32 …, read in conjunction with Articles 4 [and] 18, [and Article] 19(2) and [Article] 47 of the [Charter], be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for the granting of international protection, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of an applicant be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the applicant concerned being required to submit a separate request to that effect? (3) In order for there to be such automatic suspensory effect, is it still relevant whether the application for international protection which prompted the procedures of bringing an action in law and a subsequent appeal has been rejected on one of the grounds mentioned in Article 46(6) of Directive [2013/32]? Alternatively, does that requirement apply for all categories of asylum decisions as set out in that directive?’

IV. My analysis

A. Admissibility

28. First, the Court should reject the questions of admissibility which the Belgian Government raises on the grounds that the provisions which the Court is requested to interpret are not applicable to the circumstances of the cases in the main proceedings, and that the establishment of an appeal remedy falls solely within the competence of Member States.

29. In this regard, I propose that the Court should find that the requests for a preliminary ruling relate to the scope of the right to a remedy laid down by the provisions of Directives 2005/85 and 2008/115, which represent the very foundations of the applications submitted in the main proceedings, in the light of the provisions of the Charter. The Court must, consequently, be considered to have jurisdiction to rule on the questions raised. ( 14 )

B. Substance

30. By the questions which it has referred for a preliminary ruling, the referring court, in substance, asks the Court to rule on the question of whether appeal remedies, provided for by national law against decisions rejecting applications for asylum and imposing an obligation to return, must have automatic suspensory effect, where the right to non-refoulement is invoked.

31. As a preliminary point, it should be recalled that the procedures put in place by Directive 2005/85 are minimum standards and that the Member States have, in a number of respects, a margin of assessment with regard to the implementation of those provisions in the light, notably, of the particular features of national law. In addition, the objective of that directive is to establish a common system of safeguards serving to ensure full compliance with the Geneva Convention and the fundamental rights, of which the right to an effective remedy forms part. ( 15 )

32. In this context, however, it should be observed that nothing in EU law requires there to be two levels of jurisdiction for challenging decisions rejecting an application for asylum and/or imposing an obligation to return. EU law provides only that persons concerned by measures of this type must have a right to bring an action against the rejection of their applications for asylum, which is understood to involve only the existence of an action at first instance against decisions, of an administrative nature, made against them.

33. The Court has already held, in its judgment of 28 July 2011, Samba Diouf, ( 16 ) that the right to an effective judicial remedy requires only that there be a remedy before a judicial body. ( 17 ) According to that case-law, the principle of effective judicial protection therefore affords only a right of access to a court or tribunal and not to a number of levels of jurisdiction. ( 18 )

34. While that case-law only, formally, addresses the provisions of Article 39 of Directive 2005/85, it can nevertheless be applied to the provisions of Article 13 of Directive 2008/115 which seek, in substance, to guarantee in a similar manner the right to effective judicial protection of persons concerned by an expulsion measure, whether or not linked to a refusal of asylum.

35. Consequently, it should be pointed out that, in the absence of rules of EU law on the matter, the introduction of a second level of jurisdiction and the fact that provision is made for it to have automatic suspensory effect are matters which fall solely within the procedural autonomy of the Member States, which have a certain freedom of action in this regard, as is apparent from the wording of the provisions of which interpretation is sought.

36. Article 39(3) of Directive 2005/85 left it to the Member States to provide for rules in accordance with their international obligations concerning the right of asylum seekers to remain on their territory pending the outcome of the legal remedy, provided for in Article 39(1), against the rejection of their application at first instance. Thus, it provides for the right of the asylum seeker to remain on the territory of the Member State concerned only until his application has been rejected at first instance. ( 19 )

37. Article 13(2) of Directive 2008/115 provides that the authority or body with power to adjudicate on an appeal of that type may temporarily suspend enforcement of the return decision that is being challenged, unless a temporary suspension is already applicable under national legislation. That provision therefore in no way requires Member States to provide that the remedy provided for in Article 13(1) should have suspensory effect. ( 20 )

38. Article 46(5) of Directive 2013/32 provides that Member States are to allow asylum seekers to remain in their territory until the period within which to exercise their right to an effective remedy against the decision rejecting their application has expired and, when such a right is exercised within the period, pending the outcome of the remedy. ( 21 ) It is only if national law provides for an appeals or appeals in cassation procedure, and, as part of that, authorises the asylum seeker to remain in national territory, that a removal process cannot be initiated against him. ( 22 )

39. Moreover, while it is apparent from the Proposal for a Regulation of the European Parliament and of the Council of 13 July 2016 establishing a common procedure for international protection in the Union and repealing Directive 2013/32 ( 23 ) that the right to an effective remedy must include automatic suspensory effect, the application of such effect to appeal proceedings is excluded. ( 24 ) Article 54(5) of that proposal for a regulation indicates that, if an applicant lodges a further appeal against a first or subsequent appeal decision, he shall not have a right to remain on the territory of the Member State, unless a court or tribunal decides otherwise upon the applicant’s request or acting ex officio.

