Opinion of the Advocate General — ECLI:EU:C:2012:298
Date: 2012-05-15
Language of the case: French
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (Fourth Chamber), 27 September 2012 1. Border checks, asylum and immigration — Asylum policy — Minimum standards for the reception of asylum seekers in the Member States — Directive 2003/9 — Grant of minimum reception conditions — Obligation on the State in which the application was made and in which the asylum seeker resides (Council Regulation No 343/2003; Council Directives 2003/09, Art. 3(1) and 2005/85, Recital 29 and Arts 2(k) and 7(1)) 2. Border checks, asylum and immigration — Asylum policy — Minimum standards for the reception of asylum seekers in the Member States — Directive 2003/9 — Grant of minimum reception conditions — Obligation on the State in which the application was made and in which the asylum seeker resides until the actual transfer of the applicant to the Member State responsible for examining the application (Council Regulation No 343/2003; Council Directive 2003/09) 3. Border checks, asylum and immigration — Asylum policy — Minimum standards for the reception of asylum seekers in the Member States — Directive 2003/9 — Grant of minimum reception conditions — Financial burden on the State in which the asylum application was made and in which the asylum seeker resides (Council Regulation No 343/2003; Council Directive 2003/09; Decision of the European Parliament and of the Council No 573/2007) 1. Directive 2003/9 laying down minimum standards for the reception of asylum seekers in the Member States must be interpreted as meaning that a Member State in receipt of an application for asylum is obliged to grant the minimum conditions for reception of asylum seekers laid down in that directive even to an asylum seeker in respect of whom it decides, under Regulation 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, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant. According to Article 3 of Directive 2003/9, which defines the scope of that directive, the directive applies to all third-country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State, as long as they are allowed to remain on the territory as asylum seekers. With regard to the first condition for application of that directive, the period during which the material reception conditions must be granted to the applicants, that period begins when the asylum seeker applies for asylum. No provision can be found in the directive such as to suggest that an application for asylum can be regarded as having been lodged only if it is submitted to the authorities of the Member State responsible for the examination of that application. With regard to the second condition for application of Directive 2003/9, Article 7(1) of Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status confers on an asylum seeker the right to remain in the Member State for the purposes of the examination of his application. According to Article 2(k) of that directive, the expression ‘remain in the Member State’ must be understood as the fact of remaining in the territory, not only of the Member State in which the application for asylum is being examined, but also in that in which it was lodged. Thus, asylum seekers are allowed to remain not only in the territory of the Member State in which the application for asylum is being examined, but also in that of the Member State in which that application was lodged, as required by Article 3(1) of Directive 2003/9. Recital 29 in the preamble to Directive 2005/85 is not such as to impugn that interpretation, since that recital refers only to the fact that the procedures established by that directive for the grant or withdrawal of refugee status in the Member States are to be distinguished from the procedures laid down in Regulation No 343/2003 for determining the Member State responsible for examining an application for asylum. (see paras 37, 39, 40, 46-50, operative part 1) 2. The obligation for a Member State in receipt of an application for asylum to grant the minimum conditions laid down in Directive 2003/9 laying down minimum standards for the reception of asylum seekers in the Member States to an asylum seeker in respect of whom it decides, under Regulation 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, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant ceases when that same applicant is actually transferred by the requesting Member State. The general scheme and purpose of Directive 2003/9 and the observance of fundamental rights, in particular the requirements of Article 1 of the Charter of Fundamental Rights of the European Union, under which human dignity must be respected and protected, preclude an asylum seeker from being deprived — even for a temporary period of time after the making of the application for asylum and before being actually transferred to the Member State responsible — of the protection of the minimum standards laid down by that directive. (see paras 56, 58, 61, operative part 2) 3. The financial burden of granting those minimum conditions laid down by Directive 2003/9 laying down minimum standards for the reception of asylum seekers in the Member States is to be assumed by the Member State which is subject to the obligation of granting those conditions. The financial burden linked to requirements arising from the need for a Member State to comply with European Union law is usually assumed by the Member State which is subject to the obligation to satisfy those requirements, unless European Union legislation provides otherwise. Thus, in the absence of contrary provisions in that regard either in Directive 2003/9 or Regulation 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, the financial burden of providing the minimum reception conditions is to be assumed by the Member State which is subject to that obligation. With a view to responding to the need to share responsibilities fairly between Member States as concerns the financial burden arising from the implementation of common policies on asylum and immigration, the European Refugee Fund, established by Decision No 573/2007 establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’, provides for the possibility of financial assistance being offered to the Member States with regard, inter alia, to reception conditions and asylum procedures. (see paras 59-61, operative part 2)