1. 

 ( 2 ) with particular reference to the procedure for awarding subsidiary protection within the meaning of Directive 2004/83. ( 3 )

2. 

The request for a preliminary ruling referred to the Court of Justice by the Irish Supreme Court has arisen in the context of the appeal proceedings brought before it against the judgment which the High Court gave following the delivery by the Court of Justice of the judgment in the case of M.M. (C‑277/11, EU:C:2012:744). The question referred by the Supreme Court relates to the Irish system for obtaining international protection as it applied at the time of the relevant facts, which has given rise to various questions referred to the Court. ( 4 ) The peculiarity of the Irish legislation, which has now been reformed twice, ( 5 ) lay in the choice of setting up a ‘bi-furcated’ system, a feature of which is that there are two separate procedures — one for asylum applications and another for applications for subsidiary protection.

3. 

In its judgment in M.M. (C‑277/11, EU:C:2012:744) the Court emphasised that it is important that the right to be heard, ( 6 ) in view of its fundamental nature, be fully guaranteed in each of the two procedures. However, it is clear from the case-file that the judgment in M.M. was interpreted differently by the parties as regards the exact scope which the Court afforded to that right. More specifically, the parties disagree as to whether or not it follows from that judgment that, for the right to be heard to be fully guaranteed in the procedure for obtaining subsidiary protection in a system of this kind, it is necessary for the applicant to be granted, before the authority which will decide his application, an oral hearing at which witnesses can be called, where an oral hearing has already been held in the previous procedure concerning his application for asylum. That, essentially, is the question which the Court is being asked to answer in this case.

4.

Under the Article 1 thereof, Directive 2004/83 is to lay down minimum standards for, on the one hand, the requirements to be satisfied by third country nationals or stateless persons to benefit from international protection and, on the other, the content of the protection granted.

5.

Under Article 2(e) of Directive 2004/83, a person is eligible for subsidiary protection where substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm as defined in Article 15 of the directive. Under that article, serious harm consists of death penalty or execution (subparagraph (a)), or torture or inhuman or degrading treatment or punishment (subparagraph (b)), or serious threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (subparagraph (c)).

6.

Article 4 of Directive 2004/83, included in Chapter II thereof, entitled ‘Assessment of applications for international protection’, provides an indication of how the assessment of facts and circumstances underlying those applications is to be carried out. In particular, the second sentence of paragraph 1 thereof provides that in cooperation with the applicant it is the duty of the Member State to assess all the relevant elements of the application for international protection. Under paragraph 3 of that article, the assessment of an application for international protection is to be carried out on an individual basis and includes taking into account a whole number factors set out therein, including, in particular under subparagraph (c) thereof, the individual and personal position of the applicant, so as to assess whether, on the basis of his personal circumstances, the acts to which he has been or could be exposed would amount to persecution or serious harm.

7.

Directive 2005/85 ( 7 ) lays down minimum standards on procedures for assessing applications for refugee status. Article 3 of that directive determines the scope thereof and provides, at paragraph 1 thereof, that it is to apply to all applications for asylum. However, under paragraph 3 of that article ‘[w]here Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for other kinds of international protection given under the circumstances defined by Article 15 of Directive 2004/83/EC, they shall apply this Directive throughout their procedure’. Paragraph 4 of that article provides that ‘[m]oreover, Member States may decide to apply this Directive in procedures for deciding on applications for any kind of international protection’.

8.

Article 12(1) of Directive 2005/85, entitled ‘Personal interview’ provides that ‘[b]efore a decision is taken by the determining authority, the applicant for asylum shall be given the opportunity of a personal interview on his/her application for asylum with a person competent under national law to conduct such an interview’. However, under paragraphs 2 and 3 of that article that personal interview may be omitted in a number of cases set out therein. ( 8 )

9.

As I pointed out above, in Ireland, while the legislation applicable to this situation which gave rise to the present case was in force, the application for asylum and the application for subsidiary protection were covered by two separate procedures, one following upon the other.

10.

