Opinion of Advocate General Campos Sánchez-Bordona: Moussa Sacko v. Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 6 April 2017 (1)

Case C‑348/16

Moussa Sacko

v

Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano

(Request for a preliminary ruling from the Tribunale di Milano (District Court, Milan, Italy))

(Reference for a preliminary ruling - Asylum - Interpretation of Articles 12, 14, 31 and 46 of Directive 2013/32/EU - Right to effective judicial protection - Administrative refusal, following a hearing of the person concerned, of an application for refugee status - Possibility of dismissing the legal action without a hearing of the person concerned)

1. The Court of Justice is being asked for the first time (unless I am mistaken) whether Directive 2013/32/EU (2) is compatible with national legislation which allows for a finding of inadmissibility, or the dismissal, without preparatory inquiries of an action brought by an asylum seeker against the refusal of his application for international protection.

2. The referring court states that the application of the person who has requested asylum in this case is 'manifestly unfounded' and that 'the administrative authority's refusal' of his application is 'therefore insurmountable'. Although, in that case, national legislation would authorise it to find inadmissible, or to dismiss, the application without preparatory inquiries, the question arises whether that solution is in accordance with Directive 2013/32. Specifically, the referring court wishes to ascertain whether such a rejection of the action would deprive the applicant of the right to an effective remedy as guaranteed by Article 46(3) of the directive.

I. Legal context

A. EU law

Directive 2013/32

3. The aim of Directive 2013/32, according to Article 1 thereof, is 'to establish common procedures for granting and withdrawing international protection pursuant to Directive 2011/95/EU'. (3)

4. In recitals 18, 20 and 60 of the directive it is stated:

'(18) It is in the interests of both Member States and applicants for international protection that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out.

(20) In well-defined circumstances where an application is likely to be unfounded or where there are serious national security or public order concerns, Member States should be able to accelerate the examination procedure, in particular by introducing shorter, but reasonable, time limits for certain procedural steps, without prejudice to an adequate and complete examination being carried out and to the applicant's effective access to basic principles and guarantees provided for in this Directive.

(60) This Directive respects the fundamental rights and observes the principles recognised by the Charter. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 18, 19, 21, 23, 24 and 47 of the Charter and has to be implemented accordingly.'

5. Article 2(c) of the directive states that:

'"applicant" means a third-country national or stateless person who has made an application for international protection in respect of which a final decision has not yet been taken.'

6. Included in Chapter II ('Basic principles and guarantees'), Article 12 provides:

'1. With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants enjoy the following guarantees:

(a) they shall be informed, in a language which they understand or are reasonably supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. …;

…

(d) they and, if applicable, their legal advisers or other counsellors … shall have access to the information referred to in Article 10(3)(b) and to the information provided by the experts referred to in Article 10(3)(d), where the determining authority has taken that information into consideration for the purpose of taking a decision on their application;

(e) they shall be given notice in reasonable time of the decision by the determining authority on the application …;

(f) they shall be informed of the result of the decision by the determining authority in a language that they understand or are reasonably supposed to understand when they are not assisted or represented by a legal adviser or other counsellor. The information provided shall include information on how to challenge a negative decision ...

2. With respect to the procedures provided for in Chapter [IV], Member States shall ensure that all applicants enjoy guarantees equivalent to the ones referred to in paragraph 1(b) to (e).'

7. Article 14 ('Personal interview') of the directive provides, in paragraph 1:

'Before a decision is taken by the determining authority, the applicant shall be given the opportunity of a personal interview on his or her application for international protection ...'

8. Under Article 17 ('Report and recording of personal interviews') of the directive:

'1. Member States shall ensure that either a thorough and factual report containing all substantive elements or a transcript is made of every personal interview.

2. Member States may provide for audio or audiovisual recording of the personal interview. Where such a recording is made, Member States shall ensure that the recording or a transcript thereof is available in connection with the applicant's file.

3. Member States shall ensure that the applicant has the opportunity to make comments and/or provide clarification orally and/or in writing with regard to any mistranslations or misconceptions appearing in the report or in the transcript, at the end of the personal interview or within a specified time limit before the determining authority takes a decision. To that end, Member States shall ensure that the applicant is fully informed of the content of the report or of the substantive elements of the transcript, with the assistance of an interpreter if necessary. Member States shall then request the applicant to confirm that the content of the report or the transcript correctly reflects the interview.

...

5. Applicants and their legal advisers or other counsellors ... shall have access to the report or the transcript and, where applicable, the recording, before the determining authority takes a decision.

...'

