Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 5 December 2019(1)

Case C‑406/18

PG

v

Bevándorlási és Menekültügyi Hivatal

(Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary))

(Preliminary reference — Common policy on asylum and subsidiary protection — Common procedures for granting international protection — Directive 2013/32/EU — Article 46(3) — Article 47 of the Charter of Fundamental Rights of the European Union — Right to an effective remedy — Extent of the powers of the first-instance court or tribunal — No power to vary —Time limit of 60 days for the court or tribunal to decide)

I.      Introduction

1.        What is a reasonable length of judicial proceedings? That question, which is familiar to any modern judicial system, tends typically to arise when adjudicating on whether the time taken to decide a case was too long and thus violated a party’s right to a fair trial.

2.        It is not often that a court, including this Court, is faced with the opposite question, namely, whether a time limit (in casu an upper time limit of 60 days) is too short, thus preventing the court in question from meeting the required standard of examination of the case (in casu a full and ex nunc examination of an administrative decision rejecting an application for international protection, as provided for under Article 46(3) of Directive 2013/32/EU (2)) and thereby potentially violating a party’s right to a fair trial.

3.        The referring court also enquires whether the right to an effective remedy, set out in Article 46(3) of Directive 2013/32, can be considered complied with where the national courts lack the power to vary the administrative decision, an issue that was recently addressed by this Court in Alheto and Torubarov. (3)

II.    Legal Framework

A.      EU Law

4.        Recital 18 of Directive 2013/32 states that ‘it is in the interests of both Member States and applicants for international protection that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out.’

5.        Recital 34 of that directive states that ‘procedures for examining international protection needs should be such as to enable the competent authorities to conduct a rigorous examination of applications for international protection.’

6.        Article 31 of Directive 2013/32 concerns the ‘examination procedure’. It provides that:

‘ …

2. Member States shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.

3. Member States shall ensure that the examination procedure is concluded within six months of the lodging of the application.

…

5. In any event, Member States shall conclude the examination procedure within a maximum time limit of 21 months from the lodging of the application.

…’

7.        Article 46 of Directive 2013/32 concerns ‘the right to an effective remedy’. It reads as follows:

‘1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:

(a) a decision taken on their application for international protection, including a decision:

(i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status;

(ii) considering an application to be inadmissible pursuant to Article 33(2);

(iii) taken at the border or in the transit zones of a Member State as described in Article 43(1);

(iv) not to conduct an examination pursuant to Article 39;

…

3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU, at least in appeals procedures before a court or tribunal of first instance.

4. Member States shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy pursuant to paragraph 1. The time limits shall not render such exercise impossible or excessively difficult.

…

10. Member States may lay down time limits for the court or tribunal pursuant to paragraph 1 to examine the decision of the determining authority.

…’

B.      Hungarian law

8.        Under Article 68(2) of the menedékjogról szóló 2007. évi LXXX. törvény (Law No LXXX of 2007 on the right to asylum) (‘the Law on the right to asylum’), the court must give judgment within a period of 60 days from the date of an application for examination of an administrative decision by the court. Under Article 68(5) of the same law, the court may not vary decisions adopted by the competent asylum authority.

III. Facts, national proceedings and the questions referred

9.        The applicant in the main proceedings, who is an Iraqi national of Kurdish ethnicity, arrived in the Hungarian transit zone of Tompa, situated at the border between Hungary and Serbia.

10.      On 22 August 2017, he made an application for the recognition of his status as a refugee.

11.      On 18 January 2018, the Bevándorlási és Menekültügyi Hivatal (Immigration and Asylum Office, Hungary) refused to grant the applicant’s request for international protection. It held that the applicant should be returned from the territory of the European Union to the territory of the Kurdistan Regional Government of Iraq and ordered that administrative decision to be enforced by the applicant’s removal. It also imposed a two-year entry ban on the applicant.

12.      The applicant challenged that administrative decision before the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary), the referring court.

13.      At the hearing, it was confirmed that two other administrative decisions rejecting the same application had previously been adopted. Those decisions were annulled by two judgments delivered by a different national court. However, following legislative changes made at national level concerning the jurisdiction of the courts in asylum matters, the present case was brought within the jurisdiction of the referring court.

14.      In those circumstances, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) suspended the proceedings and referred the following questions to the Court:

‘(1) Can Article 47 of the Charter of Fundamental Rights [of the European Union] and Article 31 of [Directive 2013/32] be interpreted, in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that it is possible for effective judicial protection to be guaranteed in a Member State even if its courts cannot amend decisions given in asylum procedures but may only annul them and order that a new procedure be conducted?