The procedure for granting subsidiary protection was governed by the European Communities (Eligibility for Protection) Regulations 2006, which were made by the Minister for Justice, Equality and Law Reform (‘the Minister’) on 9 October 2006 and whose purpose is, in particular, to transpose Directive 2004/83.

11.

There is no provision in those regulations for the applicant for subsidiary protection to be heard in a personal interview in the course of examination of his application. The rules governing the procedure for processing applications for subsidiary protection have, in the intervening period, been the subject of two reforms ( 9 ) which, however, are not relevant rationae temporis in the present case.

12.

The conduct of the procedures relating to applications for asylum and subsidiary protection made by Mr M. before the Irish authorities is set out in detail at paragraphs 39 to 46 of the judgment in M.M. (C‑277/11, EU:C:2012:744), to which express reference is made. In so far as is necessary for the purposes of the present case, I would merely point out that Mr M., a Rwandan citizen of Tutsi ethnicity, initially entered Ireland in 2006 on a student visa and that he applied for refugee status following the expiry of that visa in 2008. As part of the procedure relating to that application Mr M. was heard during a personal interview with the Office of the Refugee Application Commissioner. Mr M. lodged an appeal against the unfavourable decision of that authority with the Refugee Appeal Tribunal, which, following a procedure which was conducted entirely in writing, definitively refused Mr M.’s application on the ground that his claims as to the risks of persecution which he would face if he were returned to Rwanda were not credible.

13.

In December 2008 Mr M. submitted to the Minister an application for subsidiary protection, which was also refused. In his unfavourable decision, which was taken without an oral hearing being given to Mr M. in respect of his application for subsidiary protection, the Minister concluded that there were not sufficient grounds to demonstrate that he was at risk of serious harm within the meaning of Article 15 of Directive 2004/83 if he were returned to Rwanda. The case files show that to justify that decision the Minister in the main simply referred to the grounds relied on previously to refuse the Mr M.’s application for asylum.

14.

Mr M. challenged the Minister’s decision before the High Court, which, in the proceedings relating to that action, referred a question to the Court of Justice for a preliminary ruling. That question essentially asked the Court whether, in a case such as that of Mr M., in which a person applies for subsidiary protection following refusal to grant refugee status, the requirement to cooperate laid down in Article 4(1) of Directive 2004/83 requires the authorities of a Member State, where they intend to take an unfavourable decision, to provide the applicant, before a decision is made, with the results of their assessment so as to enable him or her to address those aspects of the proposed decision which suggest a negative result.

15.

In its judgment in M.M. (C‑277/11, EU:C:2012:744), after having replied in the negative to the question referred by the High Court, ( 10 ) the Court, at paragraph 75 et seq., specifically highlighted the requirement that in each of those procedures the applicant’s fundamental rights and, more particularly, his right to be heard in the sense that he must be able to make known his views before the adoption of any decision that does not grant the protection requested, be observed. More specifically, in the second indent of paragraph 95, the Court ruled that in a bi-furcated system such as the Irish system, ‘the fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection’.

16.

Following delivery of the judgment of the Court of Justice, the High Court gave its judgment on 23 January 2013. ( 11 ) It held that, contrary to what Mr M. had maintained, in its judgment in M.M. (C‑277/11, EU:C:2012:744) the Court of Justice had not intended to find that, in a ‘bi-furcated’ system such as the Irish system, EU law generally confers on the applicant a right to a personal oral hearing in the procedure relating to the application for subsidiary protection, although there might be many cases in which such right exists. Nevertheless, the High Court annulled the Minister’s decision on the ground that, in this case, it had not observed Mr M.’s right to be heard in the procedure concerning the application for subsidiary protection. The High Court found that, one, the Minister had based his decision entirely on adverse findings made in the assessment of the asylum application as to the credibility of Mr M.’s claims that he would come to harm if he were returned to Rwanda and, two, made no separate and independent adjudication of the claims made by Mr M. ( 12 )

17.

