OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 3 May 2016 ( 1 )

Case C‑560/14

M

v

Minister for Justice and Equality Ireland and the Attorney General

(Request for a preliminary ruling from the Supreme Court (Ireland))

‛Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2004/83/EC — Minimum standards for granting refugee status or subsidiary protection status — Subsidiary protection — Lawfulness of the national procedure for processing an application for subsidiary protection following rejection of an application for refugee status — Right to be heard — Scope — Need for an oral hearing — Right to call and cross-examine witnesses’

The present case affords the Court the opportunity to

clarify in greater detail the scope of the right to be heard in EU law,

1. ( 2 ) with particular reference to the procedure for awarding subsidiary protection within the meaning of Directive 2004/83. ( 3 )

2. The request for a preliminary ruling referred to the Court of Justice by the Irish Supreme Court has arisen in the context of the appeal proceedings brought before it against the judgment which the High Court gave following the delivery by the Court of Justice of the judgment in the case of M.M. (C‑277/11, EU:C:2012:744). The question referred by the Supreme Court relates to the Irish system for obtaining international protection as it applied at the time of the relevant facts, which has given rise to various questions referred to the Court. ( 4 ) The peculiarity of the Irish legislation, which has now been reformed twice, ( 5 ) lay in the choice of setting up a ‘bi-furcated’ system, a feature of which is that there are two separate procedures — one for asylum applications and another for applications for subsidiary protection.

3. In its judgment in M.M. (C‑277/11, EU:C:2012:744) the Court emphasised that it is important that the right to be heard, ( 6 ) in view of its fundamental nature, be fully guaranteed in each of the two procedures. However, it is clear from the case-file that the judgment in M.M. was interpreted differently by the parties as regards the exact scope which the Court afforded to that right. More specifically, the parties disagree as to whether or not it follows from that judgment that, for the right to be heard to be fully guaranteed in the procedure for obtaining subsidiary protection in a system of this kind, it is necessary for the applicant to be granted, before the authority which will decide his application, an oral hearing at which witnesses can be called, where an oral hearing has already been held in the previous procedure concerning his application for asylum. That, essentially, is the question which the Court is being asked to answer in this case.

I – Legal background

A – EU law

4. Under the Article 1 thereof, Directive 2004/83 is to lay down minimum standards for, on the one hand, the requirements to be satisfied by third country nationals or stateless persons to benefit from international protection and, on the other, the content of the protection granted.

5. Under Article 2(e) of Directive 2004/83, a person is eligible for subsidiary protection where substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm as defined in Article 15 of the directive. Under that article, serious harm consists of death penalty or execution (subparagraph (a)), or torture or inhuman or degrading treatment or punishment (subparagraph (b)), or serious threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (subparagraph (c)).

6. Article 4 of Directive 2004/83, included in Chapter II thereof, entitled ‘Assessment of applications for international protection’, provides an indication of how the assessment of facts and circumstances underlying those applications is to be carried out. In particular, the second sentence of paragraph 1 thereof provides that in cooperation with the applicant it is the duty of the Member State to assess all the relevant elements of the application for international protection. Under paragraph 3 of that article, the assessment of an application for international protection is to be carried out on an individual basis and includes taking into account a whole number factors set out therein, including, in particular under subparagraph (c) thereof, the individual and personal position of the applicant, so as to assess whether, on the basis of his personal circumstances, the acts to which he has been or could be exposed would amount to persecution or serious harm.

7. Directive 2005/85 ( 7 ) lays down minimum standards on procedures for assessing applications for refugee status. Article 3 of that directive determines the scope thereof and provides, at paragraph 1 thereof, that it is to apply to all applications for asylum. However, under paragraph 3 of that article ‘[w]here Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for other kinds of international protection given under the circumstances defined by Article 15 of Directive 2004/83/EC, they shall apply this Directive throughout their procedure’. Paragraph 4 of that article provides that ‘[m]oreover, Member States may decide to apply this Directive in procedures for deciding on applications for any kind of international protection’.

8. Article 12(1) of Directive 2005/85, entitled ‘Personal interview’ provides that ‘[b]efore a decision is taken by the determining authority, the applicant for asylum shall be given the opportunity of a personal interview on his/her application for asylum with a person competent under national law to conduct such an interview’. However, under paragraphs 2 and 3 of that article that personal interview may be omitted in a number of cases set out therein. ( 8 )

B – National law

9. As I pointed out above, in Ireland, while the legislation applicable to this situation which gave rise to the present case was in force, the application for asylum and the application for subsidiary protection were covered by two separate procedures, one following upon the other.

10. The procedure for granting subsidiary protection was governed by the European Communities (Eligibility for Protection) Regulations 2006, which were made by the Minister for Justice, Equality and Law Reform (‘the Minister’) on 9 October 2006 and whose purpose is, in particular, to transpose Directive 2004/83.

11. There is no provision in those regulations for the applicant for subsidiary protection to be heard in a personal interview in the course of examination of his application. The rules governing the procedure for processing applications for subsidiary protection have, in the intervening period, been the subject of two reforms ( 9 ) which, however, are not relevant rationae temporis in the present case.

II – Facts, national procedure and questions referred

12. The conduct of the procedures relating to applications for asylum and subsidiary protection made by Mr M. before the Irish authorities is set out in detail at paragraphs 39 to 46 of the judgment in M.M. (C‑277/11, EU:C:2012:744), to which express reference is made. In so far as is necessary for the purposes of the present case, I would merely point out that Mr M., a Rwandan citizen of Tutsi ethnicity, initially entered Ireland in 2006 on a student visa and that he applied for refugee status following the expiry of that visa in 2008. As part of the procedure relating to that application Mr M. was heard during a personal interview with the Office of the Refugee Application Commissioner. Mr M. lodged an appeal against the unfavourable decision of that authority with the Refugee Appeal Tribunal, which, following a procedure which was conducted entirely in writing, definitively refused Mr M.’s application on the ground that his claims as to the risks of persecution which he would face if he were returned to Rwanda were not credible.

