Netherlands, Administrative Jurisdiction Division of the Council of State of the Netherlands , 29 March 2017 201609659/3/V2

Identification of the case

• 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)

• General Administrative Law Act
• Aliens Act 2000

• Directive 2013/32/EU
• Directive 2008/115/EC
• Charter of Fundamental Rights of the European Union

Summary of the case

In a reference for a preliminary ruling, the Administrative Jurisdiction Division of the Council of State of the Netherlands (the Division) asked the ECJ whether European Union law requires that appeals to the Division in asylum cases must have automatic suspensive effect, staying a return decision. Such suspensive effect would make it possible for the appellant to remain legally in the Netherlands during the appeal procedure.

In the Netherlands, asylum proceedings in lower courts have automatic suspensive effect. Due to case law of the national administrative courts they fullfil to the requirements for automatic suspensive effect as pointed out in by the ECJ C-181/16, 19 July 2018, ECLI:EU:C:2018:465, Gnandi). However, an appeal to the Division (as a second instance court) does not.To continue a legal stay in the Netherlands the appellant needs to start a provisional relief procedure. Without a provisional relief measure, the asylum seekers are considered to be illegal and could face deportation from Dutch territory.

• Administrative judicial enforcement

The State Secretary of Security and Justice won the case. The appeals were dismissed. The asylum requests were rejected.

(1) Must Article 13 of Directive 2008/115, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of Directive 2008/115, the legal remedy of an appeal has automatic suspensory effect where the third-country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement? In other words, in such a case, should the expulsion of the third-country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third-country national concerned being required to submit a separate request to that effect?

(2) Must Article 46 of Directive 2013/32, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for the granting of international protection, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of an applicant be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the applicant concerned being required to submit a separate request to that effect?

(3) In order for there to be such automatic suspensory effect, is it still relevant whether the application for international protection which prompted the procedures of bringing an action in law and a subsequent appeal has been rejected on one of the grounds mentioned in Article 46(6) of Directive 2013/32? Alternatively, does that requirement apply for all categories of asylum decisions as set out in that directive?’

The ECJ ruled in answer to the preliminary request:

‘Article 46 of Directive 2013/32/EU […] and Article 13 of Directive 2008/115/EC […], read in the light of Articles 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non-refoulement.’

In its final judgment the Division rules, following the ECJ judgment, that the Dutch system in asylum cases in which an appeal to the Division does not have an automatic suspensive effect, is in accordance with the European Union law. This means that the Netherlands do not have to offer these appellants a possibility to stay.

However, the provisional relief judge can still make arrangements, if asked for by the appellants, allowing them to await the outcome of their appeal in the Netherlands. This might be the case when an 'arguable claim' under article 3 of the ECHR is at issue.

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

The Charter is applicable according to Article 51 (1) of the CFREU because the Dutch Alien Act is an implementation of Directives 2013/32/EU and 2008/115/EC.

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

In the Netherlands it is prohibited for national courts to test Acts of Parliament to the Constitution (article 120 Dutch Constitution). National courts can however refrain from applying Legal provisions if this application is incompatible with provisions of treaties and decisions of organizations under international law that are binding on everyone (article 94 DC).

Despite the fact that it is prohibited for national courts to test Acts of Parliament to the Constitution, the national courts can assess the CFREU and ECHR and therefore it gives the possibility to assess to the principal of effective remedy (Art. 47 CFREU and 13 ECHR).

• Equivalence
• Effectiveness

In its judgment the ECJ instructed the Division to examine whether the ‘EU Principle of Equivalence’ has been respected. In a number of cases, the Dutch administrative procedural law prescribes that an appeal will have an automatic suspensory effect. These exceptions apply to certain appeals with the Central Appeals Tribunal and appeals with the Courts of Appeal, in social security and tax cases respectively. The EU equivalence principle requires equal treatment of similar claims based on breach of national law on the one hand and of EU law on the other. However, the principle does not require the equivalence of national procedural rules applicable to different types of proceedings. In the present case there is no question of similar procedures, since the different procedures concern different jurisdictions, with different objectives, while the legal basis and the main characteristics of the procedures also differ.

As the ECJ stated in paragraph 43 of the judgment, the principle of effectiveness under EU law is also met. The ECJ considers in paragraph 43 that Article 47 of the Charter, read in the light of the guarantees contained in Articles 18 and 19(2), requires only that an applicant for international protection whose application has been refused, and in regard to whom a return decision has been adopted, should be able to enforce his rights effectively before a judicial authority. The mere fact that an additional level of jurisdiction, provided for by national law, does not have automatic suspensory effect does not justify a finding that the principle of effectiveness has been disregarded.

Elements of judicial dialogue

• Dialogue among CJEU and ECtHR

• Direct dialogue between CJEU and National court (preliminary reference)
• Dialogue between high court - lower instance court at national level

• CJEU, C-180/17

• Case of a.m. v. The Netherlands, 5 July 2016, no. 29094/09, ECLI:CE:ECHR:2016:0705JUD002909409

Preliminary reference

Explication of EU law and hence whether Dutch procedural law is in accordance with EU law.

National law is not affected.

Additional notes on the decision

General Administrative Law Act, Art. 6:16 and 6:24

Aliens Act 2000, Art. 83 and 8:104 and 8:105

The ECJ-judgement did not have a specific impact on the appeal phase at the Council of State in Alien Cases. The ECHR case law on the other had did have an impact on automatic suspensive effect.

Also on 20 February 2019, the Division judged in another case (201508668/2/A2, ECLI:NL:RVS:2019:505) in which was referred for a preliminary ruling on automatic suspensive effect of appeal in asylum cases in connection with the rights to benefits, namely health care and rent allowances (ECJ C-175/17, of 26 September 2018, ECLI:EU:C:2018:776). 

The preliminary referral, the final decision and summaries in English and French can be found at Jurifast (see link below).