Case C‑201/16

Majid Shiri

(Request for a preliminary ruling from the Verwaltungsgerichtshof)

(Reference for a preliminary ruling — Regulation (EU) No 604/2013 — Determination of the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national — Article 27 — Remedy — Scope of the judicial review — Article 29 — Time limit for carrying out the transfer — No transfer within the time limit laid down — Obligations of the Member State responsible — Transfer of responsibility — Requirement for a decision of the Member State responsible)

Summary — Judgment of the Court (Grand Chamber), 25 October 2017

1.        Judicial proceedings — Oral part of the procedure — Reopening — Obligation to reopen the oral part of the procedure in order to allow the parties to submit observations on points of law raised in the Advocate General’s Opinion — No such obligation

(Art. 252, second para., TFEU; Rules of Procedure of the Court of Justice, Art. 83)

2.        Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection — Regulation No 604/2013 — Procedures for taking charge and taking back — Time limit laid down for carrying out the transfer of the applicant for international protection — Consequence of not complying with that time limit — Transfer to the requesting Member State of responsibility for examining the application for international protection

(European Parliament and Council Regulation No 604/2013, Art. 29(1) and (2))

3.        Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection — Regulation No 604/2013 — Action brought against a decision to transfer an applicant for international protection — Ability to rely on the expiry after the transfer decision has been adopted of the period laid down for carrying out the transfer — Obligation on the Member States to provide for an effective and rapid remedy

(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Regulation No 604/2013, recital 19 and Arts 27(1) and 29(1) and (2))

1.      See the text of the decision.

(see paras 22-25)

2.      Article 29(2) 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 must be interpreted as meaning that, where the transfer does not take place within the six-month time limit as defined in Article 29(1) and (2) of that regulation, responsibility is transferred automatically to the requesting Member State, without it being necessary for the Member State responsible to refuse to take charge of or take back the person concerned. It is apparent from the very wording of Article 29(2) that it provides for an automatic transfer of responsibility to the requesting Member State, without making that transfer conditional on any reaction by the Member State responsible (see, by analogy, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 61).

(see paras 30, 34, operative part 1)

3.      Article 27(1) of Regulation No 604/2013, read in the light of recital 19 thereof, and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that an applicant for international protection must have an effective and rapid remedy available to him which enables him to rely on the expiry of the six-month period as defined in Article 29(1) and (2) of that regulation that occurred after the transfer decision was adopted. The right which national legislation such as that at issue in the main proceedings accords to such an applicant to plead circumstances subsequent to the adoption of that decision, in an action brought against it, meets that obligation to provide for an effective and rapid remedy.

The scope of the remedy available to an applicant for international protection against a decision to transfer him is explained in recital 19 of the Dublin III Regulation, which states that, in order to ensure compliance with international law, the effective remedy introduced by that regulation in respect of transfer decisions must cover (i) the examination of the application of that regulation and (ii) the examination of the legal and factual situation in the Member State to which the asylum seeker is to be transferred (judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 43). Furthermore, it is apparent from the Court’s case-law that, in the light, in particular, of the general thrust of the developments that have taken place, as a result of the adoption of the Dublin III Regulation, in the system for determining the Member State responsible for an asylum application made in one of the Member States, and of the objectives of that regulation, Article 27(1) of the regulation must be interpreted as meaning that the action for which it provides must be capable of relating, inter alia, to observance of the procedural safeguards laid down by the regulation (see, to that effect, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 44 to 48 and the case-law cited).

The take charge and take back procedures established by the Dublin III Regulation must, in particular, be carried out in compliance with a series of mandatory time limits, which include the six-month time limit referred to in Article 29(1) and (2) of that regulation. Whilst those provisions are intended to provide a framework for those procedures, they also contribute, in the same way as the criteria set out in Chapter III of the regulation, to determining the Member State responsible.

Accordingly, in order to ensure that the contested transfer decision has been adopted following a proper application of those procedures, the court or tribunal dealing with an action challenging a transfer decision must be able to examine the claims made by an applicant for international protection that that decision was adopted in breach of the provisions set out in Article 29(2) of the Dublin III Regulation in so far as the requesting Member State is said to have already become the Member State responsible on the day when that decision was adopted, on account of the prior expiry of the six-month period as defined in Article 29(1) and (2) of the regulation (see, by analogy, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 55).

That said, it is to be noted that, unlike the periods at issue in the case that gave rise to the judgment of 26 July 2017, Mengesteab (C‑670/16, EU:C:2017:587), which provide a framework for the making of a take charge request, the periods set out in Article 29 of the Dublin III Regulation are intended to provide a framework not only for the adoption but also for the implementation of the transfer decision. It follows that those periods may expire after the transfer decision has been adopted.

The competent authorities of the requesting Member State cannot, in such a situation, carry out the transfer of the person concerned to another Member State and are, on the contrary, required to take, on their own initiative, the measures necessary to acknowledge the responsibility of the first Member State and to initiate without delay the examination of the application for international protection lodged by that person.

(see paras 37-43, 46, operative part 2)