13. In December 2008 Mr M. submitted to the Minister an application for subsidiary protection, which was also refused. In his unfavourable decision, which was taken without an oral hearing being given to Mr M. in respect of his application for subsidiary protection, the Minister concluded that there were not sufficient grounds to demonstrate that he was at risk of serious harm within the meaning of Article 15 of Directive 2004/83 if he were returned to Rwanda. The case files show that to justify that decision the Minister in the main simply referred to the grounds relied on previously to refuse the Mr M.’s application for asylum.

14. Mr M. challenged the Minister’s decision before the High Court, which, in the proceedings relating to that action, referred a question to the Court of Justice for a preliminary ruling. That question essentially asked the Court whether, in a case such as that of Mr M., in which a person applies for subsidiary protection following refusal to grant refugee status, the requirement to cooperate laid down in Article 4(1) of Directive 2004/83 requires the authorities of a Member State, where they intend to take an unfavourable decision, to provide the applicant, before a decision is made, with the results of their assessment so as to enable him or her to address those aspects of the proposed decision which suggest a negative result.

15. In its judgment in M.M. (C‑277/11, EU:C:2012:744), after having replied in the negative to the question referred by the High Court, ( 10 ) the Court, at paragraph 75 et seq., specifically highlighted the requirement that in each of those procedures the applicant’s fundamental rights and, more particularly, his right to be heard in the sense that he must be able to make known his views before the adoption of any decision that does not grant the protection requested, be observed. More specifically, in the second indent of paragraph 95, the Court ruled that in a bi-furcated system such as the Irish system, ‘the fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection’.

16. Following delivery of the judgment of the Court of Justice, the High Court gave its judgment on 23 January 2013. ( 11 ) It held that, contrary to what Mr M. had maintained, in its judgment in M.M. (C‑277/11, EU:C:2012:744) the Court of Justice had not intended to find that, in a ‘bi-furcated’ system such as the Irish system, EU law generally confers on the applicant a right to a personal oral hearing in the procedure relating to the application for subsidiary protection, although there might be many cases in which such right exists. Nevertheless, the High Court annulled the Minister’s decision on the ground that, in this case, it had not observed Mr M.’s right to be heard in the procedure concerning the application for subsidiary protection. The High Court found that, one, the Minister had based his decision entirely on adverse findings made in the assessment of the asylum application as to the credibility of Mr M.’s claims that he would come to harm if he were returned to Rwanda and, two, made no separate and independent adjudication of the claims made by Mr M. ( 12 )

17. The Minister, the Irish Government and the Attorney General brought an appeal against the judgment of the High Court before the national court, claiming that the High Court had misinterpreted the judgment in M.M. (C‑277/11, EU:C:2012:744). For his part, Mr M. brought a cross-appeal claiming that, contrary to what the High Court had ruled, it follows from the abovementioned judgment of the Court of Justice that he has a right to a personal interview in the procedure concerning his application for subsidiary protection.

18. The national court highlights the need for guidance as to how the dicta of the Court of Justice in paragraph 85 et seq. of its judgment in M.M. (C‑277/11, EU:C:2012:744) should be applied in circumstances where, as in the present case, there are two separate procedures for examining applications for refugee status and applications for subsidiary protection.

19. In the light of the foregoing, the national court has decided to stay the main proceedings and refer the following question to the Court of Justice for a preliminary ruling: ‘Does the “right to be heard” in EU law require that an applicant for subsidiary protection, made pursuant to Council Directive 2004/83/EC be accorded an oral hearing of that application, including the right to call or cross-examine witnesses, when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, respectively?’

III – Proceedings before the Court

20. The order for reference was received at the Court Registry on 5 December 2014. Written observations were submitted by Mr M., the Irish, French and Czech Governments, and the European Commission. The hearing held on 18 February 2016 was attended by Mr M., the Irish Government and the Commission.

IV – Legal analysis

21. By its question, the national court asks, in essence, whether, in EU law, the right to be heard in all proceedings must be interpreted as meaning that when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for asylum and applications for subsidiary protection, respectively, that right necessarily requires that the applicant be accorded an oral hearing at which he has the right to call and cross-examine witnesses in the proceedings concerning his application for subsidiary protection.

22. As indicated above, the present request for a preliminary ruling follows on from the Court’s judgment in M.M. (C‑277/11, EU:C:2012:744), the interpretation of which is decisive to the resolution of the dispute before the national court. The parties to those proceedings and the intervening parties in the present proceedings, take opposing stances on the way in which that judgment should be interpreted.

23. On the one hand, Mr M. contends that in the above judgment the Court recognised the need for the applicant for subsidiary protection to be accorded an oral hearing so that his right to be heard can be deemed to have been observed in a situation such as that in the main proceedings. The Commission also considers that in a case of this kind it is necessary to conduct an oral interview in order to observe the right to be heard. On the other, the Irish Government, whose position is supported by the French and Czech Governments, takes an opposing stance and considers that in a case of this kind for the right to be heard to be observed it is sufficient for the applicant to have had the possibility of expressing himself exhaustively, even if merely in writing, on all the reasons underlying his application for subsidiary protection.

24. Since, just as in M.M., this reference also raises, in general, the question of the scope of the right to be heard in EU law in a particular situation such as that at issue in the main proceeding, ( 13 ) it seems appropriate, for the purpose of replying to the question referred, to set out briefly the principles laid down by the Court in its case-law on that right.

