Opinion of the Advocate General — ECLI:EU:C:2017:653
Date: 2017-09-07
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Germany

Summary — Judgment of the Court (Third Chamber), 25 January 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 — Action brought against a transfer decision taken in respect of an applicant for international protection –– Member States’ obligation to provide for an effective and rapid remedy –– National legislation providing for review by a court or tribunal on the basis of the factual situation obtaining at the time of the last hearing or, where there is no hearing, at the time when a decision is given on the matter –– Judicial review allowing account to be taken of circumstances that are subsequent to the adoption and implementation of the transfer decision — Lawfulness (Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Regulation No 604/2013, Recital 19and Art. 27(1)) 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 –– Take back procedure — Scope — Third-country national who has made applications for international protection in two different Member States, has been transferred to the first Member State as a result of the rejection of his application in the second Member State and has then returned, illegally, to the second Member State — Included –– Obligation to follow a take back procedure before carrying out a fresh transfer (European Parliament and Council Regulation No 604/2013, Art. 24) 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 –– Take charge and take back procedures –– Periods prescribed for making a take back request –– Situation of a third-country national who has already been transferred to another Member State and has then returned, illegally, to the requesting Member State –– No effect on the obligation to observe the prescribed periods –– Starting point of those periods (European Parliament and Council Regulation No 604/2013, Art. 24(2)) 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 –– Take charge and take back procedures –– Periods prescribed for making a take back request –– Consequence of non-observance of those periods –– Opportunity for the third-country national to lodge a new application for international protection in the Member State that has failed to make the take back request in good time –– Use made of that opportunity ––– Transfer of responsibility for examining the application for international protection to the latter Member State (European Parliament and Council Regulation No 604/2013, Art. 24(2) and (3)) 5. 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 –– Take charge and take back procedures –– Periods prescribed for making a take back request –– Consequence of non-observance of those periods –– Opportunity for the third-country national to lodge a new application for international protection in the Member State that has failed to make the take back request in good time –– Concept of ‘lodging a new application for international protection’ –– Pending appeal against the decision that rejected the first application for international protection — Not included (European Parliament and Council Regulation No 604/2013, Art. 24(3)) 6. 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 –– Take charge and take back procedures –– Periods prescribed for making a take back request –– Consequence of non-observance of those periods –– Opportunity for the third-country national to lodge a new application for international protection in the Member State that has failed to make the take back request in good time –– Use not made of that opportunity –– Obligation of that Member State to make a take back request before carrying out the transfer (European Parliament and Council Regulation No 604/2013, Art. 24(3)) 1. Article 27(1) 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, read in the light of recital 19 of the regulation and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, which provides that the factual situation that is relevant for the review by a court or tribunal of a transfer decision is that obtaining at the time of the last hearing before the court or tribunal determining the matter or, where there is no hearing, at the time when that court or tribunal gives a decision on the matter. Article 27(1) of the Dublin III Regulation provides that an applicant for international protection is to have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal. Furthermore, it follows from the Court’s case-law concerning Article 29 of the Dublin III Regulation that, in view of (i) the objective mentioned in recital 19 of the regulation of guaranteeing, in accordance with Article 47 of the Charter of Fundamental Rights, effective protection of the persons concerned and (ii) the objective set out in recital 5 of the regulation of determining rapidly the Member State responsible for processing an application for international protection, an applicant must have an effective and rapid remedy available to him which enables him to rely on circumstances subsequent to the adoption of the decision to transfer him, when the correct application of the Dublin III Regulation depends upon those circumstances being taken into account (see, to that effect, judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 44). A legislative provision such as that at issue in the main proceedings, which enables an applicant for international protection to plead circumstances subsequent to the adoption of the decision to transfer him, in an action brought against that decision, meets that obligation to provide for an effective and rapid remedy (see, by analogy, judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 45). In that context, Article 27(1) of the Dublin III Regulation cannot be interpreted as precluding such a legislative provision merely because that provision may lead the court or tribunal hearing an action brought against a transfer decision to take into account, in a situation such as that at issue in the main proceedings, circumstances that are subsequent not only to the adoption of that decision but also to the transfer of the person concerned pursuant to the decision. Admittedly, such circumstances are not likely to be relevant for the purpose of applying rules in the Dublin III Regulation which, like those set out in Article 29(1) and (2), govern the conduct of the take back procedure prior to the transfer. Nonetheless, the carrying out of the transfer, which is merely the practical implementation of the transfer decision, does not, in itself, definitively establish the responsibility of the Member State to which the person concerned has been transferred. (see paras 29, 31-35, 40, operative part 1) 2. 