On 18 May 2018, the CGRS rejected the subsequent application submitted by the applicant as inadmissible. The applicant had not specified an address for service in Belgium; thus, under national law, notice of the contested decision was sent to him on Tuesday, 22 May 2018, by registered post to the head office of the Office of the Commissioner General for Refugees and Stateless Persons (Commissaire général aux réfugiés et aux apatrides,CGRS). According to Belgian law, the 10-day deadline to bring an action against such a decision starts to run on the third working day following that when the letter was delivered to the postal services, namely on Friday, 25 May 2018. Since the expiry date fell on a Sunday, it was postponed to Monday, 4 June 2018. The applicant attended the CGRS head office on 30 May 2018 and, on that date, acknowledged receipt of the registered letter regarding the contested decision. On 7 June 2018, he appealed the inadmissible decision, which was rejected by judgment of 9 October 2018 on the grounds that it was time-barred.

Then, the applicant brought an appeal on points of law before the Council of State, which decided to stay the proceedings and refer to the Court of Justice of the European Union (CJEU) the following question:

‘Must Article 46 of [Directive 2013/32], by virtue of which applicants must be given a right to an effective remedy against decisions “taken on their application for international protection”, and Article 47 of [the Charter] be interpreted as precluding a rule of national procedure, such as Article 39/57 of [the Law of 15 December 1980], read in conjunction with Article 51/2, point 5° of the first subparagraph of Article 57/6(3) and Article 57/6/2(1) of that law, establishing a time limit of 10 “calendar” days, starting from the service of the administrative decision, for bringing an action against a decision declaring a subsequent application for international protection lodged by a third-country national to be inadmissible, in particular where that service was made at the head office of [the CGRS] where the applicant is “deemed” by law to have specified a place for service?'

The CJEU first analysed whether service of the decision could be made at the head office of the responsible authority and then on the limitation period of 10 days to appeal a decision declaring a subsequent application inadmissible.

On the first part, the CJEU acknowledged that recital 25 of the recast APD did not detail the rules governing appropriate notification of decisions to applicants, and that Article 11(1) and (2) only mentioned that information on how to challenge a negative decision is communicated in writing. As for guarantees, the court noted that Article 12 of the recast APD referred to notice within a reasonable time and to being informed in a language the applicant understands. In addition, while Article 13(2) of the recast APD allowed Member States to impose on applicants the obligation to state their address for the purposes of communications, it did not prescribe what action should be taken by Member States that make use of that possibility when no such information is provided by the applicant. The court further noted that Article 46(4) of the recast APD left to Member States the task of providing the necessary rules for applicants to exercise their right to an effective remedy.

The court held that, in the absence of EU rules on the matter, the procedural rules governing service of decisions in applications for international protection fall within the scope of the principle of the procedural autonomy of the Member States, subject to regard for the principles of equivalence and effectiveness. The CJEU indicated that compliance with the principle of equivalence was for the referring court to determine. On the principle of effectiveness, the court ruled that a national rule foreseeing that, in the absence of having specified an address, service is at the head of the national authority and a prescribed time limit to bring appeal proceedings starts to run, may be in principle justified on the grounds of legal certainty and the smooth progress of the procedure for the examination of applications. The court nuanced that such an effect would only occur if the applicant is properly informed of that circumstance and the conditions for accessing that head office are not such that receiving the letter is excessively difficult.  

On the time limit, the court reiterated that the setting of time limits within the procedure for international protection falls within the scope of the principle of the procedural autonomy of the Member States, subject to regard for the principles of equivalence and effectiveness. The court held that it was for the referring court to determine whether the national legislation prescribing the time limit complied with the principle of equivalence. Regarding the principle of effectiveness, the court ruled that subjecting appeals against an inadmissibility decision on a subsequent application to a shorter time limit is consistent with the objective of expeditiously dealing with applications for international protection.

Based on the above, the CJEU concluded that Article 46 of the recast Asylum Procedures Directive read with Article 47 of the EU Charter of Fundamental Rights must be interpreted as not precluding legislation of a Member State providing that appeals against an inadmissibility decision concerning a subsequent applicant are subject to a deadline of 10 days, including public holidays. This applies where, when the applicant has not specified an address for service in that Member State, that service is made at the head office of the national authority responsible for the examination of those applications, provided that:

• applicants are informed that, where they have not specified an address for service for the purposes of notification of the decision concerning their application, they will be deemed to have specified an address for service for those purposes at the head office of that national authority.
• the conditions to access such head office do not render receipt of the decisions excessively difficult,
• genuine access to the procedural safeguards granted to applicants for international protection by EU law is ensured within such a period, and
• the principle of equivalence is respected.