CJEU judgment in Case C-277/1, M.M. v Minister for Justice, Equality and Law Reform, Ireland, 22 November 2012

Friday, October 4, 2013

(Reference for a preliminary ruling - Common European Asylum System - Directive 2004/83/EC - Minimum standards for qualification for refugee status or subsidiary protection status - Article 4(1), second sentence - Cooperation of the Member State with the applicant to assess the relevant elements of his application - Scope - Lawfulness of the national procedure for processing an application for subsidiary protection following rejection of an application for refugee status - Observance of fundamental rights - Right to be heard)

Referred Questions:
In a case where an applicant seeks subsidiary protection status following a refusal to grant refugee status and it is proposed that such an application should be refused, does the requirement to cooperate with an applicant imposed on a Member State in Article 4(1) of Directive 2004/83 require the administrative authorities of the Member State in question to supply such applicant with the results of such an assessment before a decision is finally made so as to enable him or her to address those aspects of the proposed decision which suggest a negative result?

 The question referred for a preliminary ruling

The CJEU found that there is no such obligation under the duty of co-operation in Art. 4; an examination of the merits of an asylum application is solely the responsibility of the competent national authority (para 70). However the Court then addressed the broader question of the right to be heard in the course of the examination of his subsidiary protection application. The Court stated that the observance of the rights of the defence is a fundamental principle of EU law, and that it is affirmed not only in Articles 47 and 48 of the Charter, but also in Article 41, which guarantees the right to good administration. (para 81 and 82). In accordance with the Court’s case-law, observance of that right is required even where the applicable legislation does not expressly provide for such a procedural requirement (para 86).


The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely. That right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision, the obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person to understand why his application is being rejected is thus a corollary of the principle of respect for the rights of the defence. Therefore, the right of the applicant for asylum to be heard must apply fully to the procedure in which the competent national authority examines an application for international protection pursuant to rules adopted in the framework of the Common European Asylum System.

The Court cannot accept the view that, where an application for subsidiary protection is dealt with in a separate procedure [...], it is not necessary for the applicant to be heard again [...] Rather, when a Member State has chosen to establish two separate procedures, for examining asylum applications and applications for subsidiary protection, it is important that the applicant’s right to be heard, in view of its fundamental nature, be fully guaranteed in each of those two procedures.

The Court (First Chamber) ruled:

The requirement that the Member State concerned cooperate with an applicant for asylum, as stated in the second sentence of Article 4(1) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, cannot be interpreted as meaning that, where a foreign national requests subsidiary protection status after he has been refused refugee status and the competent national authority is minded to reject that second application as well, the authority is on that basis obliged before adopting its decision to inform the applicant that it proposes to reject his application and notify him of the arguments on which it intends to base its rejection, so as to enable him to make known his views in that regard.

However, in the case of a system such as that established by the national legislation at issue in the main proceedings, a feature of which is that there are two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, it is for the national court to ensure observance, in each of those procedures, of the applicant’s fundamental rights and, more particularly, of the right to be heard in the sense that the applicant must be able to make known his views before the adoption of any decision that does not grant the protection requested. In such a system, the fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection.

For the full judgment please visit: CURIA: Case C-277/11 M.M.

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Obligation/Duty to cooperate
Subsidiary Protection
Obligation to give reasons
Personal interview
Procedural guarantees