Serin Alheto v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite.
Date: 2018-07-25
71


It is apparent from the examination of the travaux préparatoires of Directive 2013/32, in particular a comparison of Position (EU) No 7/2013 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, adopted by the Council on 6 June 2013 (OJ 2013 C 179 E, p. 27), with the Commission Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (COM(2009) 554 final), that the words ‘or an earlier date’ were added during the legislative process.
72


Consequently, notwithstanding the tension between the first and second sentences of the first paragraph of Article 52 of Directive 2013/32, it follows from those preparatory documents that the EU legislature intended to allow the Member States to choose whether to apply their provisions implementing that directive with immediate effect to applications for international protection lodged before 20 July 2015.
73


The fact remains that, while the first paragraph of Article 52 of Directive 2013/32 authorised Member States to apply those provisions to applications for international protection lodged before 20 July 2015, it did not require them to do so. Since that provision, by using the words ‘started after 20 July 2015 or an earlier date’, offers various possibilities as regards temporal applicability, it is important, in order for the principles of legal certainty and equality before the law to be observed in the implementation of EU law and for applicants for international protection to be protected from arbitrariness and to have a right to an effective remedy in the context of procedures for granting and withdrawing international protection, that each Member State bound by that directive should process applications for international protection lodged within the same period on its territory in a predictable and uniform manner.
77


Not only the national provisions specifically intended to transpose a directive but also, from the date of that directive’s entry into force, pre-existing national provisions capable of ensuring that the national law is transposed must be considered as falling within the scope of that directive (see, to that effect, judgments of 7 September 2006, Cordero Alonso, C‑81/05, EU:C:2006:529, paragraph 29, and of 23 April 2009, VTB-VAB and Galatea, C‑261/07 and C‑299/07, EU:C:2009:244, paragraph 35).
80


In those circumstances, and given the fact that Directive 2013/32 was already in force when the application for international protection at issue in the main proceedings was lodged and the contested decision adopted, the interpretation of Article 46(3) of that directive sought by the referring court in the context of its third, fourth and sixth questions must be considered necessary in order to allow that court to rule in the main proceedings (see, to that effect, judgment of 23 April 2009, VTB-VAB and Galatea, C‑261/07 and C‑299/07, EU:C:2009:244, paragraphs 37 and 40).
85


On account of that specific refugee status established in those territories of the Near East for Palestinians, persons registered with UNRWA are, in principle, by virtue of the first sentence of Article 12(1)(a) of Directive 2011/95, which corresponds to the first paragraph of Article 1(D) of the Geneva Convention, excluded from refugee status in the European Union. That said, it follows from the second sentence of Article 12(1)(a) of Directive 2011/95, which corresponds to the second paragraph of Article 1(D) of the Geneva Convention, that, when an applicant for international protection in the European Union no longer receives protection or assistance from UNRWA, that exclusion ceases to apply.
86


As the Court has held, the second sentence of Article 12(1)(a) of Directive 2011/95 applies where it becomes evident, based on an assessment, on an individual basis, of all the relevant evidence, that the personal safety of the Palestinian concerned is at serious risk and that it is impossible for UNRWA, whose assistance was requested by that person, to guarantee that the living conditions of that individual would be compatible with its mission, and that person is forced to leave the UNRWA area of operations owing circumstances beyond his control. In that case, that Palestinian may, unless he or she falls within the scope of any of the grounds for exclusion set out in Article 12(1)(b), Article 12(2) and Article 12(3) of that directive, ipso facto be entitled to the benefits of that directive, without necessarily having to demonstrate a well-founded fear of being persecuted, within the meaning of Article 2(d) of that directive, until the time when he is able to return to the territory of former habitual residence (judgment of 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraphs 49 to 51, 58 to 65, 75 to 77 and 81).
88