(2) Can Article 47 of the Charter of Fundamental Rights [of the European Union] and Article 31 of [Directive 2013/32] be interpreted, again in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?’

15.      The referring court asked that the present request for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court. By decision of 31 July 2018, the designated chamber of the Court decided not to grant that request.

16.      The applicant, the Hungarian Government and the European Commission submitted written observations. They also took part in the hearing that was held on 11 September 2019.

IV.    Assessment

17.      This Opinion is structured as follows. I shall begin by explaining why I believe that the recent judgments of the Court in Alheto and Torubarov have settled all the issues raised by the first question posed by the referring court (A). As for the second question, I will suggest that the adequacy of the prescribed 60-day time limit depends on whether it allows for the procedural rights of the applicant to be guaranteed. That must be assessed by the national court in the light of the specific circumstances of the case, having regard to its obligation to conduct a full and ex nunc examination, but also within the context of the overall circumstances and conditions under which that court is called upon to carry out its judicial functions. Should the national court conclude that in the light of those elements, the time limit at issue cannot be met, that court must disapply the applicable time limit and complete the examination as swiftly as possible after the time limit has expired (B).

A.      The first question: Alheto and Torubarov  

18.      By its first question, the referring court wishes to know, in essence, whether its lack of power to vary a decision adopted by an administrative body in an international protection procedure is compatible with the right to an effective remedy before a court or tribunal, provided for in Article 46(3) of Directive 2013/32, (4) read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). (5)

19.      Article 46(3) of Directive 2013/32 states that the ‘Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU, at least in appeals procedures before a court or tribunal of first instance.’

20.      That provision states, at the level of secondary law, the type of review that must be carried out when a decision falling within the scope of Directive 2013/32 is challenged before a court. Naturally, the interpretation and implementation of that provision must comply with the right to an effective judicial remedy set out in Article 47 of the Charter. (6)

21.      Article 46(3) of Directive 2013/32 has recently been interpreted by the Court in two judgments.

22.      In Alheto, the Court underlined that, first, Directive 2013/32 does not determine a particular way in which Article 46(3) should be implemented. Thus, the specific model of review is for the Member States to devise. Second, the examination by a court or tribunal must be an ex nunc and full review, covering issues of both law and fact. Third, where the court can only annul the administrative decision that it finds unlawful, the Member States must guarantee that the outcome of the examination by the court is complied with in a speedy manner by the competent administrative body in the subsequent decision. (7)

23.      In Torubarov, (8) the Court had the opportunity to elaborate further on those conditions with regard to the operation in a specific case of the model of review adopted by Hungary in the field of international protection. That model changed, as of 15 September 2015, from one where the court had the power to annul and vary an administrative decision to one where the court could only annul  the decision and refer the case back to the administrative body for a new decision.

24.      In that context, this Court noted the lack of discretion on the part of the competent authorities when it comes to granting the status of refugee or subsidiary protection once the conditions under Directive 2011/95/EU (9) are satisfied. By providing for an obligation for the relevant court to examine, where applicable, the applicant’s international protection needs, Article 46(3) of Directive 2013/32 conferred on that court the power to decide whether the applicant satisfies those conditions. (10)

25.      Therefore, when the court annuls a decision of an administrative body, based on an exhaustive and up-to-date examination of all the relevant elements of law and fact, and refers the case back to the administrative body for a new decision, that body no longer has a discretionary power as to the decision to grant or refuse the protection sought. Otherwise, as held by the Court, Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, as well as Articles 13 and 18 of Directive 2011/95, would be deprived of all practical effect. (11)

26.      Moreover, given the lack of any other remedy under Hungarian law that would enable the national court to ensure that its judgment is complied with, the Court considered that the applicant concerned was deprived of an effective remedy. (12) As to the required course of action, the Court concluded that, in those circumstances, the court must vary the administrative decision disregarding its previous judicial guidance and disapply the national law that would prohibit it from proceeding in that way. (13)

27.      As far as the present case is concerned, three points ought to be underlined.

28.      First, it follows from the explanation provided by the referring court that the national rule at issue in the present case is the same one that was addressed in Torubarov, namely Article 68(5) of the Law on the right to asylum, which provides that national courts may not vary administrative decisions adopted in international protection matters.

