Language of document : ECLI:EU:C:2018:617

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 25 July 2018 (1)

Joined Cases C297/17 and C318/17, C319/17 and C438/17

Bashar Ibrahim (C‑297/17),

Mahmud Ibrahim (C-318/17),

Fadwa Ibrahim (C-318/17),

Bushra Ibrahim (C-318/17),

Mohammad Ibrahim, legally represented by Fadwa and Mahmud Ibrahim (C‑318/17),

Ahmad Ibrahim, legally represented by Fadwa and Mahmud Ibrahim (C‑318/17),

Nisreen Sharqawi (C-319/17),

Yazan Fattayrji, legally represented by Nisreen Sharqawi (C-319/17),

Hosam Fattayrji, legally represented by Nisreen Sharqawi (C‑319/17)

v

Bundesrepublik Deutschland

and

Bundesrepubik Deutschland

v

Taus Magamadov (C‑438/17)

(Request for a preliminary ruling
from the Bundesverwaltungsgericht (Federal Administrative Court, Germany))

(Reference for a preliminary ruling — Directive 2013/32/EU — Area of freedom, security and justice — Common procedures for granting and withdrawing international protection — Article 52 — Scope ratione temporis of that directive — Article 33(2)(a) — Rejection of an application for asylum as inadmissible on the ground that subsidiary protection has already been granted in another Member State — Articles 4 and 18 of the Charter of Fundamental Rights of the European Union — Systemic flaws in the asylum procedure in that other Member State — Directive 2011/95/EU — Article 20 et seq. — Living conditions of beneficiaries of subsidiary protection in the latter State — Real and proven risk of inhuman or degrading treatment)






1.        The requests for a preliminary ruling in Cases C‑297/17, C‑318/17 and C‑319/17 concern the interpretation of, first, Article 33(2)(a) and the first paragraph of Article 52 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (2) and Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, secondly, Article 20 et seq. of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. (3)

2.        The requests have been made in three sets of proceedings between Bashar Ibrahim (Case C‑297/17), Mahmud Ibrahim, Fadwa Ibrahim, Bushra Ibrahim, the minor children Mohammad and Ahmad Ibrahim (Case C‑318/17) and Nisreen Sharqawi and her minor children, Yazan and Hosam Fattayrji (Case C‑319/17), Palestinian asylum applicants who were resident in Syria and are stateless, and the Bundesrepublik Deutschland (Federal Republic of Germany), concerning the decisions adopted by the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany, ‘the Office’) refusing them a right to asylum on the ground that they had entered from a safe third country.

3.        The request for a preliminary ruling in Case C‑438/17 concerns the interpretation of Article 33(2)(a) and the first paragraph of Article 52 of Directive 2013/32.

4.        That request was made in the course of proceedings between the Federal Republic of Germany and Taus Magamadov, an asylum applicant of Russian nationality, who claims to be Chechen and who was resident in Poland, concerning a decision adopted by the Office refusing him a right to asylum on the ground that he had entered from a safe third country.

I.      Legal framework

A.      International law

1.      The Geneva Convention

5.        Article 21 of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, (4) which entered into force on 22 April 1954, as supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967, (‘the Geneva Convention’), entitled ‘Housing’, provides:

‘As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.’

2.      European Convention for the Protection of Human Rights and Fundamental Freedoms

6.        Under the heading ‘Prohibition of torture’, Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), provides:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

B.      EU law

1.      The Charter

7.        Under Article 1 of the Charter, entitled ‘Human dignity’:

‘Human dignity is inviolable. It must be respected and protected.’

8.        Article 4 of the Charter, entitled ‘Prohibition of torture and inhuman or degrading treatment or punishment’, states:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

Article 18 of the Charter, entitled ‘Right to asylum’, provides:

‘The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union …’

9.        Article 51 of the Charter, entitled ‘Field of application’, provides in paragraph 1:

‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.’

10.      Article 52 of the Charter, entitled ‘Scope and interpretation of rights and principles’, provides in paragraph 3:

‘In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

2.      Directive 2013/32

11.      Article 33 of Directive 2013/32, entitled ‘Inadmissible applications’, provides:

‘1. In addition to cases in which an application is not examined in accordance with Regulation (EU) No 604/2013, Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive 2011/95/EU where an application is considered inadmissible pursuant to this Article.

2. Member States may consider an application for international protection as inadmissible only if:

(a)      another Member State has granted international protection;

…’

12.      Article 40 of that directive, entitled ‘Subsequent application’, provides:

‘…

2. … a subsequent application for international protection shall be subject first to a preliminary examination as to whether new elements or findings have arisen or have been presented by the applicant which relate to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95/EU.

3.      If the preliminary examination referred to in paragraph 2 concludes that new elements or findings have arisen or been presented by the applicant which significantly add to the likelihood of the applicant qualifying as a beneficiary of international protection by virtue of Directive 2011/95/EU, the application shall be further examined in conformity with Chapter II. Member States may also provide for other reasons for a subsequent application to be further examined.

4.      Member States may provide that the application will only be further examined if the applicant concerned was, through no fault of his or her own, incapable of asserting the situations set forth in paragraphs 2 and 3 of this Article in the previous procedure, in particular by exercising his or her right to an effective remedy pursuant to Article 46.

…’

13.      Article 51(1) of that directive states:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 1 to 30, Article 31(1), (2) and (6) to (9), Articles 32 to 46, Articles 49 and 50 and Annex I by 20 July 2015 at the latest. They shall forthwith communicate the text of those measures to the Commission.’

14.      Under the first paragraph of Article 52 of Directive 2013/32:

‘Member States shall apply the laws, regulations and administrative provisions referred to in Article 51(1) to applications for international protection lodged and to procedures for the withdrawal of international protection started after 20 July 2015 or an earlier date. Applications lodged before 20 July 2015 and procedures for the withdrawal of refugee status started before that date shall be governed by the laws, regulations and administrative provisions adopted pursuant to [Council] Directive 2005/85/EC [of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (5)].’

C.      German law

15.      Paragraph 29 of the Asylgesetz (Law on asylum, ‘the AsylG’), of 2 September 2008, as amended by the Integrationsgesetz (Law on integration) of 31 July 2016 (BGBl. I S., p. 1939), provides:

‘(1) An application for asylum is inadmissible if

1.      another State is responsible for examining the application for asylum

(a)      under [the Dublin III (6)] Regulation … or

(b)      under other European Union rules or an international agreement

2.      another Member State of the European Union has already granted to the foreign national the international protection referred to in Paragraph(1)(1), point 2, ...’

16.      Paragraph 77(1) of the AsylG provides:

‘In disputes falling within the scope of this law, the court shall rely on the situation of fact and of law obtaining at the time of the last hearing; if a judgment is given without a hearing, the relevant point in time shall be that at which the judgment is given. ...’

II.    The disputes in the main proceedings and the questions referred for a preliminary ruling

A.      Cases C297/17, C318/17 and C319/17

17.      The applicant in Case C‑297/17, (7) Bashar Ibrahim, is the son of Mahmud Ibrahim and Fadwa Ibrahim and the brother of the three other applicants, (8) who, like their parents, are the applicants in Case C‑318/17.

18.      The applicants in the main proceedings in those cases left Syria in 2012 to enter Bulgaria, where, by decisions of 26 February and 7 May 2013, they were granted subsidiary protection. In November 2013, they continued their journey through Romania, Hungary and Austria to enter Germany, where, on 29 November 2013, they lodged a new application for asylum.

19.      On 22 January 2014, the Office sent the Bulgarian national authorities requests to take back the persons concerned. Those authorities rejected the requests by letters of 28 January and 10 February 2014 on the ground that the subsidiary protection already granted to the applicants in the main proceedings in Cases C‑297/17 and C‑318/17 in Bulgaria rendered the system for taking back provided for in the Dublin III Regulation inapplicable in the present case. Moreover, the competent Bulgarian authority was the local border police.

20.      By decisions of 27 February and 19 March 2014, the Office refused the applicants in the main proceedings in Cases C‑297/17 and C‑318/17 a right to asylum without examining the substance of their applications, on the ground that they had entered from a safe third country and ordered that they be deported to Bulgaria.

