Abdoulaye Amadou Tall v Centre public d’action sociale de Huy (CPAS de Huy).
Date: 2015-12-17
34. In that regard, it should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. The presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment in FOA , C‑354/13, EU:C:2014:2463, paragraph 45 and the case-law cited).
35. Furthermore, it should also be noted that it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct. Indeed, only the national courts are competent to decide upon the interpretation of domestic law (judgment in Samba Diouf , C‑69/10, EU:C:2011:524, paragraph 59 and the case-law cited).
43. As a preliminary point, it should be emphasised that the procedures put in place by Directive 2005/85 are minimum standards and that the Member States have, in a number of respects, a margin of assessment with regard to the implementation of those provisions in the light of the particular features of national law (judgment in Samba Diouf , C‑69/10, EU:C:2011:524, paragraph 29).
50. In addition, it should be emphasised that any interpretation of Directive 2005/85 must, as can be seen from recital 8 thereto, respect the fundamental rights and observe the principles recognised in particular by the Charter.
51. Accordingly, the characteristics of the remedy provided for in Article 39 of that directive 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 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 (see, by analogy, judgment in Abdida , C‑562/13, EU:C:2014:2453, paragraph 45 and the case-law cited).
54. It is apparent from the case-law of the European Court of Human Rights, which must be taken into account, pursuant to Article 52(3) of the Charter, in order to interpret Article 19(2) thereof, that, when a State decides to return a foreign national to a country where there are substantial grounds for believing that 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 that foreign national (see, inter alia, judgments of the European Court of Human Rights in Gebremedhin [Gaberamadhien]  v. France , no. 25389/05, § 67, ECHR 2007-II, and Hirsi Jamaa and Others  v. Italy , no. 27765/09, § 200, ECHR 2012-II).
56. The lack of suspensory effect of an appeal brought against such a decision is, in principle, compatible with Articles 19(2) and 47 of the Charter. Although such a decision does not allow a third-country national to receive international protection, the enforcement of that decision cannot, as such, lead to that national’s removal.
57. By contrast, if, in the context of the examination of an application for asylum which pre-dates or post-dates a decision such as the one at issue in the main proceedings, a Member State adopts a return decision against the third-country national concerned pursuant to Article 6 of Directive 2008/115, that national must be able to exercise his right to an effective remedy against that decision in accordance with Article 13 of that directive.
58. In that regard, it follows from the case-law of the Court of Justice that, in any event, an appeal must necessarily have suspensory effect when it is brought against a return decision whose enforcement may expose the third-country national concerned to a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, thereby ensuring that the requirements of Articles 19(2) and 47 of the Charter are met in respect of that third-country national (see, to that effect, judgment in Abdida , C‑562/13, EU:C:2014:2453, paragraphs 52 and 53).