Opinion of the Advocate General — ECLI:EU:C:2022:901
Date: 2022-11-17
Language of the case: Dutch
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
10 September 2021 
Referring court:  
Raad van State (Netherlands) 
Date of the decision to refer:  
1 September 2021 
Applicant:  
Staatssecretaris van Justitie en Veiligheid 
Defendants:  
E.N. 
S.S. 
J.Y. 
Subject matter of the main proceedings 
The procedure in the main proceedings concerns the applications by the foreign 
nationals E.N., S.S. and J.Y. (‘the applicants’) for a residence permit. The 
staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security) 
decided not to examine these applications because another Member State was 
responsible for them. In the three cases of these foreign nationals, the State 
Secretary lodged an appeal with the Afdeling Bestuursrechtspraak (Chamber for 
Contentious Administrative Proceedings) of the Raad van State (Council of State; 
‘the Afdeling’) against the judgments of the rechtbanken (District Courts) which 
annulled these decisions, after which the voorzieningenrechter (judge hearing 
applications for interim measures) of the Afdeling decided that, during the appeal 
proceedings, the period within which the foreign nationals had to be transferred to 
the responsible country would be suspended. 
EN NL
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-556/21 
 
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Subject matter and legal basis of the request 
This request for a preliminary ruling pursuant to Article 267 TFEU concerns the 
question of whether Article 29(1) and Article 27(3) of Regulation (EU) 
No 604/2013 (‘the Dublin Regulation’) preclude the Netherlands system under 
which the judge hearing applications for interim measures in appeal proceedings 
can suspend the transfer time limit. 
Question referred for a preliminary ruling 
Must Articles 27(3) and 29 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 (OJ 2013 L 180) be interpreted as not 
precluding, where the legal system of the Member State provides for appellate 
jurisdiction in cases such as that at issue here, the appellate court, during the 
hearing of the case, from granting, at the request of the competent authority of the 
Member State, an interim measure suspending the transfer time limit? 
Provisions of European Union law relied on 
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 (‘the Dublin Regulation’): recitals 5, 9 and 19, and Articles 18, 27 
and 29. 
Commission Regulation (EC) No 1560/2003 of 2 September 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. 
Provisions of national law relied on 
Algemene wet bestuursrecht (General law on administrative law), Articles 8:81 
and 8:108 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicants each lodged an application for international protection in the 
Netherlands but, according to the State Secretary, Italy was responsible for the 
first two applications and Romania for the third. Since both countries accepted 
responsibility, the State Secretary decided in all three cases not to examine the 
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID 
 
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applications. However, the Rechtbank (District Court) annulled those decisions 
for reasons not relevant to the question referred for preliminary ruling, after which 
the State Secretary lodged an appeal against those judgments with the Afdeling. 
The State Secretary requested the judge hearing applications for interim measures 
to rule that the period within which the foreign nationals had to be transferred to 
the country responsible be suspended during the appeal. That request was granted 
in all three cases. 
Essential arguments of the parties in the main proceedings 
2 The applicants, who wish their applications to be examined in the Netherlands, 
submit that the transfer time limit may not be suspended during an appeal. This is 
contrary to Article 29(1) and Article 27(3) of the Dublin Regulation. Indeed, the 
use of the words ‘the person concerned’ in Article 27(3) of the Dublin Regulation 
indicates that that article seeks to protect the interests of foreign nationals and not 
those of the State Secretary. Moreover, the suspension of the transfer time limit is 
not in accordance with the objective of the rapid processing of applications for 
international protection referred to in recital 5 of the Dublin Regulation. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
3 Pursuant to Article 29(1) of the Dublin Regulation, the transfer of a foreign 
national must be carried out within six months of the Member State responsible 
agreeing to take charge or take back the person concerned or of the final decision 
on an appeal or review where there is a suspensive effect in accordance with 
Article 27(3). According to the referring court, it is up to the Member States to 
decide on the precise form to be given to that suspensive effect by choosing 
between the various possibilities set out in Article 27(3). The system that applies 
in the Netherlands is that set out in Article 27(3)(c), under which ‘the person 
concerned’ has the right to request, within a reasonable period of time, a court or 
tribunal to suspend the implementation of the transfer decision ‘pending the 
outcome of his or her appeal or review’.  
4 According to the referring court, that wording could indicate that it is only the 
foreign national who may request such suspensive effect where he has requested a 
review of a decision or has subsequently lodged an appeal. In so-called ‘Dublin 
cases’ concerning the transfer of foreign nationals, it is possible in the Netherlands 
also to lodge an appeal thereafter. If it is the State Secretary who lodges that 
appeal, in many cases he will request the judge hearing applications for interim 
measures to order that the time limit for the transfer of the foreign nationals in 
question be suspended. The Afdeling has granted such requests in several cases 
after a substantive assessment. The arguments raised by the applicants in the 
present case have called into question whether the State Secretary is entitled to 
make such a request for suspension, because of the possibility of this being 
reserved for the ‘person concerned'.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-556/21 
 
