M.B, according to his declaration, a national of Guinea, submitted an asylum application on 21 June 2018 to the Regional Asylum Office (RAO) in Samos. He argued that his life was in danger from his relatives and the police were unable to help him. As the applicant was an unaccompanied minor, he was considered vulnerable and referred to the regular procedure. On 13 January 2021, his application was rejected by decision of the RAO of Thessaloniki and served to him on 8 June 2021. The next day, M.B. requested the provision of free legal assistance from a lawyer registered in the Register of Lawyers of the Asylum Service and authorised the lawyer to proceed with any action required to represent him during second instance proceedings. The lawyer stated to have taken over of the disputed case on 27 June 2021 and that it sent the appeal on 30 June 2021 but the information on the file marked 27 August 2021. 

On 20 September 2021, the 3rd Independent Appeals Committee rejected the appeal as inadmissible on the grounds that it had been filed on 27 August 2021, and it was therefore out of time since it was submitted after the expiry of the 30-day period which had begun to run from the service of the first-instance rejection decision to the applicant (and had thus expired on 8 July 2021).

In the appeal, the applicant argued that the decision by the 3rd Independent Appeals Committee is breached the right to an effective remedy under Articles 13 of the European Convention of Human Rights and 47 of the EU Charter, as he was deprived of effective legal assistance and this ultimately led to the dismissal of his appeal as inadmissible. In particular, the applicant argued that he promptly and repeatedly requested the Asylum Service to inform him of the details of the lawyer appointed for his case to consult on the filing of the appeal. Assisted by an employee of the NGO Arsis, following the Asylum Service's failure to respond to this request, he sent an e-mail, which remained unanswered until August 2021, when he was finally summoned to sign in the appeal. The applicant submitted as evidence a copy of the email sent by Arsis to the Asylum Service requesting information on the provision of legal assistance, and a printout of the e-mail sent on 8 September 2021 by the lawyer that had been assigned to him, to the 3rd Appeals Committee, where the lawyer stated that she was attaching the memorandum of the case and requested that the lateness of the appeal be excused, stating that she could only see the email from the Asylum Service on 27 June due to her hospitalization and that, as it was impossible to contact the asylum service to inform them of this, she sent the appeal on 30 June 2021. In addition, the lawyer requested the delay to be excused arguing that the applicant had never been informed of the need to sign the appeal, was never asked to sign and was late through no fault of his.

The court recalled that, based on settled national case law, statutory deadlines are suspended in the event of force majeure and of any unforeseeable event. Specifically, illness might constitute force majeure provided that the obligated person, due to such illness, was in a state of absolute inability both to personally file the relevant legal or evidentiary remedy within the legal deadline, and to promptly notify his attorney to take the necessary actions. The court noted that suspension lasts for as long as the incident constituting force majeure continues, and that, once it has ceased, the party concerned is obliged to immediately exercise the relevant legal or evidentiary remedy or means. In the present case, the court recognised that such force majeure could not have been prevented by taking measures of utmost diligence and prudence. 

The court noted that pursuant to Articles 20 and 46(2) of the recast Asylum Procedures Directive (APD) (Directive 2013/32), Member States are free to set reasonable time limits and to adopt other necessary provisions to exercise the right to an effective remedy, and such time limits should not render the exercise of this right impossible or excessively difficult. The court further noted that the relevant national legislation envisages that free legal assistance in procedures before the Appeals Committee is provided specifically under the assignment of lawyers included in the Register, and includes informing the applicant as soon as possible about the lawyer who has taken over his case, meetings to prepare the case, the provision of interpretation services where necessary, and, finally, the drafting and filing of the appeal.

The court considered whether it is consistent with Article 46 of the recast APD and Article 47 of the EU Charter to reject an appeal against a first instance rejection decision as out of time where the applicant has not been informed about the lawyer appointed for his case, has not consulted the case with the appointed lawyer, and without the lawyer having handled the applicant's case with the required diligence. Citing jurisprudence from the European Court of Human Rights, the court observed on the one hand that in view of the fundamental rights at stake, i.e. non-refoulement, the right to an effective remedy includes the obligation to examine the merits of the appeal filed by the applicant, who has shown the expected interest and due diligence in exercising it, without suffering the consequences of any neglected duties by the lawyer appointed by the Asylum Service. On the other hand, the court noted that the opposite view could be supported, namely, that the party bears responsibility for the errors of his lawyer and must bear their consequences, even where the lawyer has been appointed under legal aid and has not chosen by the applicant. The court highlighted that according to established national case law, statutory deadlines for the filing of legal proceedings and remedies or means are suspended in cases of force majeure, but that this does not extend to deadlines missed due to negligence or ignorance on the part of the appointed lawyer in handling the case.

Against this context, the court decided to stay the proceedings and submit a question for preliminary ruling to the CJEU, asking whether the refusal to admit a late appeal against a first-instance decision rejecting an application for international protection on the grounds that it is out of time is compatible with Article 46 of Directive 2013/32/EU and Article 47 of the EU Charter, where the requirements for legal representation and assistance laid down by law, namely the informing of the appellant of the lawyer appointed in his case, the coordination between the appellant and the appointed lawyer, and the failure of the latter to handle the appellant's case with due diligence, have not been complied with, despite the applicant having shown due diligence.