The Geneva Convention

3 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)), entered into force on 22 April 1954. It was supplemented and amended by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Geneva Convention’).

4 Article 1(A) of the Geneva Convention, in the definition it provides of the term ‘refugee’, refers inter alia to the risk of persecution.

5 Article 1(D) of that convention states:

United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)

6 United Nations General Assembly resolution No 302 (IV) of 8 December 1949, concerning assistance to Palestine refugees, established the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Its task is to serve the well-being and human development of Palestine refugees.

7 UNRWA's area of operations covers the Gaza Strip, the West Bank, Jordan, Lebanon and Syria.

Directive 2011/95

8 Directive 2011/95 was adopted on the basis of Article 78(2)(a) and (b) TFEU, which provides as follows:

9 Article 2 of that directive provides as follows:

10 Article 4(3) of that directive provides as follows:

1. (a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied;

2. (b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;

3. (c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;

4. (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether those activities would expose the applicant to persecution or serious harm if returned to that country;

5. (e) whether the applicant could reasonably be expected to avail himself or herself of the protection of another country where he or she could assert citizenship.’

11 Article 5(1) of that directive states:

12 Article 7 of Directive 2011/95, entitled ‘Actors of protection’, provides in paragraphs 1 and 2:

13 Articles 9 and 10 of that directive, which are contained in Chapter III, entitled ‘Qualification for being a refugee’ set out the factors to be taken into account in order to evaluate whether the applicant has been or may be subject to persecution.

14 Article 12 of that directive, which is also contained in Chapter III, is entitled ‘Exclusion’ and provides as follows:

15 Article 15 of that directive is contained in Chapter V, entitled ‘Qualification for subsidiary protection’. It states as follows:

16 Article 17 of Directive 2011/95, which is also contained in Chapter V, defines the circumstances in which eligibility for subsidiary protection is excluded.

17 Article 21 of that directive, entitled ‘Protection from refoulement’, provides in paragraph 1:

18 Chapter IX of that directive, entitled ‘Final provisions’, contains Articles 38 to 42. The first paragraph of Article 39(1) of that directive provides as follows:

19 Article 40 of that directive provides:

20 Article 41 of Directive 2011/95 provides as follows:

21 The wording of Articles 12 and 15 of Directive 2011/95 corresponds to that of Articles 12 and 15 of Directive 2004/83.

Directive 2013/32

22 Directive 2013/32 was adopted on the basis of Article 78(2)(d) TFEU, which provides for common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status.

23 Recitals 4, 13, 16, 18 and 22 of that directive state:

24 Article 1 of Directive 2013/32 provides as follows:

25 Article 2 of Directive 2013/32 provides as follows:

26 According to Article 4(1) of Directive 2013/32:

27 Article 10(2) of that directive states:

28 Under Article 12 of that directive:

29 Article 13(1) of the same directive provides as follows:

30 Article 33(2) of Directive 2013/32 provides as follows:

31 Under the first paragraph of Article 34(1) of Directive 2001/29:

32 Article 35 of that directive states:

33 Under Article 36(1) of that directive:

34 Article 38 of Directive 2013/32 provides as follows:

35 Under Article 46 of Directive 2013/32:

36 Article 51(1) of Directive 2013/32 provides as follows:

37 Under the first paragraph of Article 52 of that directive:

38 The first paragraph of Article 53 of Directive 2013/32 provides as follows:

39 The first paragraph of Article 54 of Directive 2013/32 states:

40 Since the publication referred to in Article 54 took place on 29 June 2013, Directive 2013/32 entered into force on 19 July 2013.

41 Articles 33, 35 and 38, and Article 46(1) of Directive 2013/32 correspond, respectively, to Articles 25, 26 and 27 and Article 39(1) of Directive 2005/85. By contrast, Article 10(2), Article 34 and Article 46(3) of Directive 2013/32 set out rules which are not contained in Directive 2005/85.

Preliminary observations

67 Since the temporal applicability of the provisions of Directive 2013/32 to which the third to sixth questions relate is not clear and was the subject of debate before the Court, it is necessary to provide clarification in that regard at the outset.

68 It is not in dispute that that directive replaced Directive 2005/85 with effect from 21 July 2015, that is to say after the date on which the application for international protection at issue in the main proceedings was lodged.

69 In that context, it must be noted, first, that the second sentence of the first paragraph of Article 52 of Directive 2013/32 states that applications for international protection lodged before 20 July 2015 are to be governed by the national provisions adopted pursuant to Directive 2005/85.

