CJEU - C-277/11 M.M. v Minister for Justice, Equality and Law Reform, Ireland, Attorney General

The Court rejected the Applicant’s proposition that the EU legislature intended to interpret Article 4(1) in a way which required authorities to supply in advance the elements on which it intends to base its decision and to seek the Applicant’s observations in that regard. The Court held that the duty of cooperation was not to be understood in that way. The assessment takes place in two separate stages: 1) establishment of factual circumstances which may constitute evidence; 2) legal appraisal of that evidence under the substantive conditions laid down by Articles 9, 10 and 15 of the Directive. The Court stated that although under Article 4(1) it is generally for the Applicant to submit all elements needed to substantiate the application, the fact remains that it is the duty of the Member State to cooperate with the Applicant at the stage of determining the relevant elements of that application. Para 66 clearly shows that, in practical terms, if the elements provided by the Applicant are not complete then it is necessary for the Member State concerned to cooperate actively with the Applicant  so that all elements needed may be assembled. As regards the appraisal of the conclusions to be drawn from the gathered evidence, the Court held that this is solely the responsibility of the competent national authority. The Court clearly stated that the scope of the Qualification Directive does not include procedural rules applicable to the examination of an application for international protection. Therefore, the Applicant’s proposition was rejected.

The Court did, however, acknowledge that a more general question arises in this case as to the right of a foreign national to be heard in the course of the examination of his subsidiary protection application. It said that it is for the national Court to determine in circumstances such as these whether it is unlawful under EU law not to hold a further hearing in the course of the subsidiary protection proceedings. The Court noted that the right to defence and to be heard are fundamental principles of EU law (Para 81-83). In acknowledging this it referenced not only Article 47 and Article 48 of the Charter of Fundamental Rights but in particular Article 41(2) of the Charter which includes the right to good administration. According to the Court’s case-law, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement. It expounded upon the right, stating that it includes providing an opportunity for the Applicant to make known his/her views effectively during an administrative procedure and it also requires the authorities to pay due attention to the observations thus submitted by the person concerned, including ‘examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision’ (Para 88). When a Member State has chosen to establish two separate procedures, one following the other as in Ireland, it is important that the Applicant’s right to be heard, in view of its fundamental nature, be fully guaranteed in each of these two procedures. Importantly, the Court declared that Member States must not only interpret their national law in a manner consistent with EU law but also make sure they do not rely on an interpretation which would be in conflict with the fundamental rights protected by the EU legal order or with other general principles of EU law (Para 93).