9. Under the title 'Examination procedure', Article 31, with which Chapter III ('Procedures at first instance') opens, provides:

'1. Member States shall process applications for international protection in an examination procedure in accordance with the basic principles and guarantees of Chapter II.

2. Member States shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.

3. Member states shall ensure that the examination procedure is concluded within six months of the lodging of the application.

...

Member States may extend the time limit of six months set out in this paragraph for a period not exceeding a further nine months, where:

(a) complex issues of fact and/or law are involved;

(b) a large number of third-country nationals or stateless persons simultaneously apply for international protection, making it very difficult in practice to conclude the procedure within the six-month time limit;

(c) where the delay can clearly be attributed to the failure of the applicant to comply with his or her obligations under Article 13.

...

8. Member States may provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be accelerated and/or conducted at the border or in transit zones in accordance with Article 43 if:

(a) the applicant, in submitting his or her application and presenting the facts, has only raised issues that are not relevant to the examination of whether he or she qualifies as a beneficiary of international protection ...; or

(b) the applicant is from a safe country of origin within the meaning of this Directive; or

(c) the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his or her identity and/or nationality that could have had a negative impact on the decision; or

(d) it is likely that, in bad faith, the applicant has destroyed or disposed of an identity or travel document that would have helped establish his or her identity or nationality; or

(e) the applicant has made clearly inconsistent and contradictory, clearly false or obviously improbable representations which contradict sufficiently verified country-of-origin information, thus making his or her claim clearly unconvincing in relation to whether he or she qualifies as a beneficiary of international protection ...; or

(f) the applicant has introduced a subsequent application for international protection that is not inadmissible in accordance with Article 40(5); or

(g) the applicant is making an application merely in order to delay or frustrate the enforcement of earlier or imminent decision which would result in his or her removal; or

(h) the applicant entered the territory of the Member State unlawfully or prolonged his or her stay unlawfully and, without good reason, has either not presented himself or herself to the authorities or not made an application for international protection as soon as possible, given the circumstances of his or her entry; or

(i) the applicant refuses to comply with an obligation to have his or her fingerprints taken ...; or

(j) the applicant may, for serious reasons, be considered a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security or public order under national law.

9. Member States shall lay down time limits for the adoption of the decision in the procedure at first instance pursuant to paragraph 8. Those time limits shall be reasonable.

...'

10. Under Article 32(2) of the directive:

'In cases of unfounded applications in which any of the circumstances listed in Article 31(8) apply, Member States may also consider an application to be manifestly unfounded, where it is defined as such in the national legislation.'

11. Chapter V ('Appeals procedures') of the directive contains a single article (Article 46), entitled 'The right to an effective remedy', according to which:

'1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:

(a) a decision taken on their application for international protection, including a decision:

(i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status;

(ii) considering an application to be inadmissible pursuant to Article 33(2);

(iii) taken at the border or in the transit zones of a Member State as described in Article 43(1);

(iv) not to conduct an examination pursuant to Article 39;

(b) a refusal to reopen the examination of an application after its discontinuation pursuant to Articles 27 and 28;

(c) a decision to withdraw international protection pursuant to Article 45.

2 Member States shall ensure that persons recognised by the determining authority as eligible for subsidiary protection have the right to an effective remedy pursuant to paragraph 1 against a decision considering an application unfounded in relation to refugee status.

...

3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU, at least in appeals procedures before a court or tribunal of first instance.

4. Member States shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy pursuant to paragraph 1. The time limits shall not render such exercise impossible or excessively difficult.

Member States may also provide for an ex officio review of decisions taken pursuant to Article 43.

...'

B. National law

12. According to the order for reference, Italian law has introduced, in relation to international protection, an administrative stage during which, after interviewing the applicant, a panel of experts examines the application - and a judicial stage, when an applicant whose application has not been granted may challenge the administrative body's decision to refuse it.

13. Article 19 of Legislative Decree No 150 of 2011, (4) as amended by Legislative Decree No 142 of 2015, (5) provides:

'1. Proceedings concerning appeals brought against the decisions to which Article 35 of Legislative Decree No 25 of 28 January 2008 refers, are governed by the accelerated procedure, unless otherwise provided by this article.

...

3. To be admissible, the appeal shall be brought within thirty days of notification of the decision or sixty days if the applicant is resident abroad; ...

4. Appeals have suspensive effect, except when brought:

...

(b) against a decision declaring that an application for international protection is inadmissible;

(c) against a decision rejecting the application as manifestly unfounded ...;

...

6. The registrar shall notify the person concerned and the Ministry of the Interior ... and also the Public Prosecutor's Office of the appeal and also of the order fixing the hearing.

...