70 Second, the first sentence of the first paragraph of Article 52 of Directive 2013/32 allows national provisions implementing the rules introduced by that directive to be applied to applications lodged before 20 July 2015. That sentence provides that the Member States are to apply those provisions ‘to applications for international protection lodged … after 20 July 2015 or an earlier date’.

71 It is apparent from the examination of the travaux préparatoires of Directive 2013/32, in particular a comparison of Position (EU) No 7/2013 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, adopted by the Council on 6 June 2013 (OJ 2013 C 179 E, p. 27), with the Commission Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (COM(2009) 554 final), that the words ‘or an earlier date’ were added during the legislative process.

72 Consequently, notwithstanding the tension between the first and second sentences of the first paragraph of Article 52 of Directive 2013/32, it follows from those preparatory documents that the EU legislature intended to allow the Member States to choose whether to apply their provisions implementing that directive with immediate effect to applications for international protection lodged before 20 July 2015.

73 The fact remains that, while the first paragraph of Article 52 of Directive 2013/32 authorised Member States to apply those provisions to applications for international protection lodged before 20 July 2015, it did not require them to do so. Since that provision, by using the words ‘started after 20 July 2015 or an earlier date’, offers various possibilities as regards temporal applicability, it is important, in order for the principles of legal certainty and equality before the law to be observed in the implementation of EU law and for applicants for international protection to be protected from arbitrariness and to have a right to an effective remedy in the context of procedures for granting and withdrawing international protection, that each Member State bound by that directive should process applications for international protection lodged within the same period on its territory in a predictable and uniform manner.

74 In reply to a request for clarification in that regard, the referring court noted that the requirement for a full and ex nunc examination, laid down in Article 46(3) of Directive 2013/32, which was to be implemented, by virtue of Article 51(1) of that directive, by 20 July 2015 at the latest, has existed in Bulgaria since 1 March 2007, so that the Bulgarian legislature did not consider it necessary, when transposing that directive, to take measures to implement Article 46(3).

75 In that regard, that court cited several national provisions concerning administrative actions and provided information concerning the scope of those provisions, the accuracy of which it is not for the Court to determine.

76 In the light of that reply, it appears that the third, fourth and sixth questions, which concern the interpretation of Article 46(3) of Directive 2013/32, are relevant for the purposes of resolving the dispute in the main proceedings.

77 Not only the national provisions specifically intended to transpose a directive but also, from the date of that directive's entry into force, pre-existing national provisions capable of ensuring that the national law is transposed must be considered as falling within the scope of that directive (see, to that effect, judgments of 7 September 2006, Cordero Alonso, C-81/05, EU:C:2006:529, paragraph 29, and of 23 April 2009, VTB-VAB and Galatea, C-261/07 and C-299/07, EU:C:2009:244, paragraph 35).

78 In the present case, while it is true that the law transposing Directive 2013/32 into Bulgarian law entered into force only in December 2015, that is to say, after Ms Alheto lodged her application for international protection in the European Union and after the contested decision had been adopted, it is apparent, however, from the referring court's reply to the request for clarification that, since 2007, Bulgarian law has included provisions laying down a requirement for a full and ex nunc examination, which apply to applications for international protection.

79 It follows from that reply that, according to the referring court, those provisions were considered by the national authorities to be capable of transposing Article 46(3) of Directive 2013/32 into national law.

80 In those circumstances, and given the fact that Directive 2013/32 was already in force when the application for international protection at issue in the main proceedings was lodged and the contested decision adopted, the interpretation of Article 46(3) of that directive sought by the referring court in the context of its third, fourth and sixth questions must be considered necessary in order to allow that court to rule in the main proceedings (see, to that effect, judgment of 23 April 2009, VTB-VAB and Galatea, C-261/07 and C-299/07, EU:C:2009:244, paragraphs 37 and 40).

81 As regards the fifth question, which concerns the interpretation of point (b) of the first paragraph of Article 35 of Directive 2013/32, which, in conjunction with Article 33(2)(b) of that directive, authorises Member States to declare an application for international protection inadmissible when the applicant is sufficiently protected in a third country, it follows from the order for reference that that ground of inadmissibility had not yet been transposed into Bulgarian law on the date of adoption of the contested decision. However, based on the assumption that the national provision that has in the meantime transposed that ground of inadmissibility is nevertheless applicable ratione temporis to the main proceedings, an assumption which it is for the referring court alone to confirm, that court correctly asks whether it may, in the context of a full and ex nunc examination, as laid down in Article 46(3) of Directive 2013/32, assess the admissibility of the application for international protection at issue in the main proceedings in the light of such a ground of inadmissibility and, if so, what scope should be afforded to that ground of inadmissibility.