21.      By judgments of 20 May and 22 July 2014, the Verwaltungsgericht (Administrative Court, Germany) dismissed the actions brought against those decisions.

22.      By judgments of 18 February 2016, the Oberverwaltungsgericht (Higher Administrative Court, Germany) annulled the orders for deportation to Bulgaria, but rejected the remaining requests. According to that court, the applicants in the main proceedings in Cases C‑297/17 and C‑318/17 had rightly been refused the right to asylum since they had arrived from a safe third country. The orders for deportation to Bulgaria were unlawful, however, since it had not been established that the Republic of Bulgaria was still willing to take charge of the applicants in the main proceedings in Cases C‑297/17 and C‑318/17.

23.      Those applicants brought an appeal on a point of law before the Bundesverwaltungsgericht (Federal Administrative Court, Germany) against those decisions which partially rejected their applications. They submit, inter alia, that the system introduced by the Dublin III Regulation continues to apply after subsidiary protection has been granted. By contrast, the Office considers that the asylum applications are now inadmissible under Paragraph 29(1), point 2 of the AsylG, the content of which corresponds to that of Article 33(2)(a) of Directive 2013/32.

24.      In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      Does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32 preclude the application of national legislation which, in transposition of the power conferred in Article 33(2)(a) of Directive 2013/32, which is more extensive than that conferred in the directive that preceded it, provides that an application for international protection is inadmissible if the applicant has been granted subsidiary protection in another Member State, in so far as the national legislation, in the absence of any national transitional provisions, is applicable even to applications lodged before 20 July 2015?

In particular, does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32 allow the Member States, in particular, to transpose the extended power conferred in Article 33(2)(a) of Directive 2013/32 retroactively, with the result that even applications which were lodged before that extended power was transposed into national law but which were not yet the subject of a final decision at the time of transposition are inadmissible?

(2)      Does Article 33 of Directive 2013/32 confer on the Member States a right to choose whether to reject an application for asylum as inadmissible either on the ground that responsibility lies with another Member State (the Dublin Regulation) or under Article 33(2)(a) of Directive 2013/32?

(3)      If the answer to Question 2 is in the affirmative, does EU law prevent a Member State from rejecting an application for international protection as inadmissible on the ground that subsidiary protection has been granted in another Member State, in transposition of Article 33(2)(a) of Directive 2013/32, where

(a)      the applicant seeks to have the subsidiary protection granted to him in another Member State enhanced (by the award of refugee status) and the asylum procedure in the other Member State was (and continues to be) vitiated by systemic flaws, or

(b)      the form which the international protection takes, that is to say the living conditions of those benefiting from subsidiary protection, in the other Member State which has already granted the applicant subsidiary protection,

–        infringes Article 4 of the Charter and Article 3 ECHR or

–        does not satisfy the requirements of Article 20 et seq. of Directive 2011/95/EU but does not in and of itself infringe Article 4 of the Charter or Article 3 ECHR?

(4)      If Question 3b is to be answered in the affirmative, is this also the case where, although the persons benefiting from subsidiary protection do not receive any subsistence benefits at all or those which they do receive are very limited by comparison with those available in other Member States, they are to this extent not treated any differently from nationals of that Member State?

(5)      If Question 2 is answered in the negative:

(a)      Is the Dublin III Regulation applicable in a procedure for the grant of international protection if the asylum application was lodged before 1 January 2014 but the take back request was not lodged until after 1 January 2014 and the applicant had previously (in February 2013) been granted subsidiary protection in the requested Member State itself?

(b)      Do the Dublin provisions support the inference of an — unwritten — transfer of responsibility to the Member State which has requested that an applicant be taken back, where the requested responsible Member State has refused to grant a take back request made, within the prescribed time limit, under the Dublin provisions and has instead referred to an international readmission agreement?’

B.      Case C438/17

25.      On 2007, Mr Magamadov lodged an application for asylum in Poland, where, by decision of 13 October 2008, he was granted subsidiary protection. In June 2012, with his wife and his child, he entered Germany, where, on 19 June 2012, he lodged an application for asylum.

26.      On 13 February 2013, the Office sent a take back request to the Polish authorities, which, on 18 February 2013, declared that they were willing to take charge of Mr Magamadov and his family.

27.      By decision of 13 March 2013, the Office took the view, without examining the substance, that the asylum applications by Mr Magamadov and his family were inadmissible since the Republic of Poland was the Member State responsible for examining those applications and ordered that they be transferred to Poland. As the transfer did not take place within the prescribed period on account of medical issues experienced by Mr Magamadov’s wife, by decision of 24 September 2013, the Office withdrew its decision of 13 March 2013 on the ground that the Federal Republic of Germany had become the Member State responsible because that period had expired.

28.      By decision of 23 June 2014, the Office refused to grant the applicant international protection and the right to asylum on the ground that he had entered from Poland and ordered that he be deported to that Member State.

29.      By judgment of 19 May 2015, the Verwaltungsgericht (Administrative Court, Germany) dismissed the action brought against that decision.

30.      By judgment of 21 April 2016, the Oberverwaltungsgericht (Higher Administrative Court) annulled the Office’s decision of 23 June 2014.

31.      The Oberverwaltungsgericht (Higher Administrative Court) held that the rule in the first sentence of Paragraph 16a(2) of the Grundgesetz (German Basic Law), in accordance with which the right to asylum is not to be granted to a foreign national who has come from a safe country, did not apply in the case in the main proceedings on account of the derogation provided for in the third sentence of Paragraph 26a(1), point 2 of the AsylG, in accordance with which the safe third country rule does not apply where, as in the present case, the Federal Republic of Germany has become the Member State responsible under EU law. As the asylum application at issue in the case in the main proceedings was lodged before 20 July 2015, Directive 2005/85 applies. However, Article 25(2) of that directive allows an application for asylum to be rejected without an examination of the substance only if another Member State has granted the person concerned refugee status.

32.      The Federal Republic of Germany appealed on a point of law against that judgment before Bundesverwaltungsgericht (Federal Administrative Court). It submits, inter alia, that the asylum application at issue in the case in the main proceedings is inadmissible pursuant to Paragraph 29(1), point 2 of the AsylG, the content of which corresponds to that of Article 33(2)(a) of Directive 2013/32, since the applicant was granted international protection in Poland.

33.      Mr Magamadov considers that his application for asylum, lodged on 19 June 2012, is not inadmissible since the Republic of Poland did not grant him refugee status, but merely subsidiary protection.

34.      The referring court states that the Office’s decision of 23 June 2014 was adopted before the entry into force of Directive 2013/32 and that the Dublin II, and not the Dublin III, Regulation applies to the facts at issue in the case in the main proceedings.

35.      In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(.)Does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32 preclude the application of national legislation which, in transposition of the power conferred in Article 33(2)(a) of Directive 2013/32, which is more extensive than that conferred in the directive that preceded it, provides that an application for international protection is inadmissible if the applicant has been granted subsidiary protection in another Member State, in so far as the national legislation, in the absence of any national transitional provisions, is applicable even to applications lodged before 20 July 2015?

Is that in any event the case if, in accordance with Article 49 of [the Dublin III] Regulation …, the asylum application still falls entirely within the scope of [the Dublin II] Regulation …?

(2)      In particular, does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32 allow the Member States, in particular, to transpose the extended power conferred in Article 33(2)(a) of Directive 2013/32 retroactively, with the result that even applications that were lodged before the entry into force of Directive 2013/32 and before that extended power was transposed into national law, but that were not yet the subject of a final decision at the time of transposition, are inadmissible?’

III. The procedure before the Court

36.      By decision of the President of the Court of 9 June 2017, Cases C‑297/17, C‑318/17 and C‑319/17 were joined for the purposes of the written procedure, the oral procedure and the judgment since the questions referred in those three cases were identical.

37.      The referring court requested that the Court determine those cases pursuant to an expedited procedure under Article 105(1) of the Rules of Procedure of the Court of Justice. On 14 July 2017, the President of the Court decided that there was no need to grant that request.

