OPINION OF ADVOCATE GENERAL
TANCHEV
delivered on 9 February 2017 (1)
Case C‑578/16 PPU
C. K.,
H. F.,
A. S.
v
Republika Slovenija
(Request for a preliminary ruling from the Vrhovno sodišče (Supreme Court, Slovenia))
(Reference for a preliminary ruling — Notion of a national court or tribunal against whose decisions there is no judicial remedy under national law — Common European Asylum System –– Determination of the Member State responsible for examining an application for international protection — Regulation (EU) No 604/2013 — Second subparagraph of Article 3(2) — Systemic flaws in the asylum procedure and in the reception conditions for applicants in the Member State responsible — Article 17(1) — Sovereignty clause)
I. Introduction
1. The present request for a preliminary ruling concerns the interpretation of 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. (2) This regulation seeks, like its predecessors, (3) on the one hand, to prevent third-country nationals from being able, by lodging an application for international protection in several Member States, to choose the Member State which will examine their application (the phenomenon of ‘forum shopping’), and, on the other hand, to ensure that every application will be effectively examined by a Member State. (4) To that end, Regulation No 604/2013 provides that each application is to be examined by a single Member State and lays down the criteria for determining which Member State must be designated as responsible for examining the application. (5)
2. What happens if, when a Member State has been designated as being responsible in accordance with the criteria laid down by Regulation No 604/2013, it is alleged that that Member State does not respect the fundamental rights of asylum seekers? It is true that the Member States guarantee respect for the fundamental rights, as set out, not only by Charter of Fundamental Rights of the European Union (‘the Charter’), but also by the European Convention for the Protection of Human Rights and Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), and by the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (6) (‘the Geneva Convention’). Nevertheless, it cannot be ruled out that a situation may arise in which a Member State infringes a fundamental right of asylum seekers. Regulation No 604/2013 takes that hypothesis into account. The second subparagraph of Article 3(2) provides that it is impossible to transfer an applicant to the Member State responsible if, in that Member State, there are systemic flaws in the asylum procedure and in the reception conditions for applicants, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.
3. However, what if the flaws, without affecting the entire asylum system of the Member State responsible, concern only the individual situation of an applicant? May those flaws be classed as ‘systemic’ within the meaning of the second subparagraph of Article 3(2) of Regulation No 604/2013? If not, do they nevertheless give rise to an obligation not to transfer the applicant to the Member State responsible? These are the questions which the Court is called upon to answer in the present case.
II. Legal context
A. International law
4. Article 3 ECHR provides:
‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
5. Article 33 of the Geneva Convention provides:
‘1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’
B. European Union law
1. The Charter
6. Article 4 of the Charter provides:
‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
7. Article 19(2) of the Charter provides:
‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’
2. Regulation No 604/2013
8. Paragraph 2 of Article 3 of Regulation No 604/2013, entitled ‘Access to the procedure for examining an application for international protection’, provides:
‘Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for international protection was lodged shall be responsible for examining it.
Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.
Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.’
9. Paragraph 1 of Article 17 of Regulation No 604/2013, entitled ‘Discretionary clauses’, provides:
‘By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation.
The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the “DubliNet” electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003, the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant.
The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with Regulation (EU) No 603/2013 by adding the date when the decision to examine the application was taken.’
III. The facts, the main proceedings and the questions referred for a preliminary ruling
10. Ms C. K., a Syrian national, and her husband, Mr H. F., an Egyptian national, entered the territory of the Member States via Croatia on 16 August 2015. They were in possession of tourist visas issued by Croatia, which were valid from 6 August 2015 to 28 August 2015.
11. On 17 August 2015, Ms C. K., who was six months pregnant, and Mr H. F. entered Slovenia with false Greek identity papers. They are there at the present time and are being accommodated at the Ljubljana reception centre for asylum seekers.
12. On 20 August 2015, Ms C. K. and Mr H. F. lodged applications for international protection in Slovenia. It is apparent from the observations of the Slovenian Government that, on the same day, a doctor examined Ms C. K. and found that her pregnancy was proceeding normally, that she had no obvious psychological symptoms and that she was communicative. On the same day, Mr H. F. was also examined by a doctor, who found him to be in good health. (7)
13. On 28 August 2015, the Slovenian authorities submitted a query to the Croatian authorities. On 14 September 2015, the Republic of Croatia replied that it was responsible for examining the application of Ms C. K. and Mr H. F.
14. On 20 November 2015, Ms C. K. gave birth to a son, A. S. On 27 November 2015, an application for international protection was lodged in Slovenia on behalf of A. S. The Slovenian authorities dealt with that application in conjunction with those lodged by Ms C. K. and Mr H. F.
