BU had his application for international protection rejected by the Federal Office for Migration and Refugees in Germany (BAMF) by decision of 18 December 2019. The original of the decision was signed by the case officer, scanned and saved in the applicant’s electronic file (not consecutively paginated) and the original decision was subsequently destroyed. In the national proceedings on appeal, the applicant’s representative requested, as interim measure, the provision of the complete administrative file, in the form of a single PDF file (Portable Document Format) and with consecutive page numbering.

The referring court asked the CJEU “whether Article 23(1) and Article 46(1) and (3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as precluding a national administrative practice under which the administrative authority which has decided on an application for international protection transfers to the applicant’s representative a copy of the electronic file relating to that application in the form of an unstructured series of separate files in PDF format, without consecutive page numbering, and the structure of which can be viewed by means of free software freely accessible on the internet.”

The CJEU held that Article 23(1) and Article 46(1) and (3) of the recast Asylum Procedures Directive, read in conjunction with Article 47 of the EU Charter, do not preclude the administrative authority that decided on an application for international protection to provide access to the electronic file in the format of a series of separate files in PDF, without consecutive page numbering, and for which the structure can be viewed via a free software.

In addition, the CJEU held that in accordance with Article 11(1) of the recast Asylum Procedures Directive, in order for the decision to be considered communicated in writing, an international protection decision does not have to be signed by the officer who took the decision.

The court noted that the right to defence under Article 47 of the EU Charter, including the right to disclosure of relevant documents, is not absolute, but may be subject to restrictions that meet the objectives of general interest pursued by the measure in question and do not involve disproportionate and intolerable limitations that would undermine the very substance of the right. The court further observed that although the authority which took the decision complained of cannot determine by itself which documents are useful for the defence, it is however entitled to exclude material that was irrelevant to the outcome of the decision. Regarding specifically the requirements of Article 46(3) of the recast Asylum Procedures Directive, the CJEU noted that “the case file which is transmitted to the competent court, at least at first instance, by the authority which decided on the application for international protection concerned must be complete and include all the procedural acts, documents and exhibits which that authority had at its disposal for those purposes and even, where appropriate, material subsequent to that decision which is relevant to the outcome of that decision.” The court further highlighted that with the exception of irrelevant material or to confidential aspects, in international protection proceedings, the applicant’s representative must be given access to the complete file as presented to the competent court. In addition, access may also include access to the metadata, which is part of the structure of the file, and may include links to other proceedings concerning family members and it is for the court to determine whether there are any impediments to the disclosure of the metadata by balancing the applicant’s right to defence and the interest to keep that information confidential.

Regarding the format and structure in which the file is communicated to the applicant’s representative, the court noted that Article 23(1) and Article 46(1) and (3) of the recast Asylum Procedures Directive does not contain any specific rules and thus it is up to the national court to determine whether the chosen method of communication guarantees a faithful reproduction of the structure of the file and chronology of submissions so that the applicant’s representative may exercise the right to defence. In the absence of a uniform technological solution at the EU level, the court could not rule out the fact that there may be several functionally equivalent solutions that could provide sufficient guarantees for the right to access the administrative file. Lastly, it also noted that the need for the applicant’s representative to download a particular software to view the structure of the file in chronological order does not constitute a disproportionate limitation that would affect the essence of the right to defence.

Regarding the signing of the decision, the CJEU held that the recast Asylum Procedures Directive does not impose an obligation on the author to sign the administrative decision. The expression “in writing” means solely that it should not be implied or in oral form.