Opinion of the Advocate General — ECLI:EU:C:2018:434
Date: 2018-06-13
Language of the case: Dutch
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Third Chamber), 5 July 2018 1. 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 — Periods prescribed for making a take back request — Consequence of non-observance of those periods — Transfer of responsibility for examining a new application for international protection to the Member State which has not made that request in time — Appeal, pending in another Member State, brought against the decision rejecting one of the applications for international protection lodged previously in that Member State — Irrelevant (European Parliament and Council Regulation No 604/2013, Arts 18(1)(d) and 23(1) to (3)) 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 — Making of a take back request — Appeal, pending in the requesting Member State, brought against the decision rejecting an application for international protection lodged previously in that Member State — Obligation to suspend the examination of the appeal and subsequently to terminate that examination in the event that the request is accepted — None (European Parliament and Council Regulation No 604/2013, Art. 18(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 — Procedures for taking charge and taking back — Information which must be included in the take back request — Information relating to the existence of an appeal, pending in the requesting Member State, brought against the decision rejecting an application for international protection lodged previously in that Member State — Not included (European Parliament and Council Regulation No 604/2013, Arts 22(3), 23(2) and 24(5)) 4. 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 — Applicant for international protection against whom a European arrest warrant has been issued and who is staying on the territory of the issuing Member State without having lodged a new application for international protection there — Request, by that Member State, for the implementing Member State to take back the person concerned — Lawfulness — Possibility for the issuing Member State to examine the application for international protection lodged in the implementing Member State — None (European Parliament and Council Regulation No 604/2013, Arts 17(1), 18(1)(d) and 24(1)) 1. Article 23(3) 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 the Member State in which a new application for international protection has been lodged is responsible for examining that application when no take back request has been made by that Member State within the periods laid down in Article 23(2) of that regulation, even though another Member State was responsible for examining applications for international protection lodged previously and the appeal brought against the rejection of one of those applications was pending before a court of that other Member State when those periods expired. The scope of the take-back procedure is defined in Articles 23 and 24 of the Dublin III Regulation. It is apparent from Article 23(1) of that regulation that that procedure is applicable to, inter alia, the persons referred to in Article 18(1)(d) thereof (see, to that effect, order of 5 April 2017, Ahmed, C‑36/17, EU:C:2017:273, paragraphs 26 and 27, and judgment of 25 January 2018, Hasan, C‑360/16, EU:C:2018:35, paragraphs 42 and 43). The latter provision refers, inter alia, to a third-country national or a stateless person whose application for international protection has been rejected and who has made a new application in another Member State. Therefore, the take-back procedure laid down in Article 23 of the Dublin III Regulation is applicable to a third-country national who has lodged a new application for international protection in one Member State although an application for international protection lodged previously in another Member State had been rejected by a decision of the competent authority, even if that decision has not yet become final owing to the bringing of an appeal which is pending before a court of that other Member State. Accordingly, in a situation such as that at issue in the main proceedings, the authorities of the Member State in which that new application was lodged had the power, pursuant to Article 23(1) of that regulation, to make a take back request in respect of the person concerned. However, it was for those authorities, in accordance with Article 23(2) of that regulation, to make that request as quickly as possible and in any event within the periods laid down in that provision, as such a request could not validly be made after expiry of those periods (see, by analogy, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 67). It follows from both the wording of Article 23(3) of the Dublin III Regulation and the general scheme and objectives of that regulation that, in the case of the expiry of those periods, responsibility is to be transferred in full to the Member State in which a new application for international protection has been lodged (see, by analogy, judgments of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 61, and of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 30). (see paras 27, 28, 32-35, 40, operative part 1) 2. Article 18(2) of Regulation No 604/2013 must be interpreted as meaning that the making by a Member State of a take back request in respect of a third-country national who is staying on its territory without a residence document does not require that Member State to suspend its examination of an appeal brought against the rejection of an application for international protection lodged previously, and subsequently to terminate that examination in the event that the requested Member State agrees to that request. Although Article 18(2) of the Dublin III Regulation sets out various obligations concerning the necessary follow-up to an application for international protection depending on the stage of the international protection procedure concerned, those obligations are all intended to ensure the continuation of the international protection procedure and do not require the suspension or interruption of that procedure in any Member State. (see paras 42, 44, operative part 2) 3. Article 24(5) of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, a Member State making a take back request on the basis of Article 24 of that regulation, following the expiry, in the requested Member State, of the periods laid down in Article 23(2) thereof, is not required to inform the authorities of that requested Member State that an appeal brought against the rejection of an application for international protection lodged previously is pending before a court of the requesting Member State. Article 24(5) of the Dublin III Regulation provides that the take back request is to be made using a standard form and is to include proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) of that regulation or relevant elements from the statements of the person concerned, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in that regulation. It thus follows from the very wording of Article 24(5) of that regulation that the requesting Member State’s obligation to provide information is limited to the evidence enabling the requested Member State to assess whether it is responsible. (see paras 47, 48, 53, operative part 3) 4. Article 17(1) and Article 24 of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings at the time the transfer decision was made, in which an applicant for international protection has been surrendered by one Member State to another Member State under a European arrest warrant and is staying on the territory of that second Member State without having lodged a new application for international protection there, that second Member State may request that first Member State to take back that applicant and is not required to decide to examine the application lodged by that applicant. Article 24(1) of the Dublin III Regulation provides that a Member State may, in particular, request another Member State to take back a person referred to in Article 18(1)(d) of that regulation who is staying on its territory without a residence document and without having lodged a new application for international protection there, if it considers that that other Member State is responsible in accordance with that provision. In so far as that provision does not contain any requirement concerning the arrangements for the entry of the person concerned into the territory of the requesting Member State, it must be found that the EU legislature has not made the power to make a take back request subject to any conditions in that regard. Against that background, and having regard to the autonomy of the procedures laid down by the Dublin III Regulation and by Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), which pursue separate objectives and cannot replace one another, the fact that a person’s entry into the territory of the requesting Member State is the result of the surrender of that person under a European arrest warrant cannot, as such, preclude a take back request from being made. Moreover, it is apparent from the very wording of Article 17(1) of the Dublin III Regulation that that provision gives each Member State permission to decide to examine ‘an application for international protection lodged with it’, which means that that provision is not intended to, and does not, give a Member State permission to decide to examine an application for international protection that has not been made in that Member State. (see paras 56-58, 60, 63, operative part 4)