15. On 18 January 2016, the Slovenian authorities received from the appellants’ representative medical opinions outlining Ms C. K.’s high-risk pregnancy and her difficulties following childbirth. Those documents included a psychiatric assessment of Ms C. K., dated 4 December 2015, stating that she and her new-born son should remain at the reception centre because they were in need of care. Further psychiatric assessments, dated 1 April, 15 April, 22 April and 13 May 2016, indicated that, since her confinement, Ms C. K. had suffered depression and periodic suicidal tendencies, attributable to the uncertainty surrounding her status.
16. Due to the presence of, inter alia, an infant, the Slovenian authorities sought from their Croatian counterparts assurances concerning the medical care that the family would receive at the Croatian accommodation centre. On 7 April 2016, they received the assurance that, in Croatia, Ms C. K., Mr H. F. and their child would be provided with accommodation, appropriate care and necessary medical treatment. (8)
17. By decision of 5 May 2016 (‘the decision of 5 May 2016’), the Slovenian authorities declined to examine the applications for international protection submitted by Ms C. K., Mr H. F. and their son, A. S. That decision is based on Article 12(2) of Regulation No 604/2013, according to which, where the applicant is in possession of a valid visa, the Member State which issued the visa is responsible for examining the application for international protection.
18. By judgment of 1 June 2016, the Upravno sodišče (Administrative Court, Slovenia) annulled the decision of 5 May 2016. By an order of the same date, it suspended enforcement of the decision of 5 May 2016 pending the adoption of a final decision in the administrative proceedings.
19. By judgment of 29 June 2016, the Vrhovno sodišče (Supreme Court, Slovenia) varied the judgment of the Upravno sodišče (Administrative Court) and confirmed the decision of 5 May 2016. The Vrhovno sodišče (Supreme Court) took the view, inter alia, that the second subparagraph of Article 3(2) of Regulation No 604/2013 was not applicable. The existence of systemic flaws in the asylum procedure and reception conditions for applicants in Croatia had not, it found, been established by any report of the European Institutions or the United Nations High Commissioner for Refugees. On the contrary, a report by that High Commissioner makes it clear that the situation in Croatia is good and, in particular, that the reception conditions for refugees at the Kutina Centre in Croatia are good. That centre, which is intended for vulnerable groups of asylum seekers, can accommodate up to 100 applicants but it usually accommodates only between 20 and 30. Access to care is guaranteed (a doctor visits once a week, as does a gynaecologist) and, in the event of emergencies, asylum seekers have access to the local hospital in Kutina or to the hospital in Zagreb. A social worker is present every day at the Kutina centre and legal assistance is available twice a month.
20. The appellants lodged, with the Ustavno sodišče (Constitutional Court, Slovenia) a constitutional complaint challenging the judgment delivered on 29 June 2016 by the Vrhovno sodišče (Supreme Court), which had meanwhile become final.
21. By decision of 28 September 2016, the Ustavno sodišče (Constitutional Court) set aside the judgment of the Vrhovno sodišče (Supreme Court) and referred the case back to that court.
22. In its decision of 28 September 2016, the Ustavno sodišče (Constitutional Court) agreed with the Vrhovno sodišče (Supreme Court) that the second subparagraph of Article 3(2) of Regulation No 604/2013 was not applicable, since there are no systemic flaws in the asylum procedure and in the reception conditions for applicants in Croatia which might result in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. However, the Ustavno sodišče (Constitutional Court) did not conclude that the appellants could be transferred to Croatia. It considered that, in order to determine whether the presumption that the Republic of Croatia is a safe State was rebutted, the Slovenian authorities had to take into account all the relevant circumstances, includingthe personal situation and state of health of the applicants. Although the Vrhovno sodišče (Supreme Court) had assessed whether Ms C. K. and her new-born son would receive adequate health care in Croatia, it had failed to consider whether the transfer itself might be injurious to the state of health of Ms C. K. and her baby. This was why the judgment of the Vrhovno sodišče (Supreme Court) was set aside and the case referred back to that court, in order for it to examine all the relevant circumstances.
23. The Vrhovno sodišče (Supreme Court), before which the case is pending, decided to suspend the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is the interpretation of the rules relating to the application of the discretionary clause under Article 17(1) of [Regulation No 604/2013], having regard to the nature of that provision, ultimately a matter for the courts and tribunals of the Member State, and do those rules release the courts and tribunals against whose decisions there is no judicial remedy from the obligation to refer the case to the Court of Justice under the third paragraph of Article 267 of the Treaty on the Functioning of the European Union?
In the alternative, if the answer to the above question is in the negative:
(2) Is the assessment of circumstances under Article 3(2) of [Regulation No 604/2013] (in a case such as the one forming the subject matter of the present reference for a preliminary ruling) sufficient to satisfy the requirements of Article 4 and Article 19(2) of the Charter of Fundamental Rights of the European Union, in conjunction with Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 33 of the Geneva Convention?
