Opinion of the Advocate General — ECLI:EU:C:2022:651
Date: 2022-09-08
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:  
25 May 2021 
Referring court:  
Raad van State (Netherlands) 
Date of the decision to refer:  
19 May 2021 
Appellant:  
Staatssecretaris van Justitie en Veiligheid 
Respondent:  
B. 
Subject matter of the main proceedings 
The action in the main proceedings challenges the decision of the Rechtbank Den 
Haag (District Court, The Hague, Netherlands) of 12 June 2019, whereby it 
declared well-founded the appeal lodged by B. against the decision of 8 March 
2019 of the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice 
and Security; ‘the Staatssecretaris’) not to examine an application by B. for a 
fixed-term residence permit issued to persons granted asylum on the grounds that, 
in its view, Italy is still responsible for examining that application, and annulled 
the aforementioned decision on the ground that, on 4 April 2019, responsibility for 
examining the application for international protection under Article 29(2) 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 (‘the Dublin Regulation’) had transferred to Germany, and Italy 
was relieved of its responsibility on that date, such that it is immaterial that a 
claim agreement was concluded between the Netherlands and Italy on 1 April 
2018 and B. was transferred to Italy on 29 April 2019.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-323/21 
 
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Subject matter and legal basis of the request  
Request under Article 267 TFEU concerning the interpretation of Article 27(1) 
and Article 29(2) of the Dublin Regulation.  
The referring court asks the Court of Justice for clarification as to the application 
of that regulation in the situation where a claim agreement already exists between 
two Member States, the foreign national absconds before the transfer between 
those two Member States can be effected and then lodges another application for 
international protection in a third Member State. More specifically, the referring 
court seeks to ascertain, first, what interpretation must be given to the term 
‘requesting Member State’ within the meaning of Article 29(2) of the Dublin 
Regulation and, second, whether the foreign national, pursuant to Article 27(1) of 
that regulation, may invoke in a third Member State the expiry of the transfer time 
limit between two other Member States.  
Questions referred for a preliminary ruling 
1. a) Must the term ‘requesting Member State’ within the meaning of 
Article 29(2) 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 referring to the 
Member State (in this case, the third Member State, namely the Netherlands) 
which was the last to submit a take back or take charge request to another Member 
State?  
b) If the answer is in the negative: does the fact that a claim agreement has 
previously been concluded between two Member States (in this case, Germany 
and Italy) still have consequences for the legal obligations of the third Member 
State (in this case, the Netherlands) under the Dublin Regulation towards the 
foreign national or the Member States concerned by that earlier claim agreement, 
and if so, what are those consequences?  
2. If Question 1 must be answered in the affirmative, must Article 27(1) of 
Regulation (EU) No 604/2013, read in the light of recital 19 of that regulation, be 
interpreted as precluding an applicant for international protection from 
successfully arguing, in the context of an appeal against a transfer decision, that 
that transfer cannot proceed because the time limit for a previously agreed transfer 
between two Member States (in this case, Germany and Italy) has expired?  
Provisions of EU law relied on 
Dublin Regulation, in particular recitals 4, 5, 9, 19 and 28, and Articles 2, 3, 18, 
19, 20, 21, 23, 25, 26, 27 and 29 
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID 
 
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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, as amended by Commission Implementing 
Regulation (EU) No 118/2014 of 30 January 2014, in particular Article 9 
Provisions of national law relied on 
Vreemdelingenwet 2000 (Law on foreign nationals of 2000), in particular 
Articles 8, 28 and 30  
Brief presentation of the facts and procedure in the main proceedings 
1 On 3 July 2017, B., who is from the Gambia (‘the foreign national’), applied for 
international protection in Germany. As he had previously applied for 
international protection in Italy, Germany requested Italy to take him back, and 
the request was accepted. As a result, the six-month transfer time limit started to 
run on 4 October 2017, but was extended until 4 April 2019 as it had become 
apparent that the foreign national had left Germany for an unknown destination.  
2 Then, on 17 February 2018, the foreign national lodged an application for 
international protection in the Netherlands. On 17 March 2018, the 
Staatssecretaris made a take back request to Italy, which was accepted on 1 April 
2018. In a letter dated 29 June 2018, the Netherlands authorities informed Italy 
that the foreign national had absconded and therefore could not be transferred 
within the six-month period.  
