Case C‑610/23 [Al Nasiria] ( i )

Ypourgos Metanastefsis kai Asylou

(Request for a preliminary ruling from the Dioikitiko Protodikeio Thessalonikis)

Judgment of the Court (First Chamber) of 3 July 2025

(Reference for a preliminary ruling – Asylum policy – International protection – Common procedures for granting and withdrawing international protection – Directive 2013/32/EU – Article 46 – Charter of Fundamental Rights of the European Union – Article 47 – Right to an effective remedy – Requirement of full and ex nunc examination of the appeal – Obligation to appear in person before the authority examining the appeal – Presumption that an appeal has been improperly brought – Dismissal of the appeal as manifestly unfounded without examination of the merits – Principle of proportionality)

Questions referred for a preliminary ruling – Reference to the Court – National court or tribunal within the meaning of Article 267 TFEU – Concept – Greek Independent Appeals Committees – Included

(Art. 267 TFEU; European Parliament and Council Directive 2013/32, Art. 46; Council Directive 2005/85)

(see paragraphs 39-44)
Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32/EU – Right to an effective judicial remedy – Appeal against a decision on an application for international protection – Non-compliance by an applicant for international protection with the procedural obligation to appear in person before the court or tribunal having jurisdiction to rule on his or her appeal – National legislation establishing a presumption that that appeal has been improperly brought and providing for it to be dismissed as manifestly unfounded – Legislation aimed at verifying the applicant’s presence on the national territory and not his or her right to be heard – Not permissible

(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2013/32, Art. 46)

(see paragraphs 47-69, operative part)

Résumé

Ruling on a request for a preliminary ruling relating to the rejection of an application for international protection, the Court of Justice provides clarification on the right to an effective remedy against such a rejection decision, as provided for in Article 46 of Directive 2013/32. ( 1 ) More specifically, it rules on the compatibility with that provision of national legislation establishing a presumption that an appeal has been improperly brought when an applicant fails to appear in person before the court or tribunal hearing his or her appeal.

In February 2019, FO, an Iraqi national, lodged an application for international protection with a Greek authority, on the ground that his life was in danger in his country of origin. During an interview in February 2020 before a regional asylum office, he stated that he had been injured by firearm by a member of the family of a young woman with whom he had been in a romantic relationship, and had been the subject of a tribal order requiring him to be put to death. By a decision adopted in May 2020, that regional asylum office rejected FO’s application for international protection, considering that his allegations were not reliable.

In August 2021, FO lodged an appeal against that decision with an Independent Appeals Committee. At that time, he was informed that the date set for the examination of his appeal was 11 October 2021. He was also informed that, even if he were not summoned to a hearing, he would be obliged to appear in person on the date of the examination of his appeal, unless he was lawfully staying at a reception and identification centre or was subject to a restriction on movement or residence in a place outside the region of Attica (Greece). FO did not appear in person before that committee. After verifying that he did not come within one of the exceptions allowing for a derogation from the obligation to appear in person, that committee dismissed the appeal as manifestly unfounded, without examining it as to its merits.

The referring court, before which FO brought an action against that decision, decided to refer questions to the Court, in particular on the point whether the procedural obligation to appear in person before those committees and, in particular, the legal consequences of non-compliance with that obligation, are compatible with Article 46 of Directive 2013/32.

Findings of the Court

As a preliminary point, the Court finds, subject to verification by the referring court, that the Independent Appeals Committees, established by the national legislation at issue in the main proceedings to hear appeals brought by applicants for international protection against decisions taken in respect of them, fulfil the conditions necessary for being considered to be ‘courts or tribunals’ for the purposes of Article 46 of Directive 2013/32. Referring, in that regard, to the same criteria as those developed for determining whether a referring body is a ‘court or tribunal’ for the purposes of Article 267 TFEU, the Court concludes that neither the information provided by the referring court nor the arguments put forward by the Greek Government and the European Commission contain anything liable to call that assessment into question.

On the substance, the Court holds that Article 46 of Directive 2013/32, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), ( 2 ) precludes legislation of a Member State which, in the event of failure by an applicant for international protection to comply with a procedural obligation to appear in person before the court or tribunal having jurisdiction to rule on his or her appeal against a decision rejecting his or her application, the sole objective of which is to verify the applicant’s presence on the national territory and not to be heard, establishes a presumption that the appeal has been improperly brought and provides for it to be dismissed as manifestly unfounded.

