On 4 July 2026, the Court of Justice of the European Union delivered its judgment in Case C‑440/25 (Ebilum), following a request for a preliminary ruling by the District Court of The Hague, sitting in Zwolle (rechtbank Den Haag, zittingsplaats Zwolle). The case concerned the interpretation of Article 46(3) of Directive 2013/32/EU (the recast ‘Asylum Procedures Directive’ (rAPD)) and Article 2(d) of Directive 2011/95/EU regarding the scope of judicial review in asylum appeals and the meaning of “well-founded fear of persecution’’.
The Court reiterated that Article 46(3) requires Member States to ensure that a first-instance court or tribunal before which a decision relating to an application for international protection is contested, carries out a full and ex nunc examination of both facts and points of law. This requires an up-to-date assessment of the case based on all relevant factual and legal elements, including evidence arising after the adoption of the decision under appeal, insofar as the parties are given the opportunity to submit observations in accordance with the principle of audi alteram partem and Article 47 of the EU Charter. Such an examination must allow the court to assess the application exhaustively at judicial level, without any need to refer the case back to the determining authority. It further held that the judicial review required under Article 46(3) entails a full factual and legal reassessment of the applicant’s international protection needs. This includes, where necessary, the assessment of facts and credibility and the possibility for the court or tribunal to reach its own findings on the merits of the application.
The Court recalled that while Article 46(3) rAPD only concerns the judicial appeal stage and not what happens after any annulment, where a court has carried out a full assessment and found that international protection must be granted, the administrative authority is bound to comply when the case is referred back, unless new circumstances require assessment. If the administration subsequently adopts a contrary decision without such new elements, the court must be able to replace that decision with its own ruling and disapply any national rules preventing it from doing so, thereby ensuring the effectiveness of EU law. It also clarified that Member States may provide for additional appeal or cassation levels beyond the first-instance judicial remedy required by Article 46(3), but such review cannot alter the characteristics of the full and ex nunc examination required at first instance.
Finally, the Court interpreted Article 2(d) of Directive 2011/95 as meaning that a “well-founded fear of being persecuted” exists where there is a reasonable likelihood that the applicant will be persecuted upon return to his or her country of origin. It held that the competent authorities must carry out an individual, specific and objective assessment of the applicant’s personal situation, the facts and circumstances relating to the application, and the facts and circumstances relating to the situation in the country of origin. That assessment must include the general context of the country of origin and cannot rely solely on the applicant’s subjective fear of being persecuted but must be based on both subjective and objective elements.