Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida.
Date: 2014-12-18
34. With regard to Directive 2005/85, it is apparent from Article 3 thereof that the directive applies not only to asylum applications but also to applications for subsidiary protection where a Member State establishes a single procedure under which an application is examined by reference to both forms of international protection (judgments in M. , C‑277/11, EU:C:2012:744, paragraph 79, and N. , C‑604/12, EU:C:2014:302, paragraph 39), and that Member States may also decide to apply the directive to applications for other forms of international protection.
37. That said, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. Consequently, even if, formally, the referring court has referred only to Directives 2003/9, 2004/83 and 2005/85, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see, to that effect, judgments in Fuß , C‑243/09, EU:C:2010:609, paragraphs 39 and 40, and Hadj Ahmed , C‑45/12, EU:C:2013:390, paragraph 42).
43. With regard, in the first place, to the characteristics of the remedy that must be made available to challenge a return decision such as the decision at issue before the referring court, it is apparent from Article 13(1) of Directive 2008/115, taken in conjunction with Article 12(1) of that directive, that a third country national must be afforded an effective remedy to appeal against or seek review of a decision ordering his return.
44. Article 13(2) of Directive 2008/115 provides that the authority or body with power to adjudicate on such an appeal may temporarily suspend enforcement of the return decision that is being challenged, unless a temporary suspension is already applicable under national legislation. It follows that that directive does not require that the remedy provided for in Article 13(1) should necessarily have suspensive effect.
45. None the less, the characteristics of such a remedy must be determined in a manner that is consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection (see, to that effect, judgments in Unibet , C‑432/05, EU:C:2007:163, paragraph 37, and Agrokonsulting-04 , C‑93/12, EU:C:2013:432, paragraph 59), and provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.
46. It should be noted in that connection that Article 19(2) of the Charter states, inter alia, that no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment.
48. In the very exceptional cases in which the removal of a third country national suffering a serious illness to a country where appropriate treatment is not available would infringe the principle of non-refoulement, Member States cannot therefore, as provided for in Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) of the Charter, proceed with such removal.
49. The enforcement of a return decision entailing the removal of a third country national suffering from a serious illness to a country in which appropriate treatment is not available may therefore constitute, in certain cases, an infringement of Article 5 of Directive 2008/115.
50. Those very exceptional cases are characterised by the seriousness and irreparable nature of the harm that may be caused by the removal of a third country national to a country in which there is a serious risk that he will be subjected to inhuman or degrading treatment. In order for the appeal to be effective in respect of a return decision whose enforcement may expose the third country national concerned to a serious risk of grave and irreversible deterioration in his state of health, that third country national must be able to avail himself, in such circumstances, of a remedy with suspensive effect, in order to ensure that the return decision is not enforced before a competent authority has had the opportunity to examine an objection alleging infringement of Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) of the Charter.
51. That interpretation is supported by the explanations relating to Article 47 of the Charter, to the effect that the first paragraph of that article is based on Article 13 ECHR (review judgment in Arango Jaramillo and Others v EIB , C‑334/12 RX II, EU:C:2013:134, paragraph 42).
52. Indeed, the European Court of Human Rights has held that, when a State decides to return a foreign national to a country where, there are substantial grounds for believing, he will be exposed to a real risk of ill-treatment contrary to Article 3 ECHR, the right to an effective remedy provided for in Article 13 ECHR requires that a remedy enabling suspension of enforcement of the measure authorising removal should, ipso jure , be available to the persons concerned (see, inter alia, European Court of Human Rights, judgments in Gebremedhin [Gaberamadhien] v. France , no. 25389/05, § 67, ECHR 2007-II, and Hirsi Jamaa and Others v. Italy  [GC], no. 27765/09, § 200, ECHR 2012).
53. It follows from the foregoing that Articles 5 and 13 of Directive 2008/115, taken in conjunction with Articles 19(2) and 47 of the Charter, must be interpreted as precluding national legislation which does not make provision for a remedy with suspensive effect in respect of a return decision whose enforcement may expose the third country national concerned to a serious risk of grave and irreversible deterioration in his state of health.
55. Article 14 of Directive 2008/115 provides for certain safeguards pending return, including during periods for which removal has been postponed in accordance with Article 9 of the directive.
57. It is apparent from the general scheme of Directive 2008/115, which must be taken into account when interpreting its provisions (see, to that effect, judgment in Abdullahi , C‑394/12, EU:C:2013:813, paragraph 51), that Article 9(1)(b) of that directive must cover all situations in which a Member State is required to suspend enforcement of a return decision following the lodging of an appeal against the decision.
58. It follows from the foregoing that Member States are required to provide to a third country national suffering from a serious illness who has appealed against a return decision whose enforcement may expose him to a serious risk of grave and irreversible deterioration in his state of health the safeguards, pending return, established in Article 14 of Directive 2008/115.
59. In particular, in a situation such as that in the main proceedings, the Member State concerned is required, pursuant to Article 14(1)(b) of Directive 2008/115, to make provision, in so far as possible, for the basic needs of a third country national suffering from a serious illness where such a person lacks the means to make such provision for himself.
60. The requirement to provide emergency health care and essential treatment of illness under Article 14(1)(b) of Directive 2008/115 may, in such a situation, be rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs of the third country national concerned.
61. It should, however, be noted that it is for the Member States to determine the form in which such provision for the basic needs of the third country national concerned is to be made.