29.      Second, the referring court does not explain in its order for reference if and to what extent a previous judgment issued in the case of the same applicant, but by a different national court, has not been complied with by the competent administrative body. (14)

30.      Third, the wording of the first preliminary question and the reasoning provided in the order for reference are relatively brief and abstract. They do not set out any further considerations beyond a general enquiry whether the right to an effective remedy under Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, allows for the model of judicial protection defined in Article 68(5) of the Law on the right to asylum.

31.      Thus, in the absence of any further distinguishing features, I think that the answer to the referring court’s first question has been provided in full in the meantime by the Court’s judgments in Alheto and Torubarov. In the light of those decisions, the answer is twofold.

32.      First, it follows from Alheto that the existence of a judicial model based on the power to annul administrative decisions does not, as such, breach the requirement of effective judicial protection. The Member States are free to put in place any model of examination by a court or tribunal that they deem fit. However, they must also guarantee that in the event that a file is referred back to the competent administrative body following the annulment of an initial decision, a new decision that complies with the assessment contained in the judgment will be adopted swiftly.

33.      Second, it follows from Torubarov that where a judicial decision, in which the court has carried out a full and ex nunc review of the need for international protection, has been disregarded in the subsequent decision of the competent administrative body, the court must vary that decision and substitute its own decision for that of the administrative body while disapplying the national law preventing the court from doing so.

34.      Those statements provide, in my view, a sufficient response to the first question referred.

35.      My first interim conclusion is therefore that Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter and the right to an effective remedy enshrined therein, must be interpreted as not precluding national legislation that does not provide the courts with the power to vary administrative decisions adopted in matters of international protection. However, in order to give practical effect to Article 46(3) of that directive and to guarantee the right to an effective remedy in accordance with Article 47 of the Charter, in the event that the file is referred back to the competent administrative body, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision. Moreover, where a national court has found — after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection — that, under the criteria laid down by Directive 2011/95 the applicant concerned must be granted such protection on the ground that he or she relied on in support of his or her application, but after which the administrative body adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court must vary that decision which does not comply with its previous judgment and substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way.

B.      The second question: the adequacy of the 60-day time limit

36.      By the second question, the referring court asks in substance whether Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, (15) precludes legislation laying down a single mandatory time limit of 60 days for a court to complete its review of an administrative decision in the area of international protection, irrespective of any individual circumstances and without regard to the particular features of the case.

37.      I shall start by pointing out the problems with laying down general time limits, without allowing for differentiation in individual cases (1). I shall then approach the time limit in question from two complementary angles. On the one hand, it should be viewed through the lens of the rights that must be guaranteed to applicants for international protection in each individual case at the stage of review by a court or tribunal (2). On the other hand, although not decisive in the context of the present case, the structural implications of time limits that are potentially too short for the proper operation of the national court must also be mentioned (3).

1.      The problems with judicial time limits (or, why one size rarely fits all)

38.      The referring court notes that on many occasions the time limit of 60 days cannot be observed, or can be observed only with great difficulty, especially where it takes several hearings to clarify the facts or when more evidence has to be obtained. The time limit might prompt the court to act unlawfully where, in striving to observe it, it fails to clarify the facts. Applicants often have to appear in court in person, together with an interpreter, which can be time-consuming, particularly in the case of languages rarely spoken in Hungary. Completing the procedure within the period at issue can be made even more difficult if the applicant’s location is not where the court has its seat and the court considers it necessary for the applicant to appear in person.

39.      The parties express divergent views on whether the time limit at issue is adequate.

40.      The applicant suggested at the hearing that in practice the time limit at issue prevents the courts from conducting an in-depth and full analysis. Essentially concurring with the referring court, the applicant enumerated a number of procedural steps that must be taken by a court adjudicating on matters of international protection. If a national court endeavours to carry out a full review to the required standard, in practice it will not be able to observe the time limit of 60 days.

41.      The Hungarian Government  considers that  the time limit at issue is compatible with the requirement of effective judicial protection, especially since it is possible for the court to use electronic means of communication and new technologies to speed up the proceedings in cases requiring a more complex examination.

