1 This request for a preliminary ruling concerns, in essence, the interpretation of Article 46 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60), read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between FO and the Ypourgos Metanastefsis kai Asylou (Minister for Immigration and Asylum, Greece) concerning the rejection of FO’s application for international protection.
3 Article 33 of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)) which entered into force on 22 April 1954 and was supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967, entitled ‘Prohibition of expulsion or return (“refoulement”)’, provides, in paragraph 1 thereof: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’
4 Article 7 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) provides, in paragraph 4 thereof: ‘If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days.’
5 Article 11(1) of that directive provides: ‘Return decisions shall be accompanied by an entry ban: (a) if no period for voluntary departure has been granted, or (b) if the obligation to return has not been complied with. In other cases return decisions may be accompanied by an entry ban.’
6 Article 2 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011, L 337, p. 9) provides: ‘For the purposes of this Directive the following definitions shall apply: … (d) “refugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply; … (f) “person eligible for subsidiary protection” means a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country; …’
7 Article 4 of that directive, entitled ‘Assessment of facts and circumstances’, provides: ‘1. Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application. … 3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; (b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm; (c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; … 5. Where Member States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection and where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation when the following conditions are met: (a) the applicant has made a genuine effort to substantiate his application; (b) all relevant elements at the applicant’s disposal have been submitted, and a satisfactory explanation has been given regarding any lack of other relevant elements; (c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case; (d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and (e) the general credibility of the applicant has been established.’
8 Recitals 18, 23, 25, 43 and 50 of Directive 2013/32 state: ‘(18) It is in the interests of both Member States and applicants for international protection that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out. … (23) In appeals procedures, subject to certain conditions, applicants should be granted free legal assistance and representation provided by persons competent to provide them under national law. Furthermore, at all stages of the procedure, applicants should have the right to consult, at their own cost, legal advisers or counsellors admitted or permitted as such under national law. … (25) In the interests of a correct recognition of those persons in need of protection as refugees within the meaning of Article 1 of the [Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951] or as persons eligible for subsidiary protection, every applicant should have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his or her case and sufficient procedural guarantees to pursue his or her case throughout all stages of the procedure. Moreover, the procedure in which an application for international protection is examined should normally provide an applicant at least with: the right to stay pending a decision by the determining authority; … the right to appropriate notification of a decision and of the reasons for that decision in fact and in law; the opportunity to consult a legal adviser or other counsellor; the right to be informed of his or her legal position at decisive moments in the course of the procedure, in a language which he or she understands or is reasonably supposed to understand; and, in the case of a negative decision, the right to an effective remedy before a court or a tribunal. … (43) Member States should examine all applications on the substance, i.e. assess whether the applicant in question qualifies for international protection in accordance with Directive [2011/95], except where this Directive provides otherwise, in particular where it can reasonably be assumed that another country would do the examination or provide sufficient protection. … … (50) It reflects a basic principle of Union law that the decisions taken on an application for international protection, the decisions concerning a refusal to reopen the examination of an application after its discontinuation, and the decisions on the withdrawal of refugee or subsidiary protection status are subject to an effective remedy before a court or tribunal.’
9 Article 2 of Directive 2013/32, entitled ‘Definitions’, provides: ‘For the purposes of this Directive: … (f) “determining authority” means 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; …’
10 Article 28 of that directive, entitled ‘Procedure in the event of implicit withdrawal or abandonment of the application’, provides, in paragraphs 1 and 2 thereof: ‘1. When there is reasonable cause to consider that an applicant has implicitly withdrawn or abandoned his or her application, Member States shall ensure that the determining authority takes a decision either to discontinue the examination or, provided that the determining authority considers the application to be unfounded on the basis of an adequate examination of its substance in line with Article 4 of Directive [2011/95], to reject the application. Member States may assume that the applicant has implicitly withdrawn or abandoned his or her application for international protection in particular when it is ascertained that: (a) he or she has failed to respond to requests to provide information essential to his or her application in terms of Article 4 of Directive [2011/95] or has not appeared for a personal interview as provided for in Articles 14 to 17 of this Directive, unless the applicant demonstrates within a reasonable time that his or her failure was due to circumstances beyond his or her control; (b) he or she has absconded or left without authorisation the place where he or she lived or was held, without contacting the competent authority within a reasonable time, or he or she has not within a reasonable time complied with reporting duties or other obligations to communicate, unless the applicant demonstrates that this was due to circumstances beyond his or her control. For the purposes of implementing these provisions, Member States may lay down time limits or guidelines. 2. Member States shall ensure that an applicant who reports again to the competent authority after a decision to discontinue as referred to in paragraph 1 of this Article is taken, is entitled to request that his or her case be reopened or to make a new application which shall not be subject to the procedure referred to in Articles 40 and 41. Member States may provide for a time limit of at least nine months after which the applicant’s case can no longer be reopened or the new application may be treated as a subsequent application and subject to the procedure referred to in Articles 40 and 41. Member States may provide that the applicant’s case may be reopened only once. Member States shall ensure that such a person is not removed contrary to the principle of non-refoulement. Member States may allow the determining authority to resume the examination at the stage where it was discontinued.’
