Case C-752/26, Anori – served by email, whether or not it was read
The time limit for appealing an asylum refusal starts when the decision is served. Greece decided that an email is served two days after it is sent. A court in Thessaloniki asks what that does to the remedy the time limit is supposed to make possible.
Facts
L.W. is challenging a decision of the Greek Ministry of Migration and Asylum before the Dioikitiko Protodikeio Thessalonikis. Under Article 87(3) of Law 4939/2022, a decision rejecting an application for international protection may be notified by ordinary email, and is presumed to have been served on the applicant 48 hours after it was sent; the time limit for an appeal under Article 46 of Directive 2013/32/EU runs from that deemed service. No system records when the message was received or opened, and the law does not say how the presumption can be rebutted. The applicant had consented to notification by email and supplied the address; the notice indicates that the applicant argues the message was classified as spam. Under the Greek Tax Procedure Code, by contrast, electronic notifications are made through a system that fixes the moment of receipt, and the presumption of service of a registered letter does not apply where the taxpayer disputes receipt. The referring court asks five questions. (Anori is a fictitious name assigned under the Court’s anonymisation practice; it does not correspond to any party.)
Questions Referred
1. Are the method of service of a decision rejecting an application for international protection provided for in Article 87(3) of Law 4939/2022 and the presumption that that decision has been served on the applicant upon the expiry of 48 hours after it has been sent to the applicant by ordinary email, without provision for a system capable of establishing the exact time when the electronically notified document was received and accessed, compatible with Article 47 of the Charter of Fundamental Rights of the European Union and Article 46 of Directive 2013/32/EU, given that the time limit for bringing an administrative appeal (appeal under Article 46 of the Directive) against that decision begins to run from the time of that deemed service?
2. In that connection, is the principle of equivalence infringed in the present case, given that, for electronic notifications effected under the Tax Procedure Code in particular, provision is made for a system capable of establishing the exact starting point referred to above, whereas, in cases where a taxpayer disputes receipt of a registered letter, it has been held that the presumption of valid service, also provided for in the Tax Procedure Code, does not apply?
3. Is it relevant to the assessment of the above question that the applicant expressly consented to the notification of the documents issued by the receiving authority, including the decision rejecting the application for international protection, by email, and, indeed, provided the email address to which documents were sent?
4. Furthermore, in so far as the above provision does not specify the means by which the above presumption may be rebutted, as, for example, might be the case if the system ensured that the time of access could be verified, so as to prove that the electronically notified document was accessed at a time after the expiry of the 48-hour period, does the presumption become, in breach of Article 47 of the Charter and Article 46 of Directive 2013/32/EU and of the principle of effectiveness, an irrefutable presumption, since the applicant is unable to prove either that the email and the documents attached to it were received and read after the expiry of the 48-hour period, or that they were not actually received for possible technical reasons, with the result that, in such a case, the applicant’s appeal would be dismissed as having been lodged out of time on the basis of that presumption?
5. Should the applicant’s argument that the email was classified as spam carry weight in the context of the assessment of the above question in so far as, on the one hand, this is difficult to prove, since such a classification may also result from actions taken by the holder of the email account, and, on the other hand, it could be argued that, having consented to that specific method of communication, the account holder was obliged to check his or her spam folder as well?
Sources
OJ notice C/2026/4947 (EUR‑Lex) · Case file on CURIA · Directive 2013/32/EU
Comment
Article 46(4) of the Directive requires “reasonable time limits” and adds that they “shall not render such exercise impossible or excessively difficult”. The Court has been tolerant of short limits as such: in Case C‑69/10, Diouf (ECLI:EU:C:2011:524) it said that a fifteen-day limit in an accelerated procedure “does not seem, generally, to be insufficient in practical terms”, the important point being that the period “must be sufficient in practical terms to enable the applicant to prepare and bring an effective action”. The Greek case is not about the length of the period but about when it begins. A limit that starts at a moment the applicant cannot know, and cannot later prove was wrong, may be reasonable in length and still shorten the period unpredictably to nothing.
The fourth question identifies the core defect. A presumption of service is a normal procedural device; what makes it compatible with an effective remedy is that it can be rebutted. Article 87(3), as the referring court describes it, contains no means of rebuttal and the system it relies on produces no record that could support one — so the presumption is rebuttable in form and irrefutable in fact. The comparison in the second question sharpens the point under the principle of equivalence: Greece already operates an electronic notification system that fixes the moment of receipt for taxpayers, and its courts decline to apply the presumption of service where a taxpayer disputes receiving a registered letter. An asylum applicant contesting a refusal of protection gets less procedural security than a taxpayer contesting an assessment.
Questions 3 and 5 are where the State’s best arguments lie, and the Court is likely to take them seriously. The applicant chose email and supplied the address; checking one’s spam folder is not an onerous expectation of someone awaiting the most important decision of their life. A ruling that consent to email notification carries a duty of reasonable diligence would be easy to reconcile with effectiveness. What is harder to reconcile is a system in which no amount of diligence, and no evidence, can displace the presumption — and that, not the use of email, is what the referring court is really asking about.
The case belongs to a wider question that every Member State digitising its asylum procedure will face. The Court has never had to say what an electronically served decision requires; the answer here will set the minimum for all of them.