On 27 September, the Court of Justice of the European Union ruled on a preliminary reference regarding the suspensive effect of appeals and the criteria for assessing a need for suspension.
The case concerned a Nigerian national who had applied for asylum in Italy, but was rejected on both instances. Upon appeal before the Supreme Court of Cassation, the applicant also requested interim measures to suspend the execution of the contested decision, due to the risk of being exposed to inhuman and degrading treatment in Nigeria.
The Court that issued the contested decision decided to refer a question to the CJEU, regarding the suspensive effect of appeals against judgments that uphold the administrative authorities’ decisions refusing international protection. In case suspensive effect is not automatic, the Court asks whether a request to suspend could be rejected solely upon consideration of the grounds which the appeal is based on, without further assessment of possible risks.
As the CJEU had already ruled on an identical preliminary reference, this ruling took the form of a reasoned order, based on the Court’s recent judgment in case C‑180/17, according to Article 99 of the Court’s Rules of Procedure. As such, the Court reiterated that Directive 2013/32/EU does not oblige Member States to provide an appeal against the first-instance appeals, or that an appeal at that instance should have automatic suspensory effect. Once more, the Court referred to its own case law, mainly Gnandi and Samba Diouf, to reiterate its previous finding that the right to an effective remedy means that a remedy before a judicial body should be available to asylum applicants, without establishing a further requirement for two levels of jurisdictions.
While restating the need for equal treatment of breaches of law in comparable situations, be it EU law or national law, the Court repeated that such an examination on the principle of equivalence should be conducted by the domestic courts, having full knowledge of national procedures. Lastly, the principle of effectiveness was not considered as entailing requirements going beyond those deriving from the right to effective judicial protection guaranteed by the Charter, which only includes the existence of a judicial remedy in asylum cases. As such, an assessment of a suspension request that is solely based on the grounds of the appeal is not precluded by EU law.