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Action brought on 31 March 2008 - Commission of the European Communities v Hellenic Republic

(Case C-130/08)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Kontou-Durande)

Defendant: Hellenic Republic

Form of order sought

declare that, by failing to adopt the laws, regulations and administrative measures necessary to ensure, in every case, examination of the merits of applications for asylum of third-country nationals who, in accordance with Article 16(1)(d) of Regulation (EC) No 343/2003, are transferred to Greece so as to be taken back for examination of their applications, the Hellenic Republic has failed to fulfil its obligations under Article 3(1) of Regulation No 343/2003;

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1. The United Nations High Commissioner for Refugees drew the Commission's attention to the question whether Greek legislation relating to the procedure for recognising foreign nationals as refugees is compatible with Regulation No 343/2003 in cases where the foreign national arbitrarily has left the country and a decision discontinuing the procedure for consideration of asylum has been made in his regard.

2. This problem results from Article 2(8) of Presidential Decree No 61/99 (FEK (Official Gazette) A 63) of 6 April 1999, which concerns discontinuance of the procedure for consideration of asylum. That provision treats arbitrary departure of the applicant for asylum without his giving notice as a withdrawal and the procedure for examination of the application is discontinued by a decision of the Secretary General of the Ministry of Public Order that is notified to the person concerned as a person whose whereabouts are unknown. That decision can be set aside only if the applicant presents himself to the competent authorities again no later than three months from notification of the decision, and provided that he adduces evidence showing that his absence was due to force majeure.

3. The passage of an applicant for asylum, without his giving notice, from the Member State in which he has submitted the application for asylum to another Member State is one of the typical situations that Regulation No 343/2003 seeks specifically to regulate so as to ensure that the merits of his application are examined by the State considered responsible for examining the application, under Article 16(1) of the regulation.

4. However, the requirements imposed by Article 2(8) of the presidential decree have the combined effect of making it impossible in practice to challenge a discontinuance decision before the courts and to have real access to the procedure for determining a refugee's status.

5. The Hellenic Republic acknowledged that Greek legislation may create a problem in relation to Regulation No 343/2003 and displayed willingness to take measures in that regard. Thus, it proposed solving the problem by means of the adoption of a presidential decree which would transpose Council Directive 2005/85/EC into national law and would specify that the provisions at issue would not apply in cases where Regulation No 343/2003 applied.

6. At the same time it gave assurances that it would examine the merits of every application for asylum of persons who are transferred for re-examination within the framework of Regulation No 343/2003 and that it would revoke any discontinuance decisions that had been adopted.

7. The Commission takes account of those assurances given by the Hellenic Republic. None the less, it considers that they are not sufficient to guarantee the required legal certainty regarding the correct implementation, in all cases of an application for asylum, of the regulation's provisions and in particular of the examination of the merits of every application for asylum, in such a way as to ensure actual and effective access for refugees to the procedures for making determinations.

8. On the basis of the foregoing, the Commission considers that, by failing to adopt the necessary measures to ensure that it examines the merits of applications for asylum of third-country nationals in respect of whom a discontinuance decision has been issued on the ground of arbitrary departure and whom it has taken back, in accordance with Article 3(1) of Regulation No 343/2003, the Hellenic Republic has failed to fulfil its obligations under that provision.

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