CJEU: Article 46 of the Procedures Directive does not preclude short time-limits in the case of subsequent applications

On 9 September 2020, the CJEU delivered its judgment C-651/19 on the interpretation of Article 46 of the Procedures Directive (2013/32), read in the light of Article 47 of the Charter, in the context of a Belgian rule that limits, to 10 ‘calendar’ days, the introduction of an appeal against a decision declaring a subsequent application for international protection by a third-country national to be inadmissible.

The applicant saw his first and second application for international protection rejected by the Belgian authorities. Given that the applicant had not specified an address for service in Belgium, under national law, notice of the decisions was sent to him by registered post at the address of the head office of the competent authority. Belgian legislation gave the applicant 10 calendar days, complemented by 3 working days because he had not specified his address, to lodge an appeal against the notified rejection. However, the domestic court declared the appeal inadmissible, as the time limit had passed. Subsequently, the applicant brought an appeal on a point of law against that judgment before the Council of State (Conseil d’État) who stayed the proceedings and referred the following question to the CJEU. The CJEU first addressed the question whether Article 46 of the Procedures Directive precludes national legislation that prescribes that notice of decisions for applicants who have not specified an address for service of decisions in the Member State concerned is to be served at the head office of the national authority responsible for the examination of those applications.

The CJEU considered that the Belgian provision, in principle, conforms to EU law, provided that (i) the applicant is informed that, where they have not specified an address for service for the purposes of notification of the decision concerning their application, they will be deemed to have specified an address for service for those purposes at the head office of that national authority; (ii) the conditions for access of those applicants to that head office do not render receipt by those applicants of the decisions concerning them excessively difficult, (iii) genuine access to the procedural safeguards granted to applicants for international protection by EU law is ensured within such a period, and (iv) the principle of equivalence is respected.

The CJEU then addressed the question whether article 46 of the Procedures Directive precludes national legislation that prescribes a limitation period of 10 days to challenge such decisions. Invoking the principle of procedural autonomy, the CJEU noted that in the absence of EU procedural rules, it is up to the Member States to establish procedural rules for actions intended to safeguard the rights of individuals and is itself limited by the principle of equivalence and the principle of effectiveness.  In that regard, the CJEU underlined the exceptionality of the ‘subsequent application’-procedure, whose short time limits can, inter alia, be justified for reasons of ‘legal certainty’ and the specific procedural rights, such as free legal assistance and representation, granted throughout the procedure. Finally, the CJEU considered that the Belgian 10-day limit does not infringe the principle of equivalence, given the exceptional nature of the application procedure, even if other, equivalent, actions brought for the annulment of administrative decisions of individual application usually have a time limit of 60 days.

In conclusion, the CJEU stated that Article 46 of the Procedures Directive, read in the light of Article 47 of the Charter, does not, in principle, preclude a 10-day time limit for the introduction of an appeal against a decision declaring a subsequent application for international protection by a third-country national to be inadmissible.

Photo: Transparency International, March 2013, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.