The Minister, the Irish Government and the Attorney General brought an appeal against the judgment of the High Court before the national court, claiming that the High Court had misinterpreted the judgment in M.M. (C‑277/11, EU:C:2012:744). For his part, Mr M. brought a cross-appeal claiming that, contrary to what the High Court had ruled, it follows from the abovementioned judgment of the Court of Justice that he has a right to a personal interview in the procedure concerning his application for subsidiary protection.

18.

The national court highlights the need for guidance as to how the dicta of the Court of Justice in paragraph 85 et seq. of its judgment in M.M. (C‑277/11, EU:C:2012:744) should be applied in circumstances where, as in the present case, there are two separate procedures for examining applications for refugee status and applications for subsidiary protection.

19.

In the light of the foregoing, the national court has decided to stay the main proceedings and refer the following question to the Court of Justice for a preliminary ruling:

‘Does the “right to be heard” in EU law require that an applicant for subsidiary protection, made pursuant to Council Directive 2004/83/EC be accorded an oral hearing of that application, including the right to call or cross-examine witnesses, when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, respectively?’

20.

The order for reference was received at the Court Registry on 5 December 2014. Written observations were submitted by Mr M., the Irish, French and Czech Governments, and the European Commission. The hearing held on 18 February 2016 was attended by Mr M., the Irish Government and the Commission.

21.

By its question, the national court asks, in essence, whether, in EU law, the right to be heard in all proceedings must be interpreted as meaning that when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for asylum and applications for subsidiary protection, respectively, that right necessarily requires that the applicant be accorded an oral hearing at which he has the right to call and cross-examine witnesses in the proceedings concerning his application for subsidiary protection.

22.

As indicated above, the present request for a preliminary ruling follows on from the Court’s judgment in M.M. (C‑277/11, EU:C:2012:744), the interpretation of which is decisive to the resolution of the dispute before the national court. The parties to those proceedings and the intervening parties in the present proceedings, take opposing stances on the way in which that judgment should be interpreted.

23.

On the one hand, Mr M. contends that in the above judgment the Court recognised the need for the applicant for subsidiary protection to be accorded an oral hearing so that his right to be heard can be deemed to have been observed in a situation such as that in the main proceedings. The Commission also considers that in a case of this kind it is necessary to conduct an oral interview in order to observe the right to be heard. On the other, the Irish Government, whose position is supported by the French and Czech Governments, takes an opposing stance and considers that in a case of this kind for the right to be heard to be observed it is sufficient for the applicant to have had the possibility of expressing himself exhaustively, even if merely in writing, on all the reasons underlying his application for subsidiary protection.

24.

Since, just as in M.M., this reference also raises, in general, the question of the scope of the right to be heard in EU law in a particular situation such as that at issue in the main proceeding, ( 13 ) it seems appropriate, for the purpose of replying to the question referred, to set out briefly the principles laid down by the Court in its case-law on that right.

25.

In accordance with settled case-law, observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent. ( 14 )

26.

The right of every person to be heard before any individual measure which would affect him adversely is taken is now expressly laid down in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union as a particular expression of the right to good administration. ( 15 )

27.

As I have had occasion to recall recently, ( 16 ) the applicability of Article 41 of the Charter to Member States when they are implementing EU law ( 17 ) is still disputed in case-law. According to an initial line of case-law, to which I adhere, ( 18 ) that article constitutes a provision of general application which applies not only to the institutions, bodies, offices and agencies of the Union but also to the Member States when they are implementing EU law. ( 19 ) Another line of case-law is based on the wording of the provision which makes express reference only to the institutions, bodies, offices and agencies of the EU, not to the Member States. According to that line of case-law, it follows from the above that the right to be heard of a person who is party to proceedings before the authorities of a Member States is not founded on Article 41 of the Charter, but on the general principle of EU law of respect for the rights of the defence. ( 20 )

28.

In the present case, however, although it has a certain relevance in relation to the precise definition of the legal basis on which Mr M.’s right to be heard is based, it has in reality, as the Commission noted at the hearing, no practical bearing since the need to observe that right before the Irish authorities is beyond doubt, regardless whether it is founded on Article 41 of the Charter or on the general principle of EU law.

