Information;Order — ECLI:EU:C:2021:1049
Date: 2021-12-16
Language of the case: French
Court formation: Ninth Chamber
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

Translation C-505/21– 1 
Case C-505/21 
Request for a preliminary ruling 
Date lodged:  
18 August 2021 
Referring court:  
Tribunal du travail de Liège, division Arlon (Belgium) 
Date of the decision to refer:  
17 August 2021 
Applicant:  
FU 
Defendant:  
Agence fédérale pour l’Accueil des demandeurs d’asile (Fedasil) 
  
[…]  
[redundant wording] 
___________ 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 8. 2021 – CASE C-505/21 
 
2  
 
TRIBUNAL DU TRAVAIL DE LIEGE ‒ DIVISION ARLON 
(LABOUR COURT, LIEGE, BELGIUM ‒ ARLON DIVISION) 
Judgment delivered […] [on] 17 August 2021 
[…] [procedural matters] 
In the case of: 
Mr FU 
currently at the centre of the Agence fédérale pour l’accueil des demandeurs 
d’asile (Federal Agency for the Reception of Asylum Seekers, ‘Fedasil’, Belgium) 
[…] at STOCKEM, 67000, Belgium […] 
v: 
FEDASIL […] 
**************************** 
[…] [procedural matters] 
* * * 
1. The application 
The applicant challenges the decision taken by the defendant on 31 May 2021 to 
designate the reception facility at Mouscron, Belgium, as his new mandatory place 
of registration, his ‘Dublin’ place. 
The applicant seeks an order requiring the defendant to keep him at the Arlon 
reception centre, where he currently resides, until his appeal before the Conseil du 
contentieux des étrangers (Council for asylum and immigration proceedings, 
Belgium) is decided. 
[…] [procedural matters] 
2. Jurisdiction 
[…] 
FEDASIL 
 
3 
3. The facts 
The applicant lodged an application for international protection in Belgium on 
8 February 2021 […]. 
[…] [irrelevant] 
On 10 February 2021, the Arlon reception facility at Stockem, 67000, Belgium, 
was designated as […] the applicant’s mandatory place of registration. He is 
currently staying at that reception facility. 
On 28 April 2021, the Service Public Fédéral Intérieur ‒ Direction générale Office 
des Étrangers (Immigration Office, Belgium) [decided] to refuse to grant him a 
right of residence and ordered him to leave Belgian territory within 10 days and to 
appear before the Spanish authorities. […] 
That decision was based on the fact that Belgium is not responsible for examining 
his application for international protection and that Spain is, pursuant to 
Article 51/5 of the Loi du 15 décembre 1980 relative à l’accès au territoire, le 
séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 
on the entry to Belgian territory, residence, establishment and removal of foreign 
nationals) and Article [13(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 [OJ 2013 L 182, p. 31]. 
[…] The applicant lodged with the Council for asylum and immigration 
proceedings an application for the ordinary suspension and the annulment of the 
decision refusing him a right of residence and the accompanying order to leave the 
territory and go to Spain. 
The fact that the applicant has lodged that appeal is common ground, as is the fact 
that it is still pending before the Council for asylum and immigration proceedings. 
On 31 May 2021, the defendant […] [notified] the applicant of its decision to 
designate the reception facility at Mouscron, 7700, Belgium, as his new 
mandatory place of registration, his ‘Dublin’ place. 
It is that decision which is the subject of the present dispute. 
REQUEST FOR A PRELIMINARY RULING OF 17. 8. 2021 – CASE C-505/21 
 