The first question

82 By its first question, the referring court asks, in essence, whether Article 12(1)(a) of Directive 2011/95, read in conjunction with Article 10(2) of Directive 2013/32, must be interpreted as meaning that the processing of an application for international protection lodged by a person registered with UNRWA requires an examination as to whether that person benefits from effective protection or assistance from that agency.

83 As is apparent from the order for reference, this question arises on account of the fact that the Deputy Director of the DAB failed specifically to examine, in the contested decision, whether the protection or assistance which the applicant in the main proceedings received from UNRWA in the area of operations of that agency had ceased, in circumstances where, had that fact been established, she would potentially have been eligible, in Bulgaria, for refugee status in accordance with Article 1(D) of the Geneva Convention and Article 12(1)(a) of Directive 2011/95.

84 In that regard, it must be noted, as was recalled in paragraphs 6 and 7 of the present judgment, that UNRWA is an agency of the United Nations which was established to protect and assist, in the Gaza Strip, the West Bank, Jordan, Lebanon and Syria, Palestinians who are ‘Palestine refugees’. It follows that a person, such as the applicant in the main proceedings, who is registered with UNRWA, is eligible to receive protection and assistance from that agency in the interests of her well-being as a refugee.

85 On account of that specific refugee status established in those territories of the Near East for Palestinians, persons registered with UNRWA are, in principle, by virtue of the first sentence of Article 12(1)(a) of Directive 2011/95, which corresponds to the first paragraph of Article 1(D) of the Geneva Convention, excluded from refugee status in the European Union. That said, it follows from the second sentence of Article 12(1)(a) of Directive 2011/95, which corresponds to the second paragraph of Article 1(D) of the Geneva Convention, that, when an applicant for international protection in the European Union no longer receives protection or assistance from UNRWA, that exclusion ceases to apply.

86 As the Court has held, the second sentence of Article 12(1)(a) of Directive 2011/95 applies where it becomes evident, based on an assessment, on an individual basis, of all the relevant evidence, that the personal safety of the Palestinian concerned is at serious risk and that it is impossible for UNRWA, whose assistance was requested by that person, to guarantee that the living conditions of that individual would be compatible with its mission, and that person is forced to leave the UNRWA area of operations owing circumstances beyond his control. In that case, that Palestinian may, unless he or she falls within the scope of any of the grounds for exclusion set out in Article 12(1)(b), Article 12(2) and Article 12(3) of that directive, ipso facto be entitled to the benefits of that directive, without necessarily having to demonstrate a well-founded fear of being persecuted, within the meaning of Article 2(d) of that directive, until the time when he is able to return to the territory of former habitual residence (judgment of 19 December 2012, Abed El Karem El Kott and Others, C-364/11, EU:C:2012:826, paragraphs 49 to 51, 58 to 65, 75 to 77 and 81).

87 It follows from the information recalled above that Article 12(1)(a) of Directive 2011/95 sets out, first, a ground for exclusion from refugee status and, second, a ground for no longer applying that ground for exclusion, both of which may be decisive for the purpose of assessing whether the Palestinian in question is entitled to access to refugee status in the European Union. As the Advocate General essentially noted in points 43 to 45 of his Opinion, the rules laid down in that provision, as interpreted by the Court, therefore constitute a lex specialis. The national provisions transposing that set of rules must be applied to an application for international protection lodged by a person registered with UNRWA, providing that that application has not previously been rejected on the basis of another ground for exclusion or of inadmissibility.

88 That finding is borne out by the purpose of Directive 2011/95. Since that directive was adopted on the basis, inter alia, of Article 78(2)(a) TFEU and therefore seeks, in accordance with that provision, to establish a uniform asylum system, it is essential that all the authorities that are empowered in the European Union to deal with applications for international protection apply, when the applicant is a person registered with UNRWA, the provisions transposing the rules set out in Article 12(1)(a) of that directive.

89 Those provisions must also be applied when, as in the present case, the application for international protection includes, in addition to an application for refugee status, an application for subsidiary protection. As is apparent from Article 10(2) of Directive 2013/32, when examining an application for international protection, the competent authority must first determine whether the applicant qualifies as a refugee. Consequently, the fact that the rules set out in Article 12(1)(a) of Directive 2011/95 do not apply to the part of the application relating to subsidiary protection does not exempt the competent authority from its obligation first to apply the provisions transposing those rules, in order to verify whether refugee status must be granted.