And, in connection with that question:
(3) Does it follow from the interpretation of Article 17(1) of [Regulation No 604/2013] that the application of the discretionary clause by the Member State is mandatory for the purposes of ensuring effective protection against an infringement of the rights under Article 4 of the [Charter] in cases such as the one forming the subject matter of the present reference for a preliminary ruling, and that such application prohibits the transfer of the applicant for international protection to a competent Member State which has accepted its competence in accordance with that regulation?
If the answer to the above question is in the affirmative:
(4) Can the discretionary clause under Article 17(1) of [Regulation No 604/2013] be used as a basis permitting an applicant for international protection, or another person, in a transfer procedure under that regulation, to make a claim that that provision should be applied, which the competent authorities and courts and tribunals of the Member State must assess, or are those administrative authorities and courts and tribunals required to establish the circumstances cited of their own motion?’
24. On 1 December 2016, the Court decided to deal with the reference for a preliminary ruling under the urgent procedure, pursuant to Article 107(1) of the Rules of Procedure of the Court of Justice. (9) Written observations on the questions referred for a preliminary ruling have been submitted by the appellants in the main proceedings, the Republic of Slovenia and the European Commission. Those parties, along with the Italian Republic and the United Kingdom, also presented oral argument at the hearing on 23 January 2017.
IV. Analysis
A. The first question referred
25. By the first question, the national court is essentially asking the Court, first, whether the decision of a Member State itself to examine an application for international protection on the basis of Article 17(1) of Regulation No 604/2013 comes within the scope of national law or EU law and, second, whether, in the latter hypothesis, a court adjudicating at last instance has an obligation to refer the matter to the Court.
26. The parties (10) agree that the exercise of the power provided for in Article 17(1) of Regulation No 604/2013 comes within the scope of EU law.
27. With regard to the second part of the question, the appellants in the main proceedings are of the opinion that the Ustavno sodišče (Constitutional Court) was not under an obligation to refer the matter to the Court since, inter alia, it is for the national court alone to assess whether proper application of EU law is so obvious as not to leave room for any reasonable doubt. The Slovenian Government considers that, since the Court has not yet ruled on the conditions for the exercise of the power provided for in Article 17(1) of Regulation No 604/2013, a national court against whose decisions there is no judicial remedy under national law is required to make a reference to the Court. The Commission states that it is for the national courts against whose decisions there is no judicial remedy under national law to assess whether the issue is acte clair or whether they must refer the matter to the Court of Justice.
28. First, I consider that the decision of a Member State whether or not to exercise the option offered to it by Article 17(1) of Regulation No 604/2013 of itself examining an application for asylum, even though the regulation does not designate it as responsible, comes within the scope of EU law.
29. Article 3(1) of Regulation No 604/2013 provides that an application for international protection is to be examined by the Member State which the criteria set out in Chapter III of that regulation indicate is responsible for that examination. Article 17(1) of Regulation No 604/2013 provides that, by way of derogation from Article 3(1) thereof, the Member State to which an application is submitted ‘may decide’ to examine that application itself, even though the criteria set out in that regulation do not indicate that it is responsible. That Member State therefore has a discretion in deciding whether or not to exercise the option to examine conferred on it by Article 17(1) of Regulation No 604/2013.
30. It cannot be considered that the exercise, by a Member State, of its discretionary power to decide whether or not to examine an application falls outside the scope of EU law. As the Court held in the judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 65 to 69, a Member State which decides to examine an application itself becomes the Member State responsible for that examination within the meaning of Regulation No 604/2013 and must inform the other Member State or Member States concerned. The exercise of the discretionary power conferred on the Member States by that provision therefore forms part of the mechanism for determining the Member State responsible. Consequently, the decision by which a Member State decides whether or not to exercise the discretion conferred on it by Article 17(1) of Regulation No 604/2013 comes within the scope of EU law.
31. Second, with regard to the obligation of a court against whose decisions there is no legal remedy to submit a request for a preliminary ruling to the Court of Justice, it is difficult to determine, from reading the first question referred, where the referring court is asking the Court whether the Ustavno sodišče (Constitutional Court) was required to bring the matter before the Court, or whether it is itself required to do so. The first question simply refers to ‘courts and tribunals against whose decisions there is no judicial remedy’, without naming the court. However, it seems to me that the referring court is seeking above all to clarify its own obligations, owing to the fact, on the one hand, that it did not make a reference to the Court before delivering the judgment of 29 June 2016 and, on the other hand, that it is making a reference now even though the higher court, namely the Ustavno sodišče (Constitutional Court), has not itself referred the case to the Court. I shall therefore examine below whether the Vrhovno sodišče (Supreme Court) is required to make a reference to the Court on the interpretation of Article 17(1) Regulation No 604/2013. In my view, that is the case.
