Judgment_paragraph 71 · Milkiyas Addis v Bundesrepublik Deutschland (C-517/17)

71It should be added, in the light of the referring court’s queries in that regard, that the absence of a hearing cannot be compensated for by the opportunity that the applicant has in his or her appeal to set out in writing factors which call into question the validity of the decision declaring that his or her application for protection is inadmissible, or by the obligation, under national law, on the determining authority and on the court or tribunal hearing the appeal to investigate of its own motion all of the relevant facts. Furthermore, while the fact that a provision transposing into national law the grounds of inadmissibility laid down in Article 33(2) of the Procedures Directive leaves the determining authority discretion as to whether it is appropriate to apply a given ground in a particular case may require the case to be remitted to that authority, the fact that there is no such discretion under German law cannot justify exercise of the right to be heard in the form envisaged by the directive being denied to the applicant. As is apparent from paragraphs 59 to 69 above, if there is no personal interview before the determining authority at first instance, it is only if such an interview is conducted before the court or tribunal hearing the appeal against the decision adopted by that authority declaring the application inadmissible and that interview is conducted in accordance with all of the conditions prescribed by the Procedures Directive that it is possible to guarantee the effectiveness of the right to be heard at that subsequent stage of the procedure.