38.      The referring court also requested that the Court determine Case C‑438/17 pursuant to an expedited procedure under Article 105(1) of the Rules of Procedure of the Court of Justice. On 19 September 2017, the President of the Court decided that there was no need to grant that request.

39.      By decision of the Court of 30 January 2018, Cases C‑297/17, C‑318/17, C‑319/17 and C‑438/17 were joined for the purposes of the oral procedure and the judgment.

40.      Written observations were submitted by the applicants in the main proceedings, the German, French and Polish Governments and the European Commission in Cases C‑297/17, C‑318/17 and C‑319/17.

41.      Written observations were submitted by the German, Polish and Hungarian Governments and the Commission in Case C‑438/17.

42.      At the joint hearing on 8 May 2018 in Case C‑163/17 and Joined Cases C‑297/17, C‑318/17, C‑319/17 and C‑438/17, the applicants in the main proceedings in those cases, the Office, the German, Belgian, Italian, Netherlands and United Kingdom Governments and the Commission presented oral argument.

IV.    Analysis

A.      The first question referred in Joined Cases C297/17, C318/17 and C319/17, and the two questions referred in Case C438/17

43.      The first question referred for a preliminary ruling in Joined Cases C‑297/17, C‑318/17 and C‑319/17, and both questions referred in Case C‑438/17, concern the interpretation of the transitional provision contained in Directive 2013/32, namely the first paragraph of Article 52. They seek to determine, in essence, which of the two directives, 2013/32 or 2005/85, is applicable to the asylum application of 29 November 2013 by the applicants in the main proceedings in Case C‑297/17, C‑318/17 and C‑319/17, and the asylum application of 19 June 2012 by the applicant in the main proceedings in Case C‑438/17. (9)

44.      According to the referring court, in accordance with Paragraph 29(1), point 2 of the AsylG, which transposes Article 33(2)(a) of Directive 2013/32, an application for asylum is inadmissible if another Member State of the European Union has already granted international protection to the foreign national. It adds that Paragraph 77(1) of the AsylG ‘itself orders that Paragraph 29(1), point 2 of the AsylG be applied to applications lodged before its entry into force provided that they have not yet been the subject of a decision that is not open to appeal. The confidence of the persons concerned in retaining the former legal system bears less weight, in the eyes of the referring Chamber, than the objective pursued by the new system of avoiding secondary migration after protection has been granted in accordance with Article 33(2)(a) of Directive 2013/32.’ (See paragraph 20 of the request for a preliminary ruling in Case C‑297/17).

45.      It should be noted that, under Article 33(2)(a) of Directive 2013/32, Member States may consider an application for international protection, namely an application seeking refugee status or subsidiary protection status, as inadmissible if another Member State has granted international protection. (10)

46.      By contrast, in accordance with Article 25(2)(a) of Directive 2005/85, (11) Member States were able to consider an application for international protection as inadmissible if another Member State had granted refugee status. Therefore, in accordance with that provision, an application for refugee status could not be regarded as inadmissible if subsidiary protection status had been granted by another Member State. (12)

47.      It follows that there is a clear distinction between the scope of those two provisions, as the Member States have more extensive powers to declare an application for international protection inadmissible under Article 33(2)(a) of Directive 2013/32 than under Article 25(2)(a) of Directive 2005/85. (13) Therefore, with regard to the admissibility of applications for international protection, it is important to know which of those two directives is applicable in the cases in the main proceedings.

48.      In that regard, the first sentence of the first paragraph of Article 52 of Directive 2013/32 provides that Member State are to apply the national provisions transposing inter alia Article 33 of that directive to applications for international protection lodged and to procedures for the withdrawal of international protection started after 20 July 2015 (14) ‘or an earlier date’.

49.      It is apparent from the travaux préparatoires for Directive 2013/32 that the terms ‘or an earlier date’, which were not contained in the text of the Commission’s proposal (COM(2009) 554), were added to the end of the first sentence of the first paragraph of Article 52 of Directive 2013/32 by the Council at first reading. (15)

50.      That inclusion has given rise to the present requests for preliminary rulings. It must be stated that that provision is a classic example of poor legislative drafting or indecisiveness which is behind several actions before the courts, thus leading to a considerable waste of resources at both national and European level, not to mention the hardship caused, if only in terms of time limits, to the persons concerned who have also already experienced other difficulties.

51.      Without those terms, the first sentence of the first paragraph of Article 52 of Directive 2013/32 would be perfectly clear and 20 July 2015 would be the only relevant date in order to decide which directive is applicable. Moreover, what is the point in retaining the words ‘after 20 July 2015’ if it is also to refer to applications lodged before that date?

52.      To determine whether 20 July 2015 remains relevant for the purposes of determining the application ratione temporis of Directive 2013/32, in line with the observations of the Polish Government and the Commission, I consider that the first paragraph of Article 52 of Directive 2013/32 must be read as a whole.

53.      Under the second sentence of the first paragraph of Article 52 of Directive 2013/32, applications lodged before 20 July 2015 and procedures for the withdrawal of refugee status started before that date are to be governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85.

54.      It follows from that provision, which is perfectly clear and prescriptive, that the asylum applications by the applicants in the main proceedings, which were all lodged before 20 July 2015, are governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85. (16) If the words ‘or an earlier date’ at the end of the first sentence of the first paragraph of Article 52 of Directive 2013/32 were to be interpreted as allowing Member States to apply the national provisions transposing Directive 2013/32 to applications lodged before 20 July 2015, that interpretation would be the diametrical opposite of the second sentence of the first paragraph of Article 52 of Directive 2013/32 and distort its clear meaning.

55.      However, I see no reason why the clear meaning of the second sentence of the first paragraph of Article 52 of Directive 2013/32 should be ‘sacrificed’ to give a meaning to the words ‘or an earlier date’, which have introduced an ambiguity or even a contradiction to the first sentence of that paragraph. As with regard to the issue debated, Directive 2013/32 is more restrictive than Directive 2005/85, the Commission’s argument that the first sentence of the first paragraph of Article 52 of Directive 2013/32 allows the provisions of that directive which are more favourable to the asylum applicant to be applied retroactively (17) does not require examination either.

56.      Therefore, the only logical interpretation of the first sentence of the first paragraph of Article 52 of Directive 2013/32 is that applications lodged after 20 July 2015 and procedures for the withdrawal of refugee status started after that date are governed by the laws, regulations and administrative provisions adopted to transpose Directive 2013/32.

57.      By its first question in Case C‑438/17, the referring court also asks whether the fact that the asylum application by the applicant in the main proceedings in that case, lodged in June 2012, still falls entirely under the Dublin II Regulation (18) is relevant for the purposes of interpreting the first sentence of the first paragraph of Article 52 of Directive 2013/32. The referring court considers that the applicability of the Dublin II Regulation in the present case may preclude the retroactive application of the national rule (19) adopted for the purposes of implementing the extended power conferred by Article 33(2)(a) of that directive. (20)

58.      Since my response in point 54 of this Opinion states that Article 33(2)(a) of Directive 2013/32 does not apply before 20 July 2015, a date on which the Dublin III Regulation was already in force, the question whether the Dublin II Regulation precludes the retroactive application of the national rule adopted for the purposes of implementing the extended power conferred by Article 33(2)(a) of that directive does not arise.

59.      By its second question in Case C‑438/17, the referring court asks whether the first paragraph of Article 52 of Directive 2013/32 allows the extended power conferred in Article 33(2)(a) of Directive 2013/32 to be transposed retroactively in respect of applications for asylum which have not yet been decided at the time of that transposition and have already been lodged before Directive 2013/32 entered into force. (21)

60.      Since my response in point 54 of this Opinion states that Article 33(2)(a) of Directive 2013/32 does not apply before 20 July 2015, the question whether the first sentence of the first paragraph of Article 52 of Directive 2013/32 allows the extended power conferred in Article 33(2)(a) of Directive 2013/32 to be transposed retroactively in respect of applications for asylum which have not yet been decided at the time of that transposition and have already been lodged before Directive 2013/32 entered into force no longer arises.