90 In the light of the foregoing, the answer to the first question is that Article 12(1)(a) of Directive 2011/95, read in conjunction with Article 10(2) of Directive 2013/32, must be interpreted as meaning that the processing of an application for international protection lodged by a person registered with UNRWA requires an examination of the question whether that person receives effective protection or assistance from that agency, provided that that application has not been previously rejected on the basis of a ground of inadmissibility or on the basis of a ground for exclusion other than that laid down in the first sentence of Article 12(1)(a) of Directive 2011/95.

The second question

91 By the first part of its second question, the referring court asks, in essence, whether the second sentence of Article 12(1)(a) of Directive 2011/95 must be interpreted as precluding national legislation that does not lay down or incorrectly transposes the ground for no longer applying the ground for exclusion from refugee status contained in that provision.

92 As set out in paragraphs 85 to 87 of the present judgment Article 12(1)(a) of Directive 2011/95 contains, first, a ground for exclusion, to the effect that any third-country national or stateless person receiving protection or assistance from organs or agencies of the United Nations other than the United Nations High Commission for Refugees is to be excluded from being a refugee in the European Union, and secondly, a ground for no longer applying that ground for exclusion, to the effect that, when such protection or assistance has ceased without the position of that national or stateless person being definitively settled in accordance with the relevant resolutions adopted by the United Nations, that national or stateless person is ipso facto to be entitled to the benefits of the directive.

93 As stated in paragraph 21 of the present judgment, the wording of Article 12(1)(a) of Directive 2011/95 corresponds to that of Article 12(1)(a) of Directive 2004/83.

94 It follows that Article 12(1)(a) of Directive 2004/83 and Article 12(1)(a) of Directive 2011/95 preclude a national law which fails to transpose both that ground for exclusion and that ground for no longer applying it.

95 In the present case, Article 12(1)(4) of the ZUB, in its version applicable prior to the entry into force of the national law transposing Directive 2011/95, did not provide for that ground for no longer applying the ground for exclusion. Article 12(1)(4) of the ZUB, as worded in the version subsequent to the entry into force of that law, for its part, transposed the second sentence of Article 12(1)(a) of Directive 2011/95, but wrongly uses the expression ‘has not ceased’ instead of the expression ‘has ceased’. The referring court considers that, in those circumstances, it is difficult, or impossible, to interpret those national provisions in accordance with Article 12(1)(a) of Directive 2011/95.

96 Subject to the review to be carried out by the referring court of the possibilities provided for by Bulgarian law for the interpretation of those national provisions in accordance with Article 12(1)(a) of Directive 2004/83 or Article 12(1)(a) of Directive 2011/95, it must be held that the latter provisions preclude such national provisions, since those national provisions incorrectly transpose the said directives.

97 By the second part of its second question, the referring court asks, in essence, whether the second sentence of Article 12(1)(a) of Directive 2004/83 and the second sentence of Article 12(1)(a) of Directive 2011/95 have direct effect and may be applied even if the applicant for international protection has not expressly referred to them.

98 In that regard, it follows from the settled case-law of the Court that, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the State has failed to implement the directive in domestic law within the period prescribed or where it has failed to implement the directive correctly (judgments of 24 January 2012, Dominguez, C-282/10, EU:C:2012:33, paragraph 33; of 15 January 2014, Association de médiation sociale, C-176/12, EU:C:2014:2, paragraph 31; and of 7 July 2016, Ambisig, C-46/15, EU:C:2016:530, paragraph 16).

99 The second sentence of Article 12(1)(a) of Directive 2004/83 and the second sentence of Article 12(1)(a) of Directive 2011/95 satisfy those criteria, since they set out a rule whose content is unconditional and sufficiently precise to be relied on by an individual and applied by a court. Furthermore, those provisions provide that, in the circumstances to which they relate, an applicant may ‘ipso facto’ be entitled to the benefits of this directive.

100 In the present case, it follows from the order for reference that Ms Alheto claims, in support of her application for international protection, that, notwithstanding her registration with UNRWA, qualification as a refugee in the European Union is the only way effectively to protect her from the threats to which she is exposed. It follows that, even though the applicant in the main proceedings has not expressly referred either to the second sentence of Article 12(1)(a) of Directive 2004/83 or to the second sentence of Article 12(1)(a) of Directive 2011/95, there is nothing to prevent the referring court from ruling on whether the national legislation is compatible with either of those provisions.

101 In the light of the foregoing, the answer to the second question is that the second sentence of Article 12(1)(a) of Directive 2004/83 and the second sentence of Article 12(1)(a) of Directive 2011/95 must be interpreted as:

• – precluding national legislation which does not lay down or which incorrectly transposes the ground for no longer applying the ground for exclusion from being a refugee contained therein;

• – having direct effect; and

• – being applicable even if the applicant for international protection has not expressly referred to them.

