# C_2011370EN.01001801.xml

| 17.12.2011 | EN | Official Journal of the European Union | C 370/18 |
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17.12.2011

EN

Official Journal of the European Union

C 370/18

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Reference for a preliminary ruling from the Administrativen Sad Sofia (Bulgaria) lodged on 18 October 2011 — Zuheyr Freyeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerski savet

(Case C-528/11)

2011/C 370/30

Language of the case: Bulgarian

Referring court

Referring court

Administrativen Sad Sofia

Parties to the main proceedings

Parties to the main proceedings

Applicant: Zuheyr Freyeh Halaf

Applicant:

Defendant: Darzhavna agentsia za bezhantsite pri Ministerski savet

Defendant:

Questions referred

Questions referred

| 1. | Is Article 3(2) of 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 to be interpreted as meaning that it permits a Member State to assume responsibility for examining an asylum application where no personal circumstances exist in relation to the asylum seeker which establish the applicability of the humanitarian clause in Article 15 of that regulation and where at least one of the following situations exists in relation to the Member State responsible pursuant to Article 3(1) of the regulation:






  (a) | Facts and conclusions therefrom are set out in documents of the Office of the United Nations High Commissioner for Refugees (UNHCR) to the effect that the legally responsible Member State is in breach of provisions of European Union law on asylum which relate to the reception conditions for asylum seekers, access to the procedure, or the quality of the procedure for examining asylum applications; |
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1.

Is Article 3(2) of 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 to be interpreted as meaning that it permits a Member State to assume responsibility for examining an asylum application where no personal circumstances exist in relation to the asylum seeker which establish the applicability of the humanitarian clause in Article 15 of that regulation and where at least one of the following situations exists in relation to the Member State responsible pursuant to Article 3(1) of the regulation:

(a)

Facts and conclusions therefrom are set out in documents of the Office of the United Nations High Commissioner for Refugees (UNHCR) to the effect that the legally responsible Member State is in breach of provisions of European Union law on asylum which relate to the reception conditions for asylum seekers, access to the procedure, or the quality of the procedure for examining asylum applications;

| (b) | The legally responsible Member State has not responded to a request to take back the applicant pursuant to Article 20(1) of Regulation No 343/2003, given that that regulation does not contain any provisions concerning compliance with the principle of solidarity pursuant to Article 80 TFEU? |
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(b)

The legally responsible Member State has not responded to a request to take back the applicant pursuant to Article 20(1) of Regulation No 343/2003, given that that regulation does not contain any provisions concerning compliance with the principle of solidarity pursuant to Article 80 TFEU?

| 2. | For the purposes of applying Article 3(2) of Regulation No 343/2003 is it possible for a national court of a Member State, before which the claim that that regulation is applicable is based on claims of an infringement of European Union law on asylum by the Member State responsible (under Article 3(1) of that regulation), to examine the infringement of that law and the consequent effects on the rights of the asylum seeker which are guaranteed to him by European Union law in the event of his transfer to the Member State responsible, where the Court of Justice of the European Union has not declared that that Member State has infringed the relevant provisions of European Union law, according to the procedure provided for by that law?
  In the event that the above question is answered in the affirmative, the following questions on establishing the criteria for an infringement of European Union law might also be answered: | Are only substantial infringements of European Union law to be taken into account and which criteria must the national court consider in establishing such infringements in order to apply the provision of Regulation No 343/2003 of which an interpretation is sought? |
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2.

For the purposes of applying Article 3(2) of Regulation No 343/2003 is it possible for a national court of a Member State, before which the claim that that regulation is applicable is based on claims of an infringement of European Union law on asylum by the Member State responsible (under Article 3(1) of that regulation), to examine the infringement of that law and the consequent effects on the rights of the asylum seeker which are guaranteed to him by European Union law in the event of his transfer to the Member State responsible, where the Court of Justice of the European Union has not declared that that Member State has infringed the relevant provisions of European Union law, according to the procedure provided for by that law?