That finding is borne out by the purpose of Directive 2011/95. Since that directive was adopted on the basis, inter alia, of Article 78(2)(a) TFEU and therefore seeks, in accordance with that provision, to establish a uniform asylum system, it is essential that all the authorities that are empowered in the European Union to deal with applications for international protection apply, when the applicant is a person registered with UNRWA, the provisions transposing the rules set out in Article 12(1)(a) of that directive.
98


In that regard, it follows from the settled case-law of the Court that, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the State has failed to implement the directive in domestic law within the period prescribed or where it has failed to implement the directive correctly (judgments of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 33; of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 31; and of 7 July 2016, Ambisig, C‑46/15, EU:C:2016:530, paragraph 16).
99


The second sentence of Article 12(1)(a) of Directive 2004/83 and the second sentence of Article 12(1)(a) of Directive 2011/95 satisfy those criteria, since they set out a rule whose content is unconditional and sufficiently precise to be relied on by an individual and applied by a court. Furthermore, those provisions provide that, in the circumstances to which they relate, an applicant may ‘ipso facto’ be entitled to the benefits of this directive.
103


In that regard, it should be noted, first of all, that Directive 2013/32 distinguishes between the ‘determining authority’, 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’ referred to in Article 46. The procedure before a determining authority is governed by the provisions of Chapter III of that directive, entitled ‘Procedures at first instance’, while the procedure before a court or tribunal must comply with the rules laid down in Chapter V of that directive, entitled ‘Appeals procedures’ which is made up of Article 46.
105


It must be recalled, next, that Article 46(3) of Directive 2013/32 defines the scope of the right to an effective remedy which applicants for international protection must enjoy, as provided for in Article 46(1) of that directive, against decisions concerning their application.
106


Thus, Article 46(3) of Directive 2013/32 states that, in order to comply with Article 46(1) of that directive, Member States bound by that directive must ensure that the court or tribunal before which the decision relating to the application for international protection is contested carries out ‘a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive [2011/95]’.
108


According to the Court’s settled case-law, it is necessary to determine the scope of those words in accordance with their ordinary meaning, while also taking into account the context in which they occur and the purposes of the rules of which they form part (see, inter alia, judgments of 30 January 2014, Diakité, C‑285/12, EU:C:2014:39, paragraph 27; of 11 June 2015, Zh. and O., C‑554/13, EU:C:2015:377, paragraph 29, and of 26 July 2017, Jafari, C‑646/16, EU:C:2017:586, paragraph 73).
109


In that regard, apart from the fact that it pursues the overall purpose of establishing common procedural standards, Directive 2013/32 seeks in particular, as is apparent inter alia from recital 18, to ensure that applications for international protection are dealt with ‘as soon as possible …, without prejudice to an adequate and complete examination being carried out’.
110


In that context, the words ‘shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law’ must, in order not to deprive them of their ordinary meaning, be interpreted as meaning that the Member States are required, by virtue of Article 46(3) of Directive 2013/32, to order their national law in such a way that the processing of the appeals referred to includes an examination, by the court or tribunal, of all the facts and points of law necessary in order to make an up-to-date assessment of the case at hand.
111


In that regard, the expression ‘ex nunc’ points to the court or tribunal’s obligation to make an assessment that takes into account, should the need arise, new evidence which has come to light after the adoption of the decision under appeal.
112


Such an assessment makes it possible to deal with the application for international protection exhaustively without there being any need to refer the case back to the determining authority. Thus, the court’s power to take into consideration new evidence on which that authority has not taken a decision is consistent with the purpose of Directive 2013/32, as referred to in paragraph 109 of this judgment.
113


For its part, the adjective ‘full’ used in Article 46(3) of Directive 2013/32 confirms that the court or tribunal is required to examine both the evidence which the determining authority took into account or could have taken into account and that which has arisen following the adoption of the decision by that authority.
114