32. In that regard, I would point out that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. (11)
33. In the first place, in my view, the fact that a constitutional challenge may be brought against the judgments of the Vrhovno sodišče (Supreme Court) does not deprive that latter court of its status as a court or tribunal against whose decisions there is no judicial remedy under national law within the meaning of the third paragraph of Article 267 TFEU. In the judgment of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 72, the Court held that the possibility of bringing, before the Slovak constitutional court, an action against the decisions of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), ‘limited to an examination of a potential infringement of the rights and freedoms guaranteed by the national constitution or by an international agreement’ cannot allow the view to be taken that the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) cannot be classified as a court against whose decisions there is no judicial remedy under national law within the meaning of the third paragraph of Article 267 TFEU. The Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) was, ‘as a supreme court’, ‘required to submit a request for a preliminary ruling to the Court of Justice’. The same applies to the Vrhovno sodišče (Supreme Court, Slovenia). A constitutional challenge can be brought against its judgments only for infringement of the applicant’s fundamental rights and freedoms.
34. In the second place, it matters not that the Vrhovno sodišče (Supreme Court) is, under national law, bound by the interpretation given by the Ustavno sodišče (Constitutional Court) to the second subparagraph of Article 3(2) and Article 17(1) of Regulation No 604/2013. In the judgment of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 68, the Court held that a rule of national law, under which the legal rulings of a higher court, in that case the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic), are binding on another national court, the Najvyšší súd Slovenskej republiky (Supreme Court), cannot take away from the latter court the discretion to refer to the Court of Justice questions of interpretation of the points of European law concerned by such legal rulings. The Najvyšší súd Slovenskej republiky (Slovak Supreme Court) is, as we saw in the previous point, a court against whose decisions there is no judicial remedy under national law within the meaning of the third paragraph of Article 267 TFEU. Therefore, the Vrhovno sodišče (Slovenian Supreme Court) is not, any more than the Najvyšší súd Slovenskej republiky (Slovak Supreme Court), relieved of its obligation to make a reference to the Court of Justice by the rule of national law which binds it to the interpretation given by the national constitutional court, a fortiori if the latter court has not made a reference itself, as is the position in the present case.
35. In the third place, with regard to the question of whether Article 17(1) of Regulation No 604/2013 is to be regarded as an acte clair which relieves the Vrhovno sodišče (Supreme Court) of its obligation to request a preliminary ruling from the Court of Justice, I would point out that it is for the national court alone to determine whether the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (12) and that it is clear from the order for reference that the Vrhovno sodišče (Supreme Court) takes the view, in the light of the judgment delivered on 28 September 2016 by the Ustavno sodišče (Constitutional Court), that Article 17(1) of Regulation No 604/2013 is not acte clair. (13)
36. The answer to the first question should therefore be that the decision by which a Member State decides to exercise the option conferred on it by Article 17(1) of Regulation No 604/2013 is a matter which comes within the scope of EU law. A national court, such as the referring court, must be regarded as a court or tribunal against whose decisions there is no judicial remedy under national law, within the meaning of the third paragraph of Article 267 TFEU, where the possibility of bringing, before the Constitutional Court of the Member State concerned, an action against its decisions is limited to an examination of a possible infringement of fundamental rights and freedoms. Little significance attaches, in that regard, to the question of whether, under national law, that national court is bound by the assessments made by the Constitutional Court.
B. The second question referred
37. By the second question, the referring court asks, essentially, whether the situation envisaged in the second subparagraph of Article 3(2) of Regulation No 604/2013, namely the existence, in the Member State designated as responsible, of systemic flaws in the asylum procedure and in the reception conditions for asylum seekers, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, is the only situation in which it is impossible to transfer the applicant to that Member State. It wishes to know whether there are other situations in which it is impossible to transfer the applicant to the Member State responsible, namely where, owing to the applicant’s state of health, the transfer itself constitutes a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. In other words, the referring court is asking the Court of Justice whether, where flaws affecting the specific situation of the applicant result in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, it is possible to transfer that person.
38. I would point out that, in the main proceedings, both the Vrhovno sodišče (Supreme Court), in its judgment of 29 June 2016, and the Ustavno sodišče (Constitutional Court), in its decision of 28th September 2016, considered that in Croatia there were no systemic flaws in the asylum procedure and in the reception conditions for asylum seekers which resulted in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. However, unlike the Vrhovno sodišče (Supreme Court), the Ustavno sodišče (Constitutional Court) did not conclude that it was possible to transfer the appellants in the main proceedings to Croatia. It considered that the presumption that the Member States respect the fundamental rights of applicants may be rebutted not only when there are, in the Member State responsible, systemic flaws within the meaning of the second subparagraph of Article 3(2) of Regulation No 604/2013, but also when the Member State responsible does not comply with its obligations under Article 3 ECHR or Article 33(1) of the Geneva Convention. This latter hypothesis covers situations which fall outside the scope of the second subparagraph of Article 3(2) of Regulation No 604/2013. Consequently, in order to determine whether it was possible to transfer an applicant to the Member State responsible, the competent authorities had to take account of all the relevant circumstances, in particular the personal situation of the applicants and their state of health. The Vrhovno sodišče (Supreme Court), however, had not ascertained whether the transfer would affect the state of health of Ms C. K. and her child. Therefore, the judgment given on 29 June 2016 by the Vrhovno sodišče (Supreme Court) had to be set aside and the case referred back to that the court in order for it to assess, in the light of the personal situation of Ms C. K. and her child, whether it was possible to transfer them to Croatia.