61.      In the light of the foregoing, I consider that the first paragraph of Article 52 of Directive 2013/32 precludes the application of national legislation transposing Article 33(2)(a) of Directive 2013/32 and creating a ground for inadmissibility to applications for international protection lodged before 20 July 2015 if the applicant has been granted subsidiary protection in another Member State. The fact that the asylum application still falls entirely within the scope of the Dublin II Regulation, in accordance with Article 49 of the Dublin III Regulation, or the asylum application was lodged before Directive 2013/32 had entered into force and before it had been transposed into national law is irrelevant.

62.      It is important to note that my answer to the first question referred for a preliminary ruling in Joined Cases C‑297/17, C‑318/17 and C‑319/17, and to both questions in Case C‑438/17, deprives of purpose the remaining questions referred by the national court in Cases C‑297/17, C‑318/17 and C‑319/17. I shall therefore examine them only in the event that the Court does not follow the proposed answer to the first question.

B.      The second question in Cases C297/17, C318/17 and C319/17

63.      By that question for a preliminary ruling, which is concerned specifically with the interpretation of Article 33 of Directive 2013/32, the referring court asks whether Member States have the right to choose either not to examine an asylum application in accordance with the Dublin II Regulation and the Dublin III Regulation, on the ground that those regulations designate another Member State as responsible for examining the application for international protection, (22) or to reject it as inadmissible under Article 33(2)(a) of Directive 2013/32. (23)

64.      I consider that it is clear from the very wording of Article 33(1) of Directive 2013/32 and in particular the terms ‘[i]n addition to cases in which an application is not examined in accordance with [the Dublin III] Regulation ...’, that a Member State has the right to choose either not to examine an asylum application as another Member State is responsible, or to reject it as inadmissible under Article 33(2)(a) of Directive 2013/32.

65.      In that regard, I consider, in line with the Commission’s observations, (24) that Article 33(1) of Directive 2013/32 does not establish any priority or hierarchy between the rules on determining the Member State responsible and the grounds for inadmissibility provided for in Article 33(2) of Directive 2013/32. It follows that a Member State is not obliged to examine as a matter of priority whether or not it is responsible for examining the application for international protection and may reject that application on one of the grounds for inadmissibility provided for in Article 33(2) of Directive 2013/32. In the absence of any priority or hierarchy between the rules in question, that freedom of choice is also necessary for reasons of procedural economy.

C.      The third and fourth questions in Joined Cases C297/17, C318/17 and C319/17

66.      By its third question in Cases C‑297/17, C‑318/17 and C‑319/17, the referring court asks whether Article 33(2)(a) of Directive 2013/32 prevents a Member State from rejecting as inadmissible an application for asylum lodged with it by an applicant to whom subsidiary protection has already been granted by another Member State, first, if the asylum procedure in that other Member State was and continues to be vitiated by systemic flaws and secondly, if the living conditions of those benefiting from subsidiary protection in that other Member State infringe Article 4 of the Charter and Article 3 of the ECHR, or do not satisfy the requirements of Article 20 et seq. of Directive 2011/95 but do not go so far as to infringe Article 4 of the Charter.

67.      By its fourth question in Cases C‑297/17, C‑318/17 and C‑319/17, the referring court asks whether EU law precludes the application by a Member State of the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32 to an application for international protection where the beneficiaries of that international protection do not receive any subsistence benefits at all or receive subsistence benefits which are markedly lower than those provided for in other Member States, without, however, being treated any differently to this extent from nationals of that Member State and without going so far as to infringe Article 4 of the Charter.

68.      It should be noted that the request for a preliminary ruling contains no information regarding the procedure for granting international protection in Bulgaria or the living conditions of beneficiaries of international protection in that Member State.

69.      I shall examine the second part of the third question in Cases C‑297/17, C‑318/17 and C‑319/17, with the fourth question and then the first part of the third question.

1.      The second part of the third question and the fourth question

70.      By that question for a preliminary ruling, the referring court asks whether ‘EU law requires that a subsequent application by a person recognised as benefiting from subsidiary protection in another Member State be examined despite a national rule transposing Article 33(2)(a) of Directive 2013/32, where the living conditions that prevail in that Member State for the beneficiaries of subsidiary protection infringe Articles 3 … of the ECHR [and Article 4 of the Charter] or do not satisfy the requirements of Article 20 et seq. of Directive 2011/95 by falling below that threshold’.

(a)    Preliminary observations on Article 4 of the Charter

71.      In accordance with the settled case-law of the Court, the rules of secondary EU law must be interpreted and applied in a manner consistent with the fundamental rights guaranteed by the Charter. The prohibition of inhuman or degrading treatment or punishment, laid down in Article 4 of the Charter, is, in that regard, of fundamental importance, to the extent that it is absolute in that it is closely linked to respect for human dignity, which is the subject of Article 1 of the Charter. (25)

72.      The Common European Asylum System was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard. In those circumstances, the Court held that it had to be assumed that the treatment of asylum seekers in all Member States complied with the requirements of the Charter, the Geneva Convention and the ECHR. (26)

73.      Notwithstanding that presumption of conformity, the Court also ruled that it is not inconceivable that the Common European Asylum System may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights. (27)

74.      In paragraph 99 of the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), the Court clearly states that ‘an application of [the Dublin III] Regulation … on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the duty of the Member States to interpret and apply [the Dublin III] Regulation … in a manner consistent with fundamental rights’. It is therefore a presumption of conformity which is rebuttable.

75.      The Court also noted in paragraphs 86 to 94 and 106 of its judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), that the transfer of asylum seekers within the framework of the Dublin system could, in certain circumstances, be incompatible with the prohibition laid down in Article 4 of the Charter. It thus held that an asylum seeker faced a real risk of being subjected to inhuman or degrading treatment, within the meaning of that article, in the event of a transfer to a Member State in which it was possible for there to be substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for applicants. Consequently, in accordance with the prohibition laid down in that article, within the framework of the Dublin system, the Member States may not carry out transfers to a Member State where they cannot be unaware that such flaws exist in that Member State. (28)

76.      The judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), was given in a situation similar to that referred to in the judgment of the European Court of Human Rights of 21 January 2011, M.S.S. v. Belgium and Greece (29) and relating to Article 3 of the ECHR, that is to say the transfer by the Belgian authorities of an asylum applicant to Greece, which was the Member State responsible for examining his application. (30) In paragraph 88 of the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), the Court found that the European Court of Human Rights had held, inter alia, that the Kingdom of Belgium had infringed Article 3 of the ECHR, first, by exposing the applicant to the risks arising from the deficiencies in the asylum procedure in Greece, since the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities and, second, by knowingly exposing him to conditions of detention and living conditions that amounted to degrading treatment. (31)

77.      While the case-law arising from the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865) regarding the existence in the requested Member State of systemic flaws in the asylum procedure and reception conditions for applicants was codified in 2013 in the second subparagraph of Article 3(2) of the Dublin III Regulation, the Court held, however, that, it could not be concluded from the above that any infringement of a fundamental right by the Member State responsible would affect the obligations of the other Member States to comply with the provisions of the Dublin III Regulation. (32) It would not be compatible with the aims of the Dublin III Regulation were the slightest infringement of rules governing the common asylum system to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible. (33)

78.      As regards the risks associated with the actual transfer of an applicant for international protection, the Court held in paragraph 65 of the judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127), that it could take place only in conditions which preclude that transfer from resulting in a real risk of the person concerned suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter. In that regard, the Court took account of the particularly serious state of health of the person concerned, (34) which could have led to him not being able to be transferred to another Member State even where there are no systemic flaws in the asylum procedure and the conditions for the reception of asylum seekers in the responsible Member State.