A – Principles established by case-law governing the right to be heard in EU law

25. In accordance with settled case-law, observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent. ( 14 )

26. The right of every person to be heard before any individual measure which would affect him adversely is taken is now expressly laid down in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union as a particular expression of the right to good administration. ( 15 )

27. As I have had occasion to recall recently, ( 16 ) the applicability of Article 41 of the Charter to Member States when they are implementing EU law ( 17 ) is still disputed in case-law. According to an initial line of case-law, to which I adhere, ( 18 ) that article constitutes a provision of general application which applies not only to the institutions, bodies, offices and agencies of the Union but also to the Member States when they are implementing EU law. ( 19 ) Another line of case-law is based on the wording of the provision which makes express reference only to the institutions, bodies, offices and agencies of the EU, not to the Member States. According to that line of case-law, it follows from the above that the right to be heard of a person who is party to proceedings before the authorities of a Member States is not founded on Article 41 of the Charter, but on the general principle of EU law of respect for the rights of the defence. ( 20 )

28. In the present case, however, although it has a certain relevance in relation to the precise definition of the legal basis on which Mr M.’s right to be heard is based, it has in reality, as the Commission noted at the hearing, no practical bearing since the need to observe that right before the Irish authorities is beyond doubt, regardless whether it is founded on Article 41 of the Charter or on the general principle of EU law.

29. As regards the substance of the right to be heard, it is clear from the Court’s case-law that that right guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely. ( 21 ) That right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision. ( 22 )

30. It has been observed that the right to be heard has a dual function: first, to enable the case to be examined and the facts to be established in as precise and correct a manner as possible and, second, to ensure that the person concerned is in fact protected. It is intended in particular to ensure that any decision adversely affecting a person is adopted with full knowledge of the facts ( 23 ) and the objective thereof is, in particular, to enable the competent authority to correct an error or to allow the person concerned to produce such information relating to his personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having a given content rather than another. ( 24 )

31. When the authorities of the Member States take measures which come within the scope of EU law, they are subject to the obligation to observe the rights of the defence, and thus the right to be heard, of addressees of decisions which significantly affect their interests, even where the applicable legislation does not expressly provide for such a procedural requirement. ( 25 )

32. According to case-law, where the conditions under which observance of the rights of defence in a particular procedure are not laid down by EU law, the determination of those conditions falls within the scope of national law, provided that the rules adopted to that effect are the same as those to which individuals in comparable situations under national law are subject (the principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred by the European Union legal order (the principle of effectiveness). ( 26 ) Those requirements of equivalence and effectiveness embody the general obligation on the Member States to ensure respect for the rights of defence which an individual derives from EU law, in particular as regards the definition of detailed procedural rules. ( 27 )

33. Nevertheless, fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. ( 28 )

34. Further, the question whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, including, the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question. ( 29 ) More specifically, the Court has expressly pointed out that the detailed rules made to ensure that those concerned are able to exercise their right to be heard prior to the adoption of a return decision must be assessed in the light of the objective of the legislation in question. ( 30 )

35. It follows from the considerations set out above that the Member States must take account of all the Court’s case-law concerning observance of the rights of the defence, as set out above, in conjunction with the scheme and objectives of the EU legislation at issue when they determine the conditions and procedural arrangements for guaranteeing observance of the right to be heard of addressees of decisions which significantly affect their interest, ( 31 ) provided that the principles of equivalence and effectiveness referred to at point 32 above are observed.

B – Scope of the right to be heard in the procedure for the award of subsidiary protection status

36. In the case before the national court, EU law does not lay down precise rules which determine the conditions and procedural arrangements necessary to guarantee the right to be heard of a third-country national applying for subsidiary protection.

37. More specifically, in a legal context such as that relevant to the proceedings before the national court those conditions and procedural arrangements are not laid down in either Directive 2004/83, which does not contain any procedural rules applicable to the examination of an application for international protection, ( 32 ) or Directive 2005/85, which, under Article 3 thereof, is not applicable to applications for subsidiary protection except where a Member State establishes a single procedure for processing the two applications for international protection (asylum and subsidiary protection), ( 33 ) which, as we have seen, was not so in the case of the legislation in force in Ireland at the time of the facts in the main proceedings. ( 34 )

38. It follows from the finding as to the non-applicability of Directive 2005/85 that the question of the possible existence of a right to an oral hearing in the procedure concerning Mr M.’s application for subsidiary protection cannot, in any event, by analysed on the basis of Article 12 of Directive 2005/85. Indeed, that provision cannot be applied to the present case, even by analogy, since, as the Irish Government correctly pointed out, the application thereof, even indirectly, would have the result, first, essentially of rendering ineffective the choice made by the legislature of a Member State which has opted, pursuant to Directive 2005/85, to subject applications for asylum and subsidiary protection to two separate procedural arrangements and, second, of depriving Article 3(3) and (4) of the directive of its effectiveness by essentially imposing the application of that act to cases where it is not applicable.

39. In the absence of specific EU rules, it follows from the case-law referred to at point 32 above that the Member States remain competent, in accordance with the principle of procedural autonomy, to determine the conditions and procedural arrangements relating to observance of the right to be heard in a procedure concerning examination of an application for subsidiary protection, while at the same time ensuring that fundamental rights and the principles of equivalence and effectiveness are observed. ( 35 )

40. More specifically, it follows from the requirement that the provisions of EU law relating to subsidiary protection be fully effective that the national procedural rules must establish how the procedure relating to applications for such protection is conducted so as to ensure that persons seeking subsidiary protection are actually in a position to avail themselves of the rights conferred on them by Directive 2004/83. ( 36 ) As regards the present case specifically, this means that the national rules must lay down conditions and procedural arrangements for exercising the right to be heard in the procedure so as to ensure that those concerned are actually in a position to exercise the rights arising from subsidiary protection status.