39. The appellants in the main proceedings, and the Italian Government, take the view that the situation envisaged in the second subparagraph of Article 3(2) of Regulation No 604/2013 is not the only situation in which it is impossible to transfer the applicant to the Member State responsible. The Slovenian Government, the United Kingdom Government and the Commission take the opposite view. In that regard, the Commission points out that the presumption that each Member State respects the fundamental rights of applicants, on which Regulation No 604/2013 is based, can be rebutted only in quite exceptional situations. Those situations, it submits, are characterised by systemic flaws. In the Commission’s opinion, systemic flaws also include flaws affecting the healthcare and care of particularly vulnerable persons, and also the unreasonable length of the administrative and/or judicial procedure. In the present case, the existence of systemic flaws in Croatia has not been established. As for Ms C. K.’s state of health, the Commission considers that it is not sufficiently critical as to make it impossible, in accordance with the case-law of the ECHR, to transfer her.
40. I shall present below the circumstances in which, under the second subparagraph of Article 3(2) of Regulation No 604/2013, it is impossible to transfer an applicant to the Member State responsible, and then the broader circumstances in which the European Court of Human Rights prohibits States from transferring the applicant. I shall then state why, in my view, it is necessary to restrict the obligation not to transfer applicants to the situation envisaged in the second subparagraph of Article 3(2) of Regulation No 604/2013.
1. The second subparagraph of Article 3(2) of Regulation No 604/2013: taking the ‘systemic’ flaws into account
41. I would point out that the second subparagraph of Article 3(2) of Regulation No 604/2013 provides that, after a Member State has been designated as responsible for examining an application for international protection in accordance with the criteria set out in Chapter III of that regulation, the applicant cannot be transferred to that Member State ‘because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in the risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter]’.
42. However, neither Regulation No 604/2013 nor the case-law of the Court defines ‘systemic flaws’.
43. In my view, ‘systemic’ flaws can only mean flaws affecting the actual asylum system of the Member State responsible, whether involving the rules of law which make up that system or their practical application. I stress that those flaws must be serious, because, in the judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 84 and 85, the Court stated that ‘the slightest infringement’ or ‘minor infringements’ of the asylum directives (14) cannot constitute systemic flaws. Such flaws must be established by means of serious and consistent evidence, inter alia from regular and unanimous reports of international non-governmental organisations, the United Nations High Commissioner for Refugees and the EU institutions. (15) Above all, since the flaws must relate to the asylum system itself, it is not possible to take into account flaws which concern an applicant’s individual situation. The second subparagraph of Article 3(2) of Regulation No 604/2013 does not therefore require Member States to carry out an examination on a case-by-case basis in order to determine whether the applicant in question risks being subjected to inhuman or degrading treatment in the Member State responsible. (16)
44. The second subparagraph of Article 3(2) of Regulation No 604/2013 is a codification of the judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865). In that judgment, the Court, sitting as the Grand Chamber, pointed out that, although it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, it is not inconceivable that the Common European Asylum System may experience major operational problems in a given Member State. That would be the case where there were systemic flaws resulting in inhuman or degrading treatment. (17) The Court concluded that Member States are required not to transfer an applicant to the Member State responsible where they ‘cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter’. (18)
45. In the judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), the State responsible was the Hellenic Republic. There was no doubt that, in that Member State, the flaws concerned the asylum system itself. Eleven months previously, a judgment had been handed down against Greece by the European Court of Human Rights for having inflicted inhuman and degrading treatment on asylum seekers. (19) By contrast, according to the referring court, in Croatia there are no systemic flaws within the meaning of the second subparagraph of Article 3(2) of Regulation No 604/2013. (20) Therefore, it is solely in the light of the individual situation of the appellants in the main proceedings that the Slovenian authorities may, depending on the circumstances, be unable to transfer them to Croatia. Although the second subparagraph of Article 3(2) of Regulation No 604/2013 precludes any examination of the appellants’ individual situation, Article 3 ECHR, on the other hand, as interpreted by the European Court of Human Rights, requires such an examination.