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5 The referring court notes, however, that there are also solid grounds for 
considering that the Dublin Regulation does not preclude an appeal by which the 
transfer period is suspended at the request of the State Secretary. To clarify that 
point, it points out, first, that there are no obstacles to the possibility of lodging an 
appeal, even though the Dublin Regulation does not make such an appeal 
obligatory. It may be inferred from paragraphs 25 and 26 of the judgment of 
26 September 2018, Staatssecretaris van Veiligheid en Justitie (Suspensory effect 
of the appeal) (C-180/17, EU:C:2018:775) that a directive which makes a remedy 
at first instance obligatory in principle also allows for the possibility of a further 
appeal. It is obvious that this also applies to the Dublin Regulation. 
6 Next, the referring court discusses the objective of the Dublin Regulation, which 
establishes a method for rapidly determining the Member State responsible for 
examining an application for international protection. In so doing, the aim is to 
rationalise the treatment of asylum claims, to increase legal certainty with regard 
to the determination of the State responsible for examining the asylum claim and 
thus to avoid ‘forum shopping’ (see the judgment of 21 December 2011, N.S., 
C-411/10 EU:C:2011:865, paragraph 79, recital 9 of the Dublin Regulation and 
the judgment of 7 June 2016, Ghezelbash, C-63/15, EU:C:2016:409, 
paragraph 57). Thus, while the rapid determination of the Member State 
responsible is one of the objectives of the Dublin Regulation, an effective remedy 
in respect of decisions regarding transfer to that Member State must also be 
guaranteed, as is clear from recitals 9 and 19 of that regulation. It can be inferred 
from this that a foreign national may opt for additional legal protection over the 
rapid determination of the Member State responsible.  
7 There appear to be no obstacles to a foreign national in those appeal proceedings 
requesting the judge hearing applications for interim measures to suspend the 
transfer time limit, even though the further appeal is not mentioned in the wording 
‘pending the outcome of his or her appeal or review’ in Article 27(3)(c) of the 
Dublin Regulation. A different interpretation could lead to two situations which 
the referring court finds undesirable. First, a foreign national could be transferred 
pending the further appeal and, if the appeal is well founded, he or she would have 
to be returned to the Netherlands. Second, if a foreign national cannot be 
transferred, the transfer time limit could expire during the appeal, such that the 
asylum claim would have to be processed in the Netherlands, even if the foreign 
national’s appeal were dismissed.  
8 According to the referring court, if a foreign national is entitled to an effective 
remedy in the form of a further appeal, that also applies to the State Secretary and 
to the suspension of the transfer time limit. If the judge hearing an application for 
interim measures were unable to suspend the transfer time limit, it would usually 
be pointless for the State Secretary to lodge an appeal. After all, he only has an 
interest in having his appeal heard as long as the transfer time limit has not yet 
expired. Only then, if the appeal is upheld, would he still be able to transfer the 
foreign national to the Member State responsible. Practice has shown that it is not 
possible in all cases to process the appeal within six months. Moreover, after the 
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID 
 
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appeal has been decided, the State Secretary still needs time to prepare for the 
actual transfer.  
9 In that regard, it is important to note that the Dublin Regulation does not specify 
any time limits for lodging an appeal. It does, however, follow from the judgment 
of 13 November 2018, C-47/17 and C-48/17, X and X, EU:C:2018:900, 
paragraphs 69 and 70, that the EU legislature has laid down time limits in order to 
ensure that the take back and take charge procedures are expeditious. That does 
not alter the fact that a legal remedy is only effective if the court or tribunal can 
take a reasonable time to consider it (cf. judgment of 19 March 2020, C-406/18, 
Bevándorlási és Menekültügyi Hivatal, EU:C:2020:216, paragraphs 32 to 36). 
Therefore, contrary to the arguments put forward by the foreign nationals, it does 
not seem unreasonable in cases such as that at issue here that the transfer time 
limit should be suspended for a period which may ultimately prove to be longer 
than the maximum period of eighteen months referred to in Article 29(2) of the 
Dublin Regulation which applies to the situation where the person absconds.  
10 Finally, the referring court observes that, in a system where judicial protection is 
offered at first instance only, which suffices under the Dublin Regulation, the use 
of the words ‘the persons concerned’ in Article 27(3)(c) does not give rise to any 
problems. If there is no possibility of an appeal, there is no need to make any 
reference to it in the article on legal protection. Provisions relating to the appeal 
by ‘the person concerned’ are sufficient. Only in a system such as that in the 
Netherlands, where appeals are possible in Dublin cases, can the situation arise 
that the competent authority itself wishes to lodge an appeal. In that case, it is 
obvious that the aforementioned article should be applied by analogy to that 
competent authority.  
11 It is apparent from the State Secretary’s answer to a question posed by the 
referring court that, to date, it has never happened that a Member State has refused 
to take back or take charge of a foreign national where the transfer time limit had 
in fact expired but had been suspended by the judge hearing applications for 
interim measures in an appeal lodged by the State Secretary. Take back or take 
charge requests are refused only if the State Secretary has erroneously failed to 
inform a Member State in good time of the suspensive effect of an appeal or 
review procedure in accordance with Article 9(1) of Implementing Regulation 
No 1560/2003.  
12 The referring court asks the Court of Justice to join this case with Case C-338/21, 
in which it has also referred a question. In that case, it also granted applications 
for interim relief made by the State Secretary. Whether the transfer time limit has 
therefore been suspended in those cases depends on the answer of the Court of 
Justice to the present question referred for a preliminary ruling.