21) In those circumstances, the cour du travail de Liège (Higher Labour Court, Liège) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Articles 5 and 13 of Directive 2008/115 … read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, and Article 14(1)(b) of that directive, read in the light of the judgment [of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453)], be interpreted as endowing with suspensive effect an appeal brought against a decision ordering a third-country national suffering from a serious illness to leave the territory of a Member State, in the case where the appellant claims that the enforcement of that decision is liable to expose him or her to a serious risk of grave and irreversible deterioration in his or her state of health:

– without it being necessary to examine the appeal, its mere introduction being sufficient to suspend the enforcement of the decision ordering the third-country national to leave the territory of that Member State; or

– following a marginal review as to whether there is an arguable complaint, lack of grounds for inadmissibility or whether the action brought before the Council for asylum and immigration proceedings is manifestly unfounded; or

– following a full and comprehensive judicial review carried out by the labour courts in order to determine whether the enforcement of that decision is indeed liable to expose the appellant to a serious risk of grave and irreversible deterioration in his or her state of health?’

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38) In the third place, the Belgian Government submits that the Court has no jurisdiction to interpret Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in the present case. That article applies only within the scope of EU law. Whilst the national court refers to certain provisions of Directive 2008/115, that court does not establish a link between those provisions and the national legislation at issue in the main proceedings, although it is required to do so under Article 94(c) of the Rules of Procedure of the Court of Justice.

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41) Moreover, since that court has established that the outcome of the main proceedings depends on the application of the rules laid down in Directive 2008/115 on appeals against a return decision, the Court’s jurisdiction to interpret Article 47 of the Charter cannot be challenged in the present case.

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43) By its question, the national court asks, in essence, what are the circumstances in which Articles 5 and 13 of Directive 2008/115, read in the light of Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that a national court, hearing a dispute on social assistance, the outcome of which is linked to the possible suspension of the effects of a return decision taken in respect of a third-country national suffering from a serious illness, must hold that an action for annulment and suspension of that decision automatically entails suspension of that return decision, even though that suspension does not result from the application of national legislation.

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45) However, the characteristics of that remedy must be determined in accordance with Article 47 of the Charter, under which everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article and with the principle of non-refoulement, guaranteed, inter alia, in Article 19(2) of the Charter and in Article 5 of Directive 2008/115 (see, to that effect, judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraphs 45 and 46, and of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraphs 52 and 53).

46) From the foregoing considerations, the Court has concluded that, in order to ensure that the requirements arising from Article 47 of the Charter and the principle of non-refoulement are complied with in respect of the third-country national concerned, an appeal against a return decision must have automatic suspensive effect, since the enforcement of that decision may, inter alia, expose that national to a real risk of being subjected to treatment contrary to Article 19(2) of the Charter (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 56).

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51) Furthermore, since the Belgian Government maintains that an appeal with automatic suspensive effect should be guaranteed only against a removal decision and not against a return decision, it should be pointed out that it is apparent from paragraphs 44 to 49 of today’s judgment, CPAS Seraing (C‑402/19) that judicial protection guaranteed to a third-country national who is the subject of a return decision, the execution of which may expose that person to a real risk of being subject to treatment contrary to Article 19(2) of the Charter, is insufficient if that third-country national did not have an appeal with automatic suspensive effect against that decision as soon as that person was notified of that decision.

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56) The same applies to Article 13(1) of Directive 2008/115, since the characteristics of the remedy provided for in that article must be determined in a manner consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection (judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 141).

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59) Moreover, the fact that the national court does not have jurisdiction, under the Belgian legislation, to rule on the action for annulment and suspension of the return decision at issue in the main proceedings does not preclude that court from applying directly the rules of EU law, with a view to deciding the question referred for a preliminary ruling, necessary for the resolution of the dispute before it, concerning the possible automatic suspensive effect, under Article 13(1) of Directive 2008/115, read in the light of Articles 19 and 47 of the Charter, of that action for annulment and suspension brought before another court.

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68) In the light of all the foregoing considerations, the answer to the question referred must be that Articles 5 and 13 of Directive 2008/115, read in the light of Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that a national court, hearing a dispute on social assistance, the outcome of which is linked to the possible suspension of the effects of a return decision taken in respect of a third-country national suffering from a serious illness, must hold that an action for annulment and suspension of that decision leads to automatic suspension of that decision, even though suspension of that decision does not result from the application of national legislation, where:

• that action contains arguments seeking to establish that the enforcement of that decision would expose that third-country national to a serious risk of grave and irreversible deterioration in his or her state of health, which does not appear to be manifestly unfounded, and that
• that legislation does not provide for any other remedy, governed by clear, precise and foreseeable rules, which automatically entail the suspension of such a decision.