role of national higher courts

Court of Justice of the European Union

Court of Justice of the European Union

C-556/17

29 July 2019

ECLI:EU:C:2019:626

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Article 46(3) of the Asylum Procedure Directive 2013/32/EU; Article 47 of the EU Charter; Right to an effective remedy; Extent of the powers of the court reviewing administrative decisions; Refusal by the administrative body to comply with a decision of that court

Interpretation of Article 46(3) of Asylum Procedure Directive 2013/32/EU in conjunction with Article 47 of the Charter on the right to an effective remedy: whether the court has the power to vary the administrative decision if the administrative body, to which the case has been referred back, has not complied with the court's judgment annulling its initial decision, and the applicant for international protection appeals against the administrative decision again.

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Act No III of 1952 on the Code for Civil Procedure; Act No CXL of 2004 on general provisions on administrative services and procedure; Act No LXXX of 2007 on the right to asylum; Act No CXL of 2015 amending certain acts in the context of managing mass immigration

In 2013, Alekszij Torubarov, a Russian businessperson and opposition activist, applied for international protection in Hungary, which the Immigration Office rejected. Mr Torubarov appealed against that decision before the Administrative Court, which annulled the Immigration Office’s decision and ordered a new procedure to be conducted since the Immigration Office had failed to examine relevant facts and assessed facts in a biased manner.
In the new procedure, the Immigration Office again rejected Mr Torubarov’s application. The court annulled this decision due to a manifestly incorrect assessment of facts.
In the case at issue, the Immigration Office rejected Mr Torubarov’s application for the third time, despite the court’s advice on granting international protection. In his appeal to the court, Mr Torubarov sought a variation of the decision to the effect that the court grants him refugee status. However, the court had no power to vary, only to annul an administrative decision on the grant of international protection, which deprived the applicant of an effective judicial remedy.
The court decided to refer questions to the CJEU regarding whether EU law on effective remedy allows the court to vary the administrative decision by disapplying the national legislation that denies it that power.

The question referred to the CJEU essentially asked whether Article 46(3) of Asylum Procedure Directive 2013/32/EU, read in conjunction with Article 47 of the Charter on the right to an effective remedy, must be interpreted as conferring on the court the power to vary the administrative decision if the administrative body to which the case has been referred back has not complied with the court’s judgment annulling its initial decision, and the applicant for international protection appeals against the administrative decision again.
The CJEU stated that if a person meets the minimum standards set by Directive 2011/95/EU to qualify for “refugee” or “person eligible for subsidiary protection” status, Member States have no discretion and are required, subject to the grounds for exclusion provided for by that Directive, to grant international protection status.
Referring to Alheto case, the CJEU pointed out that the Asylum Procedure Directive 2013/32/EU binds Member States to ensure that courts reviewing the decision relating to the rejection of international protection should carry out a full and ex nunc examination of both facts and points of law. Member States have discretion about what happens after the annulment of the decision under appeal. However, the characteristics of the remedy must be determined in a way that is in line with Article 47 of the Charter, which is sufficient in itself to confer on individuals a right. The right to an effective remedy would be illusory if a Member State allowed a final, binding judicial decision to remain inoperative. Consequently, following the annulment of the initial decision, when the case is referred back to the administrative body, its new decision should comply with the assessment contained in the judgment annulling the initial decision.
In the present case, Hungarian law results in a situation that the court’s judgment remains ineffective for lack of any means enabling the court to ensure compliance with its judgment. This situation also deprives the applicant for international protection of an effective remedy. To guarantee the applicant’s right to an effective judicial remedy within the meaning of Article 47 of the Charter, the national court is required to vary the administrative body’s decision that does not comply with its previous judgment by disapplying, if necessary, the national law that prohibits it from proceeding in that way.

From a Hungarian perspective, the case is highlighted because it is one of the few cases in which the national court based its preliminary reference on the meaningful application of the EU Charter. The question referred to the CJEU asked for the interpretation of Article 46(3) of Asylum Procedure Directive 2013/32/EU in conjunction with Article 47 of the EU Charter on the right to an effective remedy. The CJEU held that the characteristics of the remedy provided for in the Asylum Procedure Directive must be determined in a manner that is consistent with Article 47 of the EU Charter, which is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such. The right to an effective remedy would be illusory if a Member State’s legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party.

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preliminary reference, disapplication of national law in favour of EU law

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The national court aimed at the disapplication of national law expressly to protect the right to an effective remedy enshrined in Article 47 of the EU Charter.

In 2015, Hungarian law excluded the possibility of varying the Immigration Office’s decision by the amendments related to the so-called mass immigration crisis. This legislation has not been amended since then.

Based on the CJEU's judgment, Mr Torubarov was granted refugee status by the Hungarian court.

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Mr Torubarov was represented by the Hungarian Helsinki Committee (HHC), one of the leading Hungarian human rights NGOs. The HHC reported more cases of similar ping-pong matches between the Immigration Office and the Administrative Court. Following the Torubarov case, a further six of the Hungarian Helsinki Committee's clients have been recognized as refugees or beneficiaries of subsidiary protection by domestic courts.

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Ágnes Kovács, Eötvös Loránd University (ELTE)

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