CJEU – Case C 180/17, X and Y, 26 September 2018

Facts:

The applicants, both Russian nationals, applied for international protection in the Netherlands. Their applications were rejected with and they were obliged to return to Russia.

The applicants appealed this decision however, the District Court of The Hague dismissed their appeals. They challenged that dismissal before the Council of State. As the appeals had no automatic suspensory effect, the applicants requested, by means of an application for interim relief, that the referring court take interim measures pending the outcome of the appeal proceedings. The referring court granted this request and ruled that the applicants could not be expelled prior to the outcome of the appeal proceedings.

The Council of State referred the question of automatic suspensory effect to the CJEU, deciding to grant interim protection until a ruling on the preliminary reference is issued.

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 46 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 46 of the Recast 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 46 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 not 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 recommendedthat the CJEU to rule that the provisions of the recast Asylum Procedures Directive, the Returns 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.