Provisional text
JUDGMENT OF THE COURT (Fifth Chamber)
29 January 2026 (*)
( Reference for a preliminary ruling – Asylum policy – Directive 2013/32/EU – Common procedures for granting and withdrawing international protection – Article 23(1) – Access to the information in the file of an applicant for international protection – Article 46 – Right to an effective remedy – Charter of Fundamental Rights of the European Union – Article 4, Article 18 and Article 19(2) – Principle of non-refoulement – Second paragraph of Article 47 – Right to a fair trial – Investigation in the applicant’s country of origin – Rejection of an application for international protection and adoption of a return decision – Access of the court of first instance and the applicant to information relating to the manner in which the investigation was conducted in the applicant’s country of origin – Scope of the rights of the defence and of the right to an effective remedy – Connection with the principle of non-refoulement )
In Case C‑431/24 [Multan (i)],
REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands), made by decision of 20 June 2024, received at the Court on 20 June 2024, in the proceedings
W
v
Staatssecretaris van Justitie en Veiligheid,
THE COURT (Fifth Chamber),
composed of M.L. Arastey Sahún, President of the Chamber, J. Passer, E. Regan (Rapporteur), D. Gratsias and B. Smulders, Judges,
Advocate General: J. Richard de la Tour,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– W, by N.C. Blomjous, advocaat,
– the Netherlands Government, by M.K. Bulterman and J.M. Hoogveld, acting as Agents,
– the German Government, by J. Möller and R. Kanitz, acting as Agents,
– the European Commission, by A. Azema, M. Debieuvre, A. Katsimerou and F. van Schaik, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 5 and Article 13(1) of Directive 2008/115/EU of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98), Article 23(1) and Article 46(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60), and of Article 4, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between W and Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’) concerning information which must, first, be made available to W and, secondly, be taken into account by the court before which W brought his action against the decision rejecting his application for international protection and against the return decision taken against him.
Legal context
European Union law
Directive 2008/115
3 Article 5 of Directive 2008/115, entitled ‘Non-refoulement, best interests of the child, family life and state of health’, is worded as follows:
‘When implementing this Directive, Member States shall take due account of:
(a) the best interests of the child;
(b) family life;
(c) the state of health of the third-country national concerned,
and respect the principle of non-refoulement.’
4 Article 13 of that directive, entitled ‘Remedies’, provides, in paragraph 1 thereof:
‘The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.’
Directive 2013/32
5 Recitals 3 and 12 of Directive 2013/32 state:
‘(3) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the [Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)], as amended by the [Protocol relating to the Status of Refugees, signed in New York on 31 January 1967 (‘the Geneva Convention’)], thus affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.
…
(12) The main objective of this Directive is to further develop the standards for procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the [European] Union.’
6 Article 23 of that directive, entitled ‘Scope of legal assistance and representation’, provides, in paragraph 1 thereof:
‘Member States shall ensure that a legal adviser or other counsellor admitted or permitted as such under national law, who assists or represents an applicant under the terms of national law, shall enjoy access to the information in the applicant’s file upon the basis of which a decision is or will be made.
Member States may make an exception where disclosure of information or sources would jeopardise national security, the security of the organisations or person(s) providing the information or the security of the person(s) to whom the information relates or where the investigative interests relating to the examination of applications for international protection by the competent authorities of the Member States or the international relations of the Member States would be compromised. In such cases, Member States shall:
(a) make access to such information or sources available to the authorities referred to in Chapter V; and
(b) establish in national law procedures guaranteeing that the applicant’s rights of defence are respected.
In respect of point (b), Member States may, in particular, grant access to such information or sources to a legal adviser or other counsellor who has undergone a security check, insofar as the information is relevant for examining the application or for taking a decision to withdraw international protection.’
7 Under Article 30 of that directive, entitled ‘Collection of information on individual cases’:
‘For the purposes of examining individual cases, Member States shall not:
(a) disclose information regarding individual applications for international protection, or the fact that an application has been made, to the alleged actor(s) of persecution or serious harm;
(b) obtain any information from the alleged actor(s) of persecution or serious harm in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant or his or her dependants, or the liberty and security of his or her family members still living in the country of origin.’