42.      The Commission  observes that because Directive 2013/32 contains  no common rules on time limits, the matter falls within the procedural autonomy of the Member States. In that context, it considers that the requirement of effectiveness is not complied with because the time limit at issue is uniform and mandatory and does not allow individual circumstances to be taken into account. The Commission refers more specifically to draft Article 55 contained in its proposal for a regulation to replace the current Directive 2013/32. (16) There, the Commission proposes to put in place common rules on time limits and suggested time limits of 6 months, 2 months and 1 month, each of which may be extended by a further 3 months. It is in the light of the general 6-month time limit that the Commission considers 60 days to be inadequate.

43.      During the oral hearing, several important clarifications were made concerning the nature of the time limit at issue.

44.      First, the time limit is an indicative, procedural one. It creates a ‘moral obligation’ for judges to decide within that time limit. The Hungarian Government maintained that failure to respect the time limit of 60 days has no direct or immediate consequences, either with regard to the case itself and the power to adopt a decision (such as the judge losing the competence to decide the case) or with regard to the judge in question (such as automatic sanctioning of the judge). (17)

45.      Second, the time limit at issue is general (in that it applies to all cases in matters of international protection) and cannot be extended (since there is no mechanism for the time limit to be extended or readjusted in view of the circumstances of a particular case).

46.      Third, the time limit concerns the date by which the judgment must be read out in open court, and not the date by which the written judgment must be served upon the applicant.

47.      Finally, the Hungarian Government pointed out that the rule at issue has been in force for 10 years. It thus predates the legislative change from September 2015 concerning the power of the courts to vary administrative decisions.

48.      It should be underlined at the outset that, in general, the existence of time limits for review as such is not problematic. They exist in many Member States. (18) Moreover, Article 46(10) of Directive 2013/32 explicitly provides for such a possibility. In fact, the existence of a time limit for completion of the review by a court or tribunal contributes to the objective of dealing with applications for international protection as soon as possible, as expressed generally in recital 18 and in Article 31(2) of Directive 2013/32.

49.      However, beyond those broad statements of principle, namely that time limits may be provided for and may contribute to accelerating review procedures, the directive does not contain any further common rules.

50.      The proposal of the Commission (19) seeks to lay down detailed rules on time limits. However, aside from the fact that it is still at the stage of an ongoing legislative procedure, there is no denying, as Hungary pointed out in its written pleadings and as the Commission acknowledged at the hearing, that that particular proposal was not met with universal support, to say the least.

51.      That state of affairs is perhaps symptomatic of a broader, twofold difficulty in setting general and universally applicable time limits for the appropriate length of the review by a court or tribunal.

52.      First, time is relative. It is perhaps no secret that the various judicial systems within the European Union operate at different speeds. (20) Thus, a specific length of proceedings that is acceptable in one Member State for a given type of proceedings might appear impossibly short to another Member State and too generous to yet another.

53.      Second, there is the difficulty in drawing general lines in terms of days or months within which a given judicial procedure should be completed. The case-law of the European Court of Human Rights (‘ECtHR’) attests to that difficulty, mutatis mutandis, when it comes to assessing whether a given judicial procedure has been excessively long and thus violates the right to a fair trial under Article 6(1) of the ECHR. In that context, the ECtHR developed a test based on several criteria through which it assesses whether the length of a given judicial procedure has been reasonable or not. (21) Such a determination is always heavily case-dependent: in some circumstances, a duration of 8 years will comply with Article 6 ECHR, while in other cases a duration of 3 years will not. But it is practically impossible to draw general and universally applicable lines in terms of exactly how many years or months will be considered appropriate. (22) The case-law of this Court on the subject follows the same approach based on the specific circumstances of each case. (23)

54.      In the light of the above, it is quite difficult, if not impossible, to set out general and universally applicable time limits for review in the abstract, whether as regards a maximum duration (beyond which the proceedings will automatically be considered too long) or a minimum duration (below which any proceedings will be considered too short).

55.      The Commission’s position in the present case also attests to that difficulty. On the one hand, in the understandable and laudable interest of securing rapid review by a court or tribunal in matters of international protection, the Commission appears to approve of maximum time limits in general, as its legislative proposal demonstrates. (24) On the other hand, when faced with a specific instance of an indeed rather short time limit, the Commission cannot disguise a certain unease. But that unease is not with decisions given outside that time limit, but rather with those given within it. Thus, by implication, an ability to stick to such a time limit is viewed with some suspicion, as a possible indication of hasty and unprofessional work on the part of the judge. However, there are nonetheless cases that can be decided rather quickly and, clearly, there are likely to be some judges who can do their work more efficiently than others.

