A Somali applicant, beneficiary of international protection in Greece, lodged an appeal against the negative decision on his asylum application adopted by the Commissioner for Refugees and Stateless Persons (CGRS) on 30 October 2023. The Council of the Aliens Law Litigation (CALL) rejected the appeal on 17 May 2024. The applicant submitted a cassation appeal before the Council of State arguing that the rejection of his asylum application by the CGRS, without taking into account the protection status granted in Greece, the documents contained therein, and the Advocate General (AG) opinion adopted in the CJEU case QY v Bundesrepublik Deutschland (C-753/22, 18 June 2024), constituted an incorrect interpretation and application of Articles 48/3 and 48/6 of the Law on foreign nationals. The CALL noted the CJEU ruled in the case QY that the principle of sincere cooperation requires an exchange of information between the Member States which have to decide on the new application and the Member State which previously granted protection to the same person. Such exchange of information, within a reasonable time, will allow the competent national authority, where the new application was lodged, to conduct a full assessment, based on information and facts submitted in the context of the previous procedure for international protection. The applicant disputed that the lack of cooperation and the absence of an exchange of information altered the assessment of the Belgian authority which did not conduct a full a thorough assessment pursuant to the requirements of the recast Qualification Directive (recast QD) and Articles 48/3 and 48/6 of the Law on foreign nationals.

The CGRS counterargued that since the contested decision was pronounced on 17 May 2024, before the CJEU judgment in QY on 18 June 2024, the applicant could not invoke such subsequent circumstances or facts, but he could opt for submitting a subsequent application.

The Council of State agreed with the applicant’s account that there was an infringement of Article 48/6 of the Law on foreigners and Article 4 of the recast QD due to the failure of the Belgian competent authority to cooperate with the Greek authorities in order to exchange information on the material available to the Greek authorities in the proceedings which led to the granting of international protection there. The Council of State highlighted that the CJEU ruled in case QY v Bundesrepublik Deutschland (C-753/22, 18 June 2024) that the authority dealing with the new application, although not requited to grant protection to that applicant based on the sole grounds of status previously granted to them by decision of another Member State, must fully consider the elements supporting said decision. This requirement is fulfilled by way of an exchange of information, within a reasonable time, for which the first authority, where the new application was lodged, informs the second  authority of the new application, sends its opinion on the new application and the available information available which served as basis for granting international protection. This exchange of information is required under the principle of sincere cooperation enshrined in Article 36 of the recast QD and Article 49 of the recast Asylum Procedures Directive (APD), and in order to ensure, to the extent possible, consistency between decision adopted by two Member States on protection needs of the same applicant.

The Council of State emphasised that, when an application for international protection cannot be declared inadmissible for an applicant, who is a beneficiary of international protection in another Member State, on grounds of entailing a serious risk of inhuman or degrading treatment upon return to the other Member State, Article 48/6 of the Law on foreign nationals, read in conjunction with Article 4 of the recast QD, provide for the duty of the Belgian authorities to conduct a new, full and ex nunc examination of the application. This obligation means that the respective authority must take into account the decision recognising protection in the other Member State along with the elements supporting that decision.

The Council of State affirmed that it did not result from the contested decision that the CALL has duly taken into account the Greek decision nor that there has been an exchange of information. To the contrary, the Council of State noted that the CALL considered such step unnecessary for the outcome of the case, thus entailing a breach of Article 48/6 of the Law on foreign nationals, read in conjunction with Article 4 of the recast QD. The fact that the contested decision was adopted prior to the QY judgment, did not exonerate the CALL from its obligation to conduct a full examination in full awareness of all facts and by conducting all relevant checks.

The Council of State allowed the appeal on cassation.