8 Article 46 of that directive, entitled ‘The right to an effective remedy’ which is contained in Chapter V thereof, is worded as follows:
‘1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:
(a) a decision taken on their application for international protection, including a decision:
(i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status;
…
3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU [of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9)], at least in appeals procedures before a court or tribunal of first instance.
…’
Netherlands law
9 The Algemene wet bestuursrecht (Code of Administrative Law), in the version applicable to the dispute in the main proceedings (‘the Awb’), provides, in Article 8:29:
‘1. Parties which are required to provide information or to produce documents may, if there are serious reasons for doing so, refuse to provide that information or produce those documents or may indicate to the administrative court that it alone may be privy to that information or those documents.
…
3. The administrative court shall determine whether there are grounds for the refusal or restriction of disclosure as referred to in paragraph 1.
4. If the administrative court finds that there are grounds for refusal, it is not obliged to refuse disclosure.
5. If the administrative court finds that there are grounds for restricting disclosure, it may rule on the basis of the restricted information or documents only with the consent of the other parties. If such consent is refused, the case shall be referred to another chamber.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
10 The applicant in the main proceedings, born in 1986, is a Christian of Pakistani origin. Until his arrival in the Netherlands, that applicant lived in his country of origin. On 31 August 2014, that applicant lodged a first application for international protection in the Netherlands. The decision declaring that application unfounded included a return decision with a deadline for voluntary departure.
11 On 26 November 2016, a fatwa was issued against the applicant in the main proceedings, calling on all the faithful to kill him and his sister. The names of that applicant, his sister and their father and their place of residence in Pakistan were referred to in that fatwa. It is also indicated that that applicant was the owner of a cable operator and that he intended to broadcast a Christian mission on his channel. Also referred to are the name of the mufti who issued the fatwa, and a call to send copies of that fatwa to the heads of all the mosques and Koranic schools in the area in which that applicant was resident.
12 On 21 November 2018, the applicant in the main proceedings lodged a subsequent application for international protection. He based that subsequent application, like his first application, on the fact that he was Christian and that, for that reason, he feared persecution in Pakistan. He also stated that he had evangelised in Pakistan, that a fatwa had been issued against him for that reason and that he was presently evangelising in the Netherlands. To support his account, he, inter alia, made statements, produced a copy of that fatwa, which had been authenticated by a court in Pakistan, and produced other documents.
13 On 26 June 2020, the State Secretary requested that the Minister van Buitenlandse Zaken (Minister for Foreign Affairs, Netherlands) draw up an individual official report (‘the individual official report’). The State Secretary put forward questions intended to establish whether the third-country national concerned needed international protection. The Minister for Foreign Affairs conducted an investigation in the country of origin of that third-country national in order to answer those questions.
14 The referring court states that it is apparent from the case-law of the Raad van State (Council of State, Netherlands) that, so long as the individual official report provides information in an impartial, objective and transparent manner, the State Secretary is entitled to rely on the accuracy of that information when he or she takes a decision, unless there is specific evidence making it possible to doubt the accuracy of that information.
15 On 12 March 2021, the Minister for Foreign Affairs recorded the outcomes of the investigation in the individual official report and made them available to the State Secretary. He also requested that the latter send to the applicant in the main proceedings or his representative that individual official report and a redacted version of the documents supporting that report, namely a memorandum of 2 July 2020, which was sent to the head of the Embassy of the Kingdom of the Netherlands in Pakistan, and an undated investigation report from the head of that embassy (‘the supporting documents’).
16 The referring court also states that the outcomes of that investigation were subject to a review called ‘REK-check’ carried out by the Onderzoek en Expertise Land en Taal team (Expertise Team for Countries and Languages; ‘TOELT’), connected to the Immigratie- en Naturalisatiedienst (Immigration and Naturalisation Service, Netherlands). In accordance with the criteria applicable to that review, TOELT assesses individual official reports on the basis of the principle that the identity of the person concerned must not be disclosed to the authorities of the country of origin, which are presumed to be responsible for any persecution, and that, in the course of that investigation, the fact that it is being conducted on behalf of the Netherlands authorities must not be mentioned. Where the individual official report at issue meets a certain number of conditions, it is classified as an expert opinion, on which the authority responsible for examining the application for international protection may rely when taking its decision. In the present case, TOELT, from which a letter was annexed to the individual official report and the redacted supporting documents, stated that, after examining those documents, it concluded that that report had been drawn up diligently and was comprehensible as regards content and procedure.