40. Thus, the right to a second level of jurisdiction depends only on the procedure provided for by national law and, a fortiori, it cannot be considered that such right to an appeal remedy must necessarily include automatic suspensory effect.

41. Furthermore, neither the terms nor the general scheme of Directives 2005/85 and 2008/115 support the view that the EU legislature required that, where a Member State makes provision for a second level of jurisdiction for challenging such decisions, it must necessarily have automatic suspensory effect ( 25 ) to meet the requirements of the right to an effective judicial remedy. ( 26 )

42. Consequently, Member States have the option to provide for two levels of jurisdiction or not, with or without suspensory effect.

43. Nevertheless, in exercising that option, Member States must ensure compliance with the principles of equivalence and effectiveness, ( 27 ) as well as the fundamental rights guaranteed by the Charter. ( 28 )

44. It is true that, according to the case-law of the Court, an action against a return decision must, ipso jure, have suspensory effect where that decision may expose the person concerned to a real risk of treatment contrary to Article 19(2) of the Charter, read in conjunction with Article 33 of the Geneva Convention. It is common ground that an action must necessarily have suspensory effect when it is brought against a return decision whose enforcement may expose the third-country national concerned to a risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, thereby ensuring that the requirements of Article 19(2) and Article 47 of the Charter are met in respect of that third-country national. ( 29 )

45. However, that case-law, which is based on that of the European Court of Human Rights on Articles 3 and 13 of the ECHR, ( 30 ) only applies to return decisions adopted pursuant to Directive 2008/115 and not to decisions rejecting an application for asylum taken on the basis of Directive 2005/85, even if they include, in addition, an expulsion measure.

46. In addition, according to the case-law of the European Court of Human Rights on Articles 3 and 13 of the ECHR, Contracting States are not obliged to make provision, in their national laws, for two levels of jurisdiction. In the judgment of 5 July 2016, A.M. v. The Netherlands, ( 31 ) cited by the referring court, while the European Court of Human Rights was able to state that the appeals procedure, as provided for by Netherlands law, did not constitute an effective remedy and could not, consequently, be taken into account in assessing the exhaustion of domestic remedies, required by Article 35(1) of the ECHR, the fact that the second level of jurisdiction provided for by national law did not have automatic suspensory effect was not characteristic of an infringement of the right to an effective remedy, as guaranteed by the provisions of Articles 3 and 13 of the ECHR, given the existence of a remedy at first instance which did have automatic suspensory effect. ( 32 )

47. Neither can this case-law be understood to require that suspensory effect must arise, ipso jure, before more than one level of jurisdiction. Thus, it cannot be considered that automatic suspensory effect extends to all of the judicial remedies available, under national law, against the rejection of an application for asylum including an expulsion measure, even if, before the appeal court, the applicant invokes a real risk of being subjected to treatment contrary to the provisions of the Charter and the ECHR.

48. Furthermore, to the extent that it follows from the case-law of both the Court and the European Court of Human Rights that compliance with the right to an effective remedy must be considered by assessing the administrative and judicial system of the Member State concerned as a whole, ( 33 ) the absence of automatic suspensory effect for an appeal remedy is not, in itself, liable to affect the compliance of the judicial protection system provided for by national law with the right to an effective remedy.

49. Consequently, the right to an effective remedy, as understood by both EU law and the law deriving from the ECHR, does not require there to be two levels of jurisdiction. For the requirements of the right to an effective remedy to be fulfilled it is sufficient that at least one of the levels of jurisdiction provided for by national law comply with the obligations which arise from those rights.

50. In the present case, it appears that that condition is met, since Netherlands law gives an action brought at first instance before the rechtbank (District Court) suspensory effect ipso jure and it provides, in addition, that the applicant has the option to accompany his appeal with an application for interim measures, seeking that the removal decision taken against him at the same time as the rejection of his application for asylum not be enforced before a decision has been delivered on that appeal.