79.      In paragraph 91 of the judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127), the Court explicitly rejected the Commission’s argument that it follows from the second subparagraph Article 3(2) of the Dublin III Regulation that only the existence of systemic flaws in the Member State responsible is capable of affecting the obligation to transfer an asylum seeker to the Member State responsible. (35)

80.      In that regard, the Court emphasised the general character of Article 4 of the Charter, which prohibits inhuman or degrading treatment in all its forms, and the fact that it would be manifestly incompatible with the absolute character of that prohibition if the Member States could disregard a real and proven risk of inhuman or degrading treatment affecting an asylum seeker under the pretext that it does not result from a systemic flaw in the Member State responsible. (36)

81.      Paragraph 95 of the judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127), states that the impossibility of proceeding with a transfer in the circumstances at issue in that case ‘fully respects the principle of mutual trust since, far from affecting the existence of a presumption that fundamental rights are respected in each Member State, it ensures that the exceptional situations referred to in the present judgment are duly taken into account by the Member States. Moreover, if a Member State were to proceed with the transfer of an asylum seeker in such situations, the resulting inhuman and degrading treatment would not be attributable, directly or indirectly, to the authorities of the Member State responsible, but to the first Member State alone’. (37)

82.      That cautious approach, which focuses on protecting fundamental principles and human rights, also reflects the case-law of the European Court of Human Rights. In § 126 of its judgment of 4 November 2014, Tarakhel v. Switzerland, CE:ECHR:2014:1104JUD002921712, the European Court of Human Rights reiterates ‘that an applicant’s complaint alleging that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the [ECHR] must imperatively be subject to close scrutiny by a national authority’.

83.      Unlike the circumstances set out in the cases giving rise to the judgments of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865) and of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127), which concerned, in the first case, systemic deficiencies in the asylum procedure and the reception conditions of applicants and, in the second case, the transfer, as such, of an applicant for international protection, the Cases C‑297/17, C‑318/17 and C‑319/17, are concerned with taking into account the situation that may arise after international protection has been granted in the Member State responsible.

84.      Moreover, the questions referred for a preliminary ruling in the present case do not concern the Dublin III Regulation, but the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32.

85.      The Court has not yet dealt with these new circumstances.

(b)    Application of Article 4 of the Charter

86.      Article 51(1) of the Charter provides that its provisions are addressed to the Member States only when they are implementing EU law.

87.      In my opinion, compliance with Article 4 of the Charter, concerning the prohibition of inhuman or degrading treatment or punishment, which is absolute in nature, is binding on the Member States when applying the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32. (38)

88.      In accordance with the principle of mutual trust, it must be presumed that the treatment of beneficiaries of international protection in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR. (39) That presumption of conformity is strengthened if the Member State transposes de jure (40)but also de facto the provisions of Chapter VII (‘Content of international protection’) of Directive 2011/95, which provides for a level of social welfare for the beneficiary in question which is equivalent or superior to that provided for by the Geneva Convention.

89.      However, as I have already stated in point 73 of this Opinion, that presumption of conformity, in particular with Article 4 of the Charter, is not irrebuttable.

90.      I consider that it is apparent by analogy from § 253 and 254 of the judgment of the European Court of Human Rights of 21 January 2011, M.S.S v. Belgium and Greece, CE:ECHR:2011:0121JUD003069609 and from paragraph 80 of the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865) that a Member State would infringe Article 4 of the Charter if beneficiaries of international protection, who are wholly dependent on public aid, were faced with indifference from the authorities such that they found themselves in a situation of serious deprivation or want incompatible with human dignity.

91.      In other words, in order to consider that there are substantial grounds for believing that the beneficiaries of international protection would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, on account of their living conditions in the Member State responsible under the Dublin III Regulation, they must find themselves in a situation that is particularly serious (41) resulting from systemic flaws in their regard in that Member State.

92.      In such a wholly exceptional situation, a Member State cannot apply the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32 to an application for international protection and must examine the application for international protection that has been lodged with it.

93.      In the light of the foregoing and, in particular, the absolute nature of the inhuman or degrading treatment, laid down in Article 4 of the Charter, I consider that EU law precludes the application by a Member State of the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32 to an application for international protection where the living conditions of those benefiting from subsidiary protection granted by another State infringe Article 4 of the Charter.

(c)    Application of Article 20 et seq. of Directive 2011/95

94.      Chapter VII of Directive 2011/95 on the content of international protection, lays down, inter alia, provisions regarding the access for beneficiaries of international protection to employment, (42) education, (43) social welfare (44) and healthcare (45) which require treatment identical to that of nationals of the Member State.

95.      Moreover, under Article 32 of Directive 2011/95, beneficiaries of international protection must have access to accommodation under equivalent conditions as other third-country nationals legally resident in their territories. (46)

96.      It follows that the provisions of Chapter VII of Directive 2011/95 do not lay down a level or a minimum threshold of social benefits which must be granted to beneficiaries of international protection, other than national treatment or, exceptionally, treatment equivalent to that of other third-country nationals legally resident in the territory of a Member State. (47)

97.      In the absence of any real policy on international protection within the European Union, financed from its own budget, which would ensure minimum and uniform living conditions for beneficiaries of such protection, the provisions of Chapter VII of Directive 2011/95 reflect the principle of subsidiarity enshrined in Article 5(3) TEU in so far as they give clear consideration to the existence of differing levels of social benefits in the Member States.

98.      As regards situations where an infringement of Article 20 et seq. of Directive 2011/95 is alleged, without going so far as to infringe Article 4 of the Charter, I consider, like the French Government, that requiring asylum authorities to assess the level of and eligibility conditions for international protection would be contrary to the principle of mutual trust which underlies the Common European Asylum System, including Article 33(2)(a) of Directive 2013/32. (48)

99.      Moreover, EU law does not preclude the application by a Member State of the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32 to an application for international protection where the beneficiaries of the international protection do not receive any subsistence benefits at all or receive benefits which are markedly lower than in other Member States, without, however, being treated any differently to this extent from nationals of that Member State and without going so far as to infringe Article 4 of the Charter. Recital 41 of Directive 2011/95 provides that, ‘[i]n order to enhance the effective exercise of the rights and benefits laid down in this Directive by beneficiaries of international protection, it is necessary to take into account their specific needs and the particular integration challenges with which they are confronted. Such taking into account should normally not result in a more favourable treatment than that provided to their own nationals, without prejudice to the possibility for Member States to introduce or retain more favourable standards’. (49)

100. Otherwise, Member States which effectively comply with their obligations arising from Directive 2011/95 concerning the content of international protection or which grant relatively generous social benefits would be penalised.

101. In the light of the foregoing, I consider that EU law does not preclude the application by a Member State of the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32 to an application for international protection where the Member State which has already granted the applicant subsidiary protection does not satisfy the requirements of Article 20 et seq. of Directive 2011/95, (50) but does not go so far as to infringe Article 4 of the Charter or where, although the beneficiaries of the international protection do not receive any subsistence benefits at all or receive benefits which are markedly lower than those provided for in other Member States, they are to this extent not treated any differently from nationals of that Member State.

2.      The first part of the third question

102. The referring court asks ‘whether, and in which circumstances, Article 18 of the Charter in conjunction with Article 78 TFEU may require that a Member State examines an application for international protection despite a national rule transposing Article 33(2)(a) of Directive 2013/32 where the applicant has already been granted subsidiary protection status in another Member State but not refugee status’ on account of flaws in the asylum procedure in that latter Member State.

103. In its request for a preliminary ruling, the referring court alludes to flaws in the asylum procedure in Bulgaria, which grants ‘subsidiary protection, refuses to acknowledge higher ranking refugee status in a (predictable) manner … or … does not further examine subsequent applications despite new elements or findings which significantly add to the likelihood of the applicant qualifying as a refugee [in accordance with Article 40(3) of Directive 2013/32]’. (Paragraph 32 of the request for a preliminary ruling in Case C‑297/17).

(a)    Observations of the parties

104. The German Government considers that, if ‘an obligation were to exist to examine the systemic flaws in the asylum procedure of another Member State, it should at the very least be mentioned in Directive 2013/32. [It states that] that, however, is not the case and [on the contrary,] the decision of a Member State on the granting of international protection has a degree of authority’ (paragraph 62 of its observations). According to the German Government, only the EU legislature may impose such an obligation in positive law and the failure to comply with that obligation under EU law may be found only following infringement proceedings against that State.