29.

As regards the substance of the right to be heard, it is clear from the Court’s case-law that that right guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely. ( 21 ) That right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision. ( 22 )

30.

It has been observed that the right to be heard has a dual function: first, to enable the case to be examined and the facts to be established in as precise and correct a manner as possible and, second, to ensure that the person concerned is in fact protected. It is intended in particular to ensure that any decision adversely affecting a person is adopted with full knowledge of the facts ( 23 ) and the objective thereof is, in particular, to enable the competent authority to correct an error or to allow the person concerned to produce such information relating to his personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having a given content rather than another. ( 24 )

31.

When the authorities of the Member States take measures which come within the scope of EU law, they are subject to the obligation to observe the rights of the defence, and thus the right to be heard, of addressees of decisions which significantly affect their interests, even where the applicable legislation does not expressly provide for such a procedural requirement. ( 25 )

32.

According to case-law, where the conditions under which observance of the rights of defence in a particular procedure are not laid down by EU law, the determination of those conditions falls within the scope of national law, provided that the rules adopted to that effect are the same as those to which individuals in comparable situations under national law are subject (the principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred by the European Union legal order (the principle of effectiveness). ( 26 ) Those requirements of equivalence and effectiveness embody the general obligation on the Member States to ensure respect for the rights of defence which an individual derives from EU law, in particular as regards the definition of detailed procedural rules. ( 27 )

33.

Nevertheless, fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. ( 28 )

34.

Further, the question whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, including, the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question. ( 29 ) More specifically, the Court has expressly pointed out that the detailed rules made to ensure that those concerned are able to exercise their right to be heard prior to the adoption of a return decision must be assessed in the light of the objective of the legislation in question. ( 30 )

35.

It follows from the considerations set out above that the Member States must take account of all the Court’s case-law concerning observance of the rights of the defence, as set out above, in conjunction with the scheme and objectives of the EU legislation at issue when they determine the conditions and procedural arrangements for guaranteeing observance of the right to be heard of addressees of decisions which significantly affect their interest, ( 31 ) provided that the principles of equivalence and effectiveness referred to at point 32 above are observed.

36.

In the case before the national court, EU law does not lay down precise rules which determine the conditions and procedural arrangements necessary to guarantee the right to be heard of a third-country national applying for subsidiary protection.

37.

More specifically, in a legal context such as that relevant to the proceedings before the national court those conditions and procedural arrangements are not laid down in either Directive 2004/83, which does not contain any procedural rules applicable to the examination of an application for international protection, ( 32 ) or Directive 2005/85, which, under Article 3 thereof, is not applicable to applications for subsidiary protection except where a Member State establishes a single procedure for processing the two applications for international protection (asylum and subsidiary protection), ( 33 ) which, as we have seen, was not so in the case of the legislation in force in Ireland at the time of the facts in the main proceedings. ( 34 )

38.

It follows from the finding as to the non-applicability of Directive 2005/85 that the question of the possible existence of a right to an oral hearing in the procedure concerning Mr M.’s application for subsidiary protection cannot, in any event, by analysed on the basis of Article 12 of Directive 2005/85. Indeed, that provision cannot be applied to the present case, even by analogy, since, as the Irish Government correctly pointed out, the application thereof, even indirectly, would have the result, first, essentially of rendering ineffective the choice made by the legislature of a Member State which has opted, pursuant to Directive 2005/85, to subject applications for asylum and subsidiary protection to two separate procedural arrangements and, second, of depriving Article 3(3) and (4) of the directive of its effectiveness by essentially imposing the application of that act to cases where it is not applicable.

39.

In the absence of specific EU rules, it follows from the case-law referred to at point 32 above that the Member States remain competent, in accordance with the principle of procedural autonomy, to determine the conditions and procedural arrangements relating to observance of the right to be heard in a procedure concerning examination of an application for subsidiary protection, while at the same time ensuring that fundamental rights and the principles of equivalence and effectiveness are observed. ( 35 )

40.