17 By decision of 31 May 2022, the State Secretary rejected the application for international protection as manifestly unfounded. That decision includes a return decision with no deadline for voluntary departure and a two-year entry ban.
18 The applicant in the main proceedings brought an action against that decision before the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands), which is the referring court, in which it claimed, in particular, that the State Secretary had infringed the EU law principle of respect for the rights of the defence by not giving him full access to the supporting documents.
19 On 9 January 2023, the referring court requested that the Minister for Foreign Affairs send it the supporting documents. On 23 January 2023, that minister produced the unredacted supporting documents and made an application on the basis of Article 8:29(1) of the Awb. In that application, the minister stated that there were serious reasons for which only the referring court should have access to certain parts of those documents.
20 On 23 February 2023, a chamber of the referring court other than the one before which the substance of the dispute in the main proceedings was brought, handed down a decision under Article 8:29(3) of the Awb. In that decision, that chamber took the view that it was justified to restrict disclosure of the supporting documents to the referring court alone since certain interests raised by the Minister for Foreign Affairs, namely those of, first, protecting sources, secondly, protecting the methods and techniques used in the course of the investigation, thirdly, protecting the privacy of a third party not involved in the investigation and, fourthly, the prevention of any disproportionate harm, prevailed over the interest of the applicant in the main proceedings in knowing the content of all of those documents.
21 On 9 March 2023, the parties to the main proceedings were requested, in accordance with the rules laid down by the Awb, to authorise the chamber ruling on the lawfulness of the international protection decision in the case in the main proceedings to inspect the unredacted supporting documents. On 23 March 2023, the State Secretary made it known that he authorised that chamber to take account of the supporting documents when examining the case, whereas the applicant in the main proceedings stated that he did not give his consent at that time since he was of the opinion that the procedure provided for in Article 8:29 of the Awb infringed EU law.
22 The referring court takes the view that the procedure provided for in Article 8:29 of the Awb, as interpreted by the Netherlands courts, does not comply with Article 23(1) of Directive 2013/32, as interpreted by the Court of Justice in the judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others (C‑159/21, EU:C:2022:708). According to the referring court, the condition laid down in point (b) of the second subparagraph of Article 23(1) of that directive is not met where no sufficient measure has been taken to guarantee respect for the rights of the defence as that provision requires. In addition, that procedure also does not ensure that the condition provided for in point (a) of the second subparagraph of Article 23(1) of that directive is always met. Although the latter provision provides that the court having jurisdiction must have access to the relevant information, that court, for the purpose of assessing the lawfulness of a decision relating to an application for international protection, does not have access, under the Netherlands legislation, to the unredacted version of the documents underlying the individual official report unless the parties consent to that access. It is apparent, moreover, from the wording and objective of that provision that that access is unconditional and cannot therefore be subject to the parties’ consent.
23 In that context, the referring court harbours doubts as to whether, in the present case, the manner in which the individual official report was drawn up and thus the manner in which the Minister for Foreign Affairs conducted the investigation for the purpose of answering the questions of the State Secretary is included in the information covered in Article 23(1) of Directive 2013/32, in which case the court having jurisdiction and the applicant for international protection should gain access to that information by the means provided for in points (a) and (b) of the second subparagraph of Article 23(1) of that directive. Indeed, in its view, an answer to that question is necessary in so far as the manner in which the investigation was conducted by the national authorities may, in itself, give rise to a risk of infringement of the principle of non-refoulement.
24 In the present case, the applicant in the main proceedings does not fear the authorities of his State of origin, but a spiritual leader and his disciples, with the result that the guarantee that there was no contact with those authorities does not automatically mean that the investigation was carried out in accordance with the directives applicable to investigations in connection with asylum. Similarly, the fact that it was not revealed that the investigation took place for the purposes of an application for international protection lodged by that applicant in the Netherlands also does not guarantee that the reasons for that investigation were not divulged.