56.      There lies the problem inherent in time limits. They can indeed help to speed up proceedings. But they also have the potential to divide the field into two (equally suspect) categories: those that are suspect for being too slow and those that are suspect for being too fast. In other words, damned if you do stick to the time limits and damned if you don’t.

57.      Such doubts could, of course, be dismissed if it could be guaranteed that the right time limits were selected by the legislature and respected by the courts. But that brings the discussion right back to the beginning and the (im)possibility of laying down any such universally appropriate time limits. Rather than rekindling that debate at this point, I would simply sound a note of caution regarding the (not necessarily helpful (25)) degree of legislative optimism involved in such endeavours.

58.      Notwithstanding those considerations, the fact remains that, at present, Article 46(10) of Directive 2013/32 provides Member States with the option of setting time limits for review of decisions on international protection. Hungary availed itself of that option and set a time limit of 60 days. Is such a time limit adequate?

2.      A case-specific, rights-oriented assessment

59.      When it comes to assessing the adequacy of a time limit, the point of departure is the individual case. The time limit must allow for a full and effective review of the administrative decision at issue, to the required standard, while respecting the procedural rights of the applicant. However, even within that case-specific assessment, the broader context and the conditions under which the judicial function is exercised at national level are also relevant.

60.      In addition to the concrete guarantees in this regard contained in the Charter (where different rights might be relevant depending on the specific configuration of each case), the required standard of review and specific procedural rights are also set out in secondary law, in particular in Directive 2013/32.

61.      Applicants have the right to a full and ex nunc examination, which includes, if necessary, an examination of international protection needs, (26) as well as the right for their applications to be assessed in the light of their individual situations and specific circumstances (whether at the administrative or judicial stages). (27) The Court has also made clear that there is an obligation on the part of the national authorities to cooperate, at all stages, with applicants to gather all the elements relevant to the decision. (28) The examination procedure must allow adequate time for those obligations to be fulfilled.

62.      As far as specific procedural rights are concerned, it follows from Article 12(1), read in combination with Article 12(2) of Directive 2013/32, that applicants must be guaranteed the following rights (or their equivalents) at the review stage.

63.      First, under Article 12(1)(b) in conjunction with Article 12(2) of Directive 2013/32, they must receive the services of an interpreter. I note in that regard the potential difficulties mentioned by the referring court and by the applicant in finding (and ensuring the availability of) an interpreter for some rarely spoken languages. Second, under Article 12(1)(c) in conjunction with Article 12(2) of Directive 2013/32, applicants must not be denied the opportunity to communicate with UNHCR or with any other organisation providing legal advice or other counselling. Third, under Article 12(1)(d) in conjunction with Article 12(2) of Directive 2013/32, applicants and their legal advisers must have access to the information referred to in Article 10(3)(b) (29) and to information provided by the experts referred to in Article 10(3)(d), (30) where that information was taken into consideration for the purpose of taking a decision on their application. Fourth, under Article 20 of Directive 2013/32, applicants must be provided with free legal assistance and representation. Under Article 22, applicants must be given the opportunity to consult with a legal adviser at all stages of the procedure. Fifth, under Articles 24 and 25, specific guarantees must be provided to applicants with special needs and to unaccompanied minors. Sixth, it may be necessary (although not strictly obligatory in all cases) to personally interview the applicant (31) or to conduct a medical examination.

64.      The referring court does not mention whether any of those procedural rights or other rights guaranteed under EU law (and particularly by the Charter) have been infringed because of the time limit that the legislation prescribes for review.

65.      In the absence of further information in that regard, the guidance that can be provided by this Court is necessarily limited. However, in general, the national court must make sure that it is able to guarantee (i) all the above-mentioned standards of review and individual rights in view of the circumstances of the individual case at hand, (ii) in the context of the overall circumstances and conditions under which it is called upon to exercise its judicial functions.

66.      Both points go hand in hand. The laying down and effective operation of time limits is connected with the need to take into account the configuration and complexity of the individual case and with the overall workload and conditions under which the judge in question must exercise his judicial functions.

67.      In certain circumstances, even a tight time limit could be reasonable, if a judge were dealing with only one or a few cases and had all the necessary technical and material means at his disposal. However, since the normal functioning of courts in the Member States tends to be rather far from that utopia, beyond the individual case, the workload and working conditions at the given court are also relevant.