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4. Discussion 
a. Plea in law raised: infringement of the right to an effective remedy against 
the decision refusing a right of residence and the order to leave Belgian 
territory and be transferred to the Member State declared responsible 
The applicant argues that his removal to a ‘Dublin’ place would render his appeal 
against the expulsion decision ineffective. 
In answer to a question referred for a preliminary ruling, the Court of Justice of 
the European Union has held that the designation of a ‘Dublin’ place does not 
constitute the beginning of the implementation of a transfer decision within the 
meaning of Regulation No 604/2013 and does not undermine the effectiveness of 
an appeal against a decision for forced removal to the [Member State] declared 
responsible [orders of 26 March 2021, Fedasil (C-92/21, EU:C:2021:258), and 
Fedasil (C-134/21, EU:C:2021:257)]. 
It is apparent from the orders delivered by the Court of Justice that the compulsory 
registration of an applicant in a ‘Dublin’ place and the provision of support to him 
in that centre should not be regarded as measures implementing a transfer, but as 
measures preparatory to the implementation procedure which are consistent with 
the effectiveness of the remedy referred to in Article 27 of the regulation, ‘since 
the execution of the measures themselves does not result in the person concerned 
leaving the territory of the requesting Member State’. 
These are, therefore, merely measures preparatory to the possible transfer of an 
applicant to a [different Member State] determined to be responsible following the 
examination of the applicant’s appeal against his transfer to that [other Member 
State]. However, they cannot involve the applicant’s being forced to leave Belgian 
territory against his will before his application for suspension has been examined. 
Accordingly, the Court of Justice has held that ‘the information provided to 
applicants, and the interviews conducted with them in the open reception centres 
to which they are directed, [must not be such as] to subject applicants for 
international protection to undue pressure to decline to exercise the procedural 
rights they enjoy under the Dublin III Regulation’ (paragraph 44 of the two 
orders). 
The applicant argues that applicants for international protection are being 
subjected to undue pressure at ‘Dublin’ places to decline to exercise the 
procedural rights they enjoy under the Dublin III Regulation. 
The defendant has produced to this court its Guide opérationnel ‒ 
Accompagnement dans les Places Dublin, (Operational Guide ‒ Supporting 
Applicants in ‘Dublin’ Places), which sets out specific instruction for its officials 
responsible for supporting [applicants] in ‘Dublin’ places. 
FEDASIL 
 
5 
Fedasil’s guide stipulates that its officials must conduct three interviews with 
applicants for international protection. 
The purpose of the first interview (conducted upon the applicant’s arrival) is to 
review the information which the applicant has already received and to explain the 
‘Dublin’ place procedure and how ‘Dublin’ places work. 
The goal of the second interview, which is to be held within four working days of 
the applicant’s arrival at the ‘Dublin’ place, is for the applicant for international 
protection to take a decision as to whether to be assisted in the organisation of his 
or her transfer by the Immigration Office, or to refuse to cooperate with the 
Immigration Office. In the latter case, the Immigration Office may arrange for 
enforced transfer. 
The third interview ‘mainly consists in arranging practical matters and organising 
the transfer’. The guide states that ‘if the resident is unwilling to leave, this 
interview may be used to explain once again that a removal order and forcible 
removal are possible, at the discretion of the Immigration Office’. 
The guide sets out the information which must be given to any applicant who has 
lodged with the Council for asylum and immigration an appeal against a decision 
refusing him or her a right of residence and an accompanying order to leave the 
territory and go to the Member State declared to be responsible. 
Applicants are informed that the Immigration Office cannot give effect to their 
forced transfer in the following cases: 
– the Council for asylum and immigration proceedings has suspended the 
decision refusing a right of residence and the accompanying order to leave 
the territory (application for ordinary suspension); 
– the Council for asylum and immigration proceedings has annulled the 
decision refusing a right of residence and the accompanying order to leave 
the territory; 
– an application for suspension has been brought on grounds of extreme 
urgency before the Council for asylum and immigration proceedings against 
the decision refusing a right of residence and the accompanying order to 
leave the territory, in circumstances where there is an imminent risk of 
transfer. 
On the other hand, the Immigration Office may give effect to the transfer of an 
applicant even if he or she has made an application for ordinary suspension, unless 
the suspension has already been granted. 
The applicant argues that the information thus provided will constrain an applicant 
for international protection to leave the reception facility (the ‘Dublin’ place) even 
after making an application for the ordinary suspension of the order to leave the 
REQUEST FOR A PRELIMINARY RULING OF 17. 8. 2021 – CASE C-505/21 
 
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territory, without awaiting the outcome of that application, or abandon his or her 
appeal in order to continue to receive practical assistance up to the time of 
transfer. 
b. The EU-law right to an effective remedy 
Regulation [No 604/2013] provides, in Article 27 thereof, as follows: 
1. The applicant […] shall 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. 
2. Member States shall provide for a reasonable period of time within which 
the person concerned may exercise his or her right to an effective remedy pursuant 
to paragraph 1. 
3. For the purposes of appeals against, or reviews of, transfer decisions, 
Member States shall provide in their national law that: 
(a) the appeal or review confers upon the person concerned the right to remain 
in the Member State concerned pending the outcome of the appeal or 
review; or 
(b) the transfer is automatically suspended and such suspension lapses after a 
certain reasonable period of time, during which a court or a tribunal, after a 
close and rigorous scrutiny, shall have taken a decision whether to grant 
suspensive effect to an appeal or review; or 
(c) the person concerned has the opportunity 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. 
Member States shall ensure that an effective remedy is in place by 
suspending the transfer until the decision on the first suspension request is 
taken. Any decision on whether to suspend the implementation of the 
transfer decision shall be taken within a reasonable period of time, while 
permitting a close and rigorous scrutiny of the suspension request. A 
decision not to suspend the implementation of the transfer decision shall 
state the reasons on which it is based. 
4. Member States may provide that the competent authorities may decide, 
acting ex officio, to suspend the implementation of the transfer decision pending 
the outcome of the appeal or review. 
[…]. 
c. Belgian law 
[…] [irrelevant] 
FEDASIL 
 
