2) The question here is whether the law of the European Union, guaranteeing the right to an effective remedy, must be interpreted as meaning that national laws must accord automatic suspensory effect to the appeal proceedings for which they provide against decisions rejecting applications for asylum and imposing an obligation to return, where a risk of infringement of the principle of non-refoulement is invoked by the person concerned. The present cases will invite the Court to rule on the interpretation of Article 39 of Directive 2005/85/EC, ( 2 ) Article 13 of Directive 2008/115/EC ( 3 ) and Article 46 of Directive 2013/32/EU, ( 4 ) read in the light of Articles 4 and 18, and Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union. ( 5 )

3) At the end of my analysis, I shall propose that the Court rule that neither Directive 2005/85, nor Directive 2008/115, nor Directive 2013/32, nor the Charter requires Member States to provide for the automatic suspensory effect of an appeal, lodged in proceedings brought against a refusal of asylum including a return decision, even where the person who is subject to that measure invokes a risk of infringement of the principle of non-refoulement. However, the right to an effective remedy as established by those provisions precludes the legal effects of a refusal of asylum and a return decision from being maintained despite those measures having been annulled at first instance and requires that, in such a situation, the appeal be given automatic suspensory effect.

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20) While it considers that neither national law, nor the case-law of the European Court of Human Rights, on Articles 3 and 13 of the ECHR, require that appeals against judgments at first instance confirming the rejection of an application for asylum and imposing an obligation to return have automatic suspensory effect, the referring court asks, in the two cases under consideration, whether EU law imposes such automatic suspensory effect, more specifically in view of Article 39 of Directive 2005/85, Article 13 of Directive 2008/115 and Article 46 of Directive 2013/32, read in the light of Articles 4 and 18, and Article 19(2) and Article 47 of the Charter.

21) With regard to the rejection of an application for international protection, the referring court considers, by reference to the judgment of the Court of 28 July 2011, Samba Diouf, ( 10 ) that Article 39 of Directive 2005/85 does not require that provision be made for an appeals procedure. Nonetheless, according to the referring court, this does not mean that the reasons for which an action at first instance has automatic suspensory effect cannot be used to justify the decision by a Member State to provide an appeal remedy which also has such automatic suspensory effect, provided that, until the appeal has been decided, it cannot be established that the applicant would not face any risk, within the meaning of Article 4 of the Charter, if he were returned to his country of origin.

22) With regard to the obligation to return, the referring court considers that Article 13 of Directive 2008/115 does not make any requirement for automatic suspensory effect. The Court nonetheless held, in its judgments of 18 December 2014, Abdida, ( 11 ) and of 17 December 2015, Tall, ( 12 ) that an action must necessarily have automatic suspensory effect where it is brought against a return decision whose enforcement may expose the applicant to a serious risk of being subjected to the death penalty, torture or other degrading treatment or punishment, thus ensuring compliance with the requirements set down by Article 19(2) and Article 47 of the Charter. The referring court considers that, although an appeals procedure is not mandatory, it is conceivable that it be given automatic suspensory effect, if national law makes provision for an appeals procedure.

23) In those circumstances, the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Must Article 13 of Directive 2008/115 …, read in conjunction with Articles 4 [and] 18, [and Article] 19(2) and [Article] 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 [that directive], 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 39 of … Directive 2005/85 …, read in conjunction with Articles 4 [and] 18, [and Article] 19(2) and [Article] 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 asylum within the meaning of Article 2 of [that directive], the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of the asylum-seeker 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 asylum-seeker concerned being required to submit a separate request to that effect?’

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27) In those circumstances, the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Must Article 13 of Directive 2008/115 …, read in conjunction with Articles 4 [and] 18, [and Article] 19(2) and [Article] 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 [that directive], 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 [and] 18, [and Article] 19(2) and [Article] 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?’

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29) In this regard, I propose that the Court should find that the requests for a preliminary ruling relate to the scope of the right to a remedy laid down by the provisions of Directives 2005/85 and 2008/115, which represent the very foundations of the applications submitted in the main proceedings, in the light of the provisions of the Charter. The Court must, consequently, be considered to have jurisdiction to rule on the questions raised. ( 14 )

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43) Nevertheless, in exercising that option, Member States must ensure compliance with the principles of equivalence and effectiveness, ( 27 ) as well as the fundamental rights guaranteed by the Charter. ( 28 )

44) It is true that, according to the case-law of the Court, an action against a return decision must, ipso jure, have suspensory effect where that decision may expose the person concerned to a real risk of treatment contrary to Article 19(2) of the Charter, read in conjunction with Article 33 of the Geneva Convention. It is common ground that an action must necessarily have suspensory effect when it is brought against a return decision whose enforcement may expose the third-country national concerned to a risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, thereby ensuring that the requirements of Article 19(2) and Article 47 of the Charter are met in respect of that third-country national. ( 29 )

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47) Neither can this case-law be understood to require that suspensory effect must arise, ipso jure, before more than one level of jurisdiction. Thus, it cannot be considered that automatic suspensory effect extends to all of the judicial remedies available, under national law, against the rejection of an application for asylum including an expulsion measure, even if, before the appeal court, the applicant invokes a real risk of being subjected to treatment contrary to the provisions of the Charter and the ECHR.

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56) It follows from the above considerations that it is proposed that the Court rule that Article 39 of Directive 2005/85, Article 13 of Directive 2008/115 and Article 46 of Directive 2013/32, read in the light of Articles 4 and 18, and Article 19(2) and Article 47 of the Charter, must not be interpreted as meaning that under EU law the legal remedy of an appeal, if national law makes provision for such a remedy in procedures for challenging a decision which includes a return decision, has automatic suspensory effect, even where the third-country national concerned invokes the fact that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement. However, the right to an effective remedy as established by those provisions precludes the legal effects of a refusal of asylum and a return decision from being maintained despite those measures having been annulled at first instance and requires that, in such a situation, the legal remedy of an appeal be given automatic suspensory effect.

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58) In the light of the above considerations, I propose that the Court respond to the questions referred for a preliminary ruling by the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State, Netherlands) as follows:

Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, Article 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, and Article 46 of 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, read in conjunction with Articles 4 and 18, and Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must not be interpreted as meaning that under EU law the legal remedy of an appeal, if national law makes provision for such a remedy in procedures for challenging a decision which includes a return decision, has automatic suspensory effect, even where the third-country national concerned invokes the fact that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement. However, the right to an effective remedy as established by those provisions precludes the legal effects of a refusal of asylum and a return decision from being maintained despite those measures having been annulled at first instance and requires that, in such a situation, the legal remedy of an appeal be given automatic suspensory effect.