Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal.
Date: 2019-07-29
40


It is clear from the travaux préparatoires of Directive 2013/32 that, by adding the words ‘or at an earlier date’ to the first sentence of the first paragraph of Article 52, the EU legislature intended to enable Member States to apply their provisions implementing that directive with immediate effect to applications for international protection lodged before 20 July 2015 (see, to that effect, judgments of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraphs 71 and 72, and of 19 March 2019, Ibrahim and Others, C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraphs 63 and 64).
41


Since the first paragraph of Article 52 of Directive 2013/32 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, that each Member State bound by that directive examines applications for international protection lodged within the same period on its territory in a predictable and uniform manner (see, to that effect, judgments of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 73, and 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 66).
45


Second, the Court has already clarified that a provision of national law providing that a court must base its decision on the situation in fact and law obtaining on the date of its decision ensures that applications for international protection which have been lodged in the same period on national territory and on which no final decision has yet been made are examined in a predictable and uniform manner (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, paragraphs 67 and 68).
49


As the Court has already held, it is clear from Articles 13 and 18 of Directive 2011/95, read in conjunction with the definitions of ‘refugee’ and ‘person eligible for subsidiary protection’ set out in Article 2(d) and (f) thereof, that the international protection referred to in that directive must, in principle, be granted to a third-country national or stateless person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, or faces a real risk of suffering serious harm, within the meaning of Article 15 of the directive (see, to that effect, judgments of 4 October 2018, Ahmedbekova, C‑652/16, EU:C:2018:801, paragraph 47, and of 23 May 2019, Bilali, C‑720/17, EU:C:2019:448, paragraph 36).
50


Therefore, where a person meets the minimum standards set by EU law to qualify for one of those statuses because he or she fulfils the conditions laid down in Chapters II and III or Chapters II and V of Directive 2011/95 respectively, Member States are required, subject to the grounds for exclusion provided for by that directive, to grant the international protection status sought, since those Member States have no discretion in that respect (see, to that effect, judgments of 24 June 2015, T., C‑373/13, EU:C:2015:413, paragraph 63; of 12 April 2018, A and S, C‑550/16, EU:C:2018:248, paragraph 52; and of 14 May 2019, M and Others (Revocation of refugee status), C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 89).
51


Article 46(1) of Directive 2013/32 guarantees applicants for international protection the right to an effective remedy before a court or tribunal against decisions taken on their application. Article 46(3) of that directive defines the scope of the right to an effective remedy by specifying that Members States bound by it 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]’ (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraphs 105 and 106).
52


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 being challenged. As for the word ‘full’, that adjective 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 (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraphs 111 and 113).
53


It follows that Member States are required, pursuant to 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, so that the application for international protection may be considered in an exhaustive manner without it being necessary to refer the case back to the determining authority. That interpretation furthers the aim pursued by Directive 2013/32 of guaranteeing that such applications are processed as rapidly as possible, without prejudice to an adequate and complete examination being carried out (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraphs 109 to 112).
54


However, Article 46(3) of that directive only concerns the examination of the appeal brought and does not therefore govern what happens after any annulment of the decision under appeal. 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, so that it 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 (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraphs 145 and 146).
55


While Directive 2013/32 affords Member States some discretion inter alia in the determination of rules for thus dealing with an application for international protection where the original decision of such a body is annulled by a court or tribunal, it is important however to note, in the first place, that notwithstanding that discretion Member States are required, when implementing that directive, to comply with Article 47 of the Charter which enshrines the right to an effective remedy before a tribunal for everyone whose rights and freedoms guaranteed by EU law are infringed (see, to that effect, judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 30 and the case-law cited). The characteristics of the remedy provided for in Article 46 of Directive 2013/32 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 of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 31, and of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 114).
56


In the second place, it should be recalled that Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78). In view, in particular, of the matters recalled in the preceding paragraph, the same must hold true for Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter.
57