7 
The Council for asylum and immigration proceedings has jurisdiction to hear 
appeals against decisions refusing a right of residence and accompanying orders to 
leave Belgian territory (Article 39/1 [of the Law of 15 December 1980]). 
The lodging of an application for the annulment of a decision refusing a right of 
residence and the accompanying order to leave Belgian territory does not confer 
on the applicant a right to remain in Belgium and does not suspend the order to 
leave Belgian territory. 
Under Belgian law it is possible to apply for suspension of the implementation of 
an order to leave Belgian territory. 
Such an application is provided for in Articles 39/82 and 39/83 of the Law of 
15 December 1980, which provide as follows: 
Art. 39/82. § 1. Where an act of an administrative authority is amenable to 
annulment pursuant to Article 39/2, the Council alone shall have jurisdiction to 
order the suspension of its implementation. 
 
[…] [irrelevant] 
 
In cases of extreme urgency, suspension may be ordered provisionally, even 
though the parties, or some of them, have not been heard. 
 
Where an applicant seeks suspension of implementation, he or she must opt for 
either suspension on grounds of extreme urgency or ordinary suspension. The 
applicant must not, either simultaneously or consecutively, seek further 
application of the third subparagraph or make a further request for suspension in 
the application referred to in paragraph 3, failing which the application will be 
inadmissible. 
 
By way of derogation from the fourth subparagraph, and without prejudice to 
paragraph 3, the dismissal of an application for suspension under the emergency 
procedure shall not preclude the applicant from making a subsequent application 
for suspension under the ordinary procedure, if the application for suspension on 
grounds of extreme urgency was dismissed on the ground that extreme urgency 
was not sufficiently established. 
 
§ 2. Suspension of implementation may be ordered only if serious reasons 
justifying the annulment of the act at issue are adduced and on condition that the 
immediate implementation of the act would be liable to cause serious harm that 
cannot readily be made good. 
 
That condition shall be fulfilled, inter alia, if serious grounds are adduced that are 
based on fundamental human rights, in particular the rights from which no 
derogation is permissible under Article 15(2) of the European Convention for the 
Protection of Human Rights and Fundamental Freedoms. 
REQUEST FOR A PRELIMINARY RULING OF 17. 8. 2021 – CASE C-505/21 
 
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[…] [irrelevant] 
 
§ 3. Other than in cases of extreme urgency, the application for suspension and 
the application for annulment must be brought by one and the same document. 
 
[…] [irrelevant] 
 
Once the action for annulment has been brought, an application for suspension 
made subsequently shall be inadmissible; this shall not, however, preclude the 
applicant from bringing a new action for annulment combined with an application 
for suspension in the manner indicated above, if the time limit for bringing the 
action has not yet expired. 
 
[…] [irrelevant] 
 
§ 4. The President of the Chamber or the judge for asylum and immigration 
proceedings appointed by him or her shall rule on the application for suspension 
within thirty days. […]. 
 
If the foreign national is the subject of a removal or refoulement order the 
enforcement of which is imminent, in particular if he or she is kept at a specific 
place as referred to in Article 74/8 or Article 74/9 or is placed at the disposal of 
the government, he or she may, if he or she has not yet applied for the suspension 
of that order by way of the ordinary procedure, seek suspension of enforcement 
of that order on grounds of extreme urgency within the period referred to in 
Article 39/57(1)(3). 
 
[…]. 
 
The President of the Chamber or the judge for asylum and immigration 
proceedings shall examine closely and rigorously all the evidence placed before 
him or her, in particular evidence that suggests that there is reason to believe that 
the enforcement of the contested decision would expose the applicant to the risk 
of suffering a violation of fundamental human rights from which no derogation is 
permissible under Article 15(2) of the European Convention for the Protection of 
Human Rights and Fundamental Freedoms, which shall be the subject of a close 
and rigorous review. 
 
