# C_2021490EN.01001801.xml

| 6.12.2021 | EN | Official Journal of the European Union | C 490/18 |
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6.12.2021

EN

Official Journal of the European Union

C 490/18

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Request for a preliminary ruling from the Verwaltungsgericht Stade (Germany) lodged on 17 August 2021 — Applicant 1 and Others v Bundesrepublik Deutschland

(Case C-504/21)

(2021/C 490/18)

Language of the case: German

Referring court

Verwaltungsgericht Stade

Parties to the main proceedings

Applicants: Applicant 1, Applicant 2, Applicant 3, Applicant 4, Applicant 5

Party opposing the applications: Bundesrepublik Deutschland (represented by the Bundesamt für Migration und Flüchtlinge)

Questions referred

| a. | Justiciability







  1. | Is Article 27 of Regulation (EU) No 604/2013 (‘the Dublin III Regulation’), (1) whether or not read in conjunction with Articles 47 and 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), and while noting the provisions of Directive 2003/86/EC, (2) to be interpreted as meaning that the requested Member State is obliged to provide applicants, including children, who are present in the requesting Member State and who are seeking a transfer pursuant to Articles 8, 9 or 10 of the Dublin III Regulation, or the members of their family in the requested Member State within the meaning of Articles 8, 9 or 10 of the Dublin III Regulation, with an effective remedy before a court in the requested Member State against refusal of the request to take charge? |
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a.

Justiciability

1.

Is Article 27 of Regulation (EU) No 604/2013 (‘the Dublin III Regulation’), (1) whether or not read in conjunction with Articles 47 and 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), and while noting the provisions of Directive 2003/86/EC, (2) to be interpreted as meaning that the requested Member State is obliged to provide applicants, including children, who are present in the requesting Member State and who are seeking a transfer pursuant to Articles 8, 9 or 10 of the Dublin III Regulation, or the members of their family in the requested Member State within the meaning of Articles 8, 9 or 10 of the Dublin III Regulation, with an effective remedy before a court in the requested Member State against refusal of the request to take charge?

| 2. | In the event that Question a.1 is answered in the negative:
  In that case, does the right to an effective remedy referred to in a.1 arise directly from Article 47 of the Charter, whether or not read in conjunction with Articles 7, 9 and 33 of the Charter, in the absence of adequate regulation in the Dublin III Regulation (see the judgments of 7 June 2016, Ghezelbash, C-63/15, paragraphs 51 and 52, (3) and of 26 July 2017, Mengesteab, C-670/16, paragraph 58 (4))? |
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2.

In the event that Question a.1 is answered in the negative:

In that case, does the right to an effective remedy referred to in a.1 arise directly from Article 47 of the Charter, whether or not read in conjunction with Articles 7, 9 and 33 of the Charter, in the absence of adequate regulation in the Dublin III Regulation (see the judgments of 7 June 2016, Ghezelbash, C-63/15, paragraphs 51 and 52, (3) and of 26 July 2017, Mengesteab, C-670/16, paragraph 58 (4))?

| 3. | In the event that Question a.1. or Question a.2. is answered in the affirmative:
  Is Article 47 of the Charter, whether or not read in conjunction with the principle of sincere cooperation (see the judgment of 13 November 2018, X, C-47/17 and C-48/17, (5)), to be interpreted as meaning that the requested Member State is obliged to inform the requesting Member State about an appeal brought by the applicants against the refusal of the request to take charge, and that the requesting Member State is obliged to refrain from ruling on the merits of the applicants’ asylum application pending a negative outcome of the appeal proceedings? |
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3.

In the event that Question a.1. or Question a.2. is answered in the affirmative:

Is Article 47 of the Charter, whether or not read in conjunction with the principle of sincere cooperation (see the judgment of 13 November 2018, X, C-47/17 and C-48/17, (5)), to be interpreted as meaning that the requested Member State is obliged to inform the requesting Member State about an appeal brought by the applicants against the refusal of the request to take charge, and that the requesting Member State is obliged to refrain from ruling on the merits of the applicants’ asylum application pending a negative outcome of the appeal proceedings?

| 4. | In the event that Question a.1. or Question a.2. is answered in the affirmative:
  Is Article 47 of the Charter, whether or not the assessments set out in recital 5 of the Dublin III Regulation are to be considered, to be interpreted in a case such as that described above as meaning that the courts of the requested Member State are obliged to guarantee legal protection by way of summary proceedings? Is there a period within which the courts in the requested Member State must take a decision on the appeal? |
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4.