Furthermore, since that provision must be interpreted in a manner consistent with Article 47 of the Charter, the requirement for a full and ex nunc examination implies that the court or tribunal seised of the appeal must interview the applicant, unless it considers that it is in a position to carry out the examination solely on the basis of the information in the case file, including, where applicable, the report or transcript of the personal interview before that authority (see, to that effect, judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraphs 31 and 44). In the event that new evidence comes to light after the adoption of the decision under appeal, the court or tribunal is required, as follows from Article 47 of the Charter, to offer the applicant the opportunity to express his views when that evidence could affect him negatively.
116


Finally, it must be stressed that it follows from recitals 16 and 22 of Article 4 and from the general scheme of Directive 2013/32 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. Accordingly, the applicant’s right recognised by Article 46(3) of that directive to obtain a full and ex nunc examination before a court or tribunal cannot diminish the obligation on the part of that applicant, which is governed by Articles 12 and 13 of that directive, to cooperate with that body.
125


While an applicant’s right to be heard with regard to the admissibility of his or her application before any decision on the matter is taken is ensured, in the context of the procedure before the determining authority, by the personal interview provided for in Article 34 of Directive 2013/32, that right derives, during the appeal procedure referred to in Article 46 of that directive, from Article 47 of the Charter and is exercised, if necessary, by means of a hearing of the applicant (see, to that effect, judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraphs 37 to 44).
130


In the light of the foregoing, the answer to the fourth question is that Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that the requirement for a full and ex nunc examination of the facts and points of law may also concern the grounds of inadmissibility of the application for international protection referred to in Article 33(2) of that directive, where permitted under national law, and that, in the event that the court or tribunal hearing the appeal plans 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 his or her point of view in person concerning the applicability of that ground to his or her particular circumstances.
132


It follows from the order for reference that this question has been raised on account of the fact that Ms Alheto, during the armed conflict between the State of Israel and Hamas in July and August 2014, left the Gaza Strip in search of safety in Jordan where she stayed and from where she left for Bulgaria.
133


Jordan is part of UNRWA’s area of operations. Consequently, although it is not for the Court to examine the nature of that agency’s mandate or its ability to fulfil it, it cannot be ruled out that that agency may be able to provide a person registered with it with living conditions in Jordan that meet the requirements of its mission after that person has fled the Gaza Strip.
134


Accordingly, in the event that a person who has left the UNRWA area of operations and lodged an application for international protection in the European Union benefits from effective protection or assistance from UNRWA, thereby enabling him or her to stay there in safety, under dignified living conditions and without being at risk of being refouled to the territory of habitual residence for as long as he or she is unable to return there in safety, that person cannot be regarded by the authority empowered to decide on that application as having been forced, by reason of circumstances beyond his or her control, to leave UNRWA’s area of operations. That person must, in that case, be excluded from refugee status in the European Union, in accordance with Article 12(1)(a) of Directive 2011/95, as interpreted by the case-law recalled in paragraph 86 of the present judgment.
145


In that regard, it must be noted that Article 46(3) of Directive 2013/32 only concerns the ‘examination’ of the appeal and does not therefore govern what happens after any annulment of the decision under appeal.
146


Thus, by adopting Directive 2013/32, the EU legislature did not intend to introduce any common rule to the effect that the quasi-judicial or administrative body referred to in Article 2(f) of that directive should be deprived of its powers following the annulment of its initial decision concerning an application for international protection. It therefore remains open to the Member States to provide that the file must, following such an annulment, be referred back to that body for a new decision.
148


Consequently, even though the purpose of Directive 2013/32 is not to establish a common standard in respect of the power to adopt a new decision on an application for international protection after the annulment of the initial decision, it nevertheless follows from its purpose of ensuring the fastest possible processing of applications of that nature, from the obligation to ensure that Article 46(3) is effective, and from the need, arising from Article 47 of the Charter, to ensure an effective remedy, that each Member State bound by that directive must order its national law in such a way that, following annulment of the initial decision and in the event of the file being referred back to the quasi-judicial or administrative body referred to in Article 2(f) of that directive, a new decision is adopted within a short period of time and complies with the assessment contained in the judgment annulling the initial decision.