JUDGMENT
OF
25. 7. 2018 — CASE C-585/16
ALHETO
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
16
ECLI:EU:C:2018:584