In the event that Question a.1. or Question a.2. is answered in the affirmative:

Is Article 47 of the Charter, whether or not the assessments set out in recital 5 of the Dublin III Regulation are to be considered, to be interpreted in a case such as that described above as meaning that the courts of the requested Member State are obliged to guarantee legal protection by way of summary proceedings? Is there a period within which the courts in the requested Member State must take a decision on the appeal?

| b. | Transfer of responsibilities







  1. | Does the third subparagraph of Article 21(1) of the Dublin III Regulation, read in conjunction with Article 5(2) of Regulation (EC) No 1560/2003, as amended by Regulation (EU) No 118/2014, (6) (‘the Implementing Regulation’) effect, in principle, a non-appealable transfer of responsibilities to the requesting Member State, if the requested Member State refuses both the original request from the [requesting] Member State and the application for reconsideration within the period (see the judgment of 13 November 2018, X, C-47/17 and C-48/17, EU:C:2018:900, paragraph 80)? |
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b.

Transfer of responsibilities

1.

Does the third subparagraph of Article 21(1) of the Dublin III Regulation, read in conjunction with Article 5(2) of Regulation (EC) No 1560/2003, as amended by Regulation (EU) No 118/2014, (6) (‘the Implementing Regulation’) effect, in principle, a non-appealable transfer of responsibilities to the requesting Member State, if the requested Member State refuses both the original request from the [requesting] Member State and the application for reconsideration within the period (see the judgment of 13 November 2018, X, C-47/17 and C-48/17, EU:C:2018:900, paragraph 80)?

| 2. | If Question b.1 is answered in the affirmative:
  Is that also the case if the refusal decisions of the requested Member State are unlawful? |
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2.

If Question b.1 is answered in the affirmative:

Is that also the case if the refusal decisions of the requested Member State are unlawful?

| 3. | In the event that Question b.2 is answered in the negative:
  Can the applicant for asylum in the requesting Member State invoke a transfer of responsibility that was unlawful due to failure to comply with responsibility criteria relating to family unity (Articles 8 to 11, 16, 17(2) of the Dublin III Regulation) against the requested Member State? |
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3.

In the event that Question b.2 is answered in the negative:

Can the applicant for asylum in the requesting Member State invoke a transfer of responsibility that was unlawful due to failure to comply with responsibility criteria relating to family unity (Articles 8 to 11, 16, 17(2) of the Dublin III Regulation) against the requested Member State?

| c. | Subsequent application







  1. | Are Article 7(2) and Article 20(1) of the Dublin III Regulation to be interpreted as not precluding the applicability of the provisions in Chapter III or the implementation of a procedure for taking charge within the meaning of Chapter VI, Section II, of the Dublin III Regulation in cases where the applicants have already lodged an asylum application in the requesting Member State, which was originally rejected as inadmissible by the requesting Member State on the basis of Article 33(2)(c), read in conjunction with Article 38, of Directive 2013/32/EU, (7) but — for example as a result of the de facto settlement in the ‘EU-Turkey Statement of 18 March 2016’ (see EN P-000604/2021, Answer given by Ms Johansson on 1 June 2021 on behalf of the European Commission) — an admissible subsequent application procedure has since been initiated in the requesting Member State? |
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c.

Subsequent application

1.

Are Article 7(2) and Article 20(1) of the Dublin III Regulation to be interpreted as not precluding the applicability of the provisions in Chapter III or the implementation of a procedure for taking charge within the meaning of Chapter VI, Section II, of the Dublin III Regulation in cases where the applicants have already lodged an asylum application in the requesting Member State, which was originally rejected as inadmissible by the requesting Member State on the basis of Article 33(2)(c), read in conjunction with Article 38, of Directive 2013/32/EU, (7) but — for example as a result of the de facto settlement in the ‘EU-Turkey Statement of 18 March 2016’ (see EN P-000604/2021, Answer given by Ms Johansson on 1 June 2021 on behalf of the European Commission) — an admissible subsequent application procedure has since been initiated in the requesting Member State?

| 2. | In the event that Question c.1 is answered in the negative:
  In the case described under c.1., are Article 7(2) and Article 20(1) of the Dublin III Regulation then to be interpreted in such a way that they do not preclude the applicability of the provisions in Chapter III and the implementation of a procedure to take charge pursuant to Chapter VI, Section II, of the Dublin III Regulation in cases involving responsibility criteria relating to family unity (Articles 8 to 11 and 16 of the Dublin III Regulation)? |
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2.