8. The panel which has adopted the contested decision may lodge all the records and documents it considers necessary for the purpose of the investigation and the court may, including of its own motion, take the investigative steps necessary to rule in the case.

9. Within six months of submission of the application, the court shall decide, on the basis of the evidence available at the time of the decision, to issue an order rejecting the application or granting the applicant refugee status or subsidiary protection status.

...'

II. Facts and the course of the main proceedings

14. On 20 March 2015, Mr Sacko reached Italy, from Mali, and lodged an application for asylum. On 10 March 2016, he was interviewed by the Commissione Territoriale per il riconoscimento della protezione internazionale (Regional Commission for the grant of international protection; 'the Commissione territoriale').

15. On 5 April 2016, the Commissione Territoriale informed Mr Sacko that it was not going to grant his request for international protection and, consequently, was refusing to accord him refugee status or to consider him eligible for subsidiary protection. The reason it gave for its decision was that the application was based on strictly economic reasons and that he did not have any well-founded fear of persecution.

16. On 3 May 2016, Mr Sacko appealed against the decision of the Commissione Territoriale before the referring court. He reiterated the reasons for his initial application and referred, in abstract terms, to the situation in Mali, but without in any way linking it to his personal circumstances.

17. The national court considers that the application is manifestly unfounded. It takes the view, in its own words, that 'it has become clear (and indeed indisputable at the end of the examination) that Sacko applied for international protection as a result of his own situation of extreme poverty. The mere fact of being in a state of poverty does not, however, even confer entitlement to the measures provided for by domestic law, namely what is known as humanitarian protection ... In the final analysis, this court considers that it may reject the application without measures of inquiry, that is without arranging for a fresh hearing of the applicant'.

18. The referring court maintains that, if the applicant has already been interviewed at the administrative stage, his application for judicial review may be rejected or granted without the need for a further hearing. This interpretation of legality has been ratified by the Suprema Corte di Cassazione (Supreme Court), supported by the updated version of Article 19 of Legislative Decree No 150 of 2011.

19. According to the order for reference, Article 19(9) of Legislative Decree No 150 of 2011 designs an alternative 'new decision-taking model', namely the option of 'a decision without preparatory inquiries' based on the 'evidence available at the time the decision is taken'. This means that, as an alternative to the procedure set out in Article 19(6), the court may directly uphold or dismiss the application, in particular where it considers that the solution at which evidence in the existing case file points would be no different even if a further interview were conducted with the applicant.

20. However, the referring court harbours doubts as to the compatibility with EU law of the national legislation which allows it to dismiss the action or find it inadmissible without a prior hearing, which is why it has made a reference for a preliminary ruling.

III. Consideration of the question referred

21. The wording of the question referred for a preliminary ruling, registered in the Registry of the Court of Justice on 22 June 2016, is as follows:

'Must Directive 2013/32/EU (in particular Articles 12, 14, 31 and 46) be interpreted as permitting a procedure, such as the Italian procedure (under Article 19(9) of Legislative Decree No 150 of 2011), whereby a judicial authority seised by an asylum-seeker - whose application has been rejected by the administrative authority responsible for considering applications for asylum after it has conducted a full examination, including an interview - may, in cases where the application for judicial review is manifestly unfounded and the administrative authority's rejection of the application is thus incontrovertible, dismiss the application for judicial review without preparatory inquiries and without being required to afford the applicant a further opportunity to be heard?'

IV. Proceedings before the Court of Justice and arguments of the parties

22. Written observations have been submitted by Mr Sacko and the Italian Government, and also by the Belgian, Czech, French, Hungarian and Polish Governments and the Commission. It has not been considered necessary to hold an oral hearing.

23. For Mr Sacko, Article 19(9) of Legislative Decree No 150 of 2011 does not allow an application for review to be rejected without preparatory inquiries and without a hearing, but only requires, for the benefit of the applicant, that his challenge is examined and decided quickly, but without undermining the guarantees inherent in an effective remedy. In his view, the right guaranteed by Article 46 of Directive 2013/32 does not authorise, in the interest of a speedy procedure, abandoning the substantive examination or dispensing with the hearing of the applicant in order to assess the circumstances of his case.

24. The Member States which have appeared in the proceedings agree that, just as it is essential to give the applicant a hearing at the administrative stage, it may be possible, in certain limited circumstances, to eliminate it during the judicial stage.

25. However, this agreement between the Member States is not unqualified.

26. Accordingly, the Italian Government argues that Article 19 of Legislative Decree No 150 of 2011 establishes a procedure which, although it does not expressly envisage a hearing, constitutes an effective remedy and does not preclude the court from deciding, giving reasons for its decision, to hear the applicant, if it considers it necessary.