The third question

102 By its third question, the referring court asks, in essence, whether Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that a court or tribunal of a Member State seised at first instance of an appeal against a decision on an application for international protection may take into account matters of fact or of law, such as the applicability of Article 12(1)(a) of Directive 2011/95 to the applicant's circumstances, which were not examined by the body that took that decision.

103 In that regard, it should be noted, first of all, that Directive 2013/32 distinguishes between the ‘determining authority’, which it defines in Article 2(f) as ‘any quasi-judicial or administrative body in a Member State responsible for examining applications for international protection competent to take decisions at first instance in such cases’ and the ‘court or tribunal’ referred to in Article 46. The procedure before a determining authority is governed by the provisions of Chapter III of that directive, entitled ‘Procedures at first instance’, while the procedure before a court or tribunal must comply with the rules laid down in Chapter V of that directive, entitled ‘Appeals procedures’ which is made up of Article 46.

104 Since Article 46(3) of Directive 2013/32 concerns, in accordance with its wording, ‘at least … appeals procedures before a court or tribunal of first instance’, the interpretation of that provision set out below applies, at the very least, to any court or tribunal seised of the initial action against a decision by which the determining authority initially ruled on an application. It follows from Article 2(f), of that directive that that is also the case when that authority has a quasi-judicial character.

105 It must be recalled, next, that Article 46(3) of Directive 2013/32 defines the scope of the right to an effective remedy which applicants for international protection must enjoy, as provided for in Article 46(1) of that directive, against decisions concerning their application.

106 Thus, Article 46(3) of Directive 2013/32 states that, in order to comply with Article 46(1) of that directive, Member States bound by that directive must ensure that the court or tribunal before which the decision relating to the application for international protection is contested carries out ‘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]’.

107 In the absence of any reference to the laws of the Member States, and having regard to the purpose of Directive 2013/32, set out in recital 4 thereof, those words must be interpreted and applied in a uniform manner. Moreover, as recital 13 of that directive states, the approximation of rules under that directive aims to create equivalent conditions for the application of Directive 2011/95 in the Member States and to limit the movements of applicants for international protection between Member States.

108 According to the Court's settled case-law, it is necessary to determine the scope of those words in accordance with their ordinary meaning, while also taking into account the context in which they occur and the purposes of the rules of which they form part (see, inter alia, judgments of 30 January 2014, Diakité, C-285/12, EU:C:2014:39, paragraph 27; of 11 June 2015, Zh. and O., C-554/13, EU:C:2015:377, paragraph 29, and of 26 July 2017, Jafari, C-646/16, EU:C:2017:586, paragraph 73).

109 In that regard, apart from the fact that it pursues the overall purpose of establishing common procedural standards, Directive 2013/32 seeks in particular, as is apparent inter alia from recital 18, to ensure that applications for international protection are dealt with ‘as soon as possible …, without prejudice to an adequate and complete examination being carried out’.

110 In that context, the words ‘shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law’ must, in order not to deprive them of their ordinary meaning, be interpreted as meaning that the Member States are required, by virtue of Article 46(3) of Directive 2013/32, to order their national law in such a way that the processing of the appeals referred to includes an examination, by the court or tribunal, of all the facts and points of law necessary in order to make an up-to-date assessment of the case at hand.

111 In that regard, the expression ‘ex nunc’ points to the court or tribunal's obligation to make an assessment that takes into account, should the need arise, new evidence which has come to light after the adoption of the decision under appeal.

112 Such an assessment makes it possible to deal with the application for international protection exhaustively without there being any need to refer the case back to the determining authority. Thus, the court's power to take into consideration new evidence on which that authority has not taken a decision is consistent with the purpose of Directive 2013/32, as referred to in paragraph 109 of this judgment.

113 For its part, the adjective ‘full’ used in Article 46(3) of Directive 2013/32 confirms that the court or tribunal is required to examine both the evidence which the determining authority took into account or could have taken into account and that which has arisen following the adoption of the decision by that authority.

114 Furthermore, since that provision must be interpreted in a manner consistent with Article 47 of the Charter, the requirement for a full and ex nunc examination implies that the court or tribunal seised of the appeal must interview the applicant, unless it considers that it is in a position to carry out the examination solely on the basis of the information in the case file, including, where applicable, the report or transcript of the personal interview before that authority (see, to that effect, judgment of 26 July 2017, Sacko, C-348/16, EU:C:2017:591, paragraphs 31 and 44). In the event that new evidence comes to light after the adoption of the decision under appeal, the court or tribunal is required, as follows from Article 47 of the Charter, to offer the applicant the opportunity to express his views when that evidence could affect him negatively.

