16
M.S.S. v. BELGIUM AND GREECE JUDGMENT
– The member States are required to ensure that decisions concerning
applications for asylum are given in writing and that, where an application
is rejected, the reasons are stated in the decision and information on how to
challenge a negative decision is given in writing.
– Asylum-seekers shall be informed of the procedure to be followed, of
their rights and obligations, and of the result of the decision taken by the
determining authority.
– Asylum-seekers shall receive the services of an interpreter for
submitting their case to the competent authorities whenever necessary.
– Asylum-seekers shall not be denied the opportunity to communicate
with the UNHCR. More generally, the member States shall allow the
UNHCR to have access to asylum applicants, including those in detention,
as well as to information on asylum applications and procedures, and to
present its views to any competent authorities.
– Applicants for asylum shall have the opportunity, at their own cost, to
consult in an effective manner a legal adviser. In the event of a negative
decision by a determining authority, member States shall ensure that free
legal assistance is granted on request. This right may be subject to
restrictions (choice of counsel restricted to legal advisers specifically
designated by national law, appeals limited to those likely to succeed, or
free legal aid limited to applicants who lack sufficient resources).
The European Commission initiated proceedings against Greece in
February 2006 for failure to honour its obligations, because of the
procedural deficiencies in the Greek asylum system, and brought the case
before the CJEC (now the CJEU). Following the transposition of the
Procedures Directive into Greek law in July 2008, the case was struck out of
the list.
On 24 June 2010 the European Commission brought proceedings against
Belgium before the CJEU on the ground that the Belgian authorities had not
fully transposed the Procedures Directive – in particular, the minimum
obligations concerning the holding of personal interviews.
In its proposal for recasting the Procedures Directive, presented on
21 October 2009 (COM(2009) 554 final), the European Commission
considered strengthening the obligation to provide information to the
applicant. It also provided for a full and ex nunc review of first-instance
decisions by a court or tribunal and specified that the notion of effective
remedy required a review both of facts and of points of law. It further
introduced provisions to give appeals automatic suspensive effect. The
proposed amendments were intended to improve consistency with the
evolving case-law regarding such principles as the right to defence, equality
of arms, and the right to effective judicial protection.
86. Council Directive 2004/83/EC of 29 April 2004 concerns minimum
standards for the qualification and status of third-country nationals or
stateless persons as refugees or as persons who otherwise need international