27. For the Italian Government, neither Directive 2013/32 nor the general principles of the European Union concerning a fair hearing impose the general and indiscriminate obligation to grant a hearing at the judicial stage. This, furthermore, must be concluded within a reasonable time.

28. According to the Belgian Government, irrespective of whether or not the application or the appeal are manifestly unfounded, Directive 2013/32 does not require a hearing at the judicial stage. Given the safeguards provided by the directive itself to ensure the transcription of the interview conducted at the administrative stage, the European legislature has considered (logically) that it was unnecessary to require a further hearing at the judicial stage in order to ensure a rigorous examination of the pleas of fact and law relied on by the applicant.

29. The Czech Government takes the view that the right to be heard is exercised at the administrative stage of the procedure, without it being inferred from Article 46 of Directive 2013/32 or from Article 47 of the Charter of Fundamental Rights of the European Union ('the Charter') that the right to effective judicial protection requires, in each case, a second interview, especially when the application for judicial review is manifestly unfounded. To believe otherwise would only serve to prolong the procedure artificially.

30. The French Government considers that it is clear, both from the general scheme of Directive 2013/32 and from its preparatory works, that it is not mandatory to hear the person concerned at the judicial stage, and the Member States are left the option of introducing it in the exercise of their procedural autonomy. Furthermore, it adds, it would be inappropriate to invoke the principle of equivalence, given that there was no comparable national remedy. As for the principle of effectiveness, the safeguards in Article 46(3) of the directive are to be respected in every case; also in the situation of dismissal without a prior hearing, a procedure which would not be a prerequisite for respecting those safeguards.

31. The Hungarian Government cites the case-law of the Court of Justice relating to Directive 2008/115/EC. (6) It argues that a hearing at the judicial stage is not mandatory and may be dispensed with in situations such as that of the main proceedings. In any event, the Italian legislation is compatible with that of the Union if it does not preclude the possibility of the court hearing the applicant, if it considers it necessary.

32. The Polish Government maintains that the option of conducting a hearing at the judicial stage is left open to the Member States, which are required to respect the principles of equivalence and effectiveness, and also the right to effective judicial protection. These are principles which this Government believes would not be infringed, in principle, by any dismissal of the application for review without a prior hearing, provided that the applicant has been heard at the administrative stage. All this, furthermore, is in the interests of the objective of speed pursued by Directive 2013/32.

33. For the Commission, no EU rule lays down the circumstances in which the right to be heard in proceedings must be guaranteed. It is for the national legal order to establish them, ensuring respect for the principles of effectiveness and equivalence. It argues that, in order to determine whether it is mandatory to hold a hearing at the judicial stage, it is necessary to take into account the characteristics of asylum proceedings as a whole and the circumstances likely to justify dispensing with that hearing.

34. The Commission maintains that, according to the European Court of Human Rights ('ECtHB'), the right to be heard is a general principle which may only be omitted in exceptional circumstances. The fact that the administrative authority may have refused the application as manifestly unfounded does not constitute one of those circumstances. Nor does the slow progress of the procedure or the additional financial costs of holding a hearing.

35. Ultimately, the hearing must constitute, according to the Commission, the rule, although not an absolute rule. Exceptionally, when only economic reasons are invoked as a basis for the application for asylum, the facts are simple and uncontested and the proper guarantees have been respected at the administrative stage, the exception to that rule meets the objective of speed stated in recital 20 of Directive 2013/32.

V. Analysis

36. The question raised by the Tribunale di Milano (District Court, Milan, Italy) is, on first reading, quite specific: it is sought to determine whether national legislation permitting applications for judicial review brought against the administrative refusal of claims for international protection to be dismissed or found inadmissible without preparatory inquiries is compatible with Directive 2013/32.

37. As the reasons for referring it are developed, however, the question becomes more complex. It appears that the doubts do not appear to refer in general to the 'right to a hearing' or, if preferred, to the 'right to be heard', but to a specific type or variant of that right, which consists in the 'right to be interviewed' or 'to be heard in person'. (7)

38. The referring court's question focuses on the possible need to hear the asylum seeker again, in person, in the judicial proceedings with which he seeks to challenge the administrative refusal to grant his application.

39. As I shall try to explain below, the 'right to be heard in person', as a species of the genus 'right to a hearing', has its place in the administrative stage of the asylum procedure. At the judicial stage, however, the applicant has the right to set out (and, to that extent, to be heard) before the court the arguments in support of his claim, a right which cannot be equated to the right to be heard in person.

40. The referring court and the governments which have submitted written observations have absolutely no doubt that a personal interview of the applicant is mandatory at the administrative stage.