115 The words ‘where applicable’, contained in the limb of the sentence ‘including, where applicable, an examination of the international protection needs pursuant to directive [2011/95]’, underline, as the Commission submitted at the hearing, the fact that the full and ex nunc examination to be carried out by the court need not necessarily involve a substantive examination of the need for international protection and may accordingly concern the admissibility of the application for international protection, where national law allows pursuant to Article 33(2) of Directive 2013/32.

116 Finally, it must be stressed that it follows from recitals 16 and 22 of Article 4 and from the general scheme of Directive 2013/32 that the examination of the application for international protection by an administrative or quasi-judicial body with specific resources and specialised staff in this area is a vital stage of the common procedures established by that directive. Accordingly, the applicant's right recognised by Article 46(3) of that directive to obtain a full and ex nunc examination before a court or tribunal cannot diminish the obligation on the part of that applicant, which is governed by Articles 12 and 13 of that directive, to cooperate with that body.

117 It follows that, in the present case, Article 12(1)(a) of Directive 2011/95 constitutes a relevant point of law which it is for the referring court to examine in its capacity as a court or tribunal of first instance, including, in its assessment of the applicability of that provision to the circumstances of the applicant in the main proceedings, any evidence arising after the adoption of the contested decision.

118 In the light of all the foregoing considerations, the answer to the third question is that Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that a court or tribunal of a Member State seised at first instance of an appeal against a decision relating to an application for international protection must examine both facts and points of law, such as the applicability of Article 12(1)(a) of Directive 2011/95 to the applicant's circumstances, which the body that took that decision took into account or could have taken into account, and those which arose after the adoption of that decision.

The fourth question

119 By its fourth question, the referring court asks, in essence, whether Article 46(3) of Directive 2013/32, read in conjunction with Articles 18, 19 and 47 of the Charter, must be interpreted as meaning that the requirement for a full and ex nunc examination both of facts and of points of law also covers the grounds of inadmissibility of the application for international protection referred to in Article 33(2) of that directive and, if so, whether, in the event of an examination of such a ground of inadmissibility by the court or tribunal, even though that ground had not been examined by the determining authority, the file must be referred back to that authority for it to conduct the admissibility interview provided for in Article 34 of that directive.

120 As stated in paragraph 115 of the present judgment, the full and ex nunc examination of the appeal may concern the admissibility of an application for international protection, where permitted under national law. In accordance with the purpose of Directive 2013/32 of establishing a system in which, at the very least, the court or tribunal seised at first instance of an appeal against a decision of a determining authority must conduct a full and up-to-date examination, that court or tribunal may, inter alia, find that the applicant benefits from sufficient protection in a third country, with the result that it becomes unnecessary to examine the requirement for protection in the European Union. The application is then, for that reason, ‘inadmissible’.

121 As regards the cumulative conditions to which the application of such a ground of inadmissibility is subject, such as those referred to, as regards the first country of asylum ground, in Article 35 of that directive, or, as regards the safe third country ground, in Article 38 of that directive, that court or tribunal must rigorously examine whether each of those conditions has been satisfied by inviting, where appropriate, the determining authority to produce any documentation or factual evidence which may be relevant.

122 In the present case, it is apparent from the wording of the fourth question and accompanying explanations, that the referring court envisages, as the case may be, the application of the ‘first country of asylum’ concept, defined in Article 35 of Directive 2013/32, or the ‘safe third country’ concept, defined in Article 38 of that directive, to which the second paragraph of Article 35 of that directive refers, or even the concept of ‘safe country of origin’, defined in Article 36(1) of that directive, the latter concept being referred to in point (c) of the fourth question.

123 As regards the concept of ‘safe country of origin’, it must be noted that that concept is not included, as such, in the grounds of inadmissibility laid down in Article 33 of Directive 2013/32. Consequently, there is no need to examine it further in the context of the present reference for a preliminary ruling.

124 By contrast, in so far as the referring court envisages the application of the ‘first country of asylum’ or ‘safe third country’ concepts, it must conduct the examination referred to in paragraph 121 of the present judgment and ensure, before ruling on the matter, that the applicant has had the opportunity to set out her views in person on the applicability of the ground of inadmissibility to her particular situation.

125 While an applicant's right to be heard with regard to the admissibility of his or her application before any decision on the matter is taken is ensured, in the context of the procedure before the determining authority, by the personal interview provided for in Article 34 of Directive 2013/32, that right derives, during the appeal procedure referred to in Article 46 of that directive, from Article 47 of the Charter and is exercised, if necessary, by means of a hearing of the applicant (see, to that effect, judgment of 26 July 2017, Sacko, C-348/16, EU:C:2017:591, paragraphs 37 to 44).

