Judgment — ECLI:EU:C:2024:1036
Date: 2024-12-19
Language of the case: German
Court formation: Second Chamber
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

summary question raised by a member of the German Parliament on 
17 January 2023 (Bundestag, publication 20/5868), Germany made 14 439 take-
charge requests to Italy in 2022, and 8 932 persons for whose asylum procedure 
Italy was responsible were present in the Federal Republic of Germany as at 
31 December 2022. 362 persons were transferred from Germany to Italy in 2022. 
II. 
[…] [National procedural law] 
1 The position under national law is as follows: 
The legal assessment of the Federal Office’s contested decision is governed under 
national law by the AsylG, in the version published on 2 September 2008 (BGBl. 
I, p. 1798), as last amended by Article 1 of the Law of 19 December 2023 (BGBl. 
2023 I No 382). 
The relevant provisions read: 
Paragraph 1 of the AsylG (Scope) 
(1) This Law shall apply to foreign nationals applying for: 
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[…] 
2. international protection under Directive 2011/95/EU of the European 
Parliament and of the Council of 13 December 2011 […]; international protection 
within the meaning of Directive 2011/95/EU includes protection against 
persecution under the Convention of 28 July 1951 on the legal status of refugees 
(BGBl. 1953 II, p. 559, 560) and subsidiary protection within the meaning of that 
directive; […] 
Paragraph 13 of the AsylG (Application for asylum) 
(2) Every application for asylum shall constitute an application for recognition 
as a person entitled to asylum and to international protection within the meaning 
of subparagraph 1, point 2. The foreign national may limit the application for 
asylum to the recognition of international protection. […] 
Paragraph 29 of the AsylG (Inadmissible applications) 
(1) An application for asylum shall be inadmissible if 
1. another State is responsible for conducting the asylum procedure 
a) in accordance with Regulation (EU) No 604/2013 […]. 
2 The questions referred for a preliminary ruling on the interpretation of the second 
subparagraph of Article 3(2) of Regulation (EU) No 604/2013 are relevant to the 
judgment to be given in the present proceedings. 
a) The conditions laid down in Paragraph 29(1)(1)(a) of the AsylG are met if 
another State is responsible for conducting the asylum procedure in accordance 
with Regulation (EU) No 604/2013. In accordance with Article 13(1) and 
Article 22(7) of Regulation (EU) No 604/2013, the Member State Italy is 
responsible for conducting the applicant’s asylum procedure, unless responsibility 
has passed to the Federal Republic of Germany pursuant to the second and third 
subparagraphs of Article 3(2) of Regulation (EU) No 604/2013. 
The European Court of Justice has defined the legal limits attaching to transfers 
under Regulation (EU) No 604/2013 as meaning that systemic flaws, within the 
meaning of the second subparagraph of Article 3(2) of Regulation (EU) 
No 604/2013, in the Member State responsible fall within the scope of Article 4 of 
the Charter and Article 3 ECHR ‘only if’ they attain a particularly high level of 
severity, which depends on all the circumstances of the case and is attained if the 
indifference of the authorities of a Member State results in a person wholly 
dependent on State support finding him or herself, irrespective of his or her wishes 
and personal choices, in a situation of extreme material poverty that does not 
allow that person to meet his or her most basic needs, such as, inter alia, food, 
personal hygiene and a place to live, and that undermines that person’s physical or 
mental health or puts him or her in a state of degradation incompatible with 
REQUEST FOR A PRELIMINARY RULING OF 14. 2. 2024 – CASE C-185/24 
 
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human dignity. That threshold cannot therefore cover situations characterised even 
by a high degree of insecurity or a significant degradation of the living conditions 
of the persons concerned, where they do not entail extreme material poverty 
placing that person in a situation of such gravity that it may be equated with 
inhuman or degrading treatment. 
ECJ, judgments of 19 March 2019 – C-297/17 and others 
[ECLI:EU:C:2019:219], Ibrahim –, paragraphs 89 to 91, and – 
C-163/17 [ECLI:EU:C:2019:218], Jawo –, paragraph 93; order of 
13 November 2019 – C-540/17 and others [ECLI:EU:C:2019:964], 
Omar and Others –, paragraph 39. 
In the assessment of the referring Chamber, Italy is not prepared to (take back or) 
take charge of the applicant or of other Dublin returnees, with the exception of a 
few insignificant individual cases, for an indefinite period of time. On the one 
hand, this is apparent in the fact that there were only 11 transfers to Italy in 2023, 
even though, according to the statistics for 2022, the number of asylum seekers for 
whose asylum procedure Italy is responsible is much higher than the number of 
transfers actually carried out. The 11 transfers may have been returns of 
unaccompanied minors carried out for family reunification purposes, which, 
according to the communication of 5 December 2022, were to be allowed to 
proceed. On the other hand, the abovementioned circulars from the Italian Dublin 
Unit do not refer either to an end date or even to an approximate or expected 
timeframe for the suspension of transfers. Notwithstanding the announcement to 
this effect in the circular of 5 December 2022, there has been no further 
information on the duration of the suspension of transfers for more than 
14 months. The defendant has likewise not provided this Chamber with any new 
information either in these or in any other proceedings. 
Whether the order of a Member State refusing with immediate effect and for an 
unspecified and unlimited period of time to accept any further transfers itself leads 
to systemic flaws within the meaning of the second subparagraph of Article 3(2) 
of Regulation (EU) No 604/2013 is unclear. The Court of Justice has not yet ruled 
on that question. 
This Chamber takes the view that the take-charge freeze imposed by the circulars 
issued by the Italian Dublin Unit on 5 and 7 December 2022 leads to systemic 
flaws within the meaning of the second subparagraph of Article 3(2) of Regulation 
(EU) No 604/2013. It is clear from the circulars and the corresponding practice of 
the Italian Dublin Unit that Italy deliberately does not subject its conduct to the 
regulatory framework of Regulation (EU) No 604/2013 and is already refusing to 
grant applicants access to the asylum procedure and to take charge of them in the 
event of their transfer. 
