Abdoulaye Amadou Tall v Centre public d’action sociale de Huy (CPAS de Huy).

• Jurisdiction: European Union
• Celex Number: 62014CJ0239
• ECLI: ECLI:EU:C:2015:824
• Date: 17 December 2015
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-239/14

JUDGMENT OF THE COURT (Fourth Chamber)

17 December 2015 ( * )

‛Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2005/85/EC — Minimum standards on procedures in Member States for granting and withdrawing refugee status — Article 39 — Right to an effective remedy — Multiple asylum claims — Non-suspensory effect of an appeal against a decision of the competent national authority not to further examine a subsequent application for asylum — Social protection — Charter of Fundamental Rights of the European Union — Article 19(2) — Article 47’

In Case C‑239/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal du travail de Liège (Belgium), made by decision of 7 May 2014, received at the Court on 14 May 2014, in the proceedings

Abdoulaye Amadou Tall

v

Centre public d’action sociale de Huy,

intervener:

Agence fédérale pour l’accueil des demandeurs d’asile (Fedasil),

THE COURT (Fourth Chamber),

composed of L. Bay Larsen (Rapporteur), President of the Third Chamber, acting as President of the Fourth Chamber, M.J. Malenovský, M. Safjan, A. Prechal and K. Jürimäe, Judges,

Advocate General: P. Cruz Villalón,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 6 May 2015,

after considering the observations submitted on behalf of:

— Mr Tall, by D. Andrien, avocat,

— the centre public d’action sociale de Huy, by S. Pierre and A. Fischer, avocats,

— Agence fédérale pour l’accueil des demandeurs d’asile (Fedasil), by A. Detheux, advocaat,

— the Belgian Government, by M. Jacobs and C. Pochet and by S. Vanrie, acting as Agents,

— the Hungarian Government, by M. Fehér and G. Koós, acting as Agents,

— the European Commission, by M. Condou-Durande, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 3 September 2015,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 39 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; corrigendum OJ 2006 L 236, p. 36) and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between Mr Tall and the centre public d’action sociale de Huy (public social welfare centre, Huy) (‘the CPAS’), concerning the decision taken by that body to withdraw Mr Tall’s social assistance.

Legal context

The ECHR

3 Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), is entitled ‘Prohibition of torture’, and provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

4 Article 13 ECHR, entitled ‘Right to an effective remedy’, is worded as follows: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’

European Union (EU) Law

Directive 2005/85

5 Recital 8 in the preamble to Directive 2005/85 is worded as follows: ‘This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter].’

6 Recital 15 in the preamble to that directive is worded as follows:

7 According to recital 27 to that directive:

8 Article 7 of that directive, entitled ‘Right to remain in the Member State pending the examination of the application’, is worded as follows: ‘1. Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. 2. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant … or otherwise, or to a third country, or to international criminal courts or tribunals.’

9 Article 24 of Directive 2005/85, entitled ‘Specific procedures’, provides: ‘1. Member States may provide for the following specific procedures derogating from the basic principles and guarantees of Chapter II: (a) a preliminary examination for the purposes of processing cases considered within the framework set out in Section IV; …’

10 Article 32 of that directive, entitled ‘Subsequent application’, provides as follows: ‘… 2. Moreover, Member States may apply a specific procedure as referred to in paragraph 3, where a person makes a subsequent application for asylum: … (b) after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken. 3. A subsequent application for asylum shall be subject first to a preliminary examination as to whether, after the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings relating to the examination of whether he/she qualifies as a refugee by virtue 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)] have arisen or have been presented by the applicant. 4. If, following the preliminary examination referred to in paragraph 3 of this Article, new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee by virtue of Directive 2004/83/EC, the application shall be further examined in conformity with Chapter II. 5. Member States may, in accordance with national legislation, further examine a subsequent application where there are other reasons why a procedure has to be re-opened. 6. Member States may decide to further examine the application only if the applicant concerned was, through no fault of his/her own, incapable of asserting the situations set forth in paragraphs 3, 4 and 5 of this Article in the previous procedure, in particular by exercising his/her right to an effective remedy pursuant to Article 39. …’

11 Article 34(2) of Directive 2005/85, entitled ‘Procedural rules’, provides: ‘Member States may lay down in national law rules on the preliminary examination pursuant to Article 32. … … The conditions shall not render impossible the access of applicants for asylum to a new procedure or result in the effective annulment or severe curtailment of such access.’

12 Article 39 of that directive, entitled ‘The right to an effective remedy’, states: ‘1. Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against the following: … (c) a decision not to further examine the subsequent application pursuant to Articles 32 and 34; … 2. Member States shall provide for time-limits and other necessary rules for the applicant to exercise his/her right to an effective remedy pursuant to paragraph 1. 3. Member States shall, where appropriate, provide for rules in accordance with their international obligations dealing with: (a) the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome; (b) the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have the effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States may also provide for an ex officio remedy … …’

Directive 2008/115/EC

13 Article 6(1) 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), entitled ‘Return decision’, states: ‘Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.’

14 Article 13 of that directive states: ‘1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. …’

Belgian law

15 Article 4 of the Law of 12 January 2007 on the reception of applicants for asylum and...