3 On 9 July 2018, the foreign national lodged another application for international 
protection in Germany but, on 21 December 2018, the German authorities 
recorded that he had left for an unknown destination. The foreign national then 
returned once again to the Netherlands where, on 27 December 2018, he lodged 
the application for international protection at issue in this case.  
4 By decision of 8 March 2019, the Staatssecretaris refused to examine that 
application since, in his view, Italy was still responsible for examining it. On 
29 April 2019, the Staatssecretaris transferred the foreign national to Italy.  
5 The foreign national lodged an appeal against that transfer decision before the 
Rechtbank Den Haag, which handed down the contested decision on 12 June 
2019. 
Main arguments of the parties in the main proceedings   
6 B. took the position before the court of first instance that Germany had become 
responsible for examining his application for international protection because the 
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transfer time limit of the claim agreement of 4 October 2017 between that country 
and Italy had expired.  
7 The Staatssecretaris countered this by arguing that it is the situation on the day on 
which the foreign national makes the application for international protection that 
determines which Member State is responsible. As the transfer time limit between 
Italy and Germany had not yet expired when the foreign national made the initial 
application for international protection in the Netherlands, Italy, he maintained, 
was responsible. He also argued, on the basis of the so-called ‘chain rule’, that the 
application lodged in the Netherlands had interrupted the transfer time limit 
between Germany and Italy and that a new transfer time limit of eighteen months 
within which the foreign national could be transferred to Italy had started.  
8 In support of his appeal, the Staatssecretaris has maintained his view that Italy is 
responsible. In this connection, he argues that the court of first instance was 
wrong to involve the change in the relationship between Germany and Italy on 
4 April 2019 in the assessment of the claim agreement between the Netherlands 
and Italy. According to the Staatssecretaris, the test of whether another Member 
State has become responsible under Article 29(2) of the Dublin Regulation due to 
the passage of time can pertain only to the relationship between the Netherlands 
and Italy. In addition, the Staatssecretaris has argued that the responsibility for the 
transfer rests first and foremost with the Member State where the foreign national 
is situated and where his claim is being processed. Therefore, according to him, 
from the time of the acceptance of the take back request made by the Netherlands 
on 1 April 2018, the implementation of the transfer from the Netherlands to Italy 
must be given priority and the expiry of the transfer time limit between Germany 
and Italy is not (or no longer) relevant for the Netherlands. Finally, the 
Staatssecretaris argues that, partly in view of the ‘chain rule’, Germany cannot, in 
his view, be responsible, since the transfer time limit of eighteen months restarted 
for Germany when the foreign national lodged the fresh application for 
international protection in the Netherlands on 17 February 2018.  
Brief summary of the reasons for the referral 
9 According to the referring court, it is undisputed that the Netherlands concluded a 
claim agreement with Italy as a result of the application for international 
protection of 17 February 2018 and that the transfer time limit of that agreement 
was still running when the foreign national lodged the present application for 
international protection in the Netherlands on 27 December 2018. The same 
applies to the transfer time limit under the corresponding agreement between 
Germany and Italy of 4 October 2017. The referring court concludes from this that 
Italy was still the Member State responsible at the time of the present application.  
10 In the opinion of the referring court, however, the dispute between the parties 
centres on the question whether, prior to the transfer of the foreign national to 
Italy by the Staatssecretaris on 29 April 2019, that responsibility had shifted to 
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID 
 
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Germany pursuant to Article 29(2) of the Dublin Regulation, the transfer time 
limit between Germany and Italy having expired on 4 April 2019.  
11 The particularity of the present case lies in the fact that, at the time of the present 
application for international protection, there were two valid claim agreements 
with different transfer time limits. The referring court is therefore uncertain as to 
the extent to which the agreement between Germany and Italy, with its associated 
transfer time limit, was still relevant when the foreign national made the present 
application for international protection in the Netherlands.  
