M. M. v Minister for Justice, Equality and Law Reform, Ireland and Attorney General.

• Jurisdiction: European Union
• Celex Number: 62011CJ0277
• ECLI: ECLI:EU:C:2012:744
• Date: 22 November 2012
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑277/11

JUDGMENT OF THE COURT (First Chamber)

22 November 2012 ( *1 )

‛Reference for a preliminary ruling — Common European Asylum System — Directive 2004/83/EC — Minimum standards for qualification for refugee status or subsidiary protection status — Article 4(1), second sentence — Cooperation of the Member State with the applicant to assess the relevant elements of his application — Scope — Lawfulness of the national procedure for processing an application for subsidiary protection following rejection of an application for refugee status — Observance of fundamental rights — Right to be heard’

In Case C‑277/11,

REFERENCE for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 1 June 2011, received at the Court on 6 June 2011, in the proceedings

M. M.

v

Minister for Justice, Equality and Law Reform,

Ireland,

Attorney General,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, A. Borg Barthet, M. Ilešič, J.‑J. Kasel (Rapporteur) and M. Berger, Judges,

Advocate General: Y. Bot,

Registrar: K. Sztranc-Sławiczek, Administrator,

having regard to the written procedure and further to the hearing on 28 March 2012,

after considering the observations submitted on behalf of:

— M.M., by P. O’Shea and I. Whelan, Barristers-at-Law, instructed by B. Burns, Solicitor,

— Ireland, by D. O’Hagan, acting as Agent, and by D. Conlan Smyth, Barrister-at-Law,

— the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

— the German Government, by N. Graf Vitzthum, acting as Agent,

— the Hungarian Government, by Z. Fehér Miklós, K. Szíjjártó and Z. Tóth, acting as Agents,

— the Netherlands Government, by C. Wissels and M. Noort, acting as Agents,

— the Polish Government, by M. Szpunar, acting as Agent,

— the Swedish Government, by K. Petkovska, acting as Agent,

— the European Commission, by M. Condou-Durande and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 26 April 2012,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 4(1) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).

2 The reference has been made in proceedings between (i) Mr M. and (ii) the Minister for Justice, Equality and Law Reform (the ‘Minister’), Ireland and the Attorney General concerning the lawfulness of the procedure followed in processing an application for subsidiary protection which Mr M. had lodged following rejection of his application for refugee status.

Legal context

European Union law

The Charter of Fundamental Rights of the European Union

3 Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which is entitled ‘Right to good administration’, provides in paragraphs 1 and 2: ‘1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. 2. This right includes: (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions.’

4 Article 47 of the Charter concerns the right of all persons to an effective remedy before an independent and impartial tribunal previously established by law. Article 47 states that everyone is to have the possibility of being advised, defended and represented. In accordance with Article 48(2) of the Charter, respect for the rights of the defence of anyone who has been charged is to be guaranteed.

5 Under Article 51(1) of the Charter, the provisions thereof are addressed to the Member States when they are implementing European Union (‘EU’) law.

The Common European Asylum System

6 The European Council meeting in Strasbourg on 8 and 9 December 1989 fixed as an objective the harmonisation of the asylum policies of the Member States.

7 The European Council meeting in Tampere on 15 and 16 October 1999 envisaged, inter alia, the establishment of a Common European Asylum System, based on the full and inclusive application 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)) (‘the Geneva Convention’), which entered into force on 22 April 1954. The Convention was supplemented by the Protocol relating to the Status of Refugees, adopted in New York on 31 January 1967 (‘the 1967 Protocol’), which entered into force on 4 October 1967.

8 All the Member States are contracting parties to the Geneva Convention and the 1967 Protocol. The European Union is not a contracting party to the Geneva Convention or to the 1967 Protocol, but Article 78(1) TFEU and Article 18 of the Charter provide that the right to asylum is to be guaranteed, inter alia, with due respect for the Geneva Convention and the 1967 Protocol.

9 The Amsterdam Treaty, concluded on 2 October 1997, introduced Article 63 into the EC Treaty, which conferred competence on the Council of the European Union, acting after consulting the European Parliament, to adopt the measures recommended by the European Council in Tampere.

10 Directive 2004/83 was adopted on that legal basis, as was 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).

11 Since the entry into force of the Treaty of Lisbon, it is Article 78 TFEU which has provided for the establishment of a Common European Asylum System.

12 Directives 2004/83 and 2005/85 both refer, in recital 1 in the preambles thereto, to the fact that a common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the European Community. Both directives also refer, in recital 2, to the conclusions of the Tampere European Council.

13 Directives 2004/83 and 2005/85 state, in recitals 10 and 8 respectively, that they respect the fundamental rights and observe the principles recognised in particular by the Charter.

Directive 2004/83

14 According to Article 1 of Directive 2004/83, the purpose of the directive is to lay down minimum standards for, on the one hand, the qualification of third country nationals or stateless persons for international protection and, on the other, the content of the protection granted.

15 Under Article 2 of Directive 2004/83: ‘(a) “international protection” means the refugee and subsidiary protection status as defined in (d) and (f); … (c) “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 …; (d) “refugee status” means the recognition by a Member State of a third country national or a stateless person as a refugee; (e) “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 is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country; (f) “subsidiary protection status” means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection; (g) “application for international protection” means a request made by a third country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status … …’

16 Article 4 of Directive 2004/83, entitled ‘Assessment of facts and circumstances’, is contained in Chapter II of the directive, which for its part is entitled ‘Assessment of applications for international protection’, and is worded as follows: ‘1. Member States may consider it the duty of the applicant to submit as soon as possible all 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. 2. The elements referred to in paragraph 1 consist of the applicant’s statements and all...