68.      A Member State can certainly require judicial speed in matters of EU law if it creates the organisational and material conditions for such speed to be achieved, without the need to compromise the quality of judicial decision-making. Conversely, if the only input provided by a Member State is strict time limits, without creating the material conditions reasonably necessary for them to be met (for example, if national judges are attributed dozens or even hundreds of parallel applications while the conditions of work remain the same), then insisting on strict time limits becomes anything but a guarantee of a fair trial.

69.      If, in the light of those elements, the national court observes that it is impossible, within the given legal time limit, to complete the full and ex nunc review, including the examination of the international protection needs of the applicant, while respecting the applicant’s rights guaranteed under EU law, that court must disapply the relevant provision of national law and complete the review as quickly as possible after the time limit has expired. (32)

70.      My second interim conclusion is therefore that Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, is to be interpreted as meaning that the adequacy of the time limit for review laid down by the national legislation in the case pending before the national court is a matter for the national court to assess, having regard to its obligation to carry out a full and ex nunc review, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95, while guaranteeing the applicant’s rights as defined, in particular, in Directive 2013/32. If the national court considers that those rights cannot be guaranteed, in the light of the specific circumstances of the case or in the light of the overall conditions under which that court has to carry out its tasks, such as a particularly high number of applications being lodged simultaneously, that court must disapply the applicable time limit and complete the examination as swiftly as possible after that time limit has expired.

71.      It should be added that if it indeed becomes necessary to disapply a national rule setting a time limit for review by a court or tribunal, as an ultima ratio, there can be no direct or indirect negative consequences for the judge making that decision. It is to the indirect type of potential consequences that I now turn.

3.      The structural level (and closing remarks)

72.      At the oral hearing, the Hungarian Government insisted that no direct or immediate consequences for the judge concerned follow from failure to respect the time limit at issue.

73.      However, also at the hearing, the applicant drew the attention of the Court to a number of somewhat indirect and subsequent consequences that could allegedly follow. The applicant suggests that a judge who does not comply with the time limits at issue is likely to suffer consequences in terms of his working conditions and periodic evaluations. His salary and promotions could be affected. In the case of repeated failure to respect the time limits, the judge concerned may be made subject to closer (extraordinary) evaluation and runs the risk of being reprimanded or eventually removed. (33)

74.      In the context of the present case, the answer to the second question posed by the referring court ought to be based on a rights-oriented and case-specific assessment of the time limit at issue outlined in the previous section: is it possible, within reason, to carry out the assessment required by EU law having regard to the individual case and the overall docket of the court in question?

75.      Naturally, beyond the individual, rights-focused approach to such time limits, there is also the broader, structural issue of the impact of such time limits on the quality of review and on the national judicial function. The focal point of that assessment moves from legal protection in the individual case to structural issues and the operation of the system. (34)

76.      Valid and important as such considerations are, it is not the role of the Court to engage in speculation in that regard in the present case. With the exception of the statements by the applicant, neither the order for reference, nor any other information before this Court confirmed the existence of any such structural issues. Therefore, I think that a useful and sufficient answer can be provided by focusing on the individual case, as suggested in the previous section, while underlining that justified disregard for an unreasonable time limit in an individual case cannot have even indirect and later consequences for the judge concerned.

77.      It bears repeating that the existence of indicative time limits for review as such is a fairly common and unproblematic phenomenon. It also goes without saying that judges who do not carry out their tasks to the requisite standard, including observing reasonable time limits, necessarily suffer some professional consequences. They might be reprimanded to an extent within the internal evaluation system of the relevant court. They might not be appointed to preside over a chamber or be promoted to a higher court, or assume other merit-based responsibilities within the court. In this sense, the profession of judge is no different from many other professions.

78.      Thus, the present case is not about whether there can be any judicial time limits in matters of international protection (indeed there can), but rather what those time limits might reasonably be and, as subtext, for what purpose they may be used. Two closing remarks on those latter issues are warranted.

79.      First, I have cautioned against excessive legislative optimism in setting universal time limits. However, if merely assigning priority treatment to certain types of cases is not considered sufficient and fixed judicial time limits are chosen instead, the key issue is not necessarily the length of the time limits, but rather their design and operation. A one-size-fits-all approach is problematic. Thus, apart from being reasonable in length in view of the overall docket of a court or individual judge, any such time limit should also be flexible, in the sense of allowing for the specificities and complexity of an individual case to be taken into account and for the time limit to be extended if necessary. Put simply, the courtroom is not a factory assembly line.