41. Indeed, Article 14(1) of Directive 2013/32 is categorical when it states that, at that administrative stage, 'the applicant shall be given the opportunity of a personal interview on his or her application for international protection'. (8) This was done with Mr Sacko, who was interviewed by the Commissione Territoriale.

42. However, Article 46 of Directive 2013/32, the subject matter of which is judicial review proceedings against the refusal of the application, does not provide for such an interview. That provision guarantees the 'right to an effective remedy before a court or tribunal' (paragraphs 1 and 2 which 'provides for a full and ex nunc examination of both facts and points of law' (paragraph 3). It also requires reasonable time limits which shall not render such exercises impossible or excessively difficult (paragraph 4) and that the remedy shall have, in principle, a suspensory effect (paragraph 5). But at no point does it say that those judicial proceedings must include a personal interview of the applicant.

43. Furthermore, Article 46(4) of Directive 2013/32 not only leaves it to the Members States to set 'reasonable time limits' for challenging the decisions to which paragraph 1 refers, but also authorises them to introduce the 'other necessary rules for the applicant' to be able to exercise the right to an effective remedy against those decisions.

44. In this context, the configuration of the judicial review proceedings against administrative refusals of applications for asylum comes within the framework of the procedural autonomy of the Member States. (9) Their freedom to introduce the procedural rules they consider appropriate is not, however, absolute, because it is subject to a categorical obligation as to the result to be achieved: the national proceedings must guarantee, in each case, a remedy capable of effectively ensuring the right to judicial protection enshrined in Article 47 of the Charter.

45. Directive 2013/32, as is stated in recital 60 thereof, 'respects the fundamental rights and observes the principles recognised by the Charter', and seeks to ensure, in particular, 'full respect for human dignity and to promote the application', inter alia, of Article 47 of the Charter, and has to be 'implemented accordingly'. (10)

46. The Court of Justice has affirmed that 'the right to be heard forms an integral part of the rights of the defence' (11) and that this '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'. (12)

47. This doctrine has been proclaimed in the sphere of relations between individuals and the public authorities and, very especially, in administrative proceedings for granting international protection. (13) Its transposition to the sphere of judicial procedure is one of the components of the right to effective judicial protection, an example of which is the right to an effective remedy guaranteed by Article 46 of Directive 2013/32.

48. In order for the right to appeal before the courts to be considered effective, 'the national court must be able to review the merits of the reasons which led the competent administrative authority to hold the application for international protection to be unfounded or made in bad faith, there being no irrebuttable presumption as to the legality of those reasons'. (14)

49. On that basis, a person's right to be heard at the administrative stage of the proceedings includes the ability to address the public authority in defence of his own rights and interests, before that public authority adopts a decision on the application for international protection. (15) Once the decision has been taken, the right to an effective judicial remedy comes into play, if the determining authority reject the applicant's claim.

50. This is precisely the situation with which we are concerned: it is a question of charting the course to be followed by the procedure which gives access to the court which will establish, finally, whether the administrative refusal of international protection was in accordance with the law.

51. In that context, the effectiveness of the appeal provided for in Article 46 of Directive 2013/32 will be ensured when the applicant (normally, through his legal adviser or other counsellors) is able to set out before the judicial authority the reasons why the contested decision is unlawful and if the judge is able to assess whether that decision is well founded.

52. The first condition is, then, that the applicant for international protection (where appropriate, the person giving him legal assistance or advice or representing him in the proceedings) shall be able to exercise his defence with all the procedural safeguards inherent in a fair hearing. If this is so, the applicant will have been heard by the court, since he has been allowed to express - not necessarily orally, since the procedural rules may, validly, provide for only written procedures - the arguments which he considers necessary in defence of his claim.

53. The right to be heard by the judicial authority does not, however, include a presumed 'right to be interviewed' during the judicial proceedings. It includes, I reiterate, the right to explain before the court the reasons on which it bases its claim against the administrative decision, which is challenged as adversely affecting the rights and interests of the person concerned, but not the right to be interviewed in person by the court reviewing the administrative action.

54. However, this statement must immediately be qualified. It must not be assumed to preclude the adoption of certain procedural investigative measures, (16) both at the request of a party and of its own motion, which the court may decide on when it considers it necessary for the better administration of justice. These include interviewing the applicant during the judicial proceedings.

55. That interview may, of course, be appropriate for fulfilling the mandate of Article 46 of Directive 2013/32, that is, so that, in accordance with paragraph 3 of that provision, 'a full and ex nunc examination of both facts and points of law' is carried out.