25 In addition, since the Minister for Foreign Affairs is not a ‘determining authority’ within the meaning of Article 2(f) of Directive 2013/32, that minister may not possess sufficient expertise to assess adequately the risk of infringement of the principle of non-refoulement stemming from the fact that his own investigation might have exposed the applicant in the main proceedings to such a risk.
26 Moreover, the protection offered by Article 46(1) of Directive 2013/32 and Article 4 and Article 47 of the Charter cannot be fully guaranteed if respect for the rights of the defence do not extend to the manner in which information in the file was gathered and obtained.
27 In the event that the Court of Justice finds that Article 23(1) of Directive 2013/32 must be interpreted as meaning that information on the manner in which the information in the file of the applicant for international protection was gathered and obtained does not form part of the information in the file, for the purposes of that provision, the referring court is uncertain as to whether it may access that category of information and be privy to it on the basis of Article 5 and Article 13 of Directive 2008/115.
28 In those circumstances, the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Should Article 23(1) of Directive 2013/32, read in conjunction with Article 46(1) of [that directive], and having regard to [Article 4 and Article 47] of the [Charter], be interpreted as meaning that [the information] in the applicant’s file on the basis of which a decision has been or will be made also includes [information] on the manner in which that information was gathered and obtained?
(2) Does Article 5 of Directive 2008/115, read in conjunction with Article 13(1) of [that directive], and having regard to [Article 4, Article 19(2) and Article 47] of the [Charter], require the judicial authority reviewing the lawfulness of a return decision to ascertain how the information referred to in Article 23(1) of Directive 2013/32 was gathered and obtained?’
Consideration of the questions referred
The first question
29 By its first question, the referring court asks, in essence, whether Article 23(1) of Directive 2013/32, read in conjunction with Article 46 of that directive and in the light of Article 47 of the Charter, must be interpreted as meaning that, in the context of an action before a national court called upon to rule on the lawfulness of a decision rejecting an application for international protection and that of a return decision taken against the third-country national who lodged that application, information relating to the manner in which an investigation was conducted by the authorities of the host Member State in the country of origin of that third-country national for the purpose of determining the merits of that application is covered by the concept of ‘information in the applicant’s file upon the basis of which a decision is or will be made’, within the meaning of that provision, with the result that the applicant for international protection and the court having jurisdiction must be able to access that information by the means provided for in points (a) and (b) of the second subparagraph of Article 23(1) of that directive.
30 In the present case, the referring court is of the opinion that a risk of infringement of the principle of non-refoulement in respect of the third-country national concerned may result from the manner in which the investigation was conducted by the Minister for Foreign Affairs in the country of origin of that third-country national. According to that court, if it is not possible to access the information relating to the manner in which that investigation was conducted, it will not be fully able to assess that risk and, ultimately, the question of whether that third-country national may be removed to his country of origin. That court notes that the Minister for Foreign Affairs prepares an ‘investigation report’ for every individual official report he or she drafts and that, therefore, the information on the manner in which the investigation was conducted in the case in the main proceedings is, in principle, available.
31 In that regard, it must be borne in mind that the principle of non-refoulement is guaranteed, as a fundamental right, in Article 18 of the Charter, read in conjunction with Article 33 of the Geneva Convention, and in Article 19(2) of the Charter (judgment of 17 October 2024, Ararat, C‑156/23, EU:C:2024:892, paragraph 35 and the case-law cited).
32 The latter provision, read in conjunction with Article 4 of the Charter, prohibits in absolute terms, irrespective of the conduct of the person concerned, removal, expulsion or extradition to a State where there is a serious risk of that person being subjected to the death penalty, torture or inhuman or degrading punishment or treatment (judgments of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 36, and of 17 October 2024, Ararat, C‑156/23, EU:C:2024:892, paragraph 36).
33 It is apparent from recitals 3 and 12 of Directive 2013/32 that the main objective of that directive is to develop further the standards for procedures in Member States for granting and withdrawing international protection in the context of establishing a Common European Asylum System, based on the Geneva Convention, in compliance, in particular, with the principle of non-refoulement, under which nobody is to be sent back to a place where they risk being persecuted again.