105. The French Government considers that only if it appears that the international protection already granted by another Member State is not effective, that is to say if, in the Member State which granted him protection, the person concerned risks being exposed to persecution or serious harm (51) within the meaning of Directive 2011/95, must the Member State with which the new application has been lodged determine whether the applicant qualifies for refugee status before examining whether he is eligible for subsidiary protection.

106. According to the Polish Government, Article 33 of Directive 2013/32 provides that an applicant who benefits from international protection in another Member State is adequately protected in that State and therefore the other Member States may consider his application as inadmissible and reject it without examining the substance. It considers that the fact that a competent national authority finds that an applicant benefits from international protection in another Member State must, in principle, allow it to not examine the substance of the application. It adds that only in very exceptional circumstances must the competent national authority initiate a procedure to examine the substance of the application. According to that government, it is for the competent national authority or the national court to determine whether a particular case of systemic flaws in the asylum procedure and in the conditions for the reception of asylum applicants in a given Member State constitutes an infringement of Article 4 of the Charter which would justify an obligation to examine the substance of an application for enhanced international protection.

107. The Commission considers that the flaws in the asylum procedure of the other Member State may be disregarded in the analysis by the first Member State (that is to say, in the present case, the Federal Republic of Germany). It considers that, after subsidiary protection has been granted in State B and the application for enhancement rejected as inadmissible in State A, the asylum procedure has been completed. According to the Commission, the person concerned must therefore be treated in accordance with Article 6(2) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. (52) It takes the view that the person concerned is staying illegally in Member State A, but has the benefit of a residence permit in Member State B as the beneficiary of subsidiary protection.

(b)    Analysis

108. This question referred for a preliminary ruling concerns the admissibility of an application for the ‘enhancement’ of the subsidiary protection granted by a Member State by the recognition of refugee status in another Member State. It must be noted that, in accordance with Article 33(2)(a) of Directive 2013/32, Member States may (53) consider an application seeking refugee status as inadmissible if another Member State has granted subsidiary protection.

109. In that regard, in addition to the fact that the qualification for being a refugee (Chapter III of Directive 2011/95) is clearly different from the qualification for subsidiary protection (Chapter V of Directive 2011/95), subsidiary protection status is, in principle, (54) lesser than refugee status, inter alia with regard to the right of residence (55) and the right to social welfare. (56) That distinction between the two statuses of international protection is reinforced by the very wording of Article 78 TFEU. (57)

110. I note that, in the light of that distinction between the two statuses, Article 46(1)(a)(i) of Directive 2013/32 provides that, in the Member State responsible, the applicant for international protection has the right to an effective remedy before a court or tribunal in that Member State, enabling him to contest, inter alia, decisions which consider as unfounded an application for the granting of refugee status and/or subsidiary protection status. (58)

111. The second subparagraph of Article 46(2) of Directive 2013/32 provides that ‘where the subsidiary protection status granted by a Member State offers the same rights and benefits as those offered by the refugee status under Union and national law, that Member State may consider an appeal against a decision considering an application unfounded in relation to refugee status inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings’. (59)

112. It follows that refugee status is interchangeable with subsidiary protection status only in exceptional cases.

113. The Common European Asylum System was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the right to asylum enshrined in Article 18 of the Charter, and that the Member States can have confidence in each other in that regard. (60)

114. In my opinion, the adoption by the EU legislature of provisions such as Article 33(2)(a) of Directive 2013/32 is based on the principle of mutual trust. The aim of that provision is to prevent resources from being wasted and to avoid ‘blockages in the system as a result of the obligation on State authorities to examine multiple claims by the same applicant, … and … to avoid forum shopping, it being the principal objective of all these measures to speed up the handling of claims in the interests both of asylum seekers and the participating Member States’. (61)

115. In the specific circumstances of the present cases, mutual trust means that the Member States have the right to presume that the other Member States are processing applications for international protection in accordance with EU law and the rules of the Geneva Convention and are granting either refugee status, or subsidiary protection status, as required by the specific conditions of such statuses, in accordance with the common criteria provided for by Directive 2011/95. Therefore, the Member States have the right to presume that the other Member States are granting the (higher) refugee status and not the (lesser) subsidiary protection status if the circumstances so demand and deserve, and vice versa.

116. However, I have already noted that the presumption was rebuttable. It is important to point out that the right to asylum is a fundamental right guaranteed by Article 18 of the Charter ‘with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union’. It follows that, notwithstanding the obligation of mutual trust between the Member States, the person concerned must have the opportunity to demonstrate that there are systemic flaws in the asylum procedure, consisting in, inter alia, a widespread practice of unfairly granting subsidiary protection status rather than refugee status. The existence of systemic flaws in the asylum procedure cannot be limited to the fact that the person concerned risks being exposed to persecution or serious harm, as the French Government claims. (62)

117. The investigation as to whether or not there are systemic flaws in the asylum procedure in the Member State responsible is based solely on a concrete assessment of the facts and circumstances. In that regard, the referring court must take into account all of the evidence adduced by the person concerned regarding all relevant facts concerning the alleged systemic flaws in the asylum procedure.

118. Individual infringements are not in any way sufficient to call into the question the Common European Asylum System, (63) in particular Article 33(2)(a) of Directive 2013/32 and thus to oblige Member States to consider an application seeking refugee status as admissible, even though subsidiary protection status has been granted by another Member State.

119. In addition, since, in accordance with Article 46(1)(a)(i) of Directive 2013/32, in the Member State responsible, the applicant for international protection has the right to an effective remedy before a court or tribunal in that Member State, enabling him to contest, inter alia, decisions taken which consider an application to be unfounded in relation to refugee status, he must also demonstrate that that right to an effective remedy is non-existent or vitiated by systemic flaws.

120. In the light of the foregoing, I consider that EU law, and, in particular, Article 18 of the Charter, does not preclude the application by a Member State of the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32 to an application for international protection where, by an application for the recognition of refugee status in a Member State, the applicant seeks to have the subsidiary protection granted to him in another Member State enhanced and the asylum procedure in the latter Member State was, and continues to be, vitiated by systemic flaws.

D.      The fifth question in Cases C297/17, C318/17 and C319/17

121. The fifth question in Cases C‑297/17, C‑318/17 and C‑319/17, arises only if the second question were to be answered in the negative. (64) By that question, which is in two sub-questions, the referring court asks whether, first, the circumstances at issue in the case in the main proceedings fall within the scope ratione temporis of the Dublin II or the Dublin III Regulation and, secondly, the Dublin II and/or the Dublin III Regulation applies where subsidiary protection has already been granted to the applicant in another Member State.

122. Since, on the basis of my response to the second question, a Member State is not obliged to examine as a matter of priority whether or not it is responsible for examining the application for international protection and may reject that application on one of the grounds for inadmissibility provided for in Article 33(2) of Directive 2013/32, the fifth question is devoid of purpose.

V.      Conclusion

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

(1)      The first paragraph of Article 52 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection precludes the application of national legislation transposing Article 33(2)(a) of Directive 2013/32 which creates a ground for inadmissibility to applications for international protection lodged before 20 July 2015 if the applicant has been granted subsidiary protection in another Member State. The fact that the asylum application still falls entirely within the scope of the Dublin II Regulation, in accordance with Article 49 of the Dublin III Regulation, or the asylum application was lodged before Directive 2013/32 had entered into force and before it had been transposed into national law, is irrelevant.

(2)      Article 33(1) of Directive 2013/32 does not establish any priority or hierarchy between the rules on determining the Member State responsible and the grounds for inadmissibility provided for in Article 33(2) of Directive 2013/32. It follows that a Member State is not obliged to examine as a matter of priority whether or not it is responsible for examining the application for international protection and may reject that application on one of the grounds for inadmissibility provided for in Article 33(2) of Directive 2013/32. In the absence of any priority or hierarchy between the rules in question, that freedom of choice is also necessary for reasons of procedural economy.

(3)      EU law precludes the application by a Member State of the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32 to an application for international protection where the living conditions of those benefiting from subsidiary protection granted by another State infringe Article 4 of the Charter of Fundamental Rights of the European Union.

