Case C-449/26, Freie Hansestadt Bremen – must the risk be assessed twice?
Article 4 of the Charter admits of no exception and no balancing: nobody may be removed to face torture or inhuman treatment. The hard question is not whether the guarantee applies but who has to check it, and how many times.
Facts
UQ held international protection in Germany until an authority withdrew it. In doing so, that authority established that there was no serious risk of treatment or of a situation in the country of origin contrary to Article 4 of the Charter of Fundamental Rights, and that Article 19(2) of the Charter therefore did not preclude removal. A different administrative authority — the Freie Hansestadt Bremen — then issued a return decision. UQ challenged it. The Oberverwaltungsgericht der Freien Hansestadt Bremen (Higher Administrative Court, Bremen), hearing the appeal, has asked Luxembourg how far the earlier finding binds the second authority and the court reviewing it, referring three questions in cascade.
Questions Referred
According to the Official Journal notice, the Oberverwaltungsgericht der Freien Hansestadt Bremen asks:
1. Must Article 5 of Directive 2008/115/EC be interpreted as meaning that an administrative authority, which issues a return decision against a third-country national, after another authority has withdrawn international protection from that person and, in that context, has established that there is no serious risk of treatment or a situation in his or her country of origin that would infringe Article 4 of the Charter of Fundamental Rights, and that Article 19(2) of the Charter of Fundamental Rights therefore does not preclude removal, and the court reviewing that return decision, are required, regardless of the finding made at the time international protection was withdrawn, to re-examine from the beginning whether Articles 4 and 19(2) of the Charter of Fundamental Rights preclude removal to the country of origin?
2. If the answer to Question 1 is in the negative: In the situation described in Question 1, are the administrative authority issuing the return decision and the court reviewing it required, under Article 5 of Directive 2008/115, to examine whether, following the finding, made at the time international protection was withdrawn, that Articles 4 and 19(2) of the Charter of Fundamental Rights do not preclude removal, factual matters that have occurred or changed, or other evidence not taken into account in that finding, mean that the abovementioned provisions of the Charter of Fundamental Rights preclude removal to the country of origin?
3. If the answer to Question 2 is in the affirmative with regard to evidence not previously taken into account, which is not based on factual matters that have occurred or changed: Is it relevant whether the third-country national could have put forward that evidence during the proceedings before the authority that withdrew international protection, but failed to do so?
Sources
OJ notice C/2026/3983 (EUR‑Lex) · Case file on CURIA · Directive 2008/115/EC · Charter of Fundamental Rights
Comment
The three questions descend a staircase, and each step gives away more ground. Full re-examination; if not that, then at least changed facts and unconsidered evidence; if that, then perhaps not evidence the applicant sat on. By the third question the referring court is no longer asking about the standard of protection but about a procedural forfeiture rule — whether a person can lose the benefit of Article 4 by having been a poor litigant earlier.
The starting point is that Article 5 of Directive 2008/115 makes non-refoulement a condition of the return decision itself, not merely of the earlier protection procedure. In Case C‑69/21, X (ECLI:EU:C:2022:913) the Court held that Article 5, read with Articles 1, 4 and 19(2) of the Charter, precludes a return decision being taken at all where there are substantial grounds for believing the person would face a real risk of serious harm — there, a seriously ill man whose only effective pain treatment was unavailable in the destination country. The obligation there attached to the authority taking the return decision. That points away from a model in which the return authority simply inherits a conclusion reached months or years earlier by someone else.
The two-stage structure is not itself objectionable — the Court has accepted it. In Case C‑181/16, Gnandi (ECLI:EU:C:2018:465) it allowed a return decision to be adopted immediately after protection was refused, even in the same administrative act, provided the decision’s legal effects are suspended pending appeal and — the clause that matters here — provided the person may rely on any change in circumstances arising after the return decision that could have a significant bearing on the assessment of the situation. Read across, that supplies a floor for question 2: changed circumstances must be capable of being raised. What Gnandi does not settle is the fate of evidence that existed all along and was simply never produced.
That is where question 3 bites, and where the answer is least comfortable. Ordinary procedural discipline — raise your evidence at the right time or lose it — is unremarkable in administrative law, and Member States rely on it to stop proceedings restarting indefinitely. But Article 4 is absolute: it does not weaken because the person seeking its protection was badly advised, frightened, or slow. If the Court accepts that untimely evidence may be disregarded, an absolute prohibition acquires a procedural exception in all but name. If it refuses, every return decision becomes re-litigable on material that could have been produced years earlier, and the withdrawal procedure loses much of its point. The referring court has isolated that tension with unusual precision — which is why the answer will be read far beyond Bremen.