34 Moreover, Article 23(1) of Directive 2013/32 implements the right of access to the file in proceedings concerning applications for international protection by providing that the legal adviser who assists or represents the applicant has access to the information in the applicant’s file on the basis of which a decision is or will be taken (judgment of 1 December 2022, Bundesrepublik Deutschland (Access to the file in asylum cases), C‑564/21, EU:C:2022:951, paragraph 34).
35 In that context, it should be noted that the fact that a risk of infringement of the principle of non-refoulement may result from the manner in which an investigation is conducted by a national authority in the country of origin of an applicant for international protection is confirmed by Article 30 of Directive 2013/32, which provides expressly, in point (b) thereof, that, for the purpose of collecting information on individual cases, Member States ‘shall not … obtain any information from the alleged actor(s) of persecution or serious harm in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant or his or her dependants, or the liberty and security of his or her family members still living in the country of origin’.
36 Similarly, point (a) of Article 30 of Directive 2013/32 provides that, for the purpose of collecting information on individual cases, Member States ‘shall not … disclose information regarding individual applications for international protection, or the fact that an application has been made, to the alleged actor(s) of persecution or serious harm’.
37 An applicant for international protection must be able to assert his or her right to be protected from such disclosure by relying on the relevant information relating to the manner in which the investigation was carried out in his or her country of origin. Similarly, the national court before which an action against a decision rejecting an application for international protection is brought must be able to review the compliance of the Member States with their obligations under Article 30(a) of Directive 2013/32.
38 It follows from the foregoing that information such as the supporting documents, including the investigation report at issue in the main proceedings, must be regarded as being covered by the concept of ‘information in the applicant’s file upon the basis of which a decision is or will be made’, within the meaning of Article 23(1) of Directive 2013/32, in so far as it is relevant for the purposes of, first, the person concerned accessing that information in order to be able to fully exercise his or her rights of defence in respect of the decision rejecting his or her application for international protection, and, secondly, the assessment, by the court before which an action against such a decision is brought, of compliance with Article 30 of that directive and, ultimately, the principle of non-refoulement.
39 Furthermore, while, in the present case, the determining authority did not have full and direct access to that information, the fact remains that that information formed part of the ‘applicant’s file upon the basis of which a decision is or will be made’, within the meaning of the first subparagraph of Article 23(1) of Directive 2013/32. That fact in no way affects the relevance of that information for ensuring the effectiveness of the action brought by the third-country national concerned against the decision rejecting his application for international protection or for allowing the assessment, by the referring court, of compliance with the principle of non-refoulement. Consequently, the obligation for that court to take into account all information that is likely to be relevant for its own forthcoming decision must be regarded as applying equally to information such as the supporting documents, including the investigation report at issue in the main proceedings, which must, in principle, also have been made available to that third-country national.
40 The interpretation adopted in paragraphs 38 and 39 above is supported by Article 46(3) of Directive 2013/32 and Article 47 of the Charter.
41 First, in accordance with its title, Article 46 of Directive 2013/32 concerns the right of applicants for international protection to an effective remedy. Article 46(1) thereof guarantees those applicants such a right to an effective remedy before a court or tribunal against decisions taken on their application. Article 46(3) thereof defines the scope of that right by specifying that Member States bound by that directive must ensure that the court or tribunal – at the very least the court or tribunal of first instance – before which the decision relating to the application for international protection concerned is contested carries out ‘a full and ex nunc examination of both facts and points of law, including … an examination of the international protection needs pursuant to Directive [2011/95]’ (see, to that effect, judgment of 3 April 2025, Barouk, C‑283/24, EU:C:2025:236, paragraph 24).
42 According to settled case-law, the adjective ‘full’, used in Article 46(3) of Directive 2013/32, confirms that the court or tribunal is required to examine the evidence which the determining authority took into account or should have taken into account (see judgment of 3 April 2025, Barouk, C‑283/24, EU:C:2025:236, paragraph 28 and the case-law cited).
43 It follows that that court or tribunal may examine information relating to the manner in which the investigation was conducted in the country of origin of the third-country national concerned, where it finds that that information is relevant for assessing fully the risk of infringement of the principle of non-refoulement.