41. In that regard it is clear from the case-law referred to at points 34 and 35 of this Opinion that in the present case the scope of the right to be heard, and the conditions and procedural arrangements necessary to observe it, must be assessed having regard to the nature and objectives of the procedure at issue, that is to say, in the present case, the procedure for affording subsidiary protection status as laid down in Directive 2004/83.

42. The objective of the provision on subsidiary protection laid down in Directive 2004/83 is explicitly to offer an ‘appropriate status’ to any person who, despite not fulfilling the conditions to be considered a refugee, nonetheless is in need of international protection. ( 37 ) Subsidiary protection therefore constitutes a form of complementary and additional protection vis-à-vis the protection provided for refugees, ( 38 ) which is awarded where conditions different from those for awarding the right to asylum are fulfilled and which confers rights of a kind other than those attributed by refugee status. ( 39 )

43. In the light of that objective, the procedure designed to assess an application for subsidiary protection is characterised by the fact that, the specific individual situation of the applicant plays a crucial role in the assessment of the application, which is, moreover, reflected in the provisions of Directive 2004/83.

44. On the one hand, as regards the types of serious harm set out in Article 15 of Directive 2004/83, the risk of occurrence of which justifies awarding subsidiary protection, ( 40 ) it is clear from case-law that all those types require regard to be had to the specific individual situation of the applicant. Indeed, as the Court stated, Article 15(a) and (b) cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm. As regards the provision in Article 15(c), while that provision concerns the risk of more general harm, the Court has nonetheless stated that, in the latter case too, the specific individual situation of the applicant can play a fundamental role in the final decision. The Court has in fact stated that the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection. ( 41 )

45. On the other hand, it is made expressly clear in Article 4(3)(c) of Directive 2004/83 that in assessing an application for international protection, and thus also an application for subsidiary protection, it is necessary to assess the individual and personal situation of the applicant in order to establish whether or not the acts to which the applicant has been or could be exposed constitute serious harm.

46. Furthermore, it has been correctly pointed out that a feature of the procedure for awarding subsidiary protection status is that, like that for awarding refugee status, it relates to a difficult personal and practical situation and concerns the preservation of the essential rights of the applicant for whom the decision to be given is of vital importance. That procedure is marked by the absolutely central role of the person of the applicant who not only initiates the procedure but is also the only person able to explain, in concrete terms, what has happened to him, which can lead to the award of that status, and the background against which it has taken place. ( 42 )

47. Moreover, it is precisely because of the particularity of the objectives and nature of the procedure for awarding subsidiary protection and its differences from the procedure for awarding refugee status that the Court, in its judgment in M.M. (C‑277/11, EU:C:2012:744), particularly emphasised the fundamental character of the right of the applicant to be heard in that procedure and the requirement that that right be fully guaranteed in that procedure, also in a bi-furcated system such as that at issue in the main proceedings. ( 43 )

48. It follows from the considerations set out above that, in the light of the particular nature and objectives of the procedure for examining whether the conditions for awarding subsidiary protection status have been fulfilled, for access to the rights conferred by that status to be effective the applicant must be placed in a very effective position to exercise the right to be heard in that procedure. It is only where the applicant has an actual opportunity to set out effectively what has happened to him and the background against which it has taken place, by explaining to the competent authority, in a complete and appropriate manner, all the facts and evidence in support of his application, that he can have effective access to the rights conferred by that status as laid down in Directive 2004/83.

49. In that regard, I also note that the requirement to guarantee in particular the effective exercise of the right to be heard, to which I have just referred, applies equally to the procedure for the award of subsidiary protection status and that for refugee status. Although, as has been pointed out, the requirements which must be fulfilled for the award of those two statuses differ, both procedures display the characteristics highlighted at points 43 to 46 above, that is to say the central nature of the applicant’s person and the vital importance of his interests at stake and the importance to the adoption of the final decision of the specific individual situation of the applicant. Moreover, this is confirmed by the fact that abovementioned Article 4(3)(c) of Directive 2004/83 applies to both statuses.

50. However, it follows from the fact that the two statuses are awarded on the basis of different criteria and from the requirement arising from the abovementioned Article 4(3)(c) of Directive 2004/83 that the applicant’s individual and personal situation be assessed specifically and separately against two different criteria (that is to say, on the one hand, the risk of persecution or, on the other, the risk of serious harm) that in both procedures the right to be heard constitutes a procedural guarantee which makes reference to different factors.

C – Need for an oral hearing of the applicant for subsidiary protection to observe the right to be heard in a ‘bi-furcated’ system for awarding international protection

51. At this juncture the question which is fundamental to the main proceedings arises, namely whether the abovementioned requirement to ensure the effectiveness of the right to be heard in the procedure for the award of subsidiary protection can be fulfilled solely by means of a personal hearing of the applicant, or whether, as the Irish Government has argued, in a bi-furcated system for awarding international protection the possibility of submitting written observations can be sufficient for that purpose where such a hearing has already taken place in the previous procedure for the award of refugee status.

52. In that regard, I note, first of all, that contrary to what Mr M. appears to consider, it is not apparent from the judgment M.M. (C‑277/11, EU:C:2012:744) that the Court ruled that an oral hearing of the applicant is absolutely always necessary in the procedure for the award of subsidiary protection.

