4) In N.S. the Court held, inter alia, that Article 4 of the Charter of Fundamental Rights stops Member States, including their courts, from transferring an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003, even though they would be otherwise entitled to do so, where they ‘cannot be unaware that systemic deficiencies [my emphasis] in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman and degrading treatment within the meaning of that provision.’ ( 6 )

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7. Recitals 3, 4, 12 and 15 of Regulation No 343/2003 state:

‘(3) The Tampere [European Council] conclusions also stated that this [European Asylum System] should include, in the short term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.

(4) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications.

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(12) With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by obligations under instruments of international law to which they are party.

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(15) The Regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full observance of the right to asylum guaranteed by Article 18.’

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38) Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’) as well as Article 78 TFEU provide that the right to asylum is to be guaranteed with due respect for the Geneva Convention. According to Article 4 of the Charter no one shall be subjected to torture or other inhuman or degrading treatment or punishment. Article 19(2) of the Charter forbids removal, expulsion or extradition to a State where there is a serious risk of inhuman or degrading treatment. Article 47 of the Charter guarantees a right to an effective remedy and to a fair trial before a tribunal to everyone whose rights and freedoms guaranteed by the law of the Union are violated.

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43) This was so because, inter alia, the ‘Common European Asylum System is based on the full and inclusive application of the Geneva Convention and the guarantee that nobody will be sent back to a place where they again risk being persecuted’ and the fact that ‘Article 18 of the Charter and Article 78 TFEU provide that the rules of the Geneva Convention and the 1967 Protocol are to be respected’. ( 9 ) It was held that ‘if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision’. ( 10 )

44) This was held to be applicable when a Member State where an asylum seeker is located ‘cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers’ in the ‘Member State responsible’ under Regulation No 343/2003 ‘amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter’. ( 11 )

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46) It is first necessary to bring some clarity to the question referred. This is because of the link between the remaining preliminary question with the three withdrawn preliminary questions, and more particularly the third withdrawn question which was worded as follows:

‘Is there a duty on the part of the Member State to exercise its right under the first sentence of Article 3(2) of Regulation No 343/2003 in view of the guarantees laid down in the Charter of Fundamental Rights referred to above at any rate if, in the Member State assuming responsibility, particularly serious deficiencies exist which could fundamentally compromise the procedural guarantees for asylum seekers or pose a threat to the existence or the physical integrity of the transferred asylum seeker?’

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49) The principle of non‑refoulement forms the essence of the fundamental right to asylum guaranteed in Article 18 of the Charter and Article 78(1) TFEU. These provisions do not create for the asylum seekers a subjective substantive right to be granted asylum, ( 13 ) but a right to fair and effective examination of the application for asylum, together with the right not to be transferred to countries or territories in breach of the principle of non‑refoulement.

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63) Therefore, when a Member State in which the asylum application has been lodged cannot be unaware of systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers leading to a real risk of inhuman or degrading treatment in the Member State which would otherwise be responsible under Regulation No 343/2003, their competent authorities should desist from transferring asylum applicants to that Member State of their own motion. They should do so without being compelled by the national courts, or by request of the asylum seeker concerned. Even though Article 3(2), as a discretionary measure, does not vest individuals with rights, this in no way attenuates the positive obligation on Member States, including their courts, to refrain from taking action that would expose asylum seekers to inhuman and degrading treatment as prescribed in N.S. Indeed, the N.S. case itself established that the Charter is applicable in the context of exercise of discretion. With respect to EU asylum law, N.S. obligations are triggered once the Member State agency concerned, be it a court or otherwise, has determined that the N.S. threshold conditions, described above, exist in the otherwise ‘responsible’ Member State.

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77) It is in the course of these proceedings that the national court, as a consequence of its duties to provide effective legal protection under Article 19(1) TEU, is bound to consider whether the exceptional circumstances of the N.S. case have arisen and are applicable in any given case, and alter the obligations of the Member State in which asylum is being sought. It almost goes without saying that, as part of the primary law of the EU, ( 32 ) national courts are bound to secure protection of the rights contained in the Charter in these same proceedings; and all the more so when EU legislation specifically refers to observance of fundamental rights and the Charter, as is the case with respect to Regulation No 343/2003, in recital (15) thereof. ( 33 )

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79) In my opinion a national court that cannot be unaware that systemic deficiencies in the asylum procedure, and in the reception conditions of asylum seekers in the Member State responsible under Article 3(1) of Regulation No 343/2003, amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, is obliged to suspend transfer of asylum seekers to such a Member State, and if necessary, to set aside any national provision that would exclude such a decision. This follows from general EU law principles concerning provision of effective remedies and protection of fundamental rights. ( 35 ) As I have already noted, the competent authorities have a similar obligation in the context of administration of asylum procedures.

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81) In conclusion, even in the exceptional situations as defined in the N.S. judgment, asylum seekers do not have an enforceable claim, based on Regulation No 343/2003, to compel an identified Member State to examine their application for asylum. However, a national court that cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in the Member State responsible under Regulation No 343/2003 amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment, within the meaning of Article 4 of the Charter, is obliged to suspend the transfer of that asylum seeker to that Member State.

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82) I therefore propose the following answer to the question referred by the Hessischer Verwaltungsgerichtshof:

Asylum seekers do not have an enforceable claim to compel an identified Member State to examine their applications for asylum in accordance with the first sentence of Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third‑country national. However, a national court that cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in the Member State responsible under Regulation No 343/2003 amount to substantial grounds for believing that asylum seekers would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union is, within the context of application of Article 19(2) of that regulation, obliged to suspend the transfer of asylum seekers to that Member State.