See OVG NRW (Higher Administrative Court, North Rhine-
Westphalia), order of 5 July 2023 – 11 A 1722/22.A –, juris, 
paragraph 46 et seq., with further references; […] [further but 
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allegedly less clear case-law]; for a different view, see […] [decisions 
of certain administrative courts] Hess. VGH (Administrative Court, 
Hessen), order of 27 July 2023 – 2 A 377/23.Z.A –, juris, p. 5. 
The reason for the effective non-existence of transfers to Italy is, thus, not the 
presence of obstacles to transfer, whether actual or under national law, or of any 
practical impossibility of implementing a transfer decision that would be such as 
to rule out the assumption of systemic flaws. 
See in this regard Court of Justice, judgment of 12 January 2023 – 
C-323/21 and others [ECLI:EU:C:2023:4] –, paragraph 69 et seq.. 
What is more, up until Italy’s now manifested refusal to take charge [of asylum 
seekers], this Chamber had proceeded on the assumption that there are in principle 
no systemic flaws in the Italian asylum procedure and in the conditions for 
reception obtaining where the applicant – as here – has not yet applied for asylum 
in Italy. 
See in this regard OVG NRW (Higher Administrative Court, North 
Rhine-Westphalia), order of 26 July 2022 – 11 A 1497/21.A –, juris, 
paragraph 64 et seq.. 
According to the case-law of the Federal Administrative Court, the conditions laid 
down in the second subparagraph of Article 3(2) of Regulation (EU) 
No 604/2013, which are based (exclusively) on the situation in the Member State 
responsible, are not automatically met if that Member State refuses to take charge 
of the persons concerned from the outset. Unwillingness to take charge of [asylum 
seekers] is not in itself sufficient to support the conclusion that systemic flaws 
within the meaning of the second subparagraph of Article 3(2) of Regulation (EU) 
No 604/2013 are present. Italy’s statement is such as to constitute an indication 
only. What is required, however, is a further explanation of the living conditions 
that would await the asylum seeker in the event of an – assumed – transfer to 
Italy. 
See BVerwG (Federal Administrative Court), order of 8 November 
2023 – 1 B 29.23 –, juris, paragraphs 10 and 15. 
As regards the take-charge freeze imposed by Italy, the Bundesverfassungsgericht 
(Federal Constitutional Court), on the other hand, held, in an order refusing to 
admit a constitutional complaint for adjudication, that the administrative court had 
failed to fulfil its obligation to determine the facts of the case, inasmuch as it had 
not adequately addressed the complainant’s references to the systemic flaws in the 
Italian asylum system and, above all, had neglected, as part of its ex officio 
investigation of the case, to familiarise itself with the current reception situation in 
Italy and to take into account the communications concerning the take-charge 
freeze. 
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See Federal Constitutional Court, decision not to admit for 
adjudication of 2 August 2023 – 2 BvR 593/23 –, juris, paragraph 12. 
b) Question 2 is raised in the event that that Question 1 is answered in the 
negative. 
Before finding a risk within the meaning of Article 4 of the Charter and Article 3 
ECHR to be present, the court is obliged to assess, on the basis of information that 
is objective, reliable, specific and properly updated, and having regard to the 
standard of protection of fundamental rights guaranteed by EU law, whether there 
are deficiencies, which may be systemic or generalised, or which may affect 
certain groups of people, in the asylum procedure and in the conditions for the 
reception [of asylum seekers] which 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. 
See Court of Justice, judgment of 19 March 2019 – C-163/17 
[ECLI:EU:C:2019:218], Jawo –, paragraphs 85 and 90 et seq.; order of 
13 November 2019 – C-540/17 and others [ECLI:EU:C:2019:964], 
Hamed and Others –, paragraph 38 et seq., with further references. 
Objective, reliable, specific and properly updated information on the asylum 
procedure and the reception conditions for returning asylum seekers is 
unobtainable, however, if the Member State in question – such as Italy in this 
instance – refuses to (take back or) take charge of asylum seekers. How asylum 
seekers who are to be returned to Italy would fare at present is impossible to 
determine. Any such determination would necessarily be hypothetical. It would 
call for speculation that would differ from objective, reliable and specific 
information. 
c) The questions [referred] are also relevant to the judgment to be given 
because the action for the annulment of the declaration of inadmissibility made by 
the Federal Office in its decision of 31 March 2022 may be upheld only if the 
referring court’s view is to be endorsed. Otherwise, that action would to this 
extent have to be dismissed under national law. There are no other grounds on 
which responsibility lies with the Federal Republic of Germany. In particular, the 
court proceeds on the assumption that there are no systemic flaws on any other 
grounds in Italy. 
See in this regard OVG NRW (Higher Administrative Court, North 
Rhine-Westphalia), order of 26 July 2022 – 11 A 1497/21.A –, juris, 
paragraph 64 et seq., concerning Dublin returnees who – like the 
applicant – have not yet applied for asylum in Italy. 
3 This Chamber requests that the present reference be dealt with under the expedited 
procedure, in accordance with Article 105 of the Rules of Procedure of the Court 
of Justice. Given the large number of refugees present in Germany who have 
applied for asylum in Germany even though the examination of that application is 
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itself the responsibility of another Member State, pursuant to Regulation (EU) 
No 604/2013, a rapid clarification is required. 
The referring court notes that the Court of Justice has also been requested to give 
a preliminary ruling in case 11 A 1080/22.A. 
This order is not open to appeal (Paragraph 80 of the AsylG). 
[…]