(4)      EU law does not preclude the application by a Member State of the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32 to an application for international protection where the Member State which has already granted the applicant subsidiary protection does not satisfy the requirements of Article 20 et seq. of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted but does not go so far as to infringe Article 4 of the Charter of Fundamental Rights or where, although the beneficiaries of the international protection do not receive any subsistence benefits at all or receive benefits which are markedly lower than those provided for in other Member States, they are to this extent not treated any differently from nationals of that Member State.

(5)      EU law, and, in particular, Article 18 of the Charter of Fundamental Rights, do not preclude the application by a Member State of the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32 to an application for international protection where, by an application for the recognition of refugee status in a Member State, the applicant seeks to have the subsidiary protection granted to him in another Member State enhanced and the asylum procedure in the latter Member State was, and continues to be, vitiated by systemic flaws.


1      Original language: French.


2      OJ 2013 L 180, p. 60.


3      OJ 2011 L 337, p. 9.


4      United Nations Treaty Series, vol. 189, p. 50, No 2545 (1954).


5      OJ 2005 L 326, p. 13.


6      Regulation (EU) No 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 (OJ 2013 L 180, p. 31). See, also, 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 (OJ 2003 L 50, p. 1, ‘the Dublin II Regulation’).


7      The facts in Case C‑319/17 are, in essence, similar to those in which the request for a preliminary ruling has arisen in Case C‑297/17. Moreover, the statement of reasons and the questions referred for a preliminary ruling are identical to those in the request for a preliminary ruling in Case C‑297/17.


8      Namely Bushra, Mohammad and Ahmad Ibrahim.


9      The referring court observes that ‘[i]n Article 33(2)(a) of Directive 2013/32, the EU legislature in actual fact broadened the power already provided for in Article 25(2)(a) of Directive 2005/85 to reject an application for asylum as inadmissible by now allowing the Member States to consider an application for asylum as inadmissible if another Member State has granted subsidiary protection’. (See paragraph 15 of the request for a preliminary ruling in Case C‑297/17). At the joint hearing on 8 May 2018, the United Kingdom Government disputed the referring court’s interpretation of Article 25(2)(a) of Directive 2005/85. It submitted in particular that, under Article 3(3) of Directive 2005/85, where a Member State employs a common asylum procedure for asylum applications and applications for subsidiary protection, it must apply that directive throughout the procedure. In those circumstances, the United Kingdom Government stated that Article 25(2)(a) of Directive 2005/85 must be interpreted as meaning that a Member State may consider an application for asylum as inadmissible if another Member State has granted subsidiary protection. I do not agree with that interpretation. Apart from the fact that Article 25(2)(a) of Directive 2005/85 expressly mentions refugee status, I consider that the United Kingdom Government is confusing the procedure for granting refugee status or subsidiary protection status in the Member States with refugee status or subsidiary protection status.


10      In accordance with paragraph 43 of the judgment of 17 March 2016, Mirza (C‑695/15 PPU, EU:C:2016:188), Article 33 of Directive 2013/32 ‘seeks to relax the obligation of the Member State responsible for examining an application for international protection by defining the cases in which such an application is considered to be inadmissible’. The ground for inadmissibility set out in Article 33(2)(a) of Directive 2013/32 allows Member States to reject applications for international protection without examining the substance.


11      Directive 2005/85 was repealed with effect from 21 July 2015 by Article 53 of Directive 2013/32.


12      The referring court observes that, while Paragraph 29(1), point 2, of the AsylG fulfils the conditions set out in Article 33(2)(a) of Directive 2013/32, ‘it is irreconcilable’ with Article 25(2)(a) of Directive 2005/85 in that regard. In accordance with the latter provision, ‘Member States may consider an application for asylum as inadmissible … if … another Member State has granted refugee status’.


13      The Polish Government submits that it is clear from a comparison of the two provisions, namely Article 33(2)(a) of Directive 2013/32 and Article 25(1)(a) of Directive 2005/85, that Directive 2013/32 has broadened the scope of a Member State’s powers to consider an application as inadmissible. It notes that, currently, an application may be declared inadmissible not only if the applicant has been granted refugee status in another Member State, but also if he benefits from subsidiary protection there. By contrast, according to the Polish Government, under Directive 2005/85, an application may be considered as inadmissible only if the applicant has been granted refugee status in another Member State.


14      It should be noted that, in accordance with Article 51(1) of Directive 2013/32, Article 33 of that directive had to be transposed by 20 July 2015 at the latest. Moreover, in accordance with Article 53 of the same directive, Directive 2005/85 was repealed with effect from 21 July 2015. In the cases in the main proceedings, subsidiary protection was granted and the applications for refugee status were lodged before 20 July 2015.


15      See Article 52 of Position (EU) No 7/2013 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection (recast), adopted by the Council on 6 June 2013 (OJ 2013 C 179 E, p. 27).


16      As the second sentence of the first paragraph of Article 52 of Directive 2013/32 is binding, the national provisions such as Paragraph 77(1) of the AsylG cannot determine the scope ratione temporis of Article 33(2)(a) of Directive 2013/32 and of Article 25(2)(a) of Directive 2005/85.


17      The Commission considers that the provisions of Directive 2013/32 and the national measures which transpose it cannot be applied to applications lodged before 20 July 2015 unless they are more favourable to the asylum applicant than those of Directive 2005/85 and that those provisions were therefore consistent with the principle of more favourable treatment provided for in Article 5 of Directive 2005/85. According to the Commission, the words ‘or an earlier date’ may therefore have a practical meaning only in such cases. At the hearing on 8 May 2018, Mr Magamadov’s lawyer (C‑438/17) stated that the words ‘or an earlier date’ referred to the early transposition of Directive 2013/32.


18      The Dublin III Regulation entered into force on 1 January 2014.


19      Namely Paragraph 29(1), point 2 of the AsylG.


20      According to the referring court, the ‘Federal Republic of Germany could, according to the Dublin rules, be (or become) internationally responsible for examining the substance and deciding on a (new) application for asylum seeking (enhanced) refugee protection, an application which it would not have to examine as to the substance, or make a decision on according to the provision retroactively transposing Article 33(2)(a) of Directive 2013/32. The wording of Article 33(1) of Directive 2013/32, which mentions only the Dublin III Regulation, could support the view, in this respect, that the provision cannot apply in any event to cases that still fall entirely within the scope of the Dublin II Regulation.’ (Paragraph 16 of the request for a preliminary ruling in Case C‑438/17).


21      The referring court asked that question since, unlike the asylum applications in Joined Cases C‑297/17, C‑318/17 and C‑319/17, which were lodged on 29 November 2013, the asylum application by Mr Magamadov, dated 19 June 2012, was lodged before Directive 2013/32 had entered into force. In accordance with Article 54 of Directive 2013/32, that directive ‘shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union’. Directive 2013/32 was published in the Official Journal of the European Union on 29 June 2013.


22      I note that, in paragraph 42 of the order of 5 April 2017, Ahmed (C‑36/17, EU:C:2017:273), the Court ruled that ‘the provisions and principles of [the Dublin III] Regulation … governing, directly or indirectly, the time limits for lodging an application for the purposes of a take-back [were] not applicable in a situation … in which a third-country national has lodged an application for international protection in one Member State after being granted the benefit of subsidiary protection by another Member State’. However, in that order, the Court did not determine whether Member States have the right to choose either to examine an asylum application in accordance with the Dublin III Regulation, or to reject it as inadmissible under Article 33(2)(a) of Directive 2013/32.


23      According to the Commission, the question ‘can be explained by the fact that in Paragraph 29(1), point 1(a) of the AsylG, German law provides for a ground for inadmissibility if another Member State is responsible, under [the Dublin III] Regulation … for examining the application for asylum’ (paragraph 22 of the Commission’s observations, emphasis added).


24      The applicants in the main proceedings in Cases C‑297/17, C‑318/17 and C‑319/17, consider that the Dublin Regulation can no longer be applied if, as in the present case, the Member State responsible, under the Dublin II Regulation, has refused to take charge of the person concerned. The German Government takes the view that the Dublin III Regulation no longer applies if the refugees have already been granted international protection. It considers that Article 33(2) of Directive 2013/32 draws a distinction between the two situations in which the substance of an application for asylum is not examined: on the one hand, inadmissibility under the provisions of the Dublin III Regulation and, on the other, inadmissibility on account of the grounds set out in Article 33(2) of that directive. According to the German Government, the legislation is therefore not in competition, nor is there an option of choice.