11 Article 31 of Directive 2013/32, entitled ‘Examination procedure’, provides, in paragraph 8 thereof: ‘Member States may provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be accelerated and/or conducted at the border or in transit zones in accordance with Article 43 if: (a) the applicant, in submitting his or her application and presenting the facts, has only raised issues that are not relevant to the examination of whether he or she qualifies as a beneficiary of international protection by virtue of Directive [2011/95]; or (b) the applicant is from a safe country of origin within the meaning of this Directive; or (c) the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his or her identity and/or nationality that could have had a negative impact on the decision; or (d) it is likely that, in bad faith, the applicant has destroyed or disposed of an identity or travel document that would have helped establish his or her identity or nationality; or (e) the applicant has made clearly inconsistent and contradictory, clearly false or obviously improbable representations which contradict sufficiently verified country-of-origin information, thus making his or her claim clearly unconvincing in relation to whether he or she qualifies as a beneficiary of international protection by virtue of Directive [2011/95]; or (f) the applicant has introduced a subsequent application for international protection that is not inadmissible in accordance with Article 40(5); or (g) the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his or her removal; or (h) the applicant entered the territory of the Member State unlawfully or prolonged his or her stay unlawfully and, without good reason, has either not presented himself or herself to the authorities or not made an application for international protection as soon as possible, given the circumstances of his or her entry; or (i) the applicant refuses to comply with an obligation to have his/her fingerprints taken …; or (j) the applicant may, for serious reasons, be considered a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security or public order under national law.’
12 Article 32 of Directive 2013/32, entitled ‘Unfounded applications’, provides that: ‘1. Without prejudice to Article 27, Member States may only consider an application to be unfounded if the determining authority has established that the applicant does not qualify for international protection pursuant to Directive [2011/95]. 2. In cases of unfounded applications in which any of the circumstances listed in Article 31(8) apply, Member States may also consider an application to be manifestly unfounded, where it is defined as such in the national legislation.’
13 Article 46 of Directive 2013/32, entitled ‘The right to an effective remedy’, provides: ‘1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following: (a) a decision taken on their application for international protection, including a decision: (i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status; (ii) considering an application to be inadmissible pursuant to Article 33(2); (iii) taken at the border or in the transit zones of a Member State as described in Article 43(1); (iv) not to conduct an examination pursuant to Article 39; (b) a refusal to reopen the examination of an application after its discontinuation pursuant to Articles 27 and 28; (c) a decision to withdraw international protection pursuant to Article 45. … 3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for 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], at least in appeals procedures before a court or tribunal of first instance. 4. Member States shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy pursuant to paragraph 1. The time limits shall not render such exercise impossible or excessively difficult. Member States may also provide for an ex officio review of decisions taken pursuant to Article 43. 5. Without prejudice to paragraph 6, Member States shall allow applicants to remain in the territory until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy. 6. In the case of a decision: (a) considering an application to be manifestly unfounded in accordance with Article 32(2) or unfounded after examination in accordance with Article 31(8), except for cases where these decisions are based on the circumstances referred to in Article 31(8)(h); (b) considering an application to be inadmissible pursuant to Article 33(2)(a), (b) or (d); (c) rejecting the reopening of the applicant’s case after it has been discontinued according to Article 28; or (d) not to examine or not to examine fully the application pursuant to Article 39, a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon the applicant’s request or acting ex officio, if such a decision results in ending the applicant’s right to remain in the Member State and where in such cases the right to remain in the Member State pending the outcome of the remedy is not provided for in national law. … 11. Member States may also lay down in national legislation the conditions under which it can be assumed that an applicant has implicitly withdrawn or abandoned his or her remedy pursuant to paragraph 1, together with the rules on the procedure to be followed.’
14 According to Article 22(4) of Nomos 3907/2011, Idrysi Ypiresias Asylou kai Ypiresias Protis Ypodochis, prosarmogi tis ellinikis nomothesias pros tis diatakseis tis Odigias 2008/115/EK schetika me tous koinous kanones kai diadikasies sta krati-meli gia tin epistrophi ton paranomos diamenonton ypikoon triton choron kai loipes diatakseis (Law 3907/2011 establishing an Asylum and First Reception Service, harmonising Greek legislation with the provisions of Directive [2008/115] and other provisions) (FEK A’ 7/26.1.2011), entitled ‘Voluntary departure’: ‘Where there is a risk of absconding, or where the third country national constitutes a threat to public security, public order or national security … or if the application for legal residence has been rejected as manifestly unfounded or fraudulent, the authorities having specific jurisdiction shall not grant any period for voluntary departure.’
15 Article 4(1) of Nomos 4375/2016, Organosi kai leitourgia Ypiresias Asylou, Archis Prosfygon, Ypiresias Ypodochis kai Taftopoiisis, systasi Genikis Grammateias Ypodochis, prosarmogi tis Ellinikis Nomothesias pros tis diatakseis tis Odigias 2013/32/ΕΕ tou Evropaikou Koinovouliou kai tou Symbouliou ‘schetika me tis koines diadikasies gia ti chorigisi kai anaklisi tou kathestotos diethnous prostasias (anadiatyposi)’ (EE 2013 L 180), diatakseis gia tin ergasia dikaiouchon diethnous prostasias kai alles diatakseis (Law 4375/2016 on the organisation and operation of an Asylum Service, Appeals Body and Reception and Identification Service, establishing a General Secretariat for Reception and harmonising Greek legislation with the provisions of Directive [2013/32] governing the work of beneficiaries of international protection and other provisions (FEK A’ 51/3.4.2016), as amended by Law 4399/2016 (‘Law 4375/2016’), established, in order to guarantee the right to an effective remedy as provided for in Article 46 of that directive, Independent Appeals Committees having their seat in Athens and territorial jurisdiction over all of Greece. They are competent to hear appeals by applicants for international protection, in order to review, in law and in substance, decisions of the Ypiresia Asylou (Asylum Service, Greece) rejecting their application at first instance.