80.      Second, the Court has repeatedly recalled the obligation on the Member States, arising under Article 19(1) TEU, to create and maintain adequate conditions in which the independence of judges is guaranteed and in which judges can carry out their tasks in a way that allows for the effective protection of rights that individuals enjoy under EU law. (35)

81.      In purely hypothetical terms, a system in which the guardians of legality were themselves forced to behave illegally would hardly meet the standards of Article 19(1) TEU. Moreover, if the observance of relatively short time limits were ever to be enforced, either directly or indirectly, (36) robust guarantees would need to be put in place in order to ensure strict equality in their enforcement and to exclude any potential for misuse by selective (non-)enforcement of impossible obligations vis-à-vis only certain judges.

V.      Conclusion

82.      In the light of the considerations above, I suggest that the Court reply to the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) as follows:

1.      Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union and the right to an effective remedy enshrined therein, is to be interpreted as not precluding national legislation that does not provide the courts with the power to vary administrative decisions adopted in matters of international protection. However, the need to ensure that Article 46(3) of that directive has a practical effect and to ensure an effective remedy in accordance with Article 47 of the Charter requires that, in the event that the file is referred back to the competent administrative body, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision. Moreover, where a national court has found — after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection — that, under the criteria laid down by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, the applicant concerned must be granted such protection on the ground that he relied on in support of his application, but after which the administrative body adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court must vary that decision which does not comply with its previous judgment and substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way.

2.      Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, is to be interpreted as meaning that whether the time limit for the review laid down by the national legislation is adequate in the case pending before the national court is a matter for the national court to assess, having regard to its obligation to carry out a full and ex nunc examination, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95, while guaranteeing the applicant’s rights as defined, in particular, in Directive 2013/32. If the national court considers that those rights cannot be guaranteed, in the light of the specific circumstances of the case or the overall conditions under which that court has to carry out its tasks, such as a particularly high number of applications being lodged simultaneously, that court must disapply the applicable time limit as necessary and complete the examination as swiftly as possible after that time limit has expired.

1      Original language: English.

2      Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

3      Judgments of 25 July 2018, Alheto (C‑585/16, EU:C:2018:584), and of 29 July 2019, Torubarov (C‑556/17, EU:C:2019:626).

4      The present case falls within the scope of application of Directive 2013/32, as correctly identified by the referring court. However, both of the questions referred raise the issue of the specific parameters of the right to an effective remedy in matters of international protection before a court or tribunal. As all the interested parties point out, in principle, the provision relevant to the present case is thus Article 46 of that directive, in particular Article 46(3), which deals specifically with the right to an effective remedy before a court or tribunal, and not Article 31, which concerns the administrative examination procedure.

5      The referring court points to Articles 6 and 13 of the European Convention on Human Rights (‘the ECHR’). Since the European Union is not a party to that instrument, and in view of Article 52(3) of the Charter, I shall understand that reference as referring to Article 47 of the Charter.

6      Judgment of 25 July 2018, Alheto (C‑585/16, EU:C:2018:584, paragraph 114).

7      Ibid., paragraphs 110 to 113 and 145 to 148.

8      Judgment of 29 July 2019, Torubarov (C‑556/17, EU:C:2019:626).

9      Directive of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).

10      Judgment of 29 July 2019, Torubarov (C‑556/17, EU:C:2019:626, paragraph 65).

11      Ibid., paragraph 66.

12      Ibid., paragraph 72.

13      Ibid., paragraph 77.

14      What is known is only that there had indeed been two previous decisions with regard to the same applicant (above, point 13).

15      As clarified above in footnotes 4 and 5.

16      Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (COM(2016)0467); currently under consideration as legislative procedure 2016/0224(COD).

17      However, it would also appear from the carefully worded answer of the Hungarian Government that those confirmations did not rule out indirect and later consequences for the judge in question — see below in points 72 and 73.

18      It appears that the legislation in the different Member States is rather diverse. Some do not have any time limits, and those that do provide for time limits of varying lengths. See the studies by the European Migration Network, EMN Ad-Hoc Query on Judicial review of appeals against international protection decisions, Requested by BG EMN NCP on 11th April 2018 (concerning 22 Member States and Norway) and EMN Ad-Hoc Query on accelerated asylum procedures and asylum procedures at the border (part 2), Requested by EE EMN NCP on 13th February 2017 (concerning 20 Member States and Norway).