25      See judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127, paragraph 59 and the case-law cited). According to the Court, the prohibition of inhuman or degrading treatment laid down in Article 4 of the Charter corresponds to that laid down in Article 3 of the ECHR and, to that extent, its meaning and scope are, in accordance with Article 52(3) of the Charter, the same as those conferred on it by that convention (judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 67). Moreover, it follows from Article 15(2) of the ECHR that no derogation may be made from Article 3 of the ECHR and the Court confirmed that the case-law of the European Court of Human Rights relating to Article 3 of the ECHR had to be taken into account when interpreting Article 4 of the Charter (judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 68).


26      See, to that effect, judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 78 to 80).


27      See judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 81).


28      See, also, to that effect, judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127, paragraph 60 and the case-law cited).


29      CE:ECHR:2011:0121JUD003069609.


30      It should be noted that, when it examined the reception conditions of applicants for international protection in Greece, the European Court of Human Rights took account of the obligations incumbent on the Greek authorities under Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18) which established standards for the reception of applicants for international protection (European Court of Human Rights, 21 January 2011, M.S.S. v. Belgium and Greece, CE:ECHR:2011:0121JUD003069609, § 263).


31      In its judgment, the European Court of Human Rights held that a situation of extreme material poverty could raise an issue under Article 3 of the ECHR. It then found that the situation in which the applicant had found himself was particularly serious. The European Court of Human Rights noted that ‘[the applicant had explained that he had] spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. Added to that was the ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving’ (European Court of Human Rights, 21 January 2011, M.S.S. v. Belgium and Greece, CE:ECHR:2011:0121JUD003069609, § 252 to 254). In § 263 of that judgment, the European Court of Human Rights holds that the Greek authorities ‘have not had due regard to the applicant’s vulnerability as an asylum-seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living on the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the [ECHR]’.


32      See judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 82).


33      Judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 84).


34      In that case, the Court held that there were no substantial grounds for believing that there were systemic flaws in the asylum procedure and the conditions for the reception of asylum seekers in the Member State responsible. However, the Court ruled that it cannot be ruled out that the actual transfer of an asylum seeker whose state of health was particularly serious may, in itself, result, for the person concerned, in a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, irrespective of the quality of the reception and the care available in the Member State responsible for examining his application. The Court considered that, in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in his state of health, that transfer would constitute inhuman and degrading treatment, within the meaning of that article. The Court added that it was for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts as to the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person's state of health. If, taking into account the particular seriousness of the illness of the asylum seeker concerned, the taking of those precautions is not sufficient to ensure that his transfer does not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member State concerned to suspend the execution of the transfer of the person concerned for such time as his condition renders him unfit for such a transfer. Judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127, paragraphs 71, 73 and 96).


35      I note that, in its judgment of 4 November 2014, Tarakhel v. Switzerland, CE:ECHR:2014:1104JUD002921712, the European Court of Human Rights held that, in order to determine whether the transfer of an applicant for international protection under the Dublin system constituted inhuman or degrading treatment, it had to be ascertained whether, in view of the overall situation with regard to the reception arrangements for asylum seekers in the Member State and the applicants’ specific situation, substantial grounds have been shown for believing that the applicants would be at risk of treatment contrary to Article 3 of the ECHR if they were returned to Italy. The European Court of Human Rights held that, at the relevant time, the situation in Italy could in no way be compared to the situation in Greece at the time of the judgment of the European Court of Human Rights of 21 January 2011, M.S.S v. Belgium and Greece, CE:ECHR:2011:0121JUD003069609 and that the approach in that case could not be the same as that which gave rise to the judgment of the European Court of Human Rights of 21 January 2011, M.S.S v. Belgium and Greece, CE:ECHR:2011:0121JUD003069609. However, the European Court of Human Rights ruled that, were the applicants (a couple with six minor children who enjoy special protection in view of their specific needs and their extreme vulnerability), to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the ECHR.


36      See judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127, paragraph 93).


37      Emphasis added.


38      See, by analogy, judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 64 to 69).


39      Judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 78 to 80).


40      In accordance with Article 288 TFEU, the Member State is bound as to the result to be achieved.


41      See European Court of Human Rights, 21 January 2011, M.S.S. v. Belgium and Greece, CE:ECHR:2011:0121JUD003069609, § 254.


42      See Article 26 of Directive 2011/95. See, also, Articles 17 to 19 of the Geneva Convention.


43      See Article 27 of Directive 2011/95 and Article 22 of the Geneva Convention.


44      See Article 29 of Directive 2011/95. In accordance with Article 29(2) of Directive 2011/95, ‘[b]y way of derogation from the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same level and under the same eligibility conditions as nationals’. See, also, Articles 23 and 24 of the Geneva Convention.


45      See Article 30 of Directive 2011/95. See, also, Articles 24 of the Geneva Convention.


46      See, also, Article 21 of the Geneva Convention.


47      In the case of access to accommodation.


48      It should be noted that the referring court does not provide any information on the fact that beneficiaries of international protection in Bulgaria would be discriminated against by comparison with nationals, in particular with regard to social assistance.


49      Emphasis added.


50      It is important to point out that infringements of Article 20 et seq. of Directive 2011/95 may give rise to actions for failure to fulfil obligations being brought against the Member State concerned pursuant to Article 258 TFEU. Moreover, the persons concerned may assert their rights under Article 20 et seq. of Directive 2011/95 before national courts and administrations.


51      See Article 15 of Directive 2011/95.


52      OJ 2008 L 348, p. 98.


53      This is an option.


54      Article 3 of Directive 2011/95, entitled ‘More favourable standards’, provides that ‘Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive’.


55      See Article 24 of Directive 2011/95.


56      See Article 29 of Directive 2011/95.


57      Article 78(1) TFEU provides that ‘[t]he Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties’. Emphasis added. Moreover, it should be noted that Article 78(2) TFEU provides that ‘[f]or the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising: (a) a uniform status of asylum for nationals of third countries, valid throughout the Union; (b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection; ...’ Emphasis added.


58      In paragraph 51 of the judgment of 17 December 2015, Tall (C‑239/14, EU:C:2015:824), the Court ruled that ‘the characteristics of the remedy provided for in Article [46 of Directive 2013/32] must be determined in a manner that is consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection and provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article’.


59      Emphasis added.


60      See, by analogy, the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 78).


61      See judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 79).


62      Moreover, it is important to note that the right to asylum is not limited to compliance with the principle of non-refoulement, as is demonstrated by the rights granted by Article 20 et seq. of Directive 2011/95.


63      See, by analogy, judgment of 21 December 2011, N. S. and Others (C-411/10 and C-493/10, EU:C:2011:865, paragraphs 82 to 84).


64      The applicants in the main proceedings in Cases C-297/17, C-318/17 and C-319/17, consider that ‘it is clear from the second paragraph of Article 49 of the Dublin III Regulation that that regulation applies only to applications for international protection lodged after 1 January 2014. The reservation that the Dublin III Regulation applies to all take back requests sent after 1 January 2014, irrespective of when the application was lodged, does not mean … that the Dublin III Regulation must therefore be followed in its entirety, which would be inconsistent with the clear provision of the second paragraph of Article 49, or that, if the remainder of the Dublin II Regulation must still be followed, the time limit for submitting a take back request must be observed. The Dublin II Regulation did not provide for any time limit in that regard.’ The German Government takes the view that, in the light of its responses to the other questions referred for a preliminary ruling by the national court, there is no need to answer the fifth question. The Commission takes the view that, ‘in the light [of its responses] to the first and second questions, since the fifth question referred for a preliminary ruling has become devoid of purpose on two counts, the Commission considers it highly unlikely that the Court should have to examine it’. The French and Polish Governments did not comment on the present question referred for a preliminary ruling.