16 Nomos 4636/2019, peri diethnous prostasias kai alles diatakseis (Law 4636/2019 on international protection and other provisions) (FEK A’ 169/1.11.2019), in the version thereof applicable to the dispute in the main proceedings (‘Law 4636/2019’), transposed Directive 2013/32 into the Greek legal order.
17 Article 78(3) and (9) of that law provided: ‘3. Applicants shall be required to appear in person immediately before the receiving authorities in order to lodge an application for international protection, and also whenever they are ordered to appear before the competent authorities pursuant to the present part of this Law. … When they appear in person, they may be assisted by lawyers representing them and also other specifically appointed advisors, in accordance with Article 71(1). The obligation to appear in person at each stage of the procedure for examining the application or appeal is not negated by the presence of the persons referred to in the preceding paragraph. By way of derogation, the following provisions shall apply specifically to the hearings of appeals before the Independent Appeals Committees: (a) Where applicants are staying at a reception or hosting centre, they shall not be required to appear in person. In such cases, applicants may either be represented by their legal representative or specifically appointed advisor or by other persons authorised pursuant to Article 71(1), or send the body examining the appeal, by any appropriate means no later than the day before the hearing, an attestation signed by the supervisor of the reception or hosting centre. That attestation must state that the applicants actually are staying at the reception or hosting centre on the date of the request for the attestation. That date may not be more than three (3) days from the date of the hearing to examine the appeal. (b) Where applicants are subject to a restriction on movement or an obligation to stay in a particular place pursuant to Article 45, they shall not be required to appear in person. In such cases, applicants may either be represented by their legal representative or specifically appointed advisor or by other persons authorised pursuant to Article 71(1), or send the body examining the appeal, by any appropriate means no later than the day before the hearing, an attestation from the police station or from the citizens’ service centre of the place where they are staying, certifying that they appeared in person on the date of the request for the attestation. That date may not be more than two (2) days from the date of the hearing to examine the appeal. If the attestations referred to in (a) and (b) do not reach the body examining the appeal, the applicant shall be deemed to have implicitly withdrawn his or her appeal in accordance with Article 81 of the present law. In the event of force majeure, such as a serious illness, a serious physical handicap or an insurmountable obstacle preventing the applicant from appearing in person, the obligation to appear in person shall be suspended for the duration of the force majeure. In that case, the applicant must lodge an application stating the circumstances constituting force majeure or insurmountable impediment preventing him or her from appearing in person; that application must be duly substantiated by evidence and certificates or attestations from the competent public body. If the abovementioned cases of force majeure or insurmountable impediment are found to exist, and if the applicant appears in person before the competent authorities, the effects of the non-appearance under the present paragraph shall be expunged. … 9. In the event of non-compliance with the obligation to cooperate with the competent authorities as set out in the preceding paragraphs, and in particular if the person concerned does not communicate or does not cooperate with the authorities in establishing the information necessary for the examination of the application, having the effect of impeding the proper conduct of the procedure for examining the application for international protection, that application or the appeal shall be deemed to have been implicitly withdrawn in accordance with Article 81 of the present law.’
18 Article 81 of that law provided: ‘1. Where there are serious grounds to believe that an applicant has implicitly withdrawn his or her application, the competent authorities shall proceed with an adequate examination thereof as to its merits, in accordance with Article 4 of the present law, on the basis of the information in their possession and, where those authorities find that the application is unfounded, they shall reject it. Where an adequate examination of the application on its merits is not possible on the basis of the information in the authorities’ possession in accordance with the preceding paragraph, the competent authorities shall cease to examine the application and shall issue an interruption decision. The decision decreeing the interruption of the examination of the application for international protection shall simultaneously order the return of the applicant, in accordance with the provisions of Law 3907/2011 and Law 3386/2005. The aforementioned measures shall be notified in accordance with Article 82 of the present law. 2. Implicit withdrawal shall be presumed, inter alia where the applicant: (a) has failed to reply to requests inviting him or her to provide information essential to his or her application …; or (b) has failed to appear for a personal interview or hearing before the [Independent] Appeals Committee in accordance with Articles 77 and 97 of the present law, despite being duly summoned; or (c) has absconded from the place where he or she was placed in detention …; (d) has left, without requesting authorisation therefor or without informing the competent authorities, despite being required to do so, the place where he or she was staying or has left the country without being authorised to do so by the competent receiving authorities; or (e) has failed to comply with his or her obligations under Article 78 of the present law or has failed to comply with the obligation to appear regularly before the authorities or other communication obligations, … or (f) has failed to appear to renew his or her international protection applicant’s card [no later than] the day following the date of its expiry, in accordance with Article 70; or (g) has failed to cooperate with the authorities, contrary to his or her obligation to cooperate in accordance with Article 78; … 3. The applicant may, pursuant to Article 92 of the present law, lodge an appeal with the Independent Appeals Committees against the rejection decisions referred to in paragraph 1 of the present article. 4. When an interruption decision for the purposes of paragraph 1 has been issued, the applicant has the right to request, once, within nine (9) months from the date of the interruption decision, that the authority issuing the interruption decision resume the procedure for examining his or her file, or the right to lodge a new application not coming within the procedure [for subsequent applications] referred to in Article 89. The applicant shall not be expelled from the country and no return decision shall be enforced for as long as a definitive decision has not been issued on that request.’