In the event that the above question is answered in the affirmative, the following questions on establishing the criteria for an infringement of European Union law might also be answered:

Are only substantial infringements of European Union law to be taken into account and which criteria must the national court consider in establishing such infringements in order to apply the provision of Regulation No 343/2003 of which an interpretation is sought?

| | Where an infringement of European Union law on asylum results in the infringement of a right of any kind guaranteed to the asylum seeker by European Union law, should it only on that basis be assessed as substantial or must there also be a restriction on the infringement of the right to asylum within the meaning of Article 18 of the Charter of Fundamental Rights of the European Union? |
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Where an infringement of European Union law on asylum results in the infringement of a right of any kind guaranteed to the asylum seeker by European Union law, should it only on that basis be assessed as substantial or must there also be a restriction on the infringement of the right to asylum within the meaning of Article 18 of the Charter of Fundamental Rights of the European Union?

| | Where, according to the general criteria and standards of European Union law, there is no legal basis for accepting the asylum application of the person concerned, should then only the infringement of reception conditions for asylum seekers in the legally responsible Member State responsible be examined? |
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Where, according to the general criteria and standards of European Union law, there is no legal basis for accepting the asylum application of the person concerned, should then only the infringement of reception conditions for asylum seekers in the legally responsible Member State responsible be examined?

| 3. | What is the content of the right to asylum under Article 18 of the Charter of Fundamental Rights of the European Union in conjunction with Article 53 of that Charter and in conjunction with the definition in Article 2(c) and recital 12 of Regulation No 343/2003? |
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3.

What is the content of the right to asylum under Article 18 of the Charter of Fundamental Rights of the European Union in conjunction with Article 53 of that Charter and in conjunction with the definition in Article 2(c) and recital 12 of Regulation No 343/2003?

| 4. | Is Article 3(2) of Regulation No 343/2003 to be interpreted as meaning that it permits a national court of a Member State to find that the presumption that the Member State responsible pursuant to Article 3(1) of the regulation respects the principle of non refoulement and is a safe country within the meaning of recital 2 of the preamble to that regulation is rebutted, without any declaration to that effect by the Court of Justice of the European Union, where the following factors are to be taken into account:






  — | the recognised supervisory responsibilities of the Office of the United Nations High Commissioner for Refugees (UNHCR), which stem from the obligations under Article 78(1) TFEU to comply with instruments under international law on asylum and expressly under Article 21 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and |
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4.

Is Article 3(2) of Regulation No 343/2003 to be interpreted as meaning that it permits a national court of a Member State to find that the presumption that the Member State responsible pursuant to Article 3(1) of the regulation respects the principle of non refoulement and is a safe country within the meaning of recital 2 of the preamble to that regulation is rebutted, without any declaration to that effect by the Court of Justice of the European Union, where the following factors are to be taken into account:

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the recognised supervisory responsibilities of the Office of the United Nations High Commissioner for Refugees (UNHCR), which stem from the obligations under Article 78(1) TFEU to comply with instruments under international law on asylum and expressly under Article 21 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and

| — | the facts and conclusions therefrom in documents of the Office of the UNHCR to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum? |
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the facts and conclusions therefrom in documents of the Office of the UNHCR to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum?

| 5. | Is Article 3(2) of Regulation No 343/2003, in relation to the obligation under Article 78(1) TFEU to comply with instruments under international law on asylum, to be interpreted as meaning that in the procedure for determining the Member State responsible pursuant to Regulation No 343/2003, the Member States are obliged to request the Office of the UNHCR to present its views, where facts and conclusions therefrom are set out in documents of that Office to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum?
  If this question is answered in the affirmative, the following question might also be answered:
  If such a request is not made to the Office of the UNHCR to present its views, does this constitute a substantial infringement of the procedure for determining the Member State responsible pursuant to Article 3 of Regulation No 343/2003 and an infringement of the right to good administration and the right to an effective legal remedy pursuant to Articles 41 and 47 of the Charter of Fundamental Rights of the European Union, specifically also in the light of Article 21 of Directive 2005/85, which provides that that Office has the right to present its views when individual applications for asylum are examined? |
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5.

Is Article 3(2) of Regulation No 343/2003, in relation to the obligation under Article 78(1) TFEU to comply with instruments under international law on asylum, to be interpreted as meaning that in the procedure for determining the Member State responsible pursuant to Regulation No 343/2003, the Member States are obliged to request the Office of the UNHCR to present its views, where facts and conclusions therefrom are set out in documents of that Office to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum?

If this question is answered in the affirmative, the following question might also be answered:

If such a request is not made to the Office of the UNHCR to present its views, does this constitute a substantial infringement of the procedure for determining the Member State responsible pursuant to Article 3 of Regulation No 343/2003 and an infringement of the right to good administration and the right to an effective legal remedy pursuant to Articles 41 and 47 of the Charter of Fundamental Rights of the European Union, specifically also in the light of Article 21 of Directive 2005/85, which provides that that Office has the right to present its views when individual applications for asylum are examined?

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