53. In particular, that interpretation does not follow from the Court’s statement in the final sentence of paragraph 95 of that judgment, which is reproduced verbatim at point 15 of this Opinion. That statement must be placed in the context of the judgment. In particular, it constitutes, in my view, a response to the argument put forward before the Court and described by it at paragraph 90 of the judgment, namely that in a ‘bi-furcated’ system where the hearing of the applicant has already taken place as part of the examination of the application for asylum ‘it is not necessary for the applicant to be heard again for the purpose of considering his application for subsidiary protection because the formality of a hearing in a sense replicates the hearing which he has already had in a largely similar context’.

54. In the light of that, and paragraph 91 of the judgment, I consider that the Court meant that in a ‘bi-furcated’ system the fact that a hearing of the applicant had already taken place in the procedure relating to the application for asylum does not mean, this is to say have the result (I would add, necessarily,) that the personal hearing does not have to take place in the procedure for subsidiary protection since the right to be heard must in any event be fully guaranteed also in the latter procedure.

55. Therefore, in my view the judgment in M.M. (C‑277/11, EU:C:2012:744) should be interpreted less as an affirmation of the absolute necessity for an oral hearing in the procedure for awarding subsidiary protection than as a strong reminder of the requirement that the right to be heard be fully observed in that procedure also in a ‘bi-furcated’ system. Furthermore, an interpretation of that kind conforms to the rules on asylum in which exceptions to the power to conduct a personal hearing are possible. ( 44 )

56. Although those considerations do not militate in favour of conferring an absolute right to a personal hearing in all cases in a procedure for subsidiary protection, the requirement that the right to be heard should be particularly effective in that kind of procedure, in regard to its particular nature and objectives, prompts me to consider that, contrary to what the Irish Government contends, the personal hearing of the applicant must in any event be the rule and not the exception and that it can thus be omitted only in exceptional cases, also in a ‘bi-furcated’ system.

57. In that regard, as was noted at point 30 above, the function of the right to be heard in the procedure for awarding subsidiary protection is to enable the competent authority to have the applicant set out the facts underlying his application in such a way as to ensure, one, his effective protection and, two, the adoption of a decision by the authority in full knowledge of the facts.

58. The personal hearing constitutes the fullest possible expression of the right to be heard. For the applicant, it is the sole occasion to explain what has happened to him and to speak with the person who is best qualified to take account of his personal situation. ( 45 ) On that occasion he may present any new evidence in support of his application which he had not included in his argument and, above all, clarify in person any doubts which may have arisen or any evidence perceived as contradictory.

59. For the competent national authority, such an interview provides an opportunity to examine, in concrete terms, evidence, including evidence that is subjective and therefore difficult to discern from a written text, which may not have been of relevance to the award of refugee status but could have such relevance to the award of subsidiary protection.

60. In a procedure such as that relating to the award of subsidiary protection, in which the applicant’s person plays a central role and in which it is often impossible to provide documentary evidence, the personal hearing is of fundamental importance in that respect, also in terms of assessing the personality of the individual concerned and the credibility of the evidence relied on in his application.

61. In my view, the above considerations also apply in a situation where in a bi-furcated system, such as that in force in Ireland at the time relevant to the facts of the case, the application for subsidiary protection status is based on a factual context similar to that on which the refused application for asylum was based.

62. As the Court pointed out in its judgment in M.M., when a Member State has chosen to establish two separate procedures, one following upon the other, for examining asylum applications and applications for subsidiary protection, it is important that the applicant’s right to be heard, in view of its fundamental nature, be fully guaranteed in each of those two procedures. ( 46 )

63. It follows that the fact that the right to be heard was fully observed in the previous procedure concerning the application for asylum does not mean that the particular requirement that effective exercise of that right be guaranteed, referred to at point 48 above, is reduced in the subsequent separate procedure for the award of subsidiary protection. Furthermore, as noted at point 50 above, the right to be heard in the two procedures is based on different criteria and therefore constitutes a procedural guarantee which covers different contexts. ( 47 )

64. It therefore follows that in such a bi-furcated system — whose adoption is the result of a free choice of the Member State in question — the findings which the authority made in the first procedure cannot be automatically applied in the second procedure. It is not possible to ‘transfer’ observance of the right to be heard from one procedure to another. In a context such as that of international protection, in the light of the fundamental nature of the right to be heard such considerations apply a fortiori to the unfavourable findings regarding credibility which are likely to have a decisive impact on the final decision.

65. In that respect it should further be noted that although EU law does not make specific provision for the manner in which an applicant’s credibility is to be assessed, and therefore it is for the domestic legal system of each Member State to determine the procedural conditions for assessing that credibility, ( 48 ) the procedural autonomy of the Member States is subject to the limit imposed by the principle of effectiveness which, as we have seen, consists of the need to guarantee effective access to the rights conferred by the legislation on subsidiary protection, which in turn requires that the right to be heard be exercised in a particularly effective manner. ( 49 )

66. An interpretation of the right to be heard which recognises the fundamental role of the oral interview in the procedure for affording international protection is, furthermore, in line with recent choices of the EU legislature on the matter which, on the one hand in Directive 2013/32 drastically reduced the cases in which it is possible to omit the personal interview in the, now single, procedure concerning applications for international protection, ( 50 ) and, on the other, in Regulation No 604/2013 (Dublin III), ( 51 ) introduced the obligation on Member States to conduct a personal interview in the process of determining the Member State responsible for considering an application for international protection.

67. As regards, finally, the possible right to call and cross-examine witnesses in the procedure, I observe that it is not apparent from the structure of the right to be heard, as established by the case-law referred to at point 29 et seq. of this Opinion, that it necessarily includes such a right. However, that does not alter the fact that a Member State can, exercising its power to introduce or retain more favourable standards in that regard, ( 52 ) lay down the right to call and cross-examine witnesses in the procedure.