51. Those observations only apply, however, on the condition that the suspensory effect of the action at first instance is not cancelled out by the option given to the court or tribunal dealing with the action at first instance to annul the contested decision, but maintain its effects, so that the person concerned can be subject to an expulsion measure, when his action was successful. If he were unaware of such procedural peculiarity, consisting of the fact that an appeal against a suspensory decision is not itself suspensory, the applicant would find himself in a situation as incomprehensible as the one that X encountered.

52. In Case X (C‑175/17), the court of first instance, in accordance with national law and despite having ruled that it be annulled, maintained the effects of the decision rejecting the application for asylum of the person concerned, which included a return decision. In those circumstances, it cannot be considered that the requirements of the right to an effective judicial remedy, as established by the provisions under analysis and the case-law of the Court and of the European Court of Human Rights, are fulfilled by the main proceedings.

53. Maintaining the effects of an annulled decision renders ineffective the action brought by the applicant, even if that action is upheld. That implies that the applicant does not have an effective right to a remedy. Consequently, if the legal effects of an annulled decision are maintained, the appeal remedy must have automatic suspensory effect in order for the national procedural system to fulfil the requirements of the right to an effective judicial remedy.

54. Thus, an important reservation must be expressed with regard to compliance with the requirements of the right to an effective judicial remedy, in circumstances such as those in Case X (C‑175/17), so that an applicant who obtains an annulment at first instance of the decision which he is contesting is protected from an expulsion measure where he appeals in order to avoid the enforcement of the annulled decision.

55. Finally, the interpretation proposed in this Opinion is consistent with the objectives of the rapid processing of applications for international protection ( 34 ) and an effective removal and repatriation policy ( 35 ) set out in the directives under consideration, given that the opposite reasoning would allow the persons concerned by decisions rejecting their application for asylum and/or removal decisions to bring a number of appeals with a view to thwarting the enforcement of those measures, which would slow down the removal process in respect of persons whose applications for a residence permit are rejected.

56. It follows from the above considerations that it is proposed that the Court rule that Article 39 of Directive 2005/85, Article 13 of Directive 2008/115 and Article 46 of Directive 2013/32, read in the light of Articles 4 and 18, and Article 19(2) and Article 47 of the Charter, must not be interpreted as meaning that under EU law the legal remedy of an appeal, if national law makes provision for such a remedy in procedures for challenging a decision which includes a return decision, has automatic suspensory effect, even where the third-country national concerned invokes the fact that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement. However, the right to an effective remedy as established by those provisions precludes the legal effects of a refusal of asylum and a return decision from being maintained despite those measures having been annulled at first instance and requires that, in such a situation, the legal remedy of an appeal be given automatic suspensory effect.

57. In light of the response thus given to the first questions posed in the two requests for a preliminary ruling under analysis, it will not be necessary to examine the third question submitted to the Court by the referring court in case X and Y (C‑180/17).

V. Conclusion

58. In the light of the above considerations, I propose that the Court respond to the questions referred for a preliminary ruling by the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State, Netherlands) as follows: 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, 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, and 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, read in conjunction with Articles 4 and 18, and Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must not be interpreted as meaning that under EU law the legal remedy of an appeal, if national law makes provision for such a remedy in procedures for challenging a decision which includes a return decision, has automatic suspensory effect, even where the third-country national concerned invokes the fact that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement. However, the right to an effective remedy as established by those provisions precludes the legal effects of a refusal of asylum and a return decision from being maintained despite those measures having been annulled at first instance and requires that, in such a situation, the legal remedy of an appeal be given automatic suspensory effect.

( 1 ) Original language: French.

( 2 ) Council Directive of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13, and corrigendum OJ 2006 L 236, p. 36).

( 3 ) Directive 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 (OJ 2008 L 348, p. 98).

( 4 ) Directive 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).

( 5 ) ‘The Charter’.

( 6 ) Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, as supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Geneva Convention’).

( 7 ) Signed in Rome on 4 November 1950 (‘the ECHR’).

( 8 ) OJ 2011 L 337, p. 9.

( 9 ) The group-specific protection policy is a system which designates certain countries or regions, in which violence is indiscriminate, generalised, omnipresent and of such severity that it is considered unjustified to contemplate the return of asylum seekers or a particular group of asylum seekers from that country. For Iraqis from Central Iraq, a group-specific protection policy was applied in the Netherlands from 2 April 2007 to 21 November 2008.

