Milkiyas Addis v Bundesrepublik Deutschland.
Date: 2020-07-16
In the present case, on 13 September 2017, the President of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, to reject the referring court’s request referred to in paragraph 40 above. That decision was based on the fact that the reason relied on by the referring court, on which that court also relied in the cases which gave rise to the judgment of 19 March 2019, Ibrahim and Others (C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219), was not such as to demonstrate that the conditions laid down in Article 105(1) of the Rules of Procedure were met in the present case (see, to that effect, orders of the President of the Court of 14 July 2017, Ibrahim and Others, C‑297/17, C‑318/17 and C‑319/17, not published, EU:C:2017:561, paragraphs 17 to 21, and of 19 September 2017, Magamadov, C‑438/17, not published, EU:C:2017:723, paragraphs 15 to 19).
As a preliminary observation, it is apparent from the request for a preliminary ruling that, pursuant to the first sentence of Paragraph 77(1) of the AsylG, the referring court is to base its decision in the main proceedings on the factual and legal situation at the time of the last hearing before that court or, where no hearing is held, on the date of its decision. It is therefore apparent that the referring court will apply provisions of national law which transpose the Procedures Directive, in particular those relating to, first, the personal interview with the applicant and, second, the ground of inadmissibility in Article 33(2)(a) of that directive. Such an immediate application, including of that latter provision, to applications lodged before 20 July 2015 on which no final decision has yet been made is permitted under the first paragraph of Article 52 of the Procedures Directive where, as in the main proceedings, the applicant has already been granted refugee status, and not merely subsidiary protection, in another Member State (see, to that effect, judgment of 19 March 2019, Ibrahim and Others, C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraph 74, and order of 13 November 2019, Hamed and Omar, C‑540/17 and C‑541/17, not published, EU:C:2019:964, paragraph 30).
In that regard, it should be noted that, according to the Court’s case-law, Article 33(2)(a) of the Procedures Directive precludes a Member State from exercising the option granted by that provision to reject an application for international protection as being inadmissible on the ground that the applicant has already been granted international protection by another Member State where the living conditions that that applicant could be expected to encounter as the beneficiary of international protection in that other Member State would expose him or her to a substantial risk of suffering inhuman or degrading treatment within the meaning of Article 4 of the Charter (see, to that effect, judgment of 19 March 2019, Ibrahim and Others, C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraph 101,  and order of 13 November 2019, Hamed and Omar, C‑540/17 and  C‑541/17, not published, EU:C:2019:964, paragraph 43).
In that context, the Court has previously stated that the particularly high level of severity required by Article 4 of the Charter will be attained where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding him or herself, irrespective of his or her wishes and his or her personal choices, in a situation of extreme material poverty that does not allow him  or her to meet his  or her most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his or her physical or mental health or puts him or her in a state of degradation incompatible with human dignity (judgment of 19 March 2019, Ibrahim and Others, C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraph 90, and order of 13 November 2019, Hamed and Omar, C‑540/17 and C‑541/17, not published, EU:C:2019:964, paragraph 39).
Thus, where the authorities of a Member State have available to them evidence produced by the applicant in order to establish the existence of such a risk in the Member State that has previously granted international protection, those authorities are required to assess, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights that is guaranteed by EU law, whether there are deficiencies which may be systematic or generalised, or which may affect certain groups of people (see, by analogy, judgment of 19 March 2019, Ibrahim and Others, C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraph 88, and order of 13 November 2019, Hamed and Omar, C‑540/17 and C‑541/17, not published, EU:C:2019:964, paragraph 38). Furthermore, it cannot be entirely ruled out that an applicant for international protection may be able to demonstrate the existence of exceptional circumstances which are unique to him or her and which would mean that being sent back to the Member State which previously granted international protection would expose him or her, because of his or her particularly vulnerability, to a risk of treatment that is contrary to Article 4 of the Charter (see, by analogy, judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 95).
Since the Procedures Directive does not expressly govern the legal consequences of a failure to comply with that obligation, those consequences, as pointed out by all of the parties who submitted observations, are governed by national law provided that the applicable provisions of national law are the same as those to which individuals in comparable situations under national law are subject (principle of equivalence) and do not make it impossible in practice or excessively difficult to exercise the rights conferred by the EU legal order (principle of effectiveness) (see, by analogy, judgment of 10 September 2013, G and  R,  C‑383/13 PPU, EU:C:2013:533, paragraph 35 and the case-law cited).
In that regard, it should be noted that the Procedures Directive distinguishes between the ‘determining authority’, on the one hand, which it defines in Article 2(f) as ‘any quasi-judicial or administrative body in a Member State responsible for examining applications for international protection competent to take decisions at first instance in such cases’, and the ‘court or tribunal’, on the other hand, which is referred to in Article 46 and is responsible for appeals procedures. Furthermore, it follows from recitals 16 and 22, Article 4 and the general scheme of that directive that the examination of the application for international protection by an administrative or quasi-judicial body with specific resources and specialised staff in this area is a vital stage of the common procedures established by that directive (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraphs 103 and 116).
Nevertheless, the Court has previously held that the requirement for a full and ex nunc examination of both facts and points of law in an appeal, laid down in Article 46(3) of the Procedures Directive, may also cover the grounds of inadmissibility referred to in Article 33(2) of that directive, where permitted under national law. In the event that the court or tribunal hearing the appeal intends to examine a ground of inadmissibility which has not been examined by the determining authority, it must conduct a hearing of the applicant in order to allow that individual to express, in person and in a language with which he or she is familiar, his or her view concerning the applicability of that ground to his or her particular circumstances (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 130).
It is apparent from the Court’s case-law that, in principle, an infringement of the rights of the defence results in annulment of the decision taken at the end of the administrative procedure at issue only if  the outcome of the procedure might have been different had it not been for such an irregularity (see judgment of 10 September 2013, G and  R,  C‑383/13 PPU, EU:C:2013:533, paragraph 38 and the case-law cited). That case-law cannot, however, be applied to an infringement of Articles 14, 15 and 34 of the Procedures Directive. First, those provisions set out, in binding terms, the obligation on the Member States to give the applicant the opportunity of a personal interview as well as specific, detailed rules on how that interview is to be conducted. Second, those rules seek to ensure that the applicant has been invited to provide, in cooperation with the authority responsible for the interview, all information that is relevant to the assessment of the admissibility and, as the case may be, the substance of the application for international protection, which gives that interview, as stated in the preceding paragraph of this judgment, paramount importance in the procedure for examination of that application (see, by analogy, judgment of 14 May 2020, NKT Verwaltung and NKT v Commission, C‑607/18 P, not published, EU:C:2020:385, paragraph 57 and the case-law cited).