Netherlands, Council of State, 20 February 2019 201609659/1/V2 and 201609659/4/V2

Identification of the case

• Prohibition of torture and inhuman or degrading treatment or punishment (art. 4 CFREU)
• Right to asylum (art. 18 CFREU)
• Protection in the event of removal, expulsion or extradition (art. 19 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Art. 8:81 en 8:106 Awb
• Art. 92 Vreemdelingenwet 2000

• Directive 2013/32/EU (Withdrawing Directive)
• Directive 2008/115/EC (Procedure Directive)

Summary of the case

The State Secretary rejected applications from third-country nationals to grant them a temporary asylum residence permit and ordered them to leave the EU within a period of 28 days (‘return decisions’). By decision of 15 December 2016 the court of first instance dismissed their grounds against these return decisions. The asylum seekers appealed against this decision based on the fact that they had a well-founded fear of persecution in Russia because of their homosexual orientation.

By judgment of 11 January 2017 the preliminary injunction judge ruled on the request of the third-country nationals to take a preliminary injunction, and determined that they could not be deported until the appeal lodged by them had been settled. The parties were informed about the intention to request the CJEU to give a preliminary ruling on the questions submitted in this case.

The Council of State was unsure whether, if national law provides for a possibility of appeal, this should have suspensive effect, as this does not follow unequivocally from the directives and the available case law of the CJEU.

• Civil judicial enforcement

Annulment of the decision of the Court in first instance.

1. Must article 13 of the Return Directive be interpreted in such a way that the appeal in proceedings against a return decision (art. 3(4) Return Directive) must have automatic suspensive effect? In other words, do these provisions read in conjunction with articles 4, 18, 19(2) and 47 of the Charter require that a third-country national cannot be evicted until the time limit for lodging an appeal has expired or, if an appeal has been lodged, the appeal proceedings have been settled when the third-country national claims that the enforcement of this decision leads to a serious risk of violation of the principle of non-refoulement?
2. Must article 46 of the Procedural Directive be interpreted in such a way that the appeal in proceedings against a rejection of an asylum application (art. 2 Procedural Directive) must have automatic suspensive effect? In other words, do these provisions read in conjunction with articles 4, 18, 19(2) and 47 of the Charter require that a third-country national cannot be evicted until the time limit for lodging an appeal has expired or, if an appeal has been lodged, the appeal proceedings have been settled when national law provides for procedures regarding the rejection of an application for granting international protection? In other words, should the eviction of the third-country national be prevented during the period for lodging an appeal or, if an appeal has been lodged, until the appeal proceedings have been settled; without that applicant having to file a separate application for that purpose?
3. Is it relevant in regard to the automatic suspensive effect as aforesaid whether the application for international protection, which gave rise to the procedure of appeal and subsequent appeal, was rejected on one of the grounds referred to in article 46(6) of the Procedural Directive? Or does the requirement apply to all categories of asylum decisions, as referred to in that Directive?

It follows from the judgment of the CJEU that Articles 46 of the Procedural Directive and 13 of the Return Directive, read in the light of Articles 18, 19(2) and 47 of the Charter do not oblige the national court to grant suspensive effect to the lodging of appeals in asylum cases. The Council of state stated this with reference to the preliminary ruling of the CJEU.

Several Dutch administrative procedural provisions do prescribe that the lodging of a legal remedy of appeal has automatic suspensive effect. The judge must therefore verify whether the principle of equivalence has been fulfilled, since no automatic suspensive effect has been granted to lodging an appeal in asylum cases. The EU law principle of equivalence requires equal treatment of comparable claims based on infringements of national law on the one hand and of EU law on the other, but not the equivalence of national procedural rules applicable to different type of proceedings.

It therefore had to be examined whether the procedures referred to in article 8:106 Awb and the procedures in asylum law were comparable (the court refers to the preliminary ruling and cited case law in these considerations; i.e. 6 October 2015, Târşia, C-69/14, EU:C:2015:662 and cases van 12 February 2015, Baczó en Vizsnyiczai, C-567/13, EU:C:2015:88, 9 November 2017, Dimos Zagoriou, C-217/16, EU:C:2017:841). To this end, it was necessary to examine whether the procedures are comparable in terms of purpose, legal basis and main features (the court referred to the preliminary ruling and cited case law in these considerations; i.e. 27 June 2013, Agrokonsulting-04, C-93/12, EU:C:2013:432, 9 November 2017, Dimos Zagoriou, C-217/16, EU:C:2017:841.)