( 10 ) C‑69/10, EU:C:2011:524.

( 11 ) C‑562/13, EU:C:2014:2453.

( 12 ) C‑239/14, EU:C:2015:824.

( 13 ) CE:ECHR:2016:0705JUD002909409.

( 14 ) See, to this effect, judgment of 7 March 2017, X and X (C‑638/16 PPU, EU:C:2017:173, paragraphs 35 to 37).

( 15 ) Judgments of 28 July 2011, Samba Diouf (C‑69/10, EU:C:2011:524, paragraphs 29 and 61), and of 17 December 2015, Tall (C‑239/14, EU:C:2015:824, paragraph 43).

( 16 ) C‑69/10, EU:C:2011:524.

( 17 ) In the singular.

( 18 ) Paragraph 69 of that judgment.

( 19 ) See, to that effect, the Opinion of Advocate General Mengozzi in Gnandi (C‑181/16, EU:C:2017:467, points 58 and 59).

( 20 ) Judgment of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453, paragraph 44).

( 21 ) See, to this effect, Opinion of Advocate General Mengozzi in Gnandi (C‑181/16, EU:C:2017:467, point 88).

( 22 ) See, to this effect, Opinion of Advocate General Mengozzi in Gnandi (C‑181/16, EU:C:2017:467, point 91).

( 23 ) COM(2016) 467 final (‘the Proposal for a Regulation’).

( 24 ) See p. 20 and 21, and Article 54(5) of the Proposal for a Regulation.

( 25 ) Neither does such a requirement result from the judgment of 8 April 1976, Royer (48/75, EU:C:1976:57), contrary to what is claimed by X in his written observations.

( 26 ) See, also to that effect, judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343, paragraph 48), in which the Court indicates that it is clearly apparent from the wording, scheme and purpose of Directives 2005/85 and 2008/115 that an asylum seeker, independently of the granting of a residence permit, has the right to remain in the territory of the Member State concerned at least until his application has been rejected at first instance. That does not imply that bringing appeal proceedings gives the applicant the right to remain in the territory of the Member State concerned and therefore, a fortiori, that he cannot be removed as a result of such suspensory effect of that appeal.

( 27 ) Judgments of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 51), and of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 41).

( 28 ) Judgments of 8 May 2014, N. (C‑604/12, EU:C:2014:302, paragraph 41); of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 50); of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453, paragraph 42); and of 17 December 2015, Tall (C‑239/14, EU:C:2015:824, paragraph 50).

( 29 ) Judgments of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453, paragraphs 52 and 53), and of 17 December 2015, Tall (C‑239/14, EU:C:2015:824, paragraph 58).

( 30 ) See ECtHR, 26 April 2007, Gebremedhin [Gaberamadhien] v. France (CE:ECHR:2007:0426JUD002538905, § 66), and 23 February 2012, Hirsi Jamaa and Others v. Italy (CE:ECHR:2012:0223JUD002776509, § 200).

( 31 ) CE:ECHR:2016:0705JUD002909409.

( 32 ) ECtHR, 5 July 2016, A.M. v. The Netherlands (CE:ECHR:2016:0705JUD002909409, § 70). See, also, ECtHR, 14 February 2017, Allanazarova v. Russia (CE:ECHR:2017:0214JUD004672115, § 98).

( 33 ) Judgments of 28 July 2011, Samba Diouf (C‑69/10, EU:C:2011:524, paragraph 46), and of 31 January 2013, D. and A. (C‑175/11, EU:C:2013:45, paragraph 102). See, also, ECtHR, 5 February 2002, Čonka v. Belgium, (CE:ECHR:2002:0205JUD005156499, § 75), and 26 April 2007, Gebremedhin [Gaberamadhien] v. France (CE:ECHR:2007:0426JUD002538905, § 53: ‘even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so’).

( 34 ) See, by analogy, judgments of 26 July 2017, Mengesteab (C‑670/16, EU:C:2017:587, paragraph 54), and of 25 October 2017, Shiri (C‑201/16, EU:C:2017:805, paragraph 31).

( 35 ) See judgments of 17 July 2014, Pham (C‑474/13, EU:C:2014:2096, paragraph 20); of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 30); and of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84, paragraphs 75 and 76).