In the third place, the right to an effective remedy would be illusory if a Member State’s legal system were to allow a final, binding judicial decision to remain inoperative to the detriment of one party (see, to that effect, judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 43).
59


Consequently, even though the purpose of Directive 2013/32 is not to render uniform, in a specific and exhaustive manner, the procedural rules that must be applied within Member States where the power to adopt a new decision on an application for international protection after the annulment of the original decision rejecting such an application, 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, a new decision is adopted within a short period of time and that it complies with the assessment contained in the judgment annulling the initial decision (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 148).
64


It is true that the Court has already recognised that the examination of the application for international protection by the competent administrative or quasi-judicial body, which has specific resources and staff specialised in the matter, is a vital stage of the common procedures established by Directive 2013/32 (see, to that effect, judgments of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 116, and of 4 October 2018, Ahmedbekova, C‑652/16, EU:C:2018:801, paragraph 96).
69


In that regard, as is clear from paragraphs 54 and 59 above, while Article 46(3) of Directive 2013/32 does not require Member States to confer the power referred to in paragraph 67 above on courts or tribunals with jurisdiction to hear appeals covered by that provision, it remains the case that Member States are required to ensure, in each case, that the right to an effective remedy enshrined in Article 47 of the Charter is complied with (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 65 and the case-law cited).
70


Whether there is an infringement of the rights enshrined in that provision must be examined in relation to the specific circumstances of each case (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 102, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 41).
72


A national law that results in such a situation in practice deprives the applicant for international protection of an effective remedy, within the meaning of Article 46(3) of Directive 2013/32, and fails to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter, since the judgment of a court, delivered after an assessment complying with the requirements of Article 46(3) and following which that court decided that the applicant satisfied the conditions laid down by Directive 2011/95 to be granted the status of refugee or person eligible for subsidiary protection, remains ineffective, for lack of any remedy whatsoever by means of which that court may ensure compliance with its judgment.
73


In such circumstances, any provision of a national legal system and any legislative, administrative or judicial practice that might impair the effectiveness of EU law by withholding from the national court with jurisdiction to apply that law the power to do everything necessary at the moment of its application to set aside national legislative provisions that might prevent EU rules which have direct effect, such as Article 46(3) of Directive 2013/32 read in conjunction with Article 47 of the Charter, from having full force and effect are incompatible with those requirements, which are the very essence of EU law (see, to that effect, judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraph 22, and of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 52 to 62).
74


Therefore, in order to guarantee that an applicant for international protection has an effective judicial remedy within the meaning of Article 47 of the Charter, and in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU, a national court or tribunal seised of an appeal is required to vary a decision of the administrative or quasi-judicial body, in the present case the Immigration Office, that does not comply with its previous judgment and to substitute is own decision on the application by the person concerned for international protection by disapplying, if necessary, the national law that prohibits it from proceeding in that way (see, by analogy, judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraph 62).
76


In the second place, while it is true that the Court has held that, 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 (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 146), it remains the case that if that body, in circumstances such as those at issue in the main proceedings, has not complied with the judgment of the national court hearing the appeal, it is for that court to vary the decision of that body and to substitute its own decision for that body’s decision.
77


Consequently, it is necessary, in the present case, to find that, where, as it appears from the indications given in the order for reference, the referring court in fact conducted, in its judgment of 25 February 2017, a full and ex nunc examination of the ‘international protection needs’ of Mr Torubarov in accordance with Directive 2011/95 in view of all the relevant elements of fact and law, following which the court held that such protection must be granted to him, but that judgment has not been complied with by the Immigration Office, without it being established in the decision at issue, in that respect, that new elements had arisen which required a new assessment, which it is for the national court to verify, that court must, pursuant to Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, vary the decision at issue that does not comply with its previous judgment, and substitute its own decision as to the international protection that Mr Torubarov must benefit from under Directive 2011/95, while disapplying the national law prohibiting it from proceeding in that way (see, by analogy, judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 79, and of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 66).