V – Conclusion

68. For the reasons set out above I therefore propose that the Court give the following answer to the question referred by the Supreme Court: Where an application for subsidiary protection within the meaning of Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted is submitted in a Member State which operates two separate procedures, one following the other, for consideration of applications for asylum and subsidiary protection respectively, the right to be heard in all proceedings, as it exists in EU law, must be interpreted as meaning that that right requires, in principle, a personal hearing of the applicant which can be omitted only in exceptional cases. In that context the right to be heard in all proceedings does not include, however, a right to call and cross-examine witnesses.

( 1 ) Original language: Italian

( 2 ) Recently the Court has had the opportunity on several occasions to deal with questions concerning the right to be heard in the procedure. In addition to the judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744), in the wake of which the present reference for a preliminary ruling follows, see, inter alia, the judgments of 10 September 2013 in G. and R. (C‑383/13 PPU, EU:C:2013:533), 3 July 2014 in Kamino International Logistics (C‑129/13 and C‑130/13, EU:C:2014:2041), 5 November 2014 in Mukarubega (C‑166/13, EU:C:2014:2336) and 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431). See also, most recently, concerning the right to be heard, the judgment of 17 March 2016 in Bensada Benallal (C‑161/15, EU:C:2016:175).

( 3 ) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12). Directive 2004/83 was repealed by 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 (OJ 2011 L 337, p. 9).

( 4 ) The Court has already had occasion to deal with this procedure in three cases, specifically in the judgments of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744), 31 January 2013 in HID and BA (C‑175/11, EU:C:2013:45) and 8 May 2014 in N. (C‑604/12, EU:C:2014:302). This procedure is also at issue in pending Case C‑429/15 Danqua.

( 5 ) See footnote 9 below.

( 6 ) There would appear to be some ambiguity as to the translation into Italian of the French notion of ‘droit d’être entendu’ (‘right to be heard’, in English, ‘Recht auf Anhörung’, in German, ‘derecho a ser oído’, in Spanish). In the Italian version of the Court’s case-law at times the term ‘diritto al contraddittorio’ is used (see, for example, the judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraph 82, 85 or 87)), at other times the term ‘diritto di essere sentiti’ is used (see, for example, the judgment of 10 September 2013 in G. and R. (C‑383/13 PPU, EU:C:2013:533, paragraph 27, 28 or 32) or 17 March 2016 in Bensada Benallal (C‑161/15, EU:C:2016:175, paragraph 21 or 35)), and at yet other times the term ‘diritto di essere ascoltato’ is used (see, for example, the judgment of 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 1, 28 or 30); the latter term corresponds to that used in Charter of Fundamental Rights of the European Union (‘the Charter’) and corresponds literally to the abovementioned terms in the French, English, German and Spanish versions). The right at issue, which is linked to the Latin brocards ‘audi alteram partem’ or ‘audiatur et altera pars’, is a procedural right expressing the more general right of defence which, in EU law, is as described at point 29 of this Opinion. From a linguistic point of view, the term ‘diritto al contraddittorio’, is used most commonly in Italian national legal parlance, particularly in relation to procedures of a judicial nature. Literally, it highlights the element of contradiction in the sense of the need for the party concerned to be able to respond to any contrary or unfavourable arguments put forward during proceeding, to ensure that the right is observed. The terms ‘diritto di essere sentito’ and ‘diritto di essere ascoltato’, on the other hand, place the emphasis more on the need to be able to express one’s own point of view in the course of the procedure. The reference to being heard (‘sentiti’ or ‘ascoltati’) would also appear to imply some sort of oral element. In the light of the observation that it is the term used in primary law and that it corresponds more, from a literal point of view, to the other language versions, I will use the term ‘diritto di essere ascoltato’ to refer to the right at issue in this Opinion.

( 7 ) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13). That directive was repealed by 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). The latter directive laid down common procedures for granting and withdrawing international protection (refugee status and protection granted to persons who are not refugees but who would be in serious danger if they were returned to their country of origin). As stated in recital 58 of the preamble thereto, in accordance with Articles 1, 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and the TFEU, Ireland is not bound by the directive.

( 8 ) More specifically, under paragraph 2 of that article, the personal interview may be omitted where the determining authority is able to take a positive decision on the basis of evidence available (subparagraph (a); or the competent authority has already had a meeting with the applicant for the purpose of assisting him/her with completing his/her application and submitting the essential information regarding the application (subparagraph (b)); or the determining authority, on the basis of a complete examination of information provided by the applicant, considers the application to be unfounded in cases where the circumstances mentioned in Article 23(4)(a), (c), (g), (h) and (j) apply (subparagraph (c)). Under subparagraph 3 of that article, the personal interview may also be omitted where it is not reasonably practicable, in particular where the competent authority is of the opinion that the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his/her control.

( 9 ) The first reform, adopted in 2013, maintained the ‘bi-furcated’ system but introduced the need for a personal interview with the applicant also in the procedure for assessing an application for subsidiary protection (see European Union (Subsidiary Protection) Regulations 2013, S.I.426 of 2013). It is clear from the Irish Government’s contentions at the hearing that the second reform, adopted in 2015, abolished the ‘bi-furcated’ system and introduced a single system for processing both applications.

( 10 ) In particular, the Court ruled that in a bi-furcated system such as the Irish system the requirement to cooperate must not be interpreted as meaning that the national authority is obliged, before adopting its decision, to inform the applicant that it proposes to reject his application and notify him of the arguments on which it intends to base its rejection, so as to enable him to make known his views in that regard. See paragraph 74 and the first indent of paragraph 95 of the judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744).

