X and Y v Staatssecretaris van Veiligheid en Justitie.
Date: 2018-09-26
19


As regards the question of whether the bringing of an appeal against judgments delivered at first instance concerning such decisions — and the decision to confer on that remedy, where appropriate, automatic suspensory effect — come within the exclusive jurisdiction of the Member States, that question is inextricably linked to the answers to be given to the questions referred for a preliminary ruling, since they relate specifically to the scope of the right to an effective remedy provided for in Article 46 of Directive 2013/32 and in Article 13 of Directive 2008/115, read in the light of the guarantees provided in Articles 18, 19(2) and 47 of the Charter. In those circumstances, the Court has jurisdiction to answer those questions (see, to that effect, judgment of 7 March 2017, X and X, C‑638/16 PPU, EU:C:2017:173, paragraph 37 and the case-law cited).
24


Nor can such requirements be inferred from the scheme or purpose of those directives. The respective objectives of those directives in fact consist, as is clear from recital 12 of Directive 2013/32, primarily in the further development of standards for procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the European Union; and, in accordance with recitals 2 and 4 of Directive 2008/115, in the establishment of an effective removal and repatriation policy that fully respects the fundamental rights and dignity of the persons concerned (see, with regard to Directive 2008/115, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 48 and the case-law cited). By contrast, it is in no way apparent from the recitals of those directives that they seek to oblige the Member States to introduce a second level of jurisdiction.
27


Nevertheless it should be pointed out that any interpretation of Directive 2008/115 or of Directive 2013/32, must — as is apparent from recital 24 of the former and recital 60 of the latter — be consistent with the fundamental rights and principles recognised, in particular, by the Charter (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 51).
28


In that respect, it is settled case-law of the Court that, when a Member State decides to return an applicant for international protection to a country in which there are substantial grounds for believing that he will be exposed to a real risk of ill-treatment contrary to Article 18 of the Charter, read in conjunction with Article 33 of the Convention relating to the Status of Refugees, as supplemented by the Protocol, or to Article 19(2) of the Charter, the right to an effective remedy provided for in Article 47 of the Charter requires that that applicant must have available to him a remedy enabling automatic suspension of enforcement of the measure authorising his removal (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 54 and the case-law cited).
29


The Court has also stated that, in respect of a return decision and a possible removal decision, the protection inherent in the right to an effective remedy and in the principle of non-refoulement must be guaranteed by affording the applicant for international protection the right to an effective remedy enabling automatic suspensory effect, before at least one judicial body. Moreover, it is for the Member States to ensure the full effectiveness of an appeal against a decision rejecting the application for international protection by suspending all the effects of the return decision during the period prescribed for bringing the appeal and, if such an appeal is brought, until resolution of the appeal (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraphs 56, 58 and 61 and the case-law cited, and order of 5 July 2018, C and Others, C‑269/18 PPU, EU:C:2018:544, paragraph 50).
30


Nevertheless, it is clear from the case-law of the Court that neither Article 46 of Directive 2013/32, nor Article 13 of Directive 2008/115, nor Article 47 of the Charter, read in the light of the safeguards laid down in Article 18 and Article 19(2) of the Charter, requires that there be two levels of jurisdiction. The only requirement is that there must be a remedy before a judicial body (see, to that effect, judgments of 28 July 2011, Samba Diouf, C‑69/10, EU:C:2011:524, paragraph 69, and of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 57).
31


In this connection, it should also be recalled that, in so far as the Charter contains rights corresponding to rights guaranteed by the ECHR, Article 52(3) of the Charter seeks to ensure the necessary consistency between the rights contained in it and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (see, to that effect, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 47, and of 14 September 2017, K., C‑18/16, EU:C:2017:680, paragraph 50 and the case-law cited). According to the explanations relating to Article 47 of the Charter, the first paragraph of that article is based on Article 13 of the ECHR. The Court must, accordingly, ensure that its interpretation of the first paragraph of Article 47 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 13 of the ECHR, as interpreted by the European Court of Human Rights (see, by analogy, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 77, and of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 62).
34