In the event that Question c.1 is answered in the negative:

In the case described under c.1., are Article 7(2) and Article 20(1) of the Dublin III Regulation then to be interpreted in such a way that they do not preclude the applicability of the provisions in Chapter III and the implementation of a procedure to take charge pursuant to Chapter VI, Section II, of the Dublin III Regulation in cases involving responsibility criteria relating to family unity (Articles 8 to 11 and 16 of the Dublin III Regulation)?

| 3. | Is Article 17(2) of the Dublin III Regulation still applicable in the case where the applicants have already lodged an asylum application in the requesting Member State, which was originally rejected as inadmissible by the requesting Member State on the basis of Article 33(2)(c), read in conjunction with Article 38, of Directive 2013/32/EU, but — for example as a result of the de facto settlement in the ‘EU-Turkey Statement of 18 March 2016’ (see EN P-000604/2021, Answer given by Ms Johansson on 1 June 2021 on behalf of the European Commission) — an admissible subsequent application procedure has since been initiated in the requesting Member State? |
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3.

Is Article 17(2) of the Dublin III Regulation still applicable in the case where the applicants have already lodged an asylum application in the requesting Member State, which was originally rejected as inadmissible by the requesting Member State on the basis of Article 33(2)(c), read in conjunction with Article 38, of Directive 2013/32/EU, but — for example as a result of the de facto settlement in the ‘EU-Turkey Statement of 18 March 2016’ (see EN P-000604/2021, Answer given by Ms Johansson on 1 June 2021 on behalf of the European Commission) — an admissible subsequent application procedure has since been initiated in the requesting Member State?

| 4. | If Question c.3 is answered in the affirmative:
  Does Article 17(2) of the Dublin III Regulation grant applicants for asylum an enforceable subjective right in the requested Member State? Does EU law lay down any stipulations regarding the exercise of administrative discretion by the national authorities in this regard — for example maintaining family unity, the best interests of children — or is this governed by national law alone? |
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4.

If Question c.3 is answered in the affirmative:

Does Article 17(2) of the Dublin III Regulation grant applicants for asylum an enforceable subjective right in the requested Member State? Does EU law lay down any stipulations regarding the exercise of administrative discretion by the national authorities in this regard — for example maintaining family unity, the best interests of children — or is this governed by national law alone?

| d. | Subjective rights of a family member residing in the requested Member State

  Does a family member who is already resident in the requested Member State have a legally enforceable claim to ensure compliance with Article 8 et seq. of the Dublin III Regulation and the associated transfer rules (Articles 18 and 29 et seq. of the Dublin III Regulation, whether or not read in conjunction with recitals 13, 14 and 15 of the Dublin III Regulation, read in conjunction with Article 47 of the Charter) or with Article 17(2) of the Dublin III Regulation? |
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d.

Subjective rights of a family member residing in the requested Member State

Does a family member who is already resident in the requested Member State have a legally enforceable claim to ensure compliance with Article 8 et seq. of the Dublin III Regulation and the associated transfer rules (Articles 18 and 29 et seq. of the Dublin III Regulation, whether or not read in conjunction with recitals 13, 14 and 15 of the Dublin III Regulation, read in conjunction with Article 47 of the Charter) or with Article 17(2) of the Dublin III Regulation?

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(1)  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).

(2)  Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).

(3)  EU:C:2016:409.

(4)  EU:C:2017:587.

(5)  EU:C:2018:900.

(6)  Commission Implementing Regulation (EU) No 118/2014 of 30 January 2014 amending Regulation (EC) No 1560/2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 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 2014 L 39, p. 1).

(7)  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 (OJ 2013 L 180, p. 60).

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