2. The position of the European Court of Human Rights: taking into account the applicant’s individual situation
46. In its judgment of 4 November 2014, Tarakhelv.Switzerland (CE:ECHR:2014:1104JUD 002921712), (21) the ECtHR, citing the judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), refers to the presumption that the Member States will respect the fundamental rights of asylum seekers. It goes on to state that, for determining whether that presumption is rebutted, ‘the source of the risk’ is irrelevant. Whether or not the risk of inhuman or degrading treatment has its ‘source’ in the existence of systemic flaws in the Member State concerned is irrelevant. The Member State which is to make the transfer must ‘[carry] out a thorough and individualised examination of the situation of the person concerned and [suspend] enforcement of the removal order should the risk of inhuman or degrading treatment be established’. (22) In that case, the applicants were to be transferred to Italy. The ECtHR takes the view that, while the general situation in Italy cannot act as a bar to transfer, ‘the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded’. The ECtHR therefore required the Swiss authorities, before transferring the applicants to the Italian Republic, to obtain from that State ‘individual guarantees’ that they would be received in conditions which meet the requirements of Article 3 ECHR. (23)
47. In other words, whereas the Court Justice requires, in order to prohibit the transfer of an applicant to the Member State responsible, ‘systemic’ flaws in that Member State, the ECtHR merely seeks flaws which affect the applicant’s individual situation.
3. ‘Systemic flaws’, the only hypothesis in which transfer is impossible
48. Does the second subparagraph of Article 3(2) of Regulation No 604/2013 preclude an obligation not to transfer the applicant in a case other than envisaged by that provision, namely where there are systemic flaws in the asylum procedure and in the reception conditions for applicants in the Member State responsible?
49. I think it does.
50. Admittedly, there is nothing, in the wording of the second subparagraph of Article 3(2) of Regulation No 604/2013, to suggest that the hypothesis which it envisages, namely the existence of systemic flaws, is the only hypothesis in which it is impossible to transfer the applicant. That provision states that ‘it is impossible to transfer the applicant … because there are substantial grounds for believing that there are systemic flaws … in that Member State’. It can therefore be presumed that reasons other than systemic flaws may make it impossible to transfer. Moreover, it is possible that, in the judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), the Court did not intend to require the flaws to be systemic in order for it to be impossible to transfer the applicant, but that it simply did not consider the matter. Since the flaws, in that case, were undeniably systemic, there was no need for the Court to consider the consequences of flaws affecting only the applicant’s situation.
51. However, the second subparagraph of Article 3(2) of Regulation No 604/2013 cannot, in my view, be interpreted in that way. In the first place, such an interpretation seems to me incompatible with the principle of mutual trust, on which the Common European Asylum System is based. In that regard, I would point out that recital 3 of Regulation No 604/2013 states that ‘Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals’. Therefore, mutual trust, which is the cornerstone of the area of freedom, security and justice, (24) requires each of the Member States ‘… to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’. (25) To require Member States to verify, before transferring an applicant to the Member State responsible, that, in that Member State, there are no flaws affecting the individual situation of that applicant, would, however, be tantamount to requiring Member States to verify systematically respect by the Member State responsible for the fundamental rights of asylum seekers. To impose such an obligation would compromise not only the principle of mutual trust, but also the effectiveness of Regulation No 604/2013 and the mechanism for determining rapidly the Member State responsible which, in accordance with recital 5 thereof, that regulation establishes. (26)
52. In the second place, I cannot believe that, in the judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), the Court did not consider the case of flaws affecting only the applicant, since the expression ‘systemic flaws’ does not appear in the Opinion of Advocate General Trstenjak. (27)
53. In the third place, I would point out that the Court is by no means required to follow the approach taken by the ECtHR. It is true that Article 52(3) of the Charter provides that, in so far as the 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 [ECHR]’. According to the explanations relating to the Charter, ‘the meaning and the scope of the guaranteed rights are determined not only by the text [of the Charter and its Protocols], but also by the case-law of the European Court of Human Rights and by the Court of Justice of the European Union’. (28) However, the fact remains that, as Advocate General Trstenjak points out, ‘it would therefore be wrong to regard the case-law of the European Court of Human Rights as a source of interpretation with full validity in connection with the application of the Charter’. (29)
54. In the fourth place, I would point out that, in the judgment of 10 December 2013, Abdullahi (C‑394/12, EU:C:2013:813, paragraph 60), the Court interpreted Article 19(2) of Regulation No 343/2003, according to which a decision to transfer may be subject to an appeal, in that, where a Member State has been designated as responsible for examining an application for international protection in accordance with a criterion set out by Regulation No 343/2003, (30) ‘the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter’. (31) In other words, the Member State designated as responsible in accordance with the criteria set out by Regulation No 604/2013 avoids responsibility in only one situation, that in which its asylum procedure and reception conditions reveal systemic flaws within the meaning of Article 3(2) of that regulation. It therefore does not avoid responsibility if flaws affect only the applicant’s individual situation.