56. If Article 46 of Directive 2013/32, unlike Article 14 of that directive in relation to the administrative stage, does not expressly refer to the personal interview in the judicial proceedings, the national law which transposes the directive is not required to introduce that procedure into its procedural rules.

57. Article 46 is to be interpreted, furthermore, in the context of the mechanism for examining applications for international protection governed by Directive 2013/32, that is, taking into account the close link between the application for judicial review and the administrative stage which precedes it and in which it has been mandatory to give a hearing to a person who lodges an asylum application.

58. If the administrative stage has been conducted correctly, there will be a reliable record of the interview of the applicant, (17) who will have been able to add his own comments, and provide clarification or make corrections to the report. (18) As this report, or the transcript of the interview, must be incorporated into the file which is made available to the court, its contents must constitute an important factor in the assessment made by the person who has to conduct the 'full and ex nunc examination of both facts and points of law' to which Article 46(3) of Directive 2013/32 refers. The directive, which is respectful of the procedural autonomy of the Member States, has not sought to limit, beyond as has been stated, the proceedings of the courts, to whose prudent assessment it entrusts the delicate task of ultimately deciding whether the negative administrative decision is in accordance with the law.

59. In short, whether the applicant is interviewed by the judicial authority must depend on whether this is necessary in the context of the 'full examination' which the court is required to conduct, in the interests of effective judicial protection of the rights and interests of the asylum seeker. Directive 2013/32 has not wished to make it mandatory, but nor has it precluded the possibility that a decision to interview him may be taken, if the court which has to settle the matter considers it essential for giving judgment.

60. The above is applicable to all judicial proceedings for reviewing compliance with the law of administrative decisions refusing applications for international protection. However, there are some borderline cases in which the inadmissibility of an application for review is so obvious and manifest that the 'full examination' of Article 46(3) of Directive 2013/32 is completed merely by considering either the pleadings submitted to the court (that is, during the proceedings), or the objective information contained in the administrative file.

61. In these cases of manifest inadmissibility of the application for review, or evident insufficient substantiation, of the applicant's claim, the requirement for a (second) personal interview, in addition to that at the pre-judicial stage, is both inappropriate and disproportionate.

62. Indeed, there may be cases in which the judicial action is wholly unfeasible (19) and in which it would make no sense nor be of any use to conduct an interview. I cannot see why applications for judicial review concerning this issue would be excluded from a possible decision of inadmissibility, where they are manifestly unfounded or lack the minimum procedural conditions. And in such circumstances, (20) I repeat, it is legitimate for the court's decision to be adopted without the need for further investigative measures during the proceedings.

63. However, apart from those situations, where the possible unfeasibility of an action hinges on more questionable assessments of the substance of the claim, the inadmissibility (or dismissal) of the claim must inevitably be preceded by the 'examination' of its substance which, to be 'full', within the meaning of Article 46(3) of Directive 2013/32 must have sufficient evidence. Inter alia, if it were necessary, the personal interview of the applicant might be appropriate for establishing the decision-making criterion of the judicial authority.

64. Classification of an action as inadmissible or unfounded must always be the result of an assessment made on the basis of an analysis of the factual and legal circumstances of the contesting claim. That result will necessarily depend on the nature of the cause of the unfeasibility of the action. And in the assessment of that cause or causes, the appropriate evidence may sometimes be found directly in the application itself and in the previous administrative case file, whereas, at other times, it will have to be obtained by means of preliminary (evidential) inquiries.

65. As Directive 2013/32 requires an interview to be held at the administrative stage of processing of the application for international protection, I consider that it need only be repeated in judicial proceedings if the (first) interview turns out to be insufficiently informative for the court which is hearing the judicial action and has doubts as to the outcome of the action.

66. In my view, in the circumstances to which I have just referred, the interview of the applicant, which the court decides to conduct at its own discretion, is a formality which cannot be dispensed with for the reason of speed to which recital 20 of Directive 2013/32 refers.

67. Nor do justifications of an economic nature (such as those indicated by the referring court) (21) prevent, in those same situations, the holding of the interview during the proceedings. Although recital 20 of Directive 2013/32 allows Member States to accelerate the examination procedure, it does not authorise the elimination of procedures which are essential in order to guarantee the applicant's right to effective judicial protection. In fact, that same recital refers to the possibility of fixing 'shorter ... time limits for certain procedural steps', respecting in each case the need to carry out a full examination of the application and safeguarding the fundamental principles and guarantees established in the directive.

68. Article 46 of Directive 2013/32 is therefore to be interpreted as meaning that, although it does not require an interview to be conducted, it does not permit the national legislature to prevent the judicial body from deciding to conduct one, when it considers it necessary in order to carry out a full examination of the factual and legal circumstances of the asylum application, after considering the information gathered during the interview held at the administrative stage to be insufficient. The procedural rules of the Member States should give the court the opportunity to hear the applicant in person, in that case, if it considers it necessary.