126 It must be held, in that regard, that, in the event that the ground of inadmissibility examined by the court or tribunal hearing the action was also examined by the determining authority before the document contested in the action was adopted, that court or tribunal may rely on the report of the personal interview conducted by that authority without hearing the applicant, unless it considers it necessary.

127 If, by contrast, the determining authority did not examine that ground of inadmissibility and, consequently, did not conduct the personal interview referred to in Article 34 of Directive 2013/32, it is for the court or tribunal, if it considers that such a ground ought have been examined by that authority or should be examined on account of new evidence that has arisen, to conduct such a hearing.

128 As laid down in Article 12(1)(b) of Directive 2013/32, for personal interviews conducted by the determining authority the applicant must receive, during his hearing by the court, the services of an interpreter whenever necessary in order to present his or her arguments.

129 As regards, finally, the point raised by the referring court, concerning whether the requirement for a full and ex nunc examination of both facts and points of law must be interpreted in the light of Articles 18 and 19 of the Charter, it suffices to observe that, while the fundamental rights guaranteed by those provisions which relate to the right to asylum and protection in the event of removal, expulsion or extradition must be observed when implementing such a requirement, they do not offer, in the context of the reply to the question now referred, specific additional guidance concerning the scope of that requirement.

130 In the light of the foregoing, the answer to the fourth question is that Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that the requirement for a full and ex nunc examination of the facts and points of law may also concern the grounds of inadmissibility of the application for international protection referred to in Article 33(2) of that directive, where permitted under national law, and that, in the event that the court or tribunal hearing the appeal plans to examine a ground of inadmissibility which has not been examined by the determining authority, it must conduct a hearing of the applicant in order to allow that individual to express his or her point of view in person concerning the applicability of that ground to his or her particular circumstances.

The fifth question

131 By its fifth question, the referring court asks, in essence, whether the first paragraph of Article 35 of Directive 2013/32 must be interpreted as meaning that a person registered with UNRWA must, if he is a beneficiary of effective protection or assistance from that agency in a third country that is not the same as the territory in which he habitually resides but which falls within the area of operations of that agency, be considered as enjoying sufficient protection in that third country, within the meaning of that provision.

132 It follows from the order for reference that this question has been raised on account of the fact that Ms Alheto, during the armed conflict between the State of Israel and Hamas in July and August 2014, left the Gaza Strip in search of safety in Jordan where she stayed and from where she left for Bulgaria.

133 Jordan is part of UNRWA's area of operations. Consequently, although it is not for the Court to examine the nature of that agency's mandate or its ability to fulfil it, it cannot be ruled out that that agency may be able to provide a person registered with it with living conditions in Jordan that meet the requirements of its mission after that person has fled the Gaza Strip.

134 Accordingly, in the event that a person who has left the UNRWA area of operations and lodged an application for international protection in the European Union benefits from effective protection or assistance from UNRWA, thereby enabling him or her to stay there in safety, under dignified living conditions and without being at risk of being refouled to the territory of habitual residence for as long as he or she is unable to return there in safety, that person cannot be regarded by the authority empowered to decide on that application as having been forced, by reason of circumstances beyond his or her control, to leave UNRWA's area of operations. That person must, in that case, be excluded from refugee status in the European Union, in accordance with Article 12(1)(a) of Directive 2011/95, as interpreted by the case-law recalled in paragraph 86 of the present judgment.

135 In the present case, it is for the referring court to assess, on the basis of an individual assessment of all the relevant evidence, whether Ms Alheto's case falls within that category.

136 If so, those circumstances would also, subject to the considerations set out below, be likely to lead to the rejection of the application for international protection in so far as it concerns the grant of subsidiary protection.

137 Article 33(2)(b) of Directive 2013/32 allows the Member States to consider an application for international protection inadmissible, as a whole, in particular, when a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 35 of the directive.

138 In that regard, the very wording of points (a) and (b) of the first paragraph of Article 35 of Directive 2013/32 provides that a country can be considered to be a first country of asylum for a particular applicant if he or she has been recognised in that country as a refugee and he or she can still avail himself/herself of that protection; or (b) he or she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement, provided that he or she will be readmitted to that country.

139 Persons registered with UNRWA, as recalled in paragraph 6 of this judgment, have the status of ‘Palestine refugees in the Near East’. Consequently, they do not benefit from refugee status specifically linked to the Hashemite Kingdom of Jordan and cannot therefore, by the mere fact of that registration and protection or assistance granted to them by that agency, fall within the scope of point (a) of the first paragraph of Article 35 of Directive 2013/32.

