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CJEU Case C-360/16 / Opinion

Bundesrepublik Deutschland v Aziz Hasan
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
07/09/2017
ECLI (European case law identifier)
ECLI:EU:C:2017:653

Carta dos Direitos Fundamentais da UE

Title I: Dignity

Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment

Title VI: Justice

Article 47 - Right to an effective remedy and to a fair trial

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  • CJEU Case C-360/16 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national — Detailed rules and time limits applicable to the transfer of a third-country national to the Member State where the first asylum application was made — Starting point of the time limit for transferring an asylum applicant.

    Outcome of the case:

    In the light of the foregoing considerations, I propose that the Court’s answers to the questions referred for a preliminary ruling by the Bundesverwaltungsgericht (Federal Administrative Court, Germany) should be as follows:

    1. The decision to transfer an asylum applicant does not confer finality on the determination of the Member State responsible for examining an asylum application.
    2. It must be possible for the judicial review of a transfer decision to take into account, inter alia, matters of fact and law subsequent to the contested decision and to include any changes of circumstances relevant to determining the Member States’ responsibility for examining applications for international protection.
    3. The provisions of Article 24 of Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person are alone applicable to the case at issue in the main proceedings, and thus compel the Federal Republic of Germany to lodge a new take back request with the Italian authorities and to comply with the procedures and time limits laid down in that provision. In that context, the Member State on whose territory the applicant is present has a period of three months in which to submit a take back request to the Member State responsible for examining the asylum application, starting from the point at which the former Member State becomes aware that the person concerned is on its territory. Once the authorities of the latter Member State have, tacitly or explicitly, given their consent, the transfer must be carried out within six weeks or, where appropriate, within six weeks of the dismissal of the appeal against the transfer decision or the rejection of its suspensive effect.
  • Paragraphs referring to EU Charter

    9. Recitals 4, 5, 19 and 21 of that regulation state:

    ‘(4) … the CEAS should include, in the short-term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.

    (5) 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 granting international protection and not to compromise the objective of the rapid processing of applications for international protection.

    …

    (19) In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. [ ( 4 )]

    …

    (21) Deficiencies in, or the collapse of, asylum systems, often aggravated or contributed to by particular pressures on them, can jeopardise the smooth functioning of the system put in place under this Regulation, which could lead to a risk of a violation of the rights of applicants as set out in the Union asylum acquis and the [Charter], other international human rights and refugee rights.’

    ...

    11) Article 3 of the Dublin III Regulation provides:

    ‘1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.

    2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.

    Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.

    Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.

    3. Any Member State shall retain the right to send an applicant to a safe third country, subject to the rules and safeguards laid down in Directive 2013/32 …’

    ...

    66) After all, it follows from recital 19 of that regulation that, in order to guarantee effective protection for the rights of applicants for international protection, legal safeguards and a right to an effective remedy in respect of decisions regarding transfers must be established, in accordance with Article 47 of the Charter. According to that recital, the right to an effective remedy should cover the examination of both the application of the Dublin III Regulation and the legal or factual situation obtaining in the Member State to which the applicant is transferred. Although that regulation does not specify the scope of the right to a remedy thus established, the latter can nonetheless be inferred from a teleological interpretation of those provisions. Furthermore, it should be possible to apply the same form of reasoning to the expiry of time limits for take back or retransfer.

  • Paragraphs referring to EU Charter (original language)