• Impartiality (Conflict of Interest)
• Rule of law (Fair Trial/ Access to Justice)

• Article 4(3) TEU 

• Article 19 TEU 

• Article 47 CFR

• Article 52(3) CFR

• Articles 22 and 46 of Directive 2013/32/UE on common procedures for granting and withdrawing international protection

CJEU judgments in:

• Tall, C-239/14

• Abdida, C-562/13

• X, C‑175/17

• AG Bot Opinion in C-175/17

• Makarubega, C-166/13

• Boudjlida, C-249/13

• N., C-604/12

• Mahdi, C-146/14 PPU

• Johnson, 222/84

• MRAX, C-459/99

• Pontin, C-63/08

• Rewe, 33/76

• Connect Austria, C-462/99

• Unibet, C-432/05

• VLK, C-243/15

• M, C-560/14

• San Giorgio, 199/82

• Courage, C-453/99

• Weber’s Wine World, C-147/01

• Ordre des barreaux francophones and germanophone and Others, C-305/05

• Ortis and Others, C-199/11

  ZZ, C-300/11

  • Moussa Sacko, C-348/16

  • OBB, C-417/13

  • Levez, C-326/96

  Preston, C-78/98
  

• Article 3 ECHR

• Article 6 ECHR

• Article 13 ECHR

ECtHR judgments:

• Gebremedhin v. France of 26 April 2007

• Hirsi Jamaa v. Italy of 23 February 2012

• Krombach v. France of 13 February 2001

Impartiality of the judge deciding on the suspensive effect of the decision rejecting an asylum application.

Since the judge confirming the decision to reject an asylum application is the same who also rules on the request for suspension of the decision, his impartiality might be compromised. 

Rule of law (Fair Trial/ Access to Justice)

Violation of the right to an effective remedy due to the fact that, in the absence if automatic suspensive effects of the decision rejecting an asylum application, the applicant could be returned to the country of origin before the starting of the appeal proceedings before the Court of Cassation.

• Article 19 (repealed) of Legislative Decree of 1 September 2011, no. 150 

• Legislative Decree of 17 February 2017, no. 13 (repealing Article 19)

• Article 35 bis of Legislative Decree no. 25/2008, as modified by Decree 13/2017

• Articles 283 and 373 Code of civil procedure (c.p.c.)

The Tribunal of Milan doubted the compatibility of the lack of an automatic suspension of the decision of rejection with EU law, in particular with the principles found in Articles 4(3) and 19(1) TEU, Article 47 CFR and Articles 22 and 46 of Directive 2013/32. 

First, the national court feared a violation of the right to an effective remedy. It engaged with an assessment of the case-law of the CJEU concerning the right to effective judicial protection, firstly recognising that it acts as a limit to procedural autonomy and then stating that such a right is composed of various parts, including the rights of the defence, the principle of equality of arms, the right of access to the courts, and the right of access to a lawyer. For what concerns the rights of the defence, the Tribunal of Milan recalled that it requires the adversarial principle to be in place. Therefore, such a right could be infringed if a judicial decision was founded on facts and documents on which the parties were unable to state their views. Moreover, besides Article 47 CFR, the right to be heard is also entrenched in Articles 22 and 46 of Directive 2013/32/UE. According to the national court, in a case such as the one at issue, such a right would be infringed if the applicant was returned to the country of origin before the starting of the proceedings before the Court of Cassation.

Secondly, the national court considered that, since the judge rejecting the application for international protection will be the one who will also rule on the request for suspension, his impartiality might be compromised. Indeed, the judge might be tempted to evaluate the validity of the appeal against his own judgment.  In this respect, the court recalls that the standard of an independent and impartial judge entrenched in Article 47 CFR must always be ensured and, according to the case law of the ECtHR, such a right cannot be restricted by balancing it with other objectives.

Thirdly, the national court feared a possible breach of the principle of equivalence. While Article 35 bis of Legislative Decree no. 25/2008 does not require to the national court to assess a possible periculum in mora, such an assessment is required in the analogous remedy offered to the Italian citizens, namely Article 373 c.p.c..

Preliminary reference to the CJEU as regards the interpretation of EU law. The Tribunal of Milan asked to the CJEU whether Articles 4(3) TEU and 19(1) TEU, Article 47 CFR and Directive 2013/32/EU have to be interpreted in the sense that they preclude a procedure, such as that under Article 35 bis of Legislative Decree 25/2008, under which the national court seized with an application for asylum – which was rejected by the competent administrative authority and by that court itself – can dismiss an application for the suspension of the adverse decision solely on the basis of the validity of the grounds of the appeal brought against that decision.

In compliance with the order of the CJEU, the Tribunal of Milan rejected thee applicant’s request to suspend the effects of the decision rejecting his application. With specific regard to the rights of the defence, the national court justified its decision stating that the applicant’s claim did not take into account the guidance provided by the CJEU, notably the fact that “the introduction of an appeal in Cassation against decisions rejecting an application for international protection and the decision to give it automatic suspensory effect, fall, in the absence of harmonisation in EU law, within the procedural autonomy of the Member States, subject to compliance with the principles of equivalence and effectiveness”.

Moreover, in a case similar to the one at issue, the Court of Cassation, ruling on judgments of a court of first instance dismissing an asylum application, implemented the CJEU judgment in C-422/18. For instance, in judgment 290/2019 the civil section of the Court of Cassation relied on the CJEU judgment to state that Article 35 bis of Legislative Decree 25/2008 complies with EU law. See also the judgment of the Court of Cassation no. 32319/2019.

Other decisions that refer to this decision and/or to the CJEU’s judgment which it implemented:

• Court of Cassation no. 290/2019

• Court of Cassation no. 32319/2019

1. Rejection of the applicant’s asylum application by the competent territorial commission (Commissione Territoriale per il riconoscimento della Protezione Internazionale presso la Prefettura U.T.G. di Milano) on 18 August 2017

2. Rejection of the appeal by the Tribunal of Milan on 5 March 2018

3. Appeal before the Court of Cassation brough by the applicant on 4 April 2018

4. Request by the applicant to the Tribunal of Milan to suspend the effects of the adverse decision of the territorial commission on 4 April 2018

5. Request for a preliminary ruling made by the Tribunal of Milan to the CJEU on 19 June 2018

6. Preliminary ruling of the CJEU delivered on 27 September 2018