Case C‑348/16

Moussa Sacko

v

Commissione Territoriale per il riconoscimento della protezione internazionale di Milano

(Request for a preliminary ruling from the Tribunale di Milano)

(Reference for a preliminary ruling — Asylum policy — Directive 2013/32/EU — Articles 12, 14, 31 and 46 — Charter of Fundamental Rights of the European Union — Article 47 — Right to effective judicial protection — Appeal against a decision refusing an application for international protection — Whether it is possible for the court to adjudicate without hearing the applicant)

Summary — Judgment of the Court (Second Chamber), 26 July 2017

Border controls, asylum and immigration — Asylum policy — Procedures for granting and withdrawing international protection — Directive 2013/32 — Guarantees for applicants — Appeal against a decision refusing an application for international protection — Right to an effective remedy — Applicant not given a hearing in the appeal — Lawfulness — Conditions

(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2013/32, Arts 12, 14, 31 and 46)

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, in particular Articles 12, 14, 31 and 46 thereof, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the national court or tribunal hearing an appeal against a decision rejecting a manifestly unfounded application for international protection from dismissing the appeal without hearing the applicant where the factual circumstances leave no doubt as to whether that decision was well founded, on condition that, first, during the proceedings at first instance, the applicant was given the opportunity of a personal interview on his or her application for international protection, in accordance with Article 14 of the directive, and the report or transcript of the interview, if an interview was conducted, was placed on the case-file, in accordance with Article 17(2) of the directive, and, second, the court hearing the appeal may order that a hearing be conducted if it considers it necessary for the purpose of ensuring that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of the directive.

In the case of a manifestly unfounded application within the meaning of Article 32(2) of Directive 2013/32, such as the application in the main proceedings, the obligation for the court or tribunal to carry out the full and ex nunc examination referred to in Article 46(3) of the directive is, in principle, fulfilled where that court or tribunal takes into consideration the pleadings submitted to the court or tribunal seised of the application and of the objective information contained in the administrative file in the proceedings at first instance, including, where applicable, the report or recording of the personal interview conducted in those proceedings.

On the other hand, if the court or tribunal hearing the appeal considers that the applicant must be afforded a hearing in order to carry out the full and ex nunc examination required, that hearing, as ordered by that court or tribunal, constitutes an essential procedural requirement, which cannot be dispensed with on grounds of speed, as referred to in recital 20 of Directive 2013/32.

Moreover, while Article 46 of Directive 2013/32 does not require a court or tribunal hearing an appeal against a decision rejecting an application for international protection to hear the applicant in all circumstances, it does not, nonetheless, authorise the national legislature to prevent that court or tribunal ordering that a hearing be held where, having found that the information gathered during the personal interview conducted in the procedure at first instance is insufficient, it considers it necessary to conduct a hearing to ensure that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of the directive.

(see paras 45, 46, 48, 49, operative part)