12 The referring court notes that the Dublin Regulation does not contain a definition 
of the term ‘requesting Member State’. Although the case-law of the Court of 
Justice on Article 29 of the Dublin Regulation relates only to situations in which 
just two Member States are involved, that case-law does, according to the 
referring court, provide some basis for assuming that a Member State can be 
regarded as a ‘requesting Member State’ only as long as it remains able actually to 
transfer the foreign national. In its judgment of 19 March 2019, Jawo, 
EU:C:2019:218, paragraph 59, for example, the Court of Justice held that the 
transfer time limit provided for in Article 29(1) and the second sentence of 
Article 29(2) of the Dublin Regulation was also intended to allow the time 
necessary for the two Member States concerned to collaborate on the transfer and, 
in particular, for the requesting Member State to determine the details for 
implementing the transfer. Furthermore, in the judgment of 26 July 2017, A.S., 
EU:C:2017:585, paragraph 56, the Court of Justice explained that Article 29(2) of 
the Dublin Regulation specified only the consequences of the expiry of the period 
for effecting the transfer laid down in Article 29(1) of that regulation.  
13 Unlike the court of first instance, the referring court takes the view that Germany 
can no longer be regarded as the ‘requesting Member State’ within the meaning of 
Article 29(2) of the Dublin Regulation, because the German authorities are no 
longer able to carry out the transfer to Italy. After all, the foreign national is 
situated in the Netherlands and the Netherlands authorities have concluded a new 
claim agreement with Italy. However, the Dublin Regulation and the case-law of 
the Court of Justice do not provide a definitive answer on this issue. If the 
Netherlands cannot be regarded as the ‘requesting Member State’, the question 
arises as to whether the Netherlands is in any way bound by the transfer time limit 
applicable between Germany and Italy in respect of the submission of a take back 
or take charge request.  
14 If it were to be assumed that Germany can still be regarded as the ‘requesting 
Member State’ even after the take back request made by the Netherlands to Italy 
on 17 March 2018 and the transfer time limit between Germany and Italy expired 
after eighteen months – on 4 April 2019 – the referring court is uncertain whether 
the foreign national can invoke in the Netherlands, in the appeal against the 
transfer decision of 8 March 2019, the expiry of that transfer time limit.  
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15 In that regard, the referring court refers to the judgment of 25 October 2017, Shiri, 
EU:C:2017:805, in which the Court of Justice held, in paragraph 46, that 
Article 27(1) of the Dublin Regulation, read in the light of recital 19 thereof, and 
Article 47 of the EU Charter must be interpreted as meaning that an applicant for 
international protection must have an effective and rapid remedy available to him 
which enables him to rely on the expiry of the six-month period as defined in 
Article 29(1) and (2) of that regulation that occurred after the transfer decision 
was adopted.  
16 Unlike the situation in the Shiri judgment, however, more than two Member States 
are involved in the present case. In addition, the original transfer time limit 
between Germany and Italy expired in the present case because the foreign 
national absconded. According to the referring court, the Shiri judgment is 
therefore not applicable in this situation.  
17 In that regard, the referring court notes that, in the judgment of 7 June 2016 in 
Ghezelbash, EU:C:2016:409, and in the judgment of 26 July 2017 in Mengesteab, 
EU:C:2017:587, the Court of Justice determined the scope of the remedy provided 
for in Article 27(1) of the Dublin Regulation, inter alia, against the background of 
the objectives and the context of the regulation. The Court of Justice held in 
paragraph 46 of the Mengesteab judgment and in paragraph 52 of the Ghezelbash 
judgment that it follows from recital 9 of the Dublin Regulation that it is intended 
not only to make the Dublin system more effective, but also to improve the 
protection afforded to asylum seekers, in particular through the effective and full 
judicial protection enjoyed by them.  
18 However, the referring court points out that, in the Ghezelbash judgment, the 
Court of Justice also emphasised that the Dublin system seeks to avoid ‘forum 
shopping’. It follows from paragraph 54 of that judgment that the intention is not 
for the court hearing an application to be required to make a Member State that is 
to the asylum seeker’s liking responsible for the examination of an application for 
international protection. 
19 In view of the foregoing, the referring court takes the view that it is not possible, 
pursuant to Article 27(1) of the Dublin Regulation, for a foreign national to 
complain in a third Member State about a claim agreement already concluded 
between two other Member States. A different interpretation would result in the 
foreign national having an incentive deliberately to ensure that he remains beyond 
the reach of the authorities responsible for effecting the transfer, in order to 
prevent that transfer and subsequently to be able to argue that responsibility has 
shifted to another Member State merely because of the passage of time.