Case C‑662/17

E.G.

v

Republika Slovenija

(Request for a preliminary ruling from the Vrhovno sodišče)

(Reference for a preliminary ruling — Asylum policy — Directive 2013/32/EU — Article 46(2) — Appeal against a decision refusing to grant refugee status but granting subsidiary protection status — Admissibility — Lack of a sufficient interest where the subsidiary protection status granted by a Member State offers the same rights and benefits as those offered by the refugee status under Union and national law — Relevance of the applicant’s particular circumstances for the purposes of examining whether the rights and benefits are identical)

Summary — Judgment of the Court (Seventh Chamber), 18 October 2018

Border controls, asylum and immigration — Asylum policy — Procedures for granting and withdrawing international protection — Directive 2013/32 — Right to an effective judicial remedy — Appeal against a decision refusing to grant refugee status but granting subsidiary protection status — Possibility for the Member States to regard such an appeal as inadmissible — Conditions — The same rights and benefits conferred by each status –Assessment in abstracto — Scope

(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2013/32, Art. 46(2), second para.)

The second subparagraph of Article 46(2) 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 must be interpreted as meaning that subsidiary protection status, granted under legislation of a Member State such as that at issue in the main proceedings, does not offer the ‘same rights and benefits as those offered by the refugee status under Union and national law’, within the meaning of that provision, so that a court of that Member State may not dismiss an appeal brought against a decision considering an application unfounded in relation to refugee status but granting subsidiary protection status as inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings where it is found that, under the applicable national legislation, those rights and benefits afforded by each international protection status are not genuinely identical.

Such an appeal may not be dismissed as inadmissible, even if it is found that, having regard to the applicant’s particular circumstances, granting refugee status could not confer on him more rights and benefits than granting subsidiary protection status, in so far as the applicant does not, or has not yet, relied on rights which are granted by virtue of refugee status, but which are not granted, or are granted only to a limited extent, by virtue of subsidiary protection status.

The second subparagraph of Article 46(2) of Directive 2013/32 allows a Member State to provide that an appeal against a decision considering an application for refugee status unfounded but granting subsidiary protection status may be dismissed as inadmissible on the ground that the applicant has no sufficient interest in maintaining the proceedings where the subsidiary protection status granted by that Member State offers the ‘same rights and benefits’ as those offered by the refugee status under Union and national law. Therefore, the derogation from the right to a remedy set out in the second subparagraph of Article 46(2) of Directive 2013/32 must be interpreted narrowly in so far as it amounts to a derogation from the right to an effective remedy before a court or tribunal against any decision rejecting an application for international protection imposed by Article 46 of that directive and to a restriction of the fundamental right to effective judicial protection enshrined in Article 47 of the Charter. It follows that that derogation from the right to an effective remedy must be interpreted as applying only if the rights and benefits offered by subsidiary protection status, granted by the Member State concerned, are genuinely identical to those offered by refugee status under Union law and the applicable national law.

The Court must therefore conclude that, as far as concerns the right to reside, subsidiary protection status, as laid down in the Slovenian legislation, does not grant the same rights and benefits as those offered by refugee status under Union and national law, since, as is clear from the findings reached by the referring court set out in paragraph 33 above, the duration of the residence permit related to subsidiary protection status is not in line with the duration of the residence permit issued to persons to whom refugee status is granted.

By contrast, as maintained by the Netherlands Government and the Commission, the rules of Slovenian law relating to the grant, expiry, revocation or extension of each status of international protection, to which the referring court refers in its first question, do not concern the content of the rights conferred by each status, but the determination of the status concerned. Those rules are prescribed, imperatively and separately, for each status of international protection in question in Chapters III to VI of Directive 2011/95. Those rules, contrary to those relating to the content of the rights conferred by such status, cannot therefore be taken into account as ‘rights and benefits’ within the meaning of the second subparagraph of Article 46(2) of Directive 2013/32.

Lastly, in ascertaining whether the condition laid down in the second subparagraph of Article 46(2) of Directive 2013/32 is satisfied in respect of the rights and benefits conferred by each status of international protection in question being identical, the referring court asks whether account must be taken of the particular circumstances of the applicant to the effect that, even if the rights and benefits are not identical, there would, in any event, not be a sufficient interest in bringing an appeal against a decision refusing to grant him refugee status, resulting in the inadmissibility of the appeal, if granting that status would not afford him, in view of his particular circumstances, more rights and benefits than granting him subsidiary protection status. The question of whether the condition laid down in the second subparagraph of Article 46(2) of Directive 2013/32 is satisfied that the rights associated with each status of international protection concerned are identical must be assessed on the basis of an evaluation of the national legislation in question as a whole, and not on the basis of the particular circumstances of the applicant in question.

(see paras 43, 49, 50, 54, 57-59, 62, 63, 70, operative part)