More specifically, it follows from the requirement that the provisions of EU law relating to subsidiary protection be fully effective that the national procedural rules must establish how the procedure relating to applications for such protection is conducted so as to ensure that persons seeking subsidiary protection are actually in a position to avail themselves of the rights conferred on them by Directive 2004/83. ( 36 ) As regards the present case specifically, this means that the national rules must lay down conditions and procedural arrangements for exercising the right to be heard in the procedure so as to ensure that those concerned are actually in a position to exercise the rights arising from subsidiary protection status.

41.

In that regard it is clear from the case-law referred to at points 34 and 35 of this Opinion that in the present case the scope of the right to be heard, and the conditions and procedural arrangements necessary to observe it, must be assessed having regard to the nature and objectives of the procedure at issue, that is to say, in the present case, the procedure for affording subsidiary protection status as laid down in Directive 2004/83.

42.

The objective of the provision on subsidiary protection laid down in Directive 2004/83 is explicitly to offer an ‘appropriate status’ to any person who, despite not fulfilling the conditions to be considered a refugee, nonetheless is in need of international protection. ( 37 ) Subsidiary protection therefore constitutes a form of complementary and additional protection vis-à-vis the protection provided for refugees, ( 38 ) which is awarded where conditions different from those for awarding the right to asylum are fulfilled and which confers rights of a kind other than those attributed by refugee status. ( 39 )

43.

In the light of that objective, the procedure designed to assess an application for subsidiary protection is characterised by the fact that, the specific individual situation of the applicant plays a crucial role in the assessment of the application, which is, moreover, reflected in the provisions of Directive 2004/83.

44.

On the one hand, as regards the types of serious harm set out in Article 15 of Directive 2004/83, the risk of occurrence of which justifies awarding subsidiary protection, ( 40 ) it is clear from case-law that all those types require regard to be had to the specific individual situation of the applicant. Indeed, as the Court stated, Article 15(a) and (b) cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm. As regards the provision in Article 15(c), while that provision concerns the risk of more general harm, the Court has nonetheless stated that, in the latter case too, the specific individual situation of the applicant can play a fundamental role in the final decision. The Court has in fact stated that the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection. ( 41 )

45.

On the other hand, it is made expressly clear in Article 4(3)(c) of Directive 2004/83 that in assessing an application for international protection, and thus also an application for subsidiary protection, it is necessary to assess the individual and personal situation of the applicant in order to establish whether or not the acts to which the applicant has been or could be exposed constitute serious harm.

46.

Furthermore, it has been correctly pointed out that a feature of the procedure for awarding subsidiary protection status is that, like that for awarding refugee status, it relates to a difficult personal and practical situation and concerns the preservation of the essential rights of the applicant for whom the decision to be given is of vital importance. That procedure is marked by the absolutely central role of the person of the applicant who not only initiates the procedure but is also the only person able to explain, in concrete terms, what has happened to him, which can lead to the award of that status, and the background against which it has taken place. ( 42 )

47.

Moreover, it is precisely because of the particularity of the objectives and nature of the procedure for awarding subsidiary protection and its differences from the procedure for awarding refugee status that the Court, in its judgment in M.M. (C‑277/11, EU:C:2012:744), particularly emphasised the fundamental character of the right of the applicant to be heard in that procedure and the requirement that that right be fully guaranteed in that procedure, also in a bi-furcated system such as that at issue in the main proceedings. ( 43 )

48.

It follows from the considerations set out above that, in the light of the particular nature and objectives of the procedure for examining whether the conditions for awarding subsidiary protection status have been fulfilled, for access to the rights conferred by that status to be effective the applicant must be placed in a very effective position to exercise the right to be heard in that procedure. It is only where the applicant has an actual opportunity to set out effectively what has happened to him and the background against which it has taken place, by explaining to the competent authority, in a complete and appropriate manner, all the facts and evidence in support of his application, that he can have effective access to the rights conferred by that status as laid down in Directive 2004/83.

49.