19 Article 92 of Law 4636/2019, entitled ‘Right of appeal’, provided, in paragraphs 1 and 4 thereof: ‘1. The applicant has the right to lodge an administrative appeal as referred to in Article 7(5) of Law 4375/2016 before the authority examining the appeal referred to in Article 4 of Law 4375/2016: (a) against a decision rejecting an application for international protection as unfounded in an ordinary procedure, or revoking international protection status, and against a decision granting international protection status, for the part thereof refusing to grant the applicant refugee status, within a period of thirty (30) days from the notification of the decision or from the date on which the person appealing against the decision is deemed to have become aware of the decision in accordance with paragraph 5 of Article 82; (b) against a decision rejecting an application for international protection as inadmissible or rejecting it under the accelerated procedure … … 4. Where the appeal is rejected, the applicant shall be detained - unless he or she is an unaccompanied minor - at a pre-departure detention facility until removal has been carried out or his or her application has been definitively upheld. The lodging of a subsequent application and/or action for annulment and/or action for suspension does not automatically entail lifting of the detention.’
20 Under Article 95(1) of that law: ‘Where the appeal is lodged, the competent receiving authority shall, on the same day, inform the applicant of the date on which a hearing is to be held for that appeal.’
21 Article 97(2) of that law provided: ‘In the procedure before the Independent Appeals Committees, the person appealing against the decision shall be obliged to appear in person or through his or her legal representative, subject to Article 78(3). Where the applicant fails to appear in person or fails to send the attestation referred to in Article 78(3), he or she shall be deemed to have lodged the appeal solely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his or her expulsion or removal by any other means and his or her appeal shall be rejected as manifestly unfounded.’
22 On 28 February 2019, FO, an Iraqi national, lodged an application for international protection with the Perifereiako Grafeio Asylou Samou (Samos Regional Asylum Office, Greece), on the ground that his life was in danger in his country of origin.
23 During an interview held on 24 February 2020 at the Perifereiako Grafeio Asylou Thessalonikis (Thessaloniki Regional Asylum Office, Greece), FO stated that he had been having a romantic relationship with a young woman, which was why he had been attacked and injured by firearm by a member of that woman’s family. FO reported that incident to the police, who took no action. Since he continued his relationship with the woman after that incident, FO became the subject of a tribal order requiring him to be put to death. During the administrative procedure for examining his application for international protection, FO produced a document dated 1 October 2018 which, according to the unofficial translation annexed thereto, was addressed to ‘all the tribes and orders [FO’s] death for misconduct involving the tribe’.
24 By decision of 18 May 2020, the Thessaloniki Regional Asylum Office rejected FO’s application for international protection on the ground that his claims concerning his relationship with a young woman and the reasons which led him to leave his country were considered unreliable. The document dated 1 October 2018 allegedly ordering FO’s being put to death was not admitted as evidence due to the vague character of the statements made therein and the impossibility of verifying their authenticity.
25 On 27 August 2021, with the assistance of an appointed legal representative, FO lodged an appeal against that decision with the Third Independent Appeals Committee. At that time, he was informed, first, that the date set for the examination of his appeal was 11 October 2021; second, the examination procedure for that type of appeal was generally conducted in writing but that, if he was summoned to an oral hearing, he would be notified at least 10 working days before the date of examination of his appeal; and, third, that even if he were not summoned to a hearing, he would in any event be obliged to appear in person on the date of the examination of his appeal, at 9.30 hrs, before that committee, unless he was lawfully staying at a reception and identification centre or was subject to a restriction on movement or residence in a place outside the region of Attica (Greece).
26 FO did not appear in person before the Third Independent Appeals Committee on the date of the hearing to examine his appeal. Consequently, after verifying that FO was not staying at a reception and identification centre and was not subject to a restriction on movement, and that there were no force majeure grounds making it impossible for him to appear at the hearing, that committee dismissed the appeal as manifestly unfounded, on the basis of Article 97(2) of Law 4636/2019, without examining it as to its merits. In addition, pursuant to Article 22(4) of Law 3907/2011, it imposed a return measure on FO without a period for voluntary departure from the country.
27 FO brought an action for annulment before the Dioikitiko Protodikeio Thessalonikis (Administrative Court of First Instance, Thessaloniki, Greece), which is the referring court, against that decision of the Third Independent Appeals Committee, arguing that his appeal was unlawfully dismissed on the sole ground that he was absent from the hearing to examine his appeal and without a sufficient examination having been carried out of the appeal on its merits, even though he was unable to attend the hearing due to financial difficulties which prevented him from travelling from Thessaloniki, where he resides, to Athens (Greece).
28 The referring court notes, as a preliminary point, that the Independent Appeals Committees were established by Article 4(1) of Law 4375/2016, in order to guarantee the right to an effective remedy as provided for in Article 46 of Directive 2013/32 and Article 47 of the Charter for persons affected by decisions refusing applications for international protection. It takes the view that, in the light of the case-law resulting from the judgment of 31 January 2013, D. and A. (C‑175/11, EU:C:2013:45), those committees are ‘courts or tribunals’ for the purposes of Article 46 of that directive.
29 That said, the referring court is uncertain about whether the obligation to appear in person before those committees and the consequences of non-compliance with that obligation, provided for by the national legislation, are compatible with Article 46 of Directive 2013/32 and, in the absence of a specific rule in that directive governing the appearance of applicants for international protection before the court or tribunal hearing the case, with the principles of equivalence and effectiveness.