( 11 ) Judgment of the High Court of 23 January, M.M. v Minister for Justice & Anor, Case 2011 8 JR, [2013] IEHC 9.

( 12 ) Ibid., paragraph 46. More specifically, at paragraph 47 of that judgment the High Court held that in order for the right to be heard to be regarded as effective in the sense understood by the Court of Justice in its judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744), it is necessary for there to be a procedure whereby: (i) the applicant is invited to comment on any adverse credibility findings made in the proceedings concerning his asylum application; (ii) the applicant is given a completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection; and (iii) a completely fresh assessment is made of the applicant’s credibility in circumstances where the mere fact that the Refugee Appeals Tribunal had ruled adversely to this question would not in itself suffice and would not even be directly relevant to this fresh credibility assessment.

( 13 ) See judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraph 73).

( 14 ) Judgments of 18 December 2008 in Sopropé (C‑349/07, EU:C:2008:746, paragraph 36), 22 November 2012 in M. M. (C‑277/11, EU:C:2012:744, paragraphs 81 and 82 and the case-law cited) and 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 30 and the case-law cited).

( 15 ) Judgment of 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 31 and the case-law cited).

( 16 ) See point 28 of my Opinion in Bensada Benallal (C‑161/15, EU:C:2016:3).

( 17 ) That is to say when national measures which are adopted fall within the scope of EU law. See judgment of 26 February 2013 in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 18 to 21).

( 18 ) See point 32 of my Opinion in Bensada Benallal (C‑161/15, EU:C:2016:3).

( 19 ) Judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraph 84). See judgment of 8 May 2014 in N. (C‑604/12, EU:C:2014:302, paragraphs 49 and 50). See also, implicitly, judgment of 3 July 2014 in Kamino International Logistics and Datema Hellmann WorldwideLogistics (C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 29), which merely ruled out the applicability rationae temporis of Article 41(2) of the Charter to the situation which had given rise to the main proceedings. That position has been supported by advocates general on several occasions. In addition to my abovementioned Opinion in Bensada Benallal (C‑161/15, EU:C:2016:3) and that delivered in CO Sociedad de Gestion y Participación and Others (C‑18/14, EU:C:2015:95, footnote 48), reference should be made to the View of Advocate General Wathelet in G. and R. (C‑383/13 PPU, EU:C:2013:553, 49 and 53), and his Opinion in Mukarubega (C‑166/13, EU:C:2014:2031, point 56) and Boudjlida (C‑249/13, EU:C:2014:2032, points 46 to 48).

( 20 ) That current case-law stems from several recent judgments. See the judgments of 21 December 2011 in Cicala (C‑482/10, EU:C:2011:868, paragraph 28); 17 July 2014 in Y S and Others (C‑141/12 and C‑372/12, EU:C:2014:2081, paragraph 67); 5 November 2014 in Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 44), and 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraphs 32 and 33).

( 21 ) Judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraph 87 and the case-law cited) and 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 36).

( 22 ) Judgment of 22 November 2012 in M. M. (C‑277/11, EU:C:2012:744, paragraph 88), and 5 November 2014 in Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 48).

( 23 ) See the Opinion of Advocate General Bot in M.M. (C‑277/11, EU:C:2012:253, points 35 and 36), and the Opinion of Advocate General Wathelet in Boudjlida (C‑249/13, EU:C:2014:2032, point 58). See in that regard also paragraph 59 of the judgment of 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431).

( 24 ) See judgments of 18 December 2008 in Sopropé (C‑349/07, EU:C:2008:746, paragraph 49), 3 July 2014 in Kamino International Logistics (C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 38) and 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 37).

( 25 ) Judgments of 5 November 2014 in Mukarubega (C‑166/13, EU:C:2014:2336, paragraphs 49 and 50 and the case-law cited) and 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraphs 39 and 40).

( 26 ) See to that effect judgments of 5 November 2014 in Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 51 and the case-law cited) and 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 41). See also judgment of 17 March 2016 in Bensada Benallal (C‑161/15, EU:C:2016:175, paragraph 24 and the case-law cited).

( 27 ) See to that effect judgments of 5 November 2014 in Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 52 and the case-law cited) and 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 42).

( 28 ) See judgments of 5 November 2014 in Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 53) and 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 43 and the case-law cited).

( 29 ) See judgments of 18 July 2013 in Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 102 and the case-law cited therein), 10 September 2013 in G. and R. (C‑383/13 PPU, EU:C:2013:533 paragraph 34), and 5 November 2014 in Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 54).

( 30 ) See to that effect the judgment of 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 45).

( 31 ) See to that effect the judgments of 10 September 2013 in G. and R. (C‑383/13 PPU, EU:C:2013:533, paragraph 37) and 5 November 2014 in Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 55).

( 32 ) See judgments of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraphs 72 and 73) and 2 December 2014 in A and Others (C‑148/13, EU:C:2014:2406, paragraph 47).

( 33 ) See judgments of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraph 79) and 8 May 2014 in N. (C‑604/12, EU:C:2014:302, paragraph 38 to 40).

( 34 ) In that regard it should be noted that, under new Directive 2013/32/EU, which is not applicable to this case (see footnote 7 above), the establishment of a single procedure is no longer merely an option, as was the case under Directive 2005/85, but is now an obligation. See in that regard recital 11 in the preamble to and Article 10(2) of Directive 2013/32/EU and the Opinion of Advocate General Bot in N. (C‑604/12, EU:C:2013:714, points 55 and 56).