69. Turning to the matter which is the subject of the reference for a preliminary ruling, the national court has no doubt - quite the contrary - concerning the manifestly unfounded nature of the action brought by Mr Sacko, whose application is clearly not based on reasons justifying the grant of international protection. If that is so, the way is open to dismiss it or find it inadmissible without preparatory inquiries, without interviewing the applicant (now the appellant) again. Logically, that decision will be valid in so far as it is the result of a full examination of all the circumstances of the case which must include the 'appropriate and effective expression of the point of view' of Mr Sacko, set out in the personal interview held at the administrative stage of the procedure.

70. A reading of the national legislation (Article 19(9) of Legislative Decree No 150 of 2011), as set out by the referring court, shows that it does not preclude an interview at the judicial stage of the procedure, from the moment that rule authorises the court to adopt the investigative measures it considers necessary. There is no reason, therefore, to consider that it does not comply with the appeals system laid down by Directive 2013/32.

71. However, it is not for the Court Justice to choose one or other interpretation of the relevant Italian legislation. Specifically, it cannot intervene in the controversy, which may be inferred from the order for the reference, which has arisen in relation to the approach taken in that regard by the Suprema Corte di Cassazioni (Supreme Court) and by the referring court, especially since, as the Italian Government suggests, (22) it cannot be ruled out that there is an alternative interpretation which is compatible with the one which I propose for Directive 2013/32. In any event, it is for the national court to resolve that matter.

VI. Conclusion

72. In the light of the foregoing, I suggest that the Court of Justice reply to the Tribunale di Milano (District Court, Milan, Italy) as follows:

'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, in particular Articles 12, 14, 31 and 46 thereof are to be interpreted as allowing the competent judicial authority to decide without preparatory enquiries, without the need for a personal interview of the applicant, appeals brought against the rejection of applications for international protection where:

a) the appeal is manifestly unfounded and therefore has no possibility of succeeding; and

b) that decision is adopted after carrying out a full examination of the factual and legal circumstances of the applicant's situation, including the information contained in the personal interview conducted at the administrative stage which, in the view of the court, is sufficient for deciding the appeal.'

1 Original language: Spanish

2 Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60) ('Directive 2013/32').

3 Directive of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9) ('Directive 2011/95').

4 Legislative Decree 'Disposizioni complementari al codice di procedura civile in materia di reduzioni e semplificazione dei procedimenti civile di cognizione, ai sensi dell'articolo 54 della legge 18 giugno 2009, n.º 69' (Additional provisions to the Code of Civil Procedure relating to the reduction and simplification of civil declaratory proceedings, within the meaning of Article 54 of Law No 69 of 18 June 2009), GURI No 220 of 21 September 2011.

5 Legislative Decree 'Attuazione della direttiva 2013/33/UE recante norme relative all'accoglienza dei richiedenti protezione internazionale, nonché della direttiva 2013/32/UE, recante procedure comuni ai fini del riconoscimento e della revoca dello status di protezione internazionale' (Transposition of Directive 2013/33EU laying down standards for the reception of applicants for international protection, and of Directive 2013/32/EU on common procedures for granting and withdrawing international protection), GURI No 214 of 15 September 2015.

6 Directive 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 (OJ 2008 L 348, p. 98).

7 The semantic (and translation) pitfalls of these expressions were referred to by Advocate General Mengozzi in the Opinion in M. (C‑560/14, EU:C:2016:320, footnote 6): 'In the Italian version of the Court's case-law at times the term "diritto al contraddittorio" is used (see, for example, the judgment of 22 November 2012 in M.M. (C‑277/11, EU:C:2012:744, paragraph 82, 85 or 87)), at other times the term "diritto di essere sentiti" is used (see, for example, the judgment of 10 September 2013 in G. and R. (C‑383/13 PPU, EU:C:2013:533, paragraphs 27, 28 or 32) or 17 March 2016 in Bensada Benallal (C‑161/15, EU:C:2016:175, paragraphs 21 or 35)), and at yet other times the term "diritto di essere ascoltato" is used (see, for example, the judgment of 11 December 2014 in Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 1, 28 or 30); the latter term corresponds to that used in the Charter of Fundamental Rights of the European Union ('the Charter') and corresponds literally to the abovementioned terms in the French, English, German and Spanish versions). The right at issue, which is linked to the Latin brocards "audi alteram partem" or "audiatur et altera pars", is a procedural right expressing the more general right of defence ...'