30 It notes, in that regard, that Article 46(1) and (3) of Directive 2013/32 requires that a full and ex nunc examination of both facts and points of law be carried out by the court or tribunal examining an applicant’s application for international protection, which the national legislation in question does not guarantee where the applicant does not appear in person before the Independent Appeals Committees since, in that case, the appeal is dismissed as manifestly unfounded without being examined as to its merits.
31 In the second place, the referring court is uncertain as to whether, for the purposes of application of the principle of equivalence, the procedure before such committees is comparable to the procedure provided for before other administrative authorities hearing administrative actions or to the procedure applicable to an application on its merits or an action for annulment before an administrative court or tribunal. It states that, in neither of those two cases is the person concerned required to appear in person when his or her appeal is being examined, but that he or she can be represented, inter alia, by a legal representative.
32 As regards, in the third place, the principle of effectiveness, the referring court notes that Article 97(2) of Law 4636/2019 is intended to enable the Independent Appeals Committees to ensure that applicants for international protection retain an interest in the outcome of their appeal and are still present in Greek territory, so as to avoid an examination on the merits of applications that have become moot for those applicants and expedite the examination of other appeals. However, that court seeks to ascertain whether that provision, in requiring applicants who do not come within one of the exceptions provided for in Article 78(3) of that law, to travel from anywhere in Greece to the seat of the Independent Appeals Committees in Athens, without being able to be represented by a lawyer or other person, and in laying down a presumption that an appeal has been brought improperly in the event of non-compliance with that procedural obligation, makes the application of EU law impossible or excessively difficult and places a disproportionate burden on those applicants.
33 In that regard, the referring court states that, whilst Article 97(2) of Law 4636/2019 provides for the dismissal of the appeal as manifestly unfounded in such cases, Directive 2013/32 provides for the possibility for Member States to establish a presumption of implicit withdrawal of the application for international protection in the event of non-compliance with one of the obligations to respond to the authorities as provided for in that directive. Under that directive, the rejection of such an application as manifestly unfounded presupposes that it is, at the very least, unfounded.
34 In addition, under Article 7(4) and Article 11(1)(a) of Directive 2008/115, the rejection of such an application as manifestly unfounded precludes the grant of a period for voluntary departure and also leads to the imposition of an entry ban on the third-country national. Moreover, although Article 46(11) of Directive 2013/32 provides that Member States may lay down the conditions under which it can be assumed that an applicant for international protection has implicitly withdrawn or abandoned his or her remedy, together with the rules on the procedure to be followed, it does not contain any provisions on the possibility of dismissing appeals as manifestly unfounded.
35 In those circumstances, the Dioikitiko Protodikeio Thessalonikis (Administrative Court of First Instance, Thessaloniki) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Given the importance of the remedy referred to in Article 46 of Directive 2013/32, may the legislature infer a presumption that the appeal has been improperly brought and, as a consequence, dismiss the appeal, without a full and ex nunc examination of the case, as manifestly unfounded (which also results in the period for voluntary departure referred to in Article 22(4) of Law 3907/2011 and Article 7 of Directive 2008/115 not being granted) on the ground that the applicant [for international protection] did not appear in person before the committee examining the case? (2) (a) If it were to be held that this matter is covered by the principle of the procedural autonomy of the Member States, should the comparable national procedural rules, in the context of the examination of the principle of equivalence, be considered to be those governing proceedings before administrative committees hearing appeals under national law or the procedural rules governing the bringing of substantive actions (or applications for annulment) before administrative courts? (b) Is it consistent with the principle of effectiveness of EU law and, in particular, the effective exercise of the right to an effective remedy to lay down an obligation to appear in person (or to send the attestation referred to in Article 78(3) of Law 4636/2019 in the cases provided for)? In that context, furthermore, is it relevant whether the presumption that the right of appeal has been improperly brought, provided for in Article 97(2) of Law 4636/2019, corresponds to the lessons of general experience and, in the context of the examination (at first instance) of applications for international protection, that the same conduct would lead to a presumption of implicit withdrawal rather than a rejection of the application as manifestly unfounded?’
36 In so far as the referring court seeks to ascertain the compatibility of the national legislation implementing Article 46 of Directive 2013/32, which provides for an appeals procedure against decisions of the competent authority to rule at first instance on applications for international protection, it is appropriate to begin by examining whether Independent Appeals Committees, categorised as ‘quasi-judicial’ bodies in the statement of reasons for Article 86 of Law 4399/2016, amending Law 4375/2016, which were established by Article 4(1) of the latter law, may be regarded as ‘courts or tribunals’ for the purposes of Article 46(1) of that directive, capable of guaranteeing the right to an effective remedy.
37 In that regard, the referring court states that, although the Independent Appeals Committees are not considered to be courts or tribunals in the national legal order, they nevertheless exercise judicial functions, a point not undermined by the fact that their decisions may be the subject of actions for annulment before the competent administrative courts and tribunals whose judgments are enforceable.
38 It should be noted, first of all, that Article 46(1) of Directive 2013/32 provides that Member States are to ensure that applicants for international protection have the right to an effective remedy before a court or tribunal against various decisions on their applications for international protection, including in particular decisions rejecting such applications as unfounded. Moreover, as stated in recital 50 of Directive 2013/32, it is a basic principle of Union law that the decisions taken on inter alia an application for international protection are to be subject to an effective remedy before a court or tribunal.