55. It is true that, in the judgment of 7 June 2016, Ghezelbash (C‑63/15, EU:C:2016:409, paragraph 61), the Court held that ‘an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of [Regulation No 604/2013]’. However, I note that, in that case, the applicant did not claim that he was at risk of being subjected, in the Member State responsible, to inhuman or degrading treatment. (32) The Court therefore did not rule on that question. Consequently, it cannot be concluded from the judgment of 7 June 2016, Ghezelbash (C‑63/15, EU:C:2016:409), that the existence of systemic flaws in the Member State responsible is not the only situation in which that Member State avoids its responsibility and in which the applicant cannot be transferred to that State.
56. I therefore consider that the existence of systemic flaws within the meaning of the second subparagraph of Article 3(2) of Regulation No 604/2013 is the only hypothesis in which it is impossible to transfer the applicant. In my view, it is not impossible to transfer the applicant to the Member State responsible in the case where flaws affecting the applicant’s individual situation constitute a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.
57. In the present case, the appellants in the main proceedings maintain that the transfer of Ms C. K. and her child to Croatia will, given their state of health, result in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. However, to examine whether the transfer is likely to affect the state of health of Ms C. K. and her child would amount to taking into account their individual situation, something which, as we have seen, is contrary to the second subparagraph of Article 3(2) of Regulation No 604/2013. In any event, I would point out that, in this case, the Slovenian authorities have obtained from their Croatian counterparts an assurance that the appellants in the main proceedings will receive accommodation, appropriate care and the necessary medical treatment.
58. Therefore, the answer to the second question should be that the second subparagraph of Article 3(2) of Regulation No 604/2013 precludes a Member State which determines the Member State responsible from being required not to transfer the applicant to that Member State in a situation other than that envisaged by the second subparagraph of Article 3(2), namely where, in the Member State responsible, there are systemic flaws in the asylum procedure and in the reception conditions for applicants resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. In particular, it is not impossible to transfer the applicant to the Member State responsible where the transfer itself gives rise to a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.
C. The third question referred
59. The third question is raised in case the Court considers, in replying to the second question, that the second subparagraph of Article 3(2) of Regulation No 604/2013 does not preclude Member States from being required not to transfer the applicant in situations other than those which that provision envisages. By its third question, the referring court is asking whether Article 17(1) of that regulation is to be interpreted as meaning that, where a Member State is required not to transfer an applicant to the Member State responsible, it must exercise the option allowed to it by that provision and itself examine the application for international protection.
60. In the light of the answer which I propose to the second question, I think it is unnecessary to answer the third question. However, in the alternative, in case the Court does not agree with my analysis of the second question, I will examine the third question.
61. The appellants in the main proceedings maintain that the exercise of the option provided for in Article 17(1) of Regulation No 604/2013 is mandatory where the applicant runs a serious risk of being subjected, in the Member State responsible, to inhuman or degrading treatment. The Slovenian, Italian and United Kingdom Governments, and also the Commission, take the view that Article 17(1) of Regulation No 604/2013 cannot serve as a basis for such an obligation.
62. Article 17(1) of Regulation No 604/2013 cannot, in my view, serve as a basis for an obligation to examine an application for international protection in the case where it is impossible to transfer the applicant to the Member State responsible.
63. In the first place, such an interpretation would be at variance with the actual wording of that provision. It is, as the title of Article 17 of Regulation No 604/2013 states, a ‘discretionary clause’. Paragraph 1 of that article expressly provides that the Member State in which an application is lodged ‘may decide’ to examine it even if that examination is not its responsibility under the criteria laid down in that regulation.
64. In the second place, in the judgment of 14 November 2013, Puid (C‑4/11, EU:C:2013:740, paragraph 37), the Court held that ‘a finding that it is impossible to transfer an asylum seeker to the Member State initially identified as responsible does not in itself mean that the Member State which is determining the Member State responsible is required itself, under Article 3(2) of Regulation No 343/2003 [which corresponds to Article 17(1) of Regulation No 604/2013], to examine the application for asylum’. Similarly, in the judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 96), the Court held that if it is found that it is impossible to transfer an applicant, examination of the application by the Member State which should carry out the transfer is merely a ‘right’. Finally, with regard to Article 17(2), also placed under the heading ‘Discretionary clauses’, the Court held that it was ‘an optional provision which affords the Member States extensive discretion’. (33)
65. In the third place, Article 17(1) of Regulation No 604/2013 has been described as a ‘sovereignty clause’. (34) In the judgment of 30 May 2013, Halaf (C‑528/11, EU:C:2013:342, paragraph 37), the Court referred to the Commission proposal that led to the adoption of Regulation No 343/2003, which ‘states that the rule in Article 3(2) of the regulation was introduced in order to allow each Member State to decide sovereignly, for political, humanitarian or practical considerations, to agree to examine an application for asylum’. Therefore, it would be paradoxical to make application of that provision an obligation for the Member States concerned.
