Opinion of Advocate General Bobek delivered on 5 December 2019.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2019:1055
• Date: 05 December 2019

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 5 December 2019(1)

Case C‑406/18

PG

v

Bevándorlási és Menekültügyi Hivatal

(Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary))

(Preliminary reference — Common policy on asylum and subsidiary protection — Common procedures for granting international protection — Directive 2013/32/EU — Article 46(3) — Article 47 of the Charter of Fundamental Rights of the European Union — Right to an effective remedy — Extent of the powers of the first-instance court or tribunal — No power to vary —Time limit of 60 days for the court or tribunal to decide)

I. Introduction

1. What is a reasonable length of judicial proceedings? That question, which is familiar to any modern judicial system, tends typically to arise when adjudicating on whether the time taken to decide a case was too long and thus violated a party’s right to a fair trial.

2. It is not often that a court, including this Court, is faced with the opposite question, namely, whether a time limit (in casu an upper time limit of 60 days) is too short, thus preventing the court in question from meeting the required standard of examination of the case (in casu a full and ex nunc examination of an administrative decision rejecting an application for international protection, as provided for under Article 46(3) of Directive 2013/32/EU (2)) and thereby potentially violating a party’s right to a fair trial.

3. The referring court also enquires whether the right to an effective remedy, set out in Article 46(3) of Directive 2013/32, can be considered complied with where the national courts lack the power to vary the administrative decision, an issue that was recently addressed by this Court in Alheto and Torubarov. (3)

II. Legal Framework

A. EU Law

4. Recital 18 of Directive 2013/32 states that ‘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.’

5. Recital 34 of that directive states that ‘procedures for examining international protection needs should be such as to enable the competent authorities to conduct a rigorous examination of applications for international protection.’

6. Article 31 of Directive 2013/32 concerns the ‘examination procedure’. It provides that:

‘ …

2. Member States shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.

3. Member States shall ensure that the examination procedure is concluded within six months of the lodging of the application.

…

5. In any event, Member States shall conclude the examination procedure within a maximum time limit of 21 months from the lodging of the application.

…’

7. Article 46 of Directive 2013/32 concerns ‘the right to an effective remedy’. It reads as follows:

‘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;

…

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/EU, 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.

…

10. Member States may lay down time limits for the court or tribunal pursuant to paragraph 1 to examine the decision of the determining authority.

…’

B. Hungarian law

8. Under Article 68(2) of the menedékjogról szóló 2007. évi LXXX. törvény (Law No LXXX of 2007 on the right to asylum) (‘the Law on the right to asylum’), the court must give judgment within a period of 60 days from the date of an application for examination of an administrative decision by the court. Under Article 68(5) of the same law, the court may not vary decisions adopted by the competent asylum authority.

III. Facts, national proceedings and the questions referred

9. The applicant in the main proceedings, who is an Iraqi national of Kurdish ethnicity, arrived in the Hungarian transit zone of Tompa, situated at the border between Hungary and Serbia.

10. On 22 August 2017, he made an application for the recognition of his status as a refugee.

11. On 18 January 2018, the Bevándorlási és Menekültügyi Hivatal (Immigration and Asylum Office, Hungary) refused to grant the applicant’s request for international protection. It held that the applicant should be returned from the territory of the European Union to the territory of the Kurdistan Regional Government of Iraq and ordered that administrative decision to be enforced by the applicant’s removal. It also imposed a two-year entry ban on the applicant.

12. The applicant challenged that administrative decision before the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary), the referring court.

13. At the hearing, it was confirmed that two other administrative decisions rejecting the same application had previously been adopted. Those decisions were annulled by two judgments delivered by a different national court. However, following legislative changes made at national level concerning the jurisdiction of the courts in asylum matters, the present case was brought within the jurisdiction of the referring court.

14. In those circumstances, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) suspended the proceedings and referred the following questions to the Court:

‘(1) Can Article 47 of the Charter of Fundamental Rights [of the European Union] and Article 31 of [Directive 2013/32] be interpreted, in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that it is possible for effective judicial protection to be guaranteed in a Member State even if its courts cannot amend decisions given in asylum procedures but may only annul them and order that a new procedure be conducted?

(2) Can Article 47 of the Charter of Fundamental Rights [of the European Union] and Article 31 of [Directive 2013/32] be interpreted, again in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?’

15. The referring court asked that the present request for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court. By decision of 31 July 2018, the designated chamber of the Court decided not to grant that request.

16. The applicant, the Hungarian Government and the European Commission submitted written observations. They also took part in the hearing that was held on 11 September 2019.

IV. Assessment

17. This Opinion is structured as follows. I shall begin by explaining why I believe that the recent judgments of the Court in Alheto and Torubarov have settled all the issues raised by the first question posed by the referring court (A). As for the second question, I will suggest that the adequacy of the prescribed 60-day time limit depends on whether it allows for the procedural rights of the applicant to be guaranteed. That must be assessed by the national court in the light of the specific circumstances of the case, having regard to its obligation to conduct a full and ex nunc examination, but also within the context of the overall circumstances and conditions under which that court is called upon to carry out its judicial functions. Should the national court conclude that in the light of those elements, the time limit at issue cannot be met, that court must disapply the applicable time limit and complete the examination as swiftly as possible after the time limit has expired (B).

A. The first question: Alheto and Torubarov

18. By its first question, the referring court wishes to know, in essence, whether its lack of power to vary a decision adopted by an administrative body in an international protection procedure is compatible with the right to an effective remedy before a court or tribunal, provided for in Article 46(3) of Directive 2013/32, (4) read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). (5)

19. Article 46(3) of Directive 2013/32 states that the ‘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/EU, at least in appeals procedures before a court or tribunal of first instance.’

20. That provision states, at the level of secondary law, the type of review that must be carried out when a decision...