39 In that regard, in order to determine whether a body is a ‘court or tribunal’ for the purposes of exercising an effective remedy against decisions of the determining authority within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005, L 326, p. 13), the Court has referred to the same criteria as those developed for determining whether a referring body is a ‘court or tribunal’ for the purposes of Article 267 TFEU (see, to that effect, judgment of 31 January 2013, D. and A., C‑175/11, EU:C:2013:45, paragraph 83 and the case-law cited), the first sentence of recital 27 of which directive contains an explicit reference to ‘court or tribunal within the meaning of Article [267 TFEU]’. The fact that recital 50 of Directive 2013/32 does not contain such a reference has no bearing on that assessment.
40 Thus, according to the Court’s settled case-law, in order to determine whether a competent body is a ‘court or tribunal’, account must be taken of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedures are inter parties, whether it applies rules of law and whether it is independent (see, to that effect, judgments of 17 September 1997, Dorsch Consult, C‑54/96, EU:C:1997:413, paragraph 23, and of 7 May 2024, NADA and Others, C‑115/22, EU:C:2024:384, paragraph 35 and the case-law cited).
41 In the present case, the applicable national legislation in the case in the main proceedings establishes the Independent Appeals Committees, which have jurisdiction to rule on appeals brought by applicants for international protection, in order to review, in fact and in law, decisions rejecting their applications at first instance.
42 In that regard, it is apparent from the information provided by the referring court, first of all, that each of those committees is composed of a majority of judges of the ordinary administrative courts who are appointed for three-year terms and enjoy personal and functional independence in the performance of their duties. Moreover, the principle of impartiality is guaranteed, since those committees have a third-party status in relation to the parties involved and do not represent the administration. Next, the procedure before them observes the right to be heard and the rights of the defence, whilst taking account of the particularities of the international protection procedure involving observance of confidentiality. Lastly, decisions of those same committees are adopted following an in-depth examination in fact and in law, and contain a complete, specific and explicit statement of reasons. Those decisions are binding on the parties, in particular the competent minister, and may be challenged only through an action for annulment before the administrative courts or tribunals.
43 As regards, in particular, the criterion of independence, the Court notes that the fact that the decisions of the Independent Appeals Committees are subject to judicial review by the ordinary administrative courts is, in itself, capable of protecting those committees against potential temptations to give in to external intervention or pressure liable to jeopardise the independence of their members (see, by analogy, judgment of 31 January 2013, D. and A., C‑175/11, EU:C:2013:45, paragraph 103).
44 In those circumstances, subject to verification by the referring court, the Court finds that the Independent Appeals Committees, established by the national legislation at issue in the main proceedings to hear appeals brought by applicants for international protection against decisions taken in respect of them, fulfil the conditions necessary for being considered to be ‘courts or tribunals’ for the purposes of Article 46 of Directive 2013/32. Neither the information provided by the referring court nor the arguments put forward by the Greek Government and the European Commission contain anything liable to call that assessment into question in view of the criteria developed in the consistent case-law of the Court, as referred to in paragraph 40 of the present judgment.
45 By its two questions, which should be examined together, the referring court asks, in essence, whether Article 46 of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as precluding legislation of a Member State which, in the event of failure by an applicant for international protection to comply with a procedural obligation to appear in person before the court or tribunal having jurisdiction to rule on his or her appeal against a decision rejecting his or her application, establishes a presumption that that appeal has been improperly brought and provides for it to be dismissed as manifestly unfounded without any examination as to its merits.
46 In the present case, the referring court’s doubts as to the interpretation of EU law arise from the fact that, under the national legislation transposing Article 46 of Directive 2013/32, when an applicant for international protection does not appear in person before the court or tribunal having jurisdiction to rule on his or her appeal against the decision rejecting his or her application, the appeal is deemed to have been lodged solely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his or her expulsion or removal by any other means and is to be rejected as manifestly unfounded. However, according to the referring court, the failure to appear in person before the court or tribunal having jurisdiction may be due to reasons which are unrelated to any intention to delay or frustrate the enforcement of an earlier or imminent decision ordering the expulsion of the applicant or his or her removal by any other means. The referring court further considers that, under Directive 2013/32, that applicant’s failure to comply with the obligation to appear in person before the authorities gives rise to an implicit presumption of withdrawal of the application for international protection and not to a rejection of that application as manifestly unfounded.
47 First of all, the Court notes that Article 46(1) of Directive 2013/32 requires Member States to ensure that applicants for international protection have the right to an effective remedy before a court or tribunal against decisions given on their applications, including in particular decisions rejecting an application for international protection as unfounded, without however setting out exhaustively the procedural rules governing that remedy.
48 Next, Article 46(3) of Directive 2013/32, the purpose of which is to clarify the scope of the right to an effective remedy, provides that, in order to comply with Article 46(1) thereof, Member States 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).
49 In particular, under Article 46(3) of Directive 2013/32, an appeal brought by an applicant for international protection must include 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 (judgment of 8 February 2024, Bundesrepublik Deutschland (Admissibility of a subsequent application), C‑216/22, EU:C:2024:122, paragraph 58 and the case-law cited).
50 Lastly, the first sentence of Article 46(4) of Directive 2013/32 leaves to Member States the task of providing the necessary rules for applicants for international protection to be able to exercise their right to an effective remedy (judgment of 9 September 2020, Commissaire général aux réfugiés et aux apatrides (Rejection of a subsequent application - Time limit for bringing proceedings), C‑651/19, EU:C:2020:681, paragraph 33).