66. In the fourth place, I would point out that, in its proposal for an amendment of Regulation No 604/2013, (35) the Commission seeks to restrict the right to apply the sovereignty clause. Article 19(1) of the Commission proposal provides that ‘each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person based on family grounds in relation to wider family not covered by Article 2(g)’ (namely the spouse or partner of the applicant, his minor children, his mother and father if he is a minor). (36) Although the right to examine the application on the basis of the sovereignty clause is restricted, there is no question of making it an obligation. (37)
67. Therefore, the answer to the third question should be that Article 17(1) of Regulation No 604/2013 cannot be interpreted as meaning that, where a Member State is required not to transfer an applicant to the Member State responsible, it must itself examine the application for international protection lodged with it even though that examination is not its responsibility under the criteria laid down in that regulation.
D. The fourth question referred
68. The fourth question is raised in case the Court considers, in reply to the third question, that, where a Member State is required not to transfer an applicant to the Member State responsible, it must itself examine the application on the basis of Article 17(1) of Regulation No 604/2013. By its fourth question, the referring court is asking the Court whether the competent administrative and judicial authorities of the Member State which must carry out the transfer are required to apply Article 17(1) of Regulation No 604/2013 of their own motion.
69. In the light of the answer which I propose to the third question, I think it is unnecessary to answer the fourth question. However, in the alternative, in case the Court does not agree with my analysis of the third question, I am going to examine the third question.
70. The appellants in the main proceedings maintain that, since the applicant makes an ‘arguable complaint’ that her transfer to the Member State responsible would expose her to an infringement of her fundamental rights, the competent administrative or judicial authorities are under an obligation to apply Article 17(1) of Regulation No 604/2013 of their own motion. The Slovenian and United Kingdom Governments, and also the Commission, take the view that the competent judicial and administrative authorities are not under any obligation to apply that provision of their own motion. They point out that the examination of an application for international protection on the basis of Article 17(1) of Regulation No 604/2013 is an option for the Member State concerned, not a right for the applicant.
71. In this regard, I would point out that, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish such rules accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). (38)
72. In the present case, Regulation No 604/2013, although it contains procedural provisions (Chapters II and VI), does not mention the option or obligation of administrative and judicial authorities to examine of their own motion whether the applicant runs the risk of being subjected, in the Member State responsible, to inhuman or degrading treatment, in which case the State which carries out the transfer would itself be required to examine the application for international protection. Therefore, it is in the light of the principles of equivalence and effectiveness that it is necessary to determine whether the national administrative and judicial authorities are required to examine of their own motion the plea relating to infringement of Article 4 of the Charter and the application of Article 17(1) of Regulation No 604/2013.
73. It is, however, apparent from the order for reference that the appellants in the main proceedings could have objected, at the stage of the administrative procedure, to their transfer to Croatia on the ground that it would expose them to a risk of inhuman or degrading treatment. Therefore, it seems to me that the question is hypothetical and, as such, inadmissible. (39)
74. I therefore propose that the fourth question referred for a preliminary ruling should be rejected as inadmissible.
V. Conclusion
75. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the questions referred by the Vrhovno sodišče (Supreme Court, Slovenia):
Primarily:
(1) The decision by which a Member Says decides to exercise the option conferred on it by Article 17(1) of 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 (recast) comes within the scope of EU law.
(2) A national court, such as the referring court, must be regarded as a court or tribunal against whose decisions there is no judicial remedy under national law within the meaning of the third paragraph of Article 267 TFEU, where the possibility of bringing, before the Constitutional Court of the Member State concerned, an action against its decisions is limited to an examination of a possible infringement of fundamental rights and freedoms. Little significance attaches, in that regard, to the question of whether, under national law, that national court is bound by the assessments made by the Constitutional Court.
(3) The second subparagraph of Article 3(2) of Regulation No 604/2013 precludes a Member State which determines the Member State responsible from being required not to transfer the applicant to that Member State in a situation other than that envisaged by the second subparagraph of Article 3(2), namely where, in the Member State responsible, there are systemic flaws in the asylum procedure and the reception conditions for applicants resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. In particular, it is not impossible to transfer the applicant to the Member State responsible where the transfer itself involves the risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.
In the alternative:
(4) Article 17(1) of Regulation No 604/2013 cannot be interpreted as meaning that, where a Member State is required not to transfer an applicant to the Member State responsible, it must itself examine the application for international protection lodged with it even if that examination is not its responsibility under the criteria laid down in that regulation.
(5) The fourth question referred is inadmissible.