( 35 ) To that effect, see also judgment of 8 May 2014 in N. (C‑604/12, EU:C:2014:302, paragraph 41). As regards the limit on the Member States’ procedural autonomy arising from the principle of equivalence, Mr M. contended that that principle requires a similar procedural arrangement in a Member State for processing applications for asylum and subsidiary protection (see in that regard Case C‑429/15, Danqua, currently pending before the Court). The principle of equivalence might be invoked to contend that it prohibits a Member State from laying down less favourable procedures for international protection based on EU law than those based on national law (see to that effect judgment of 5 November 2014 in Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 51 and the case-law cited, and Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 41). However, it should be noted that both protection afforded by refugee status and that afforded by subsidiary protection status arise from the application of Directive 2004/83 (which, as regards the former status is based on the Geneva Convention relating to the Status of Refugees of 28 July 1951 and, as regards that status, is inspired by other international instruments relating to human rights; see in that regard my Opinion in Diakité (C‑285/12, EU:C:2014:39, paragraph 63)). It follows from case-law that the principle of equivalence is not relevant in situations concerning applications which are both based on EU law (see to that effect judgments of 6 October 2015 in Târșia, C‑69/14, EU:C:2015:662, paragraph 34, and of 28 January 2015 in ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 74). However, in my view this request for a preliminary ruling concerns not so much observance of the principle of equivalence as of the principle of effectiveness.

( 36 ) See to that effect judgment of 8 May 2014 in N. (C‑604/12, EU:C:2014:302, paragraph 42).

( 37 ) See point 14 of the conclusions of the European Council meeting in Tampere on 15 and 16 October 1999 and recital 5 in the preamble to Directive 2004/83. In that regard, see also points 58 et seq. of my Opinion in Diakité (C‑285/12, EU:C:2013:500).

( 38 ) See recital 24 of the preamble to Directive 2004/83 and judgment of 8 May 2014 in N. (C‑604/12, EU:C:2014:302, paragraphs 30 to 32). As regards Directive 2011/95, see recitals 6 and 33 of the preamble to that directive and the judgment of 1 March 2016 in Kreis Warendorf and Osso (C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 31).

( 39 ) See judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraph 92). In this connection, it should also be noted that, as is clear from recitals 8, 9 and 39 of the preamble thereto, in new Directive 2011/95 the EU legislature, altering the approach originally adopted in Directive 2004/83, intended, in responding to the call of the Stockholm Programme, to establish a uniform status for all beneficiaries of international protection and that it accordingly chose to afford beneficiaries of subsidiary protection the same rights and benefits as those enjoyed by refugees, with the exception of derogations which are necessary and objectively justified (see judgment of 1 March 2016 in Kreis Warendorf and Osso (C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 32).

( 40 ) See Article 2(e) of Directive 2004/83 and judgments of 17 February 2009 in Elgafaji (C‑465/07, EU:C:2009:94, paragraph 31), 30 January 2014 in Diakité (C‑285/12, EU:C:2014:39, paragraph 18) and 18 December 2014 in M'Bodj (C‑542/13, EU:C:2014:2452, paragraph 30).

( 41 ) See judgment of 17 February 2009 in Elgafaji (C‑465/07, EU:C:2009:94, paragraphs 32, 33 and 39). See also judgment of 30 January 2014 in Diakité (C‑285/12, EU:C:2014:39, paragraph 31).

( 42 ) Opinion of Advocate General in M.M. (C‑277/11, EU:C:2012:253, paragraph 43) and in N. (C‑604/12, EU:C:2013:714, paragraph 49).

( 43 ) Judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraphs 91 and 92).

( 44 ) In that regard, although, as pointed out at points 37 and 38 of this Opinion, the EU procedural rules in force at the time of the relevant facts in relation to asylum (that is to say Directive 2005/85) are not applicable, even by analogy, to this case, it is nevertheless noted at point 48 that the arrangements for processing applications for asylum share with those for subsidiary protection the requirement that the right to be heard should be particularly effective in the course of the procedure.

( 45 ) See, to that effect, the Opinion of Advocate Bot in M.M. (C‑277/11, EU:C:2012:253, point 83). As regards the function of the personal interview, see also point 68 of the Opinion of Advocate General Sharpston in A and Others (C‑148/13 to C‑150/13, EU:C:2014:2111).

( 46 ) Judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraph 91). Emphasis added.

( 47 ) That is the fundamental factor which distinguishes this case from that decided by the Court in its judgment of 5 November 2014Mukarubega (C‑166/13, EU:C:2014:2336), in which the Court found that the right to be heard did not necessitate an oral hearing for the adoption of a return decision pursuant to 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 (OJ 2008 L 348, p. 98). The Court held that the return decision constituted the logical and necessary consequence of the decision establishing an illegal stay, before whose adoption the applicant was heard, and that, in other words, that decision should automatically follow the refusal of a residence permit without it being necessary to provide separate reasons (see paragraph 72 of the judgment).

( 48 ) As regards the assessment of credibility in the context of international protection see the Opinion of Advocate General Sharpston A and Others (C‑148/13 to C‑150/13, EU:C:2014:2111, point 50 et seq.).

( 49 ) Se points 40 to 48 above.

( 50 ) Under Article 14 of Directive 2013/32, the personal interview on the substance of the application may now be omitted only in two cases: where the determining authority is able to take a positive decision with regard to refugee status on the basis of evidence available or where the determining authority is of the opinion that the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his or her control.

( 51 ) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31).

( 52 ) See Article 3 of Directive 2004/83 — in respect of which see judgments of 9 November 2010 in B (C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 114) and 18 December 2014 in M'Bodj (C‑542/13, EU:C:2014:2452, paragraph 42) — and Article 5 of Directive 2005/85. As regards the absence of the cross-examination of witnesses in an administrative procedure, albeit in a completely different field of EU law, see paragraph 200 of judgment of 7 January 2004 in Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6).