44 Secondly, the right to a fair trial, as guaranteed in the second paragraph of Article 47 of the Charter, includes respect for the rights of the defence, which, according to that paragraph, entails the possibility of being advised, defended and represented. Those rights must be respected in any proceedings against a person which may result in an act adversely affecting him or her. The effective exercise of those rights has as a necessary corollary the right of access to the file (judgment of 1 December 2022, Bundesrepublik Deutschland (Access to the file in asylum cases), C‑564/21, EU:C:2022:951, paragraph 36 and the case-law cited).
45 The Court has held that the person against whom an act adversely affecting him or her has been adopted has the right to examine all the documents in the investigation file that are likely to be relevant to his or her defence and that it cannot be for the authority which took that act alone to determine which documents are useful for that purpose (see, to that effect, judgment of 1 December 2022, Bundesrepublik Deutschland (Access to the file in asylum cases), C‑564/21, EU:C:2022:951, paragraphs 38 and 39 and the case-law cited). The exercise of that right may, however, be limited subject to the conditions laid down in Article 52(1) of the Charter.
46 As regards the consequences of the fact that information such as that at issue in the main proceedings must be regarded as being covered by the concept of ‘information in the applicant’s file upon the basis of which a decision is or will be made’, within the meaning of the first subparagraph of Article 23(1) of Directive 2013/32, as, in essence, the referring court noted, it is apparent from the very wording of Article 23(1) of that directive that a court before which an action against a decision rejecting an application for international protection is brought must have access to all the information that is likely to be relevant for its decision, even though the disclosure of some of that information may be limited as regards the applicant, in accordance with the exception provided for in that provision.
47 The Court noted that access to the file by the person concerned and by the court having jurisdiction are two separate and cumulative requirements, and that the power of that court to have access to the file cannot replace access to the file by that person or his or her adviser (judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others, C‑159/21, EU:C:2022:708, paragraphs 57 and 59).
48 Accordingly, as regards access to the file by the person concerned or his or her adviser, it is settled case-law that fundamental rights, such as respect for the rights of the defence under Article 47 of the Charter, including the right to disclosure of documents relevant to the defence, are not absolute prerogatives, but may be subject to restrictions, provided that such restrictions effectively meet the objectives of general interest pursued by the measure in question and do not involve, in the light of the aim pursued, disproportionate and intolerable intervention which would undermine the very substance of the rights thus guaranteed (judgment of 1 December 2022, Bundesrepublik Deutschland (Access to the file in asylum cases), C‑564/21, EU:C:2022:951, paragraph 37 and the case-law cited).
49 In that vein, Article 23(1) of Directive 2013/32 provides expressly that Member States may make an ‘exception’ to the applicant’s right to access his or her file in certain very specific cases, namely ‘where disclosure of information or sources would jeopardise national security, the security of the organisations or person(s) providing the information or the security of the person(s) to whom the information relates or where the investigative interests relating to the examination of applications for international protection by the competent authorities of the Member States or the international relations of the Member States would be compromised’. In such cases, the Member States, under point (a) of the second subparagraph of Article 23(1) of that directive, are to make access to such information or sources available to the authorities referred to in Chapter V of that directive, namely courts or tribunals before which an action such as the one in the main proceedings is brought, and, under point (b) of the second subparagraph of Article 23(1) of that directive, are to establish in national law procedures guaranteeing that the applicant’s rights of defence are respected.
50 As regards those procedures, Member States may, in accordance with the third subparagraph of Article 23(1) of Directive 2013/32, inter alia, grant access to the information or sources concerned to a legal adviser or other counsellor who has undergone a security check, in so far as the information is relevant for examining the application or for taking a decision to withdraw international protection.
51 It follows that, barring, where appropriate, the information in respect of which the authority concerned requests confidentiality for the objectives of general interest referred to in paragraph 49 above, the applicant’s representative must be granted access to all information that is likely to be relevant to the outcome of the judicial proceedings, as that information is presented to the court having jurisdiction, in order to be able to discuss that information in the context of an adversarial debate. Such a requirement is necessary in order fully to guarantee the applicant’s rights of defence and the effectiveness of the action brought before that court (see, to that effect, judgment of 1 December 2022, Bundesrepublik Deutschland (Access to the file in asylum cases), C‑564/21, EU:C:2022:951, paragraphs 41 to 43 and 56 and the case-law cited).