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, in which a third-country national who, after having made an application for international protection in a first Member State (Member State ‘A’), was transferred to Member State ‘A’ as a result of the rejection of a fresh application lodged in a second Member State (Member State ‘B’) and has then returned, without a residence document, to Member State ‘B’, a take back procedure may be undertaken in respect of that third-country national and it is not possible to transfer that person anew to Member State ‘A’ without such a procedure being followed. As regards the rules that have to be followed in order to duly complete that procedure, it must be observed that, whilst Article 23 of the Dublin III Regulation governs situations in which a new application for international protection has been lodged in the requesting Member State, Article 24 of the regulation concerns cases in which no new application has been lodged in that Member State (see, to that effect, order of 5 April 2017, Ahmed, C‑36/17, EU:C:2017:273, paragraph 26). It follows that the procedure provided for in Article 24 of the Dublin III Regulation can apply to a person such as the one in question in the main proceedings who, after having made an application for international protection in one Member State, returns illegally to the territory of another Member State, without lodging a new application for international protection there. That analysis is not affected by the fact that such a person has, in the course of a first stay on the territory of the second Member State, already made an application for international protection, which was rejected within the framework laid down in Article 26(1) of the Dublin III Regulation. Similarly, the fact that the decision rejecting an application for international protection made during a first stay on the territory of the Member State concerned has been the subject of an appeal that is pending before the competent court cannot render Article 24 of the Dublin III Regulation inapplicable in a situation such as that at issue in the main proceedings, as, where the bringing of that appeal has no suspensive effect, that decision must be considered to have effect, as provided for in that regulation, and thus to entail the closure of the administrative procedure instigated following the lodging of the application for international protection. Moreover, given that the EU legislature laid down, in Article 24 of the Dublin III Regulation, a specific procedure applicable to a third-country national such as the person in question in the main proceedings –– a procedure which involves inter alia making an application to the requested Member State within mandatory periods the expiry of which may have an impact on that third-country national’s situation –– that national cannot be transferred to another Member State on the basis of a transfer decision previously adopted in his regard, which has already been implemented in the past, without that procedure being duly completed. (see paras 46-48, 50, 51, 55, operative part 2) 3. Article 24(2) of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third-country national has returned, without a residence document, to the territory of a Member State that has previously transferred him to another Member State, a take back request must be submitted within the periods prescribed in that provision and those periods may not begin to run until the requesting Member State has become aware that the person concerned has returned to its territory. Given that the EU legislature has not drawn any distinction in Article 24 of the Dublin III Regulation between situations in which a take back procedure is begun for the first time and situations in which that procedure would have to be conducted afresh as the result of the return, without a residence document, of the person concerned to the requesting Member State after a transfer, the time limits prescribed in Article 24 must therefore be complied with in the latter case as well. As regards the calculation of those time limits, it must be noted that they are intended to provide a framework for the take back procedure and make a decisive contribution to achieving the objective of rapidly processing applications for international protection by ensuring that the take back procedure will be implemented without undue delay (see, by analogy, judgments of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 53 and 54, and of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 31). To that end, those time limits ensure that the requesting Member State initiates the take back procedure within a reasonable period, starting from the point at which it has information allowing it to submit a take back request to another Member State, the time limit applicable in that context varying according to the nature of that information. It follows that the same time limits cannot, as a matter of logic, begin to run at a time when the requesting Member State did not have information allowing it to initiate the take back procedure. (see paras 61-64, 70, operative part 3) 4. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where a take back request is not made within the periods laid down in Article 24(2) of that regulation, the Member State on whose territory the person concerned is staying without a residence document is responsible for examining the new application for international protection which that person must be permitted to lodge. In that regard, it must be stressed that, if Article 24(3) of the Dublin III Regulation were to be interpreted as signifying merely that the person concerned must have the right to lodge an application for international protection and as thus having no effect on the determination of the Member State responsible for examining that application, that provision would be ineffective. (see paras 75, 80, operative part 4) 5. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that the fact that an appeal procedure brought against a decision that rejected a first application for international protection made in a Member State is still pending is not to be regarded as equivalent to the lodging of a new application for international protection in that Member State, as referred to in that provision. (see para. 85, operative part 5) 6. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where the take back request is not made within the periods laid down in Article 24(2) of that regulation and the person concerned has not made use of the opportunity that he must be given to lodge a new application for international protection: – the Member State on whose territory that person is staying without a residence document can still make a take back request, and – that provision does not allow the person to be transferred to another Member State without such a request being made. As the EU legislature has not provided for the expiry of the periods set out in Article 24(2) of the regulation to have any other effect, it must be held that, in cases in which the person concerned does not make use of that opportunity, it remains open to the Member State on whose territory that person is staying to take action accordingly and to initiate, should it so wish, a take back procedure with a view to ensuring that that person goes back to the Member State in which he lodged an application for international protection. However, since (i) the responsible Member State is obliged, in accordance with Article 18(1)(b) to (d) of the Dublin III Regulation, to take back, under the conditions laid down in Articles 23 to 25 and 29 of that regulation, the person concerned and (ii) none of those articles provides for that person to be transferred where there is no explicit or implicit agreement to that effect on the part of the requested Member State, Article 24(3) of that regulation cannot be understood as permitting a Member State to transfer the person to another Member State without making a take back request. (see paras 89-91, operative part 6)