19      Above, footnote 16.

20      See the Council of Europe European Commission for the Efficiency of Justice (CEPEJ), Report evaluating European judicial systems — 2014 edition (2012 data), CEPEJ Studies No. 20 (online at https://www.coe.int/en/web/cepej/documentation/cepej-studies), in particular the comparison of the average length of proceedings in selected types of first-instance cases in point 9.3 (pp. 230 to 257).

21      For a recent example, ‘the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case, which call for an overall assessment, and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute.’ Emphasis added. ECtHR, judgment of 7 June 2018, O’Sullivan McCarthy Mussel Development Ltd v. Ireland (CE:ECHR:2018:0607JUD004446016, § 144 and the case-law cited). For a comprehensive overview of the case-law see, for example, CEPEJ, Length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human Rights,  3^rd edition, CEPEJ Studies No. 27  (online at https://www.coe.int/en/web/cepej/documentation/cepej-studies).

22      See and compare, for example, ECtHR, judgments of 23 May 2000, Van Pelt v. France, (CE:ECHR:2000:0523JUD003107096, § 48), and of 26 May 1993, Bunkate v. Netherlands (CE:ECHR:1993:0526JUD001364588, §§ 21 to 23).

23      See, for instance, judgments of 26 November 2013, Gascogne Sack Deutschland GmbH v Commission (C‑40/12 P, EU:C:2013:768, paragraphs 91 to 92 and the case-law cited), and of 12 January 2017, Timab Industries and CFPR v Commission (C‑411/15 P, EU:C:2017:11, paragraphs 168 to 169 and the case-law cited), or judgment of 7 June 2017, Guardian Europe v European Union (T‑673/15, EU:T:2017:377, paragraph 134).

24      Above, point 42.

25      The reality in a number of national first-instance administrative courts would attest to the fact that, metaphorically speaking, in order to ensure judicial speed and quality, growing at least one carrot is always more helpful than manufacturing yet another stick.

26      Pursuant to Article 46(3) of Directive 2013/32. Judgments of 25 July 2018, Alheto (C‑585/16, EU:C:2018:584, paragraphs 105 and 106), and of 29 July 2019, Torubarov (C‑556/17, EU:C:2019:626, paragraph 51).

27      See, in this sense, judgments of 5 September 2012, Y and Z (C‑71/11, EU:C:2012:518, paragraph 77); of 2 December 2014, A and Others (C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 57); of 25 January 2018, F (C‑473/16, EU:C:2018:36, paragraph 41 and the case-law cited); and of 4 October 2018, Ahmedbekova (C‑652/16, EU:C:2018:801, paragraph 48 and the case-law cited).

28      Judgment of 22 November 2012, M. (C‑277/11, EU:C:2012:744, paragraph 66).

29      Namely, ‘precise and up-to-date information’ obtained by the authorities ‘from various sources, such as EASO and UNHCR and relevant international human rights organisations, as to the general situation prevailing in the countries of origin of applicants and, where necessary, in countries through which they have transited’.

30      That is, the information in the advice that the ‘personnel examining applications and taking decisions’ sought ‘from experts on particular issues, such as medical, cultural, religious, child-related or gender issues’.

31      Concerning the possible obligation to organise a personal interview with the applicant at the judicial stage, see judgment of 26 July 2017, Sacko (C‑348/16, EU:C:2017:591, paragraphs 37 and 44 to 48). See also, by analogy, judgment of 10 September 2013, G. and R. (C‑383/13 PPU, EU:C:2013:533, paragraphs 32 to 34).

32      It might only be recalled that both Article 46(3) of Directive 2013/32 – see judgment of 29 July 2019, Torubarov (C‑556/17, EU:C:2019:626, paragraphs 56 and 73) – as well as Article 47 of the Charter – see judgments of 17 April 2018, Egenberger (C‑414/16, EU:C:2018:257, paragraph 78), and of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 162) – are directly effective.

33      I understand that such removal could happen, as is the case in a number of other Member States, following disciplinary proceedings against the judge in question. Indeed, disregard for applicable time limits tends to be a disciplinary offence in a number of jurisdictions.

34      With both vantage points being complementary, but requiring different types of evidence and legal argument. See my Opinion in Torubarov (C‑556/17, EU:C:2019:339, points 57 to 61).

35      See especially judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, especially paragraphs 32 to 37); of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, especially paragraphs 50 to 53); and of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531, especially paragraphs 47 to 50, 54 to 55 and 71 et seq.).

36      By any of the means listed above in point 73 of this Opinion.

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