In that regard, I also note that the requirement to guarantee in particular the effective exercise of the right to be heard, to which I have just referred, applies equally to the procedure for the award of subsidiary protection status and that for refugee status. Although, as has been pointed out, the requirements which must be fulfilled for the award of those two statuses differ, both procedures display the characteristics highlighted at points 43 to 46 above, that is to say the central nature of the applicant’s person and the vital importance of his interests at stake and the importance to the adoption of the final decision of the specific individual situation of the applicant. Moreover, this is confirmed by the fact that abovementioned Article 4(3)(c) of Directive 2004/83 applies to both statuses.

50.

However, it follows from the fact that the two statuses are awarded on the basis of different criteria and from the requirement arising from the abovementioned Article 4(3)(c) of Directive 2004/83 that the applicant’s individual and personal situation be assessed specifically and separately against two different criteria (that is to say, on the one hand, the risk of persecution or, on the other, the risk of serious harm) that in both procedures the right to be heard constitutes a procedural guarantee which makes reference to different factors.

51.

At this juncture the question which is fundamental to the main proceedings arises, namely whether the abovementioned requirement to ensure the effectiveness of the right to be heard in the procedure for the award of subsidiary protection can be fulfilled solely by means of a personal hearing of the applicant, or whether, as the Irish Government has argued, in a bi-furcated system for awarding international protection the possibility of submitting written observations can be sufficient for that purpose where such a hearing has already taken place in the previous procedure for the award of refugee status.

52.

In that regard, I note, first of all, that contrary to what Mr M. appears to consider, it is not apparent from the judgment M.M. (C‑277/11, EU:C:2012:744) that the Court ruled that an oral hearing of the applicant is absolutely always necessary in the procedure for the award of subsidiary protection.

53.

In particular, that interpretation does not follow from the Court’s statement in the final sentence of paragraph 95 of that judgment, which is reproduced verbatim at point 15 of this Opinion. That statement must be placed in the context of the judgment. In particular, it constitutes, in my view, a response to the argument put forward before the Court and described by it at paragraph 90 of the judgment, namely that in a ‘bi-furcated’ system where the hearing of the applicant has already taken place as part of the examination of the application for asylum ‘it is not necessary for the applicant to be heard again for the purpose of considering his application for subsidiary protection because the formality of a hearing in a sense replicates the hearing which he has already had in a largely similar context’.

54.

In the light of that, and paragraph 91 of the judgment, I consider that the Court meant that in a ‘bi-furcated’ system the fact that a hearing of the applicant had already taken place in the procedure relating to the application for asylum does not mean, this is to say have the result (I would add, necessarily,) that the personal hearing does not have to take place in the procedure for subsidiary protection since the right to be heard must in any event be fully guaranteed also in the latter procedure.

55.

Therefore, in my view the judgment in M.M. (C‑277/11, EU:C:2012:744) should be interpreted less as an affirmation of the absolute necessity for an oral hearing in the procedure for awarding subsidiary protection than as a strong reminder of the requirement that the right to be heard be fully observed in that procedure also in a ‘bi-furcated’ system. Furthermore, an interpretation of that kind conforms to the rules on asylum in which exceptions to the power to conduct a personal hearing are possible. ( 44 )

56.

Although those considerations do not militate in favour of conferring an absolute right to a personal hearing in all cases in a procedure for subsidiary protection, the requirement that the right to be heard should be particularly effective in that kind of procedure, in regard to its particular nature and objectives, prompts me to consider that, contrary to what the Irish Government contends, the personal hearing of the applicant must in any event be the rule and not the exception and that it can thus be omitted only in exceptional cases, also in a ‘bi-furcated’ system.

57.

In that regard, as was noted at point 30 above, the function of the right to be heard in the procedure for awarding subsidiary protection is to enable the competent authority to have the applicant set out the facts underlying his application in such a way as to ensure, one, his effective protection and, two, the adoption of a decision by the authority in full knowledge of the facts.

58.

The personal hearing constitutes the fullest possible expression of the right to be heard. For the applicant, it is the sole occasion to explain what has happened to him and to speak with the person who is best qualified to take account of his personal situation. ( 45 ) On that occasion he may present any new evidence in support of his application which he had not included in his argument and, above all, clarify in person any doubts which may have arisen or any evidence perceived as contradictory.