In order to reach that conclusion, the Court observes that Article 46(1) of Directive 2013/32 provides that Member States are to ensure that applicants for international protection have the right to an effective remedy before a court or tribunal against decisions given on their applications, including in particular decisions rejecting an application for international protection as unfounded, without however setting out exhaustively the procedural rules governing that remedy. Although, in the absence of EU rules on the matter, it is for the national legal order, in accordance with the principle of procedural autonomy of Member States and subject to the observance of the principles of equivalence and effectiveness, to lay down the detailed procedural rules governing remedies for ensuring that individual rights derived from the EU legal order are safeguarded, Member States nevertheless have the responsibility to ensure observance in every case of the right to effective judicial protection of those rights as guaranteed by Article 47 of the Charter. Consequently, the characteristics of the remedy provided for in Article 46 of Directive 2013/32 must be determined in a manner that is consistent with Article 47 of the Charter.

In the present case, the national legislation at issue, which transposes Article 46 of Directive 2013/32, provides that applicants for international protection who have lodged an appeal against a decision rejecting their application are obliged, irrespective of where in Greece they are staying, to travel to the seat of the Independent Appeals Committees to appear in person, unless they come within one of the exceptions referred to in that legislation. All of those committees have their seat in Athens. Moreover, that legislation provides, as a legal consequence of non-compliance with that obligation to appear in person, that the applicant is to be deemed to have lodged the appeal solely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his or her expulsion or removal and that his or her appeal is to be rejected as manifestly unfounded.

In that regard, Article 46(11) of Directive 2013/32 does allow the Member States to lay down, in their national legislation, the conditions under which it can be assumed that an applicant has implicitly withdrawn or abandoned his or her remedy. In the present case, the objectives of dealing with such appeals expeditiously and of safeguarding the efficiency of the judicial system, pursued by the national legislation at issue, are legitimate objectives, inasmuch as they assist the courts or tribunals hearing those appeals in concentrating on those coming from applicants who have a genuine interest in the outcome of their appeal. Thus they are legitimate objectives and justify the introduction of a presumption, such as that at issue in the main proceedings, which addresses the interest of Member States and that of applicants.

Thus, the Court notes that national legislation providing for the obligation to appear in person before the court or tribunal having jurisdiction to rule on an appeal against a decision rejecting an application for international protection and, in the event of non-compliance with that obligation, for a presumption similar to a presumption of implicit withdrawal or abandonment of such an application may, in principle, be justified in the light of the objective of expedition pursued by Directive 2013/32, the principle of legal certainty, and the smooth progress of the procedure for the examination of applications for international protection.

Nevertheless, the legislation of a Member State intended to implement the right to an effective remedy provided for in Article 46(1) of Directive 2013/32 must observe the principle of proportionality, which presupposes inter alia that it is apt to ensure attainment of the objective pursued, that it does not go beyond what is necessary to achieve that objective and that it is proportionate.

In that regard, in the first place, the Court finds that the procedural obligation requiring applicants who have lodged an appeal to appear in person before the Independent Appeals Committees, provided for by the national legislation at issue, is apt for helping to attain the abovementioned objectives. In enabling more efficient processing of applications submitted by applicants who retain an interest in the outcome of their appeals, whilst avoiding an examination of applications which have become moot, it helps with the smooth progress of the procedure for the examination of applications for international protection.

As regards, in the second place, the question whether that national legislation goes beyond what is necessary to achieve the objectives pursued, it seems that less restrictive measures, such as allowing applicants who have brought an appeal to be represented by a lawyer or other person authorised for that purpose and, in order to prove their presence in Greek territory, to appear at a police station or before another public or judicial authority close to where they are staying, could be envisaged.

In the third place, as regards the question whether the national legislation at issue is proportionate, the Court notes that the obligation for the applicant to appear in person before the court or tribunal having jurisdiction to rule on his or her appeal, the sole objective of which is to verify his or her presence on the national territory and not to be heard, imposes an unreasonable and excessive burden on applicants for international protection who are not staying in the region of Athens, such as the applicant in the main proceedings, who is staying several hundred kilometres away, since, unless they come within one of the exceptions provided for in that legislation, they must travel to Athens, solely in order to have their presence recorded, without however necessarily being heard. The disproportionate nature of that national legislation is evident, inter alia, from the legal consequence provided for by that legislation in the event of non-compliance with the obligation to appear in person, inasmuch as it establishes an irrefutable presumption that an appeal has been brought improperly, with the result that it must be dismissed as manifestly unfounded, without any examination being conducted as to its merits. Moreover, the failure to appear in person before the court or tribunal having jurisdiction to rule on the appeal may be due to reasons unrelated to any intention to frustrate or delay the enforcement of an earlier or imminent decision ordering the expulsion of the applicant or his or her removal by any other means.

( i ) The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

( 1 ) 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 (OJ 2013 L 180, p. 60).

( 2 ) Article 47 of the Charter provides for the right to an effective remedy before a tribunal for everyone whose rights and freedoms guaranteed by EU law are infringed.