8 Article 34(1) of Directive 2013/32 also expressly imposes the obligation to 'conduct a personal interview on the admissibility of the application', where the determining authority considers that it may be inadmissible for one of the reasons laid down in Article 33 of the directive.

9 As the Court of Justice points out in the judgment of 17 March 2016, BensadaBenallal (C‑161/15, EU:C:2016:175, paragraph 24), 'in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish them in accordance with the principle of procedural autonomy on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (judgment in Eturas and Others, C‑74/14, EU:C: 2016:42, paragraph 32 and the case-law cited').

10 With regard to 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 (OJ 2005 L 326, p. 13), which is the immediate legislative precursor to Article 46 of Directive 2013/32, the Court of Justice has stated in its judgment of 17 December 2015, Tall (C‑239/14, EU:C:2015:824, paragraph 51), that 'the characteristics of the remedy provided for in Article 39 of that directive must be determined in a manner that is consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection and provides that 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'. See, to that effect, among many, the judgment of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453, paragraph 45).

11 Judgment of 9 February 2017, M (C‑560/14, EU:C:2017/101, paragraph 25), mentioning the judgments of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraphs 49 and 50), and of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431, paragraphs 39 and 40).

12 Judgment in Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 46). As Advocate General Bot emphasised in his Opinion in M (C‑277/11, EU:C:2012:253, point 81), this enables 'the authority concerned effectively to take into account all the relevant information'.

13 This was reiterated by Advocate General Mengozzi in the Opinion in M (C‑560/14, EU:C:2016:320, point 48), with regard to subsidiary protection: 'in the light of the particular nature and objectives of the procedure for examining whether the conditions for awarding subsidiary protection status have been fulfilled, for access to the rights conferred by that status to be effective the applicant must be placed in a very effective position to exercise the right to be heard in that procedure. It is only when the applicant has an actual opportunity to set out effectively what has happened to him and the background against which it has taken place, by explaining to the competent authority, in a complete and appropriate manner, all the facts and evidence in support of his application, that he can have effective access to the rights conferred by that status as laid down in Directive 2004/83'. Emphasis not added.

14 Judgment of 28 July 2011, Samba Diouf (C‑69/10, EU:C:2011:524, paragraph 61).

15 The magnitude of the interests at stake at the administrative stage of the proceedings explains why the European legislature has opted for a model which provides for a personal interview. In the words of Advocate General Mengozzi in his Opinion in M (C‑560/14, EU:C:2016:320, point 58), 'the personal hearing constitutes the fullest possible expression of the right to be heard. For the applicant, it is the sole occasion to explain what has happened to him and to speak with the person who is best qualified to take account of his personal situation'.

16 I recall that Article 19(8) of the updated version of Legislative Decree No 150 of 2011, transcribed in point 13 of this Opinion, provides that the national court 'may, including of its own motion, take the investigative steps necessary to settle the case'.

17 According to Article 17(1) of Directive 2013/32, 'Member States shall ensure that either a thorough and factual report containing all substantive elements or a transcript is made of every personal interview'. Paragraph 2 of that article acknowledges the possibility that Member States may provide for 'audio or audiovisual recording of the personal interview', in which case they 'shall ensure that the recording or transcript thereof is available in connection with the applicant's file'.

18 Article 17(3) of Directive 2013/32 offers the applicant 'the opportunity to make comments and/or provide clarification orally and/or in writing with regard to any mistranslations or misconceptions appearing in the report or in the transcript, at the end of the personal interview or within a specified time limit before the determining authority takes a decision'. To that end, - the paragraph continues - Member States 'shall ensure that the applicant is fully informed of the content of the report or of the substantive elements of the transcript, with the assistance of an interpreter if necessary. Member States shall then request the applicant to confirm that the content of the report or the transcript correctly reflects the interview'.

19 For example, appeals which are indisputably out of time, or which lack the minimum mandatory procedural formalities, which should be declared inadmissible a limine. This kind of action may also be rejected for substantive reasons, with no need to complete the usual procedural formalities, where the appellant's claim is based, for example, on arguments which are wholly unconnected with the conditions for being granted international protection, amongst other situations.

20 The Court of Justice has adopted the doctrine of the ECHR, that a hearing may be dispensed with 'when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties' written observations'. See, inter alia, the judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission (C‑682/13 P, not published, EU:C:2015:356, paragraph 46), with reference to the judgment of the ECHR of 12 November 2002, Döryv. Sweden, ECLI:CE:ECHR:2002:002JUD112839495, § 37.

21 Paragraph 2, page 4 of the original Italian of the order for reference.

22 - Paragraphs 24 and 25 of the written observations of the Italian Government.