In that connection, it should be stated that the introduction of a second level of jurisdiction against decisions rejecting an application for international protection and against return decisions, as well as the decision to give that level of jurisdiction, where appropriate, automatic suspensory effect, constitute — contrary to the argument relied upon by the Belgian Government set out in paragraph 17 of the present judgment — procedural rules implementing the right to an effective remedy against such decisions provided for in Article 39 of Directive 2005/85 and Article 13 of Directive 2008/115. While such procedural rules are a matter for the domestic legal order of the Member States pursuant to the principle of procedural autonomy of the latter, the Court has pointed out that those rules must observe the principles of equivalence and effectiveness (see, by analogy, judgment of 17 July 2014, Sánchez Morcillo and Abril García, C‑169/14, EU:C:2014:2099, paragraphs 31, 36 and 50 and the case-law cited, and order of 16 July 2015, Sánchez Morcillo and Abril García, C‑539/14, EU:C:2015:508, paragraph 33).
35


It thus follows from the settled case-law of the Court that procedural rules governing actions for safeguarding the rights which individuals derive from EU law must not be any less favourable than those governing similar domestic actions (principle of equivalence) and must not be framed in such a way as to render impossible in practice or excessively difficult the exercise of rights conferred by the legal order of the European Union (principle of effectiveness) (see, to that effect, judgments of 5 June 2014, Kone and Others, C‑557/12, EU:C:2014:1317, paragraph 25, and of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 27 and the case-law cited).
36


The observance of the requirements stemming from the principles of equivalence and effectiveness must be analysed by reference to the role of the rules concerned in the procedure viewed as a whole, to the conduct of that procedure and to the special features of those rules, before the various national instances (judgments of 1 December 1998, Levez, C‑326/96, EU:C:1998:577, paragraph 44, and of 27 June 2013, Agrokonsulting-04, C‑93/12, EU:C:2013:432, paragraph 38 and the case-law cited).
37


It is settled case-law of the Court that the principle of equivalence requires equal treatment of claims based on a breach of national law and of similar claims based on a breach of EU law, but not equivalence of national procedural rules applicable to different types of proceedings (judgment of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 34 and the case-law cited).
38


It is therefore appropriate, on the one hand, to identify the comparable procedures or actions and, on the other hand, to determine whether the actions based on national law are handled in a more favourable manner than comparable actions concerning the safeguarding of the rights which individuals derive from EU law (see, to that effect, judgments of 12 February 2015, Baczó and Vizsnyiczai, C‑567/13, EU:C:2015:88, paragraph 45, and of 9 November 2017, Dimos Zagoriou, C‑217/16, EU:C:2017:841, paragraph 19).
39


As regards the comparability of actions, it is solely for the national court, which has direct knowledge of the detailed procedural rules applicable, to ascertain whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics (judgments of 27 June 2013, Agrokonsulting-04, C‑93/12, EU:C:2013:432, paragraph 39, and of 9 November 2017, Dimos Zagoriou, C‑217/16, EU:C:2017:841, paragraph 20).
40


So far as concerns the similar handling of the actions, it must be borne in mind that every case in which the question arises as to whether a procedural rule of national law based on EU law is less favourable than those governing similar domestic actions must be analysed by the national court taking into account the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the different national courts (see, to that effect, judgment of 9 November 2017, Dimos Zagoriou, C‑217/16, EU:C:2017:841, paragraph 21).
42


In those circumstances, it is for the national court to examine any disregard which there may be of the principle of equivalence, by taking into account the aspects referred to in paragraphs 36 to 41 of the present judgment (see, by analogy, judgment of 9 November 2017, Dimos Zagoriou, C‑217/16, EU:C:2017:841, paragraph 24).