51 Although, in the absence of EU rules on the matter, it is for the national legal order, in accordance with the principle of procedural autonomy of Member States and subject to the observance of the principles of equivalence and effectiveness, to lay down the detailed procedural rules governing remedies for ensuring that individual rights derived from the EU legal order are safeguarded (see, to that effect, judgment of 3 April 2025, Barouk, C‑283/24, EU:C:2025:236, paragraph 37), Member States nevertheless have the responsibility to ensure observance in every case of the right to effective judicial protection of those rights as guaranteed by Article 47 of the Charter (see, to that effect, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 142 and the case-law cited).
52 Consequently, 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 enshrines the right to an effective remedy before a tribunal for everyone whose rights and freedoms guaranteed by EU law are infringed. It follows that each Member State bound by that directive must order its national law in such a way that applicants for international protection are able to exercise their right to an effective remedy, as guaranteed by Article 47 of the Charter and specifically provided for in Article 46 of Directive 2013/32 (see, to that effect, judgment of 8 February 2024, Bundesrepublik Deutschland (Admissibility of a subsequent application), C‑216/22, EU:C:2024:122, paragraph 61 and the case-law cited).
53 In the present case, Article 92 of Law 4636/2019, which transposes Article 46 of Directive 2013/32 into the national legal order, provides for the right of an applicant for international protection to lodge an appeal against a decision rejecting his or her application. Article 97 of that law governs the procedure for examining that appeal before the Independent Appeals Committees. Under Article 97(2) thereof, applicants for international protection are obliged, irrespective of where in Greece they are staying, to travel to the seat of those committees to appear in person, unless they come within one of the exceptions referred to in Article 78(3) of that law. All of those committees have their seat in Athens. Moreover, the second sentence of Article 97(2) of that law provides, as a legal consequence of non-compliance with that obligation to appear in person, that the applicant is to be deemed to have lodged the appeal solely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his or her expulsion or removal by any other means and that his or her appeal is to be rejected as manifestly unfounded.
54 It is true that, in introducing that procedural requirement and in providing that non-compliance therewith entails such a consequence, the legislation at issue in the main proceedings merely lays down a detailed rule for how applicants may exercise their right of appeal against decisions rejecting their application for international protection. Nevertheless, that detailed rule is liable to limit the right to effective judicial protection of those applicants, because it imposes on them a constraint linked to their physical presence at procedures before the Independent Appeals Committees examining their appeals, failing which they will be subject to a presumption of implicit withdrawal of their applications and the rejection of their applications as manifestly unfounded, without any examination of the merits thereof.
55 Article 52(1) of the Charter provides that limitations may be placed on the exercise of rights and freedoms guaranteed by the Charter on condition that those limitations are provided for by law; they respect the essence of those rights and freedoms; and, in compliance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others (judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 51).
56 In that regard, the Court notes that, although Directive 2013/32 does not provide for specific requirements in terms of the procedural obligations of the applicant in the examination of the effective remedy against a decision rejecting his or her application for international protection, such as appearance in person, or for the consequences of non-compliance with those obligations, Article 46(11) of Directive 2013/32 does allow the Member States to lay down, in their national legislation, the conditions under which it can be assumed that an applicant has implicitly withdrawn or abandoned the remedy referred to in Article 46(1) thereof, together with the rules on the procedure to be followed.
57 As is apparent from the order for reference, the procedural requirement provided for by the national legislation at issue in the main proceedings and the consequence resulting from non-compliance therewith, are aimed at ensuring that applicants retain a genuine interest in bringing an action, by verifying that they are in the national territory at the time the appeal is examined, thereby helping to ensure a proper and expeditious procedure before the competent court or tribunal. The objectives of dealing with such appeals expeditiously and of safeguarding the efficiency of the judicial system are legitimate objectives, inasmuch as they assist the courts or tribunals hearing those appeals in concentrating on those coming from applicants who have a genuine interest in the outcome of their appeal. Thus they are legitimate objectives and justify the introduction of a presumption, such as that at issue in the main proceedings, which addresses the interest of Member States and that of applicants for such protection, as stated in recital 18 of that directive.
58 The Court has held previously that procedural rules ensuring the more expeditious processing of applications for international protection that are manifestly unfounded makes possible a more efficient processing of applications submitted by individuals whose claims to be granted refugee status are well founded and contributes, thereby, to the smooth progress of the procedure for the examination of applications for international protection (see, to that effect, judgment of 9 September 2020, Commissaire général aux réfugiés and aux apatrides (Rejection of a subsequent application - Time limit for bringing proceedings), C‑651/19, EU:C:2020:681, paragraphs 54 and 55 and the case-law cited).
59 Consequently, national legislation providing for the obligation to appear in person before the court or tribunal having jurisdiction to rule on an appeal against a decision rejecting an application for international protection and, in the event of non-compliance with that obligation, for a presumption similar to a presumption of implicit withdrawal or abandonment of such an application may, in principle, be justified in the light of the objective of expedition pursued by Directive 2013/32, the principle of legal certainty, and the smooth progress of the procedure for the examination of applications for international protection (see, by analogy, judgment of 9 September 2020, Commissaire général aux réfugiés et aux apatrides (Rejection of a subsequent application - Time limit for bringing proceedings), C‑651/19, EU:C:2020:681, paragraph 56 and the case-law cited).
60 Nevertheless, the legislation of a Member State intended to implement the right to an effective remedy provided for in Article 46(1) of Directive 2013/32 must observe the principle of proportionality, which presupposes inter alia that it is apt to ensure attainment of the objective pursued, that it does not go beyond what is necessary to achieve that objective and that it is proportionate (see, by analogy, judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 85 and the case-law cited).