52 As regards the existence of lawful objectives precluding the disclosure to the applicant of certain information that is likely to be relevant, the Court has held that it is for the referring court to ascertain whether such objectives exist while seeking to strike a balance between the applicant’s rights of defence and the interests relied upon (see, to that effect, judgment of 1 December 2022, Bundesrepublik Deutschland (Access to the file in asylum cases), C‑564/21, EU:C:2022:951, paragraphs 44 and the case-law cited).
53 Where one or more objectives are found to justify the non-disclosure of information to the applicant, Directive 2013/32 itself refers, in the third subparagraph of Article 23(1), to the possibility of granting access to that information to a legal adviser or other counsellor of the applicant who has undergone a security check so that the Member States may fulfil their obligation to guarantee respect for that applicant’s rights of defence. It is apparent, however, from the wording of that provision, and particularly from the use of the phrase ‘in particular’, that that possibility is referred to only as an example, and that, accordingly, it is not the only option available to the Member States to comply with point (b) of the second subparagraph of Article 23(1) of that directive (see, to that effect, judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others, C‑159/21, EU:C:2022:708, paragraph 42).
54 Consequently, as Directive 2013/32 does not prescribe how the Member States are to guarantee respect for the rights of defence of the person concerned where his or her right of access to the file is restricted pursuant to the second subparagraph of Article 23(1) of that directive, it is for the Member States to lay down the practical arrangements of the procedures necessary for that purpose, provided, however, that they guarantee, in particular, respect for the right to an effective remedy as enshrined in Article 47 of the Charter (see, to that effect, judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others, C‑159/21, EU:C:2022:708, paragraphs 43 and 44).
55 In that regard, the Court has held that, although the second subparagraph of Article 23(1) of Directive 2013/32 thus allows the Member States, particularly where national security so requires, not to grant the person concerned direct access to all of his or her file, that provision cannot be interpreted, without infringing, inter alia, the right to an effective remedy, as allowing the competent authorities to place that person in a situation where neither he or she nor his or her representative would be able to gain effective knowledge, where applicable in the context of a specific procedure designed to protect national security, of the substance of the decisive elements contained in that file (see, to that effect, judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others, C‑159/21, EU:C:2022:708, paragraph 53).
56 In the light of all the foregoing considerations, the answer to the first question is that Article 23(1) of Directive 2013/32, read in conjunction with Article 46 of that directive and in the light of Article 47 of the Charter, must be interpreted as meaning that, in the context of an action before a national court called upon to rule on the lawfulness of a decision rejecting an application for international protection and that of a return decision taken against the third-country national who lodged that application, information relating to the manner in which an investigation was conducted by the authorities of the host Member State in the country of origin of that third-country national for the purpose of determining the merits of his or her application is covered by the concept of ‘information in the applicant’s file upon the basis of which a decision is or will be made’, within the meaning of that provision, where it is likely to be relevant to the assessment, by that court, of whether the principle of non-refoulement has been complied with. It follows that the applicant for international protection and the court having jurisdiction must be able to access that information by the means provided for in points (a) and (b) of the second subparagraph of Article 23(1) of that directive.
The second question
57 As is apparent from paragraph 27 above, the referring court seeks an answer to the second question only in the event of the first question being answered in the negative by the Court.
58 Since the Court answered the first question in the affirmative, it is not necessary to answer the second question.
Costs
59 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
Article 23(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 46 of that directive and in the light of Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that, in the context of an action before a national court called upon to rule on the lawfulness of a decision rejecting an application for international protection and that of a return decision taken against the third-country national who lodged that application, information relating to the manner in which an investigation was conducted by the authorities of the host Member State in the country of origin of that third-country national for the purpose of determining the merits of his or her application is covered by the concept of ‘information in the applicant’s file upon the basis of which a decision is or will be made’, within the meaning of that provision, where it is likely to be relevant to the assessment, by that court, of whether the principle of non-refoulement has been complied with. It follows that the applicant for international protection and the court having jurisdiction must be able to access that information by the means provided for in points (a) and (b) of the second subparagraph of Article 23(1) of that directive.
[Signatures]