The court concluded that the procedures are not comparable, because the procedures concern different areas of law, with different objectives, while the legal basis and the main features of the procedures also differ. After all, Article 8:106 Awb specifically concerns procedures in the field of social security and tax law. Nor do they start with an application regarding international protection, such as asylum cases, and they have other characteristics, such as longer time limits and, in principle, the obligation to pay court fees. Thus, not granting suspensive effect to the lodging of appeal in asylum cases complies with the EU law principle of equivalence. In addition, the EU law principle of effectiveness is also fulfilled. EU law therefore does not preclude the automatic suspensive effect of lodging an appeal in asylum cases.

However, the preliminary ruling of the CJEU and the conclusions drawn from that ruling do not constitute reasons to change the practice that was initiated with the preliminary injunction judgement of 20 December 2016. The consequence of the foregoing is that the preliminary injunction judge must grant the provisional request in cases involving an ‘arguable claim’ about Article 3 ECHR, meaning that a third-country national will not be deported until a decision has been made on the appeal lodged by him, even if no concrete deportation date is known yet. However, this provision is not applicable if the State Secretary has indicated that the third-country national will not be deported for the time being, or, if it is plausible in advance that the appealed decision will be confirmed in the proceedings. The latter may be the case, for example, if the third-country national comes from a ‘safe country of origin’.

Role of the Charter and role of the general principles on enforcement

The Charter was found to be applicable because the effect of decisions based on the Return Directive and the Procedure Directive, read in the light of Articles 4, 18, 19(2) and 47 CFREU had to be explained by the CJEU; The CJEU had to clarify in which situations and under what circumstances an automatic suspensive effect to the lodging of appeal claims was required on the basis of these provisions of the Charter.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Explicit reference to Art. 13 ECHR

The answer to the first and second preliminary questions are interpreted in the light of Articles 4, 18, 19(2) and 47 of the Charter (and indirectly on the basis of article 13 ECHR). Article 46 of the Procedural Directive and Article 13 of the Return Directive, read in the light of Articles 18, 19(2) and 47 CFREU must be interpreted as not precluding national legislation in which, while providing for the possibility of an appeal against a judgment at first instance confirming a decision rejecting an application for international protection and imposing an obligation to return, does not allow this remedy to be accompanied by automatic suspensive effect. This is the case even when the person concerned claims that there is a serious risk of violation of the principle of non-refoulement.

• Equivalence
• Effectiveness

Dutch administrative procedural law prescribes in a number of cases that the lodging of appeal proceedings does have automatic suspensive effect. In response to this, the CJEU instructed the court to verify whether the principle of equivalence has been guaranteed.

The CJEU considers: Since Article 47 of the Charter, read in the light of Articles 18 and 19(2), requires only that an applicant for international protection can effectively assert his rights before a judicial where his application has been rejected and a return decision has been issued against him, the mere fact that an additional instance provided for under national law does not have automatic suspensive effect cannot be deemed to have infringed the principle of effectiveness.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

• CJEU C-180/17, Staatssecretaris van Veiligheid en Justitie
• CJEU C-69/14, Târșia
• CJEU C-567/13, Baczó and Vizsnyiczai
• CJEU C-217/16, Dimos Zagoriou
• CJEU C-93/12, Agrokonsulting-04

• ECtHR, 5 July 2016, A.M. v. Netherlands

Preliminary reference whereby Directives and national procedural rules were interpretated to conform with EU law as interpreted by the CJEU. Consequently, conform interpretation with EU law as interpreted by the CJEU.

The purpose of the preliminary questions was to establish whether the Directives should be interpreted as meaning that EU law requires that in certain circumstances appeal proceedings should have an automatic suspensive effect. Thus, interpreting the exact meaning of the applicable directives and consequently, determining whether the current national procedural rules are in accordance with EU law.

The procedural rules are in accordance with EU law and the preliminary ruling does not constitute a reason to change the current practices from the provisional injunction judge.

Additional notes on the decision