59.

For the competent national authority, such an interview provides an opportunity to examine, in concrete terms, evidence, including evidence that is subjective and therefore difficult to discern from a written text, which may not have been of relevance to the award of refugee status but could have such relevance to the award of subsidiary protection.

60.

In a procedure such as that relating to the award of subsidiary protection, in which the applicant’s person plays a central role and in which it is often impossible to provide documentary evidence, the personal hearing is of fundamental importance in that respect, also in terms of assessing the personality of the individual concerned and the credibility of the evidence relied on in his application.

61.

In my view, the above considerations also apply in a situation where in a bi-furcated system, such as that in force in Ireland at the time relevant to the facts of the case, the application for subsidiary protection status is based on a factual context similar to that on which the refused application for asylum was based.

62.

As the Court pointed out in its judgment in M.M., when a Member State has chosen to establish two separate procedures, one following upon the other, for examining asylum applications and applications for subsidiary protection, it is important that the applicant’s right to be heard, in view of its fundamental nature, be fully guaranteed in each of those two procedures. ( 46 )

63.

It follows that the fact that the right to be heard was fully observed in the previous procedure concerning the application for asylum does not mean that the particular requirement that effective exercise of that right be guaranteed, referred to at point 48 above, is reduced in the subsequent separate procedure for the award of subsidiary protection. Furthermore, as noted at point 50 above, the right to be heard in the two procedures is based on different criteria and therefore constitutes a procedural guarantee which covers different contexts. ( 47 )

64.

It therefore follows that in such a bi-furcated system — whose adoption is the result of a free choice of the Member State in question — the findings which the authority made in the first procedure cannot be automatically applied in the second procedure. It is not possible to ‘transfer’ observance of the right to be heard from one procedure to another. In a context such as that of international protection, in the light of the fundamental nature of the right to be heard such considerations apply a fortiori to the unfavourable findings regarding credibility which are likely to have a decisive impact on the final decision.

65.

In that respect it should further be noted that although EU law does not make specific provision for the manner in which an applicant’s credibility is to be assessed, and therefore it is for the domestic legal system of each Member State to determine the procedural conditions for assessing that credibility, ( 48 ) the procedural autonomy of the Member States is subject to the limit imposed by the principle of effectiveness which, as we have seen, consists of the need to guarantee effective access to the rights conferred by the legislation on subsidiary protection, which in turn requires that the right to be heard be exercised in a particularly effective manner. ( 49 )

66.

An interpretation of the right to be heard which recognises the fundamental role of the oral interview in the procedure for affording international protection is, furthermore, in line with recent choices of the EU legislature on the matter which, on the one hand in Directive 2013/32 drastically reduced the cases in which it is possible to omit the personal interview in the, now single, procedure concerning applications for international protection, ( 50 ) and, on the other, in Regulation No 604/2013 (Dublin III), ( 51 ) introduced the obligation on Member States to conduct a personal interview in the process of determining the Member State responsible for considering an application for international protection.

67.

As regards, finally, the possible right to call and cross-examine witnesses in the procedure, I observe that it is not apparent from the structure of the right to be heard, as established by the case-law referred to at point 29 et seq. of this Opinion, that it necessarily includes such a right. However, that does not alter the fact that a Member State can, exercising its power to introduce or retain more favourable standards in that regard, ( 52 ) lay down the right to call and cross-examine witnesses in the procedure.

68.

For the reasons set out above I therefore propose that the Court give the following answer to the question referred by the Supreme Court:

Where an application for subsidiary protection within the meaning of Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted is submitted in a Member State which operates two separate procedures, one following the other, for consideration of applications for asylum and subsidiary protection respectively, the right to be heard in all proceedings, as it exists in EU law, must be interpreted as meaning that that right requires, in principle, a personal hearing of the applicant which can be omitted only in exceptional cases. In that context the right to be heard in all proceedings does not include, however, a right to call and cross-examine witnesses.