140 By contrast, a Palestinian registered with UNRWA who has left his place of habitual residence in the Gaza Strip for Jordan, before travelling to a Member State and filing an application for international protection, must be regarded as otherwise enjoying sufficient protection in that third country, including the benefit of the principle of non-refoulement, within the meaning of point (b) of the first paragraph of Article 35 of Directive 2013/32, provided, first, that he is guaranteed to be able to be readmitted there, second, that he benefits there from effective protection or assistance from UNRWA, which is recognised, or regulated, by that third country and, third, that the competent authorities of the Member State in which the application for international protection was lodged are certain that he will be able to stay in that third country in safety under dignified living conditions for as long as necessary in view of the risks in the Gaza Strip.

141 In that scenario, the Hashemite Kingdom of Jordan, as an independent State whose territory is separate from that of the habitual residence of the person concerned, would constitute, by virtue of its agreement to readmit the person concerned, of its recognition of the effective protection or assistance provided by UNRWA in its territory, and of its adherence to the principle of non-refoulement, a State actor of protection, within the meaning of Article 7(1)(a) of Directive 2011/95, and would satisfy all the conditions required by point (b) of the first paragraph of Article 35 of Directive 2013/32 in order to fall within the concept of ‘first country of asylum’, referred to in that provision.

142 It is for the referring court to assess, if necessary after ordering the DAB to produce any relevant documentation or factual evidence, whether all the conditions described in paragraph 140 of the present judgment are satisfied in the present case.

143 In the light of the foregoing, the answer to the fifth question is that point (b) of the first paragraph of Article 35 of Directive 2013/32 must be interpreted as meaning that a person registered with UNRWA must, if he or she is a beneficiary of effective protection or assistance from that agency in a third country that is not the territory in which he or she habitually resides but which forms part of the area of operations of that agency, be considered as enjoying sufficient protection in that third country, within the meaning of that provision, when it:

• – agrees to readmit the person concerned after he or she has left its territory in order to apply for international protection in the European Union; and

• – recognises that protection or assistance from UNRWA and supports the principle of non-refoulement, thus enabling the person concerned to stay in its territory in safety under dignified living conditions for as long as necessary in view of the risks in the territory of habitual residence.

The sixth question

144 By its sixth question, the referring court asks, in essence, whether Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that the court or tribunal seised at first instance of an appeal against a decision concerning an application for international protection must, in the event that it annuls that decision, rule itself on that application for international protection by granting or rejecting it.

145 In that regard, it must be noted that Article 46(3) of Directive 2013/32 only concerns the ‘examination’ of the appeal and does not therefore govern what happens after any annulment of the decision under appeal.

146 Thus, by adopting Directive 2013/32, the EU legislature did not intend to introduce any common rule to the effect that the quasi-judicial or administrative body referred to in Article 2(f) of that directive should be deprived of its powers following the annulment of its initial decision concerning an application for international protection. It therefore remains open to the Member States to provide that the file must, following such an annulment, be referred back to that body for a new decision.

147 However, Article 46(3) of Directive 2013/32 would be deprived of any practical effect if it were accepted that, after delivery of a judgment by which the court or tribunal of first instance conducted, in accordance with that provision, a full and ex nunc assessment of the international protection needs of the applicant by virtue of Directive 2011/95, that body could take a decision that ran counter to that assessment or could allow a considerable period of time to elapse, which could increase the risk that evidence requiring a new up-to-date assessment might arise.

148 Consequently, even though the purpose of Directive 2013/32 is not to establish a common standard in respect of the power to adopt a new decision on an application for international protection after the annulment of the initial decision, it nevertheless follows from its purpose of ensuring the fastest possible processing of applications of that nature, from the obligation to ensure that Article 46(3) is effective, and from the need, arising from Article 47 of the Charter, to ensure an effective remedy, that each Member State bound by that directive must order its national law in such a way that, following annulment of the initial decision and in the event of the file being referred back to the quasi-judicial or administrative body referred to in Article 2(f) of that directive, a new decision is adopted within a short period of time and complies with the assessment contained in the judgment annulling the initial decision.

149 It follows that the answer to the sixth question is that Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that it does not establish common procedural standards in respect of the power to adopt a new decision concerning an application for international protection following the annulment, by the court hearing the appeal, of the initial decision taken on that application. However, the need to ensure that Article 46(3) of that directive has a practical effect and to ensure an effective remedy in accordance with Article 47 of the Charter requires that, in the event that the file is referred back to the quasi-judicial or administrative body referred to in Article 2(f) of that directive, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision.