Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this judgement the CJEU interpreted Procedures Directive 2005/85 provisions concerning right to effective remedy in the light of Article 47 of the Charter.
On 19 August 2009, Mr Samba Diouf, a Mauritanian national, submitted to the Luxembourg Ministry of Foreign Affairs and Immigration an application for international protection.
The application for international protection submitted by Mr Samba Diouf was examined under an accelerated procedure and was rejected as unfounded. By that decision, Mr Samba Diouf was informed of the fact that his application for international protection was considered under an accelerated procedure as he clearly did not qualify for the status conferred by international protection and that he had misled the authorities by presenting false information or documents. His application for international protection was rejected in the decision on the substance. He was also ordered to leave Luxembourg. Mr Diouf appealed against this decision to the Tribunal Administratif.
In its consideration of the admissibility of the action seeking annulment of the decision to rule on the merits of Mr Samba Diouf’s application under an accelerated procedure, the Tribunal Administratif concluded that the application of Luxembourg law which provides that such a decision is not open to any appeal, gave rise to questions concerning the interpretation of Article 39 of Directive 2005/85, with respect to the application of the general principle of the right to an effective remedy (paras 14-23).
Whether Article 39(1)(a) of Directive 2005/85, by virtue of which applicants must have the right to an effective remedy against decisions ‘taken on their application for asylum’, and, more generally, the general principle of the right to an effective remedy, must be interpreted as meaning that they preclude rules such as those at issue in the main proceedings, as a result of which no separate judicial remedy exists as against the decision of the competent national authority to examine an application for asylum under an accelerated procedure (para. 28).
The question referred concerns the right of an applicant for asylum to an effective remedy before a court or tribunal in accordance with Article 39 of Directive 2005/85 and, in the context of EU law, with the principle of effective judicial protection. That principle is a general principle of EU law to which expression is now given by Article 47 of the Charter (para. 48).
The decision relating to the procedure to be applied for the examination of the application for asylum, viewed separately and independently from the final decision which grants or rejects the application, is a measure preparatory to the final decision on the application (para. 55).
Article 39 of Directive 2005/85/EC and the principle of effective judicial protection, do not preclude national rules such as those at issue in the main proceedings, under which no separate action may be brought against the decision of the competent national authority to deal with an application for asylum under an accelerated procedure, provided that the reasons which led that authority to examine the merits of the application under such a procedure can in fact be subject to judicial review in the action which may be brought against the final decision rejecting the application – a matter which falls to be determined by the referring court.
Asylum Procedures Directive 2005/85/EC
The application of the EU Charter of Fundamental Rights to asylum procedural law
An Introduction to the Common European Asylum System for Courts and Tribunals. A Judicial Analysis
Handbook on European law relating to asylum, borders and immigration
Case study - Accelerated proceedings and the right to effective remedy