61 In the first place, as is apparent from paragraphs 53 and 57 of the present judgment, the national legislation at issue in the main proceedings is aimed at allowing the Independent Appeals Committees to ensure that appeals brought against decisions rejecting applications for international protection are dealt with expeditiously and at safeguarding the efficiency of the judicial system, so that those committees are able to concentrate on applicants who have a genuine interest in the outcome of their appeal. The procedural obligation requiring applicants to appear in person before those committees is apt for helping to attain those objectives. Thus, in enabling more efficient processing of applications submitted by applicants who retain an interest in the outcome of their appeals, whilst avoiding an examination of the merits of applications which have become moot, it helps with the smooth progress of the procedure for the examination of applications for international protection.
62 As regards, in the second place, the question whether that national legislation goes beyond what is necessary to achieve the objectives pursued, it seems that, in the present case, less restrictive measures, such as allowing applicants who have brought an appeal to be represented by a lawyer or other person authorised for that purpose and, in order to prove their presence in Greek territory, to appear at a police station or before another public or judicial authority close to where they are staying, comparable to that provided for in Article 78(3)(b) of Law 4636/2019, could be envisaged.
63 It is true that, as submitted by the Greek Government in its written observations, the procedural obligation to appear in person and the consequences of non-compliance with that obligation are clearly laid down in national law. In that regard, under Article 95(1) of Law 4636/2019, an applicant who has lodged an appeal against a decision rejecting his or her application for international protection is informed of the date of the hearing for examining his or her appeal on the same day as that appeal is lodged, and also of the obligation to appear in person on that date before the Independent Appeals Committee having jurisdiction in his or her case, unless there is force majeure or insurmountable impediment preventing him or her from appearing within the meaning of the second subparagraph of Article 78(3) of that law, which provides for a procedure allowing for the suspension of the procedure to appear in person for the duration of the force majeure and allows for the legal effects of the non-appearance to be expunged.
64 However, in the third place, it is still necessary to ascertain whether the procedural rules imposed by the national legislation at issue in the main proceedings are disproportionate in relation to the objective of expeditious processing of applications for international protection, in view of the impact they may have on applicants’ exercising their right to an effective remedy.
65 In that regard, the Court notes that, although a national rule providing for a procedural requirement of appearance in person and, in the event of non-compliance with that requirement, for a presumption of implicit withdrawal or abandonment of a judicial remedy, may be justified for reasons relating to legal certainty and proper conduct of the procedure for examining applications for international protection, that rule must not, however, preclude an adequate and complete examination of those applications from being conducted. It is apparent from recital 18 of Directive 2013/32 that a measure aimed at speeding up the procedure for examining applications for international protection introduced by the legislation of a Member State must be without prejudice to an adequate and complete examination of those applications.
66 In the present case, however, as is apparent from the information provided by the referring court, the obligation for the applicant to appear in person before the court or tribunal having jurisdiction to rule on his or her appeal against a decision rejecting his or her application, the sole objective of which is to verify his or her presence on the national territory and not to be heard, imposes an unreasonable and excessive burden on applicants for international protection who are not staying in the region of Athens, such as the applicant in the main proceedings, who is staying several hundred kilometres away, since, unless they come within one of the exceptions provided for in Article 78(3) of Law 4636/2019, they must travel to Athens, where the Independent Appeals Committees are located, solely in order to have their presence recorded, without however necessarily being heard. In that regard, that finding is not affected by the fact that, under Article 95(1) of Law 4636/2019, applicants are informed in good time of their obligation to appear in person before those committees.
67 The disproportionate nature of the national legislation at issue in the main proceedings is evident, inter alia, from the legal consequence provided for by that legislation in the event of non-compliance with the obligation to appear in person or in the event of failure to send an attestation establishing the existence of force majeure or insurmountable impediment, inasmuch as it establishes an irrefutable presumption that an appeal has been brought improperly, with the result that it must be dismissed as manifestly unfounded, without any examination being conducted as to its merits. As observed by the referring court, the failure to appear in person before the court or tribunal having jurisdiction to rule on the appeal may be due to reasons unrelated to any intention to frustrate or delay the enforcement of an earlier or imminent decision ordering the expulsion of the applicant or his or her removal by any other means.
68 In those circumstances, as stated in essence by the Advocate General in points 77 to 89 of her Opinion, in circumstances where applicants for international protection must travel to the capital of the country to appear in person and not to be heard, bearing costs of transport, accommodation and lodging which may be substantial, a presumption that an appeal has been improperly brought and must be dismissed as manifestly unfounded, without providing for other means by which such an applicant can prove his or her presence on the national territory and without providing him or her with the material means enabling him or her to comply with the obligation to appear in person at the hearing, is such as to make the exercise of the right to an effective remedy within the meaning of Article 46(1) of Directive 2013/32 excessively difficult and thus undermine the right to effective judicial protection enshrined in Article 47 of the Charter.
69 In the light of all the foregoing considerations, the answer to the questions referred is that Article 46 of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as precluding legislation of a Member State which, in the event of failure by an applicant for international protection to comply with a procedural obligation to appear in person before the court or tribunal having jurisdiction to rule on his or her appeal against a decision rejecting his or her application, the sole objective of which is to verify the applicant’s presence on the national territory and not to be heard, establishes a presumption that the appeal has been improperly brought and provides for it to be dismissed as manifestly unfounded.
70 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.