# C_2012049EN.01000801.xml

| 18.2.2012 | EN | Official Journal of the European Union | C 49/8 |
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18.2.2012

EN

Official Journal of the European Union

C 49/8

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Judgment of the Court (Grand Chamber) of 21 December 2011 (references for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) and from the High Court of Ireland — United Kingdom, Ireland) — N. S. (C-411/10) v Secretary of State for the Home Department and M. E. (C-493/10), A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform

(Joined Cases C-411/10 and C-493/10) (1)

1

(European Union law - Principles - Fundamental rights - Implementation of European Union law - Prohibition of inhuman or degrading treatment - Common European Asylum System - Regulation (EC) No 343/2003 - Concept of ‘safe countries’ - Transfer of an asylum seeker to the Member State responsible - Obligation - Rebuttable presumption of compliance, by that Member State, with fundamental rights)

2012/C 49/13

Language of the cases: English

Referring courts

Referring courts

Court of Appeal (England & Wales) (Civil Division), High Court of Ireland

Parties to the main proceedings

Parties to the main proceedings

Appellants: N. S. (C-411/10), M. E., A. S. M., M. T., K. P., E. H. (C-493/10)

Appellants:

Respondents: Secretary of State for the Home Department (C-411/10), Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (C-493/10)

Respondents:

Intervening parties: Amnesty International Ltd and the AIRE Centre (Advice on Individual Rights in Europe) (UK) (C-411/10), United Nations High Commissioner for Refugees (UNHCR) (UK) (C-411/10), Equality and Human Rights Commission (EHRC) (C-411/10), Amnesty International Ltd and the AIRE Centre (Advice on Individual Rights in Europe) (IRL) (C-493/10), United Nations High Commissioner for Refugees (UNHCR) (IRL) (C-493/10)

Intervening parties:

Re:

Re:

(C-411/10)

Reference for a preliminary ruling — Court of Appeal (England and Wales) (United Kingdom) — Interpretation of Article 3(1) and (2), and the provisions of Chapter III, 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 (OJ 2003 L 50, p. 1) — Interpretation of the minimum standards for the reception of asylum seekers, as set out in the provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18), Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12), and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) — Procedure for determining the Member State responsible for dealing with an asylum application submitted by an Afghan national — Risk that fundamental rights may be breached if responsibility is take up again by the Member State which was previously responsible — Nature and scope of the protection conferred on an asylum seeker by the provisions of the Charter of Fundamental Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms

(C-493/10)

Reference for a preliminary ruling — High Court of Ireland — Interpretation of Articles 3(2) and 18 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 (OJ 2003 L 50, p. 1) — Procedure for determining the Member State responsible for examining asylum applications lodged by nationals of several third countries (Afghanistan, Iran and Algeria) — Obligation of a Member State to take responsibility for examining an asylum application on the basis of Article 3(2) of Regulation (EC) No 343/2003 where there may be an infringement of the applicant’s fundamental rights and/or non-compliance with the minimum standards laid down by Directives 2003/9/EC, 2004/83/EC and 2005/85/EC by the Member State responsible for the application in accordance with the criteria established by that regulation.

Operative part of the judgment

Operative part of the judgment

| 1. | The decision adopted by a Member State on the basis of 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, whether to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that Regulation, implements European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of Fundamental Rights of the European Union. |
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1.

The decision adopted by a Member State on the basis of 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, whether to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that Regulation, implements European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of Fundamental Rights of the European Union.

| 2. | European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.
  Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 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 that provision.
  Subject to the right itself to examine the application referred to in Article 3(2) of Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, entails that the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application.
  The Member State in which the asylum seeker is present must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003. |
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2.

European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.

Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 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 that provision.

Subject to the right itself to examine the application referred to in Article 3(2) of Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, entails that the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application.

The Member State in which the asylum seeker is present must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003.

| 3. | Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union do not lead to a different answer. |
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3.

Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union do not lead to a different answer.

| 4. | In so far as the preceding questions arise in respect of the obligations of the United Kingdom of Great Britain and Northern Ireland, the answers to the second to sixth questions referred in Case C-411/10 do not require to be qualified in any respect so as to take account of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom. |
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4.

In so far as the preceding questions arise in respect of the obligations of the United Kingdom of Great Britain and Northern Ireland, the answers to the second to sixth questions referred in Case C-411/10 do not require to be qualified in any respect so as to take account of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom.

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(1)  OJ C 274, 09.10.2010

1

OJ C 13, 15.01.2011.

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