CJEU – Case C 175/17 X, 26 September 2018

Facts:

In July 2011, the applicant, an Iraqi national, was notified of the decision to withdraw his fixed-period residence permit and the refusal of his application for international protection. This imposed on him an obligation to return.

The applicant appealed against this decision in the District Court ), which annulled the decision whilst maintaining its legal effects. The Council of State then dismissed the applicant’s appeal against that judgment.

The Dutch tax services then sought the retroactive reimbursement of financial benefits, which the applicant had received according to Dutch law. The applicant challenged that request, but his action was dismissed by another district court. He appealed before the Council of State against that decision, which in turn stayed the proceedings in order to refer to the CJEU the question of the suspensory effect of proceedings against asylum decisions, an issue that would also affect the entitlement of the applicant to the granted benefits.

Decision & reasoning:

First, the Court dealt with the question of jurisdiction as the Belgian government argued that the bringing of an appeal, and the decision to confer on that appeal, where appropriate, automatic suspensory effect, against judgments delivered at first instance, comes within the exclusive jurisdiction of the Member States. The Court found that such questions are in the jurisdiction of the CJEU as they relate specifically to the scope of the right to an effective remedy provided for in Article 39 of the Asylum Procedures Directive and in Article 13 of the Returns Directive, read in the light of the guarantees provided in Articles 18, 19(2) and 47 of the Charter.

The Court then confirmed that both the wording, and the purpose, of Article 39 of the Asylum Procedures Directive and in Article 13 of the Returns Directive only require the Member States to provide for an effective remedy against decisions rejecting an asylum application or imposing a return obligation. This does not mean that States should also be obliged to provide for an appeal against the first-instance appeals, or that an appeal at that instance should have automatic suspensory effect. According to the Court, the Directives in question seek to introduce minimum guarantees, rather than a second instance of judicial review.

The Court referred to its own case law, mainly Gnandi and Samba Diouf, to reiterate its previous finding that the right to an effective remedy means that a remedy before a judicial body should be available to asylum applicants, without establishing a further requirement for two levels of jurisdictions.

The Court also relied on ECtHR case law (Judgment of the ECtHR of 5 July 2016, A.M. v Netherlands), to remind that even in cases of a complaint alleging a real risk of ill-treatment contrary to Article 3 ECHR, Article 13 of the ECHR does not require Member States to set up a second level of appellate procedure, nor to confer suspensory effect on judicial proceedings.

Lastly, the Court also addressed the referring court’s statement, regarding the provision under Dutch administrative law of other forms of appeals with an automatic suspensory effect, in the context of the principle of equivalence. While restating the need for equal treatment of breaches of law in comparable situations, be it EU law or national law, it declined to examine whether the principle had been violated in the case in question. As the parties involved did not express doubts on the observance of this principle and the case files did not contain any elements on the comparability of the different forms of appeals under Dutch law, the Court decided that such an issue should be evaluated by the national court.

Outcome:

Article 39 of the Asylum Procedures Directive and Article 13 of the Returns Directive (read in the light of Articles 18, 19(2) and 47 of the Charter) does preclude national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non-refoulement.

Observations/comments:

In January 2018, AG Bot recommended that the CJEU rule that the provisions of the recast Asylum Procedures Directive, the Return Directive and the Charter of Fundamental Rights of the European Union cannot be interpreted as requiring that the legal remedy of an appeal against a negative asylum decision followed by a return order have automatic suspensive effect. Even where the third-country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement.

However, the right to an effective remedy precludes that the judicial effects of a negative asylum decision and a return decision be maintained despite the repeal of these measures by a first instance authority and requires, in such a situation, the appeal to have an automatic suspensive effect.