[…] [irrelevant] 
 
Art. 39/83. A removal or refoulement order shall not be enforced against a 
foreign national without the consent of the person concerned until the time limit 
for bringing an action laid down in Article 39/57(1)(3) has expired or, in the 
event that an application for the suspension of that order on grounds of extreme 
urgency has been made within that time limit, until the Council has dismissed 
FEDASIL 
 
9 
that application. 
 
Thus, an applicant for international protection may apply for suspension of the 
implementation of the order requiring him or her to leave Belgian territory either 
by way of an application for ordinary suspension (to be made with the application 
for annulment of the order to leave the territory) or by way of an application for 
suspension on grounds of extreme urgency. 
An application for ordinary suspension does not suspend the implementation of 
the removal procedure. An applicant who has requested the ordinary suspension 
(along with the annulment) of an order to leave the territory may be forcibly 
transferred unless the Council for asylum and immigration proceedings has 
suspended the act at issue. 
It is only if an application is made for suspension on grounds of extreme urgency 
that the procedure for removal to the Member State declared responsible for 
processing the application for international protection will be suspended for such 
time as is necessary for the application for suspension to be examined 
(Article 39/83 of the Law of 15 December 1980). 
Nevertheless, an application for suspension on grounds of extreme urgency is 
admissible only if the applicant for international protection is the subject of a 
removal or refoulement order the enforcement of which is imminent, in particular 
if he or she is kept at a specific place as referred to in Article 74/8 (a detention 
centre) or Article 74/9 (a place suitable for families located at the border) or is 
placed at the disposal of the government, and only if he or she has not applied for 
the suspension of the order to leave the territory by way of the ordinary procedure. 
d. The consistency of Belgian law with EU law ‒ the questions referred 
The applicant argues that, as a result of the interviews which the defendant’s 
officials conduct at ‘Dublin’ places, applicants for international protection are 
subjected to undue pressure to comply with orders to leave the territory issued by 
the Immigration Office, even if they have made an application for the ordinary 
suspension of such an order. 
The defendant does not dispute that applicants for international protection are 
subjected to some pressure at ‘Dublin’ places, even if they have made an 
application for ordinary suspension. However, it argues that that pressure arises 
from rigorous application of the law and is therefore not undue pressure. 
The question therefore arises of the legality of the information which the 
defendant’s officials give at ‘Dublin’ places (in accordance with the Operational 
Guide) to applicants for international protection who have applied to the Council 
for asylum and immigration proceedings for the annulment and ordinary 
suspension of decisions for transfer to a [different Member State] declared 
responsible. 
REQUEST FOR A PRELIMINARY RULING OF 17. 8. 2021 – CASE C-505/21 
 
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That information appears to be in conformity with the provisions of the Belgian 
Law of 15 December 1980. 
However, the question arises of whether it is consistent with Article 27 of 
Regulation No 604/2013, which takes precedence over Belgian law. 
It may therefore be necessary for this court to consider whether the provision of 
this information amounts to the placing of undue pressure on applicants for 
international protection so that they decline to exercise their right to an effective 
remedy against decisions refusing them a right of residence in Belgium and orders 
to leave the territory and go to the Member State declared responsible for hearing 
their application for international protection. 
Consequently, this court must establish whether the provisions of Belgian law set 
out above, which the defendant has applied, are consistent with Regulation 
No 604/2013 and, more specifically, Article 27(3) thereof. 
That issue falls within the jurisdiction of the Court of Justice of the European 
Union and it is therefore referred to the Court of Justice for a preliminary ruling 
(pursuant to Article 267(3) of the Treaty on the Functioning of the European 
Union). 
e. Urgency 
The applicant has made an application for ordinary suspension. 
The Belgian authorities take the view that, in accordance with Belgian law, the 
lodging of that application for ordinary suspension does not suspend the 
implementation of the order requiring the applicant to leave the territory and his 
transfer to [the Member State] declared responsible. 
The application must therefore be ruled on urgently. 
Given the nature of the questions referred, and the urgency of the matter, this 
court requests the Court of Justice to deal with the case under the urgent 
preliminary ruling procedure provided for in Article 107 of the Rules of Procedure 
of the Court of Justice or, at very least, under the accelerated procedure provided 
for in Article 105 of those rules. 
ON THOSE GROUNDS: 
The court […] [procedural matters] 
Refers to the Court of Justice of the European Union the following questions 
for a preliminary ruling: 
1. Is Article 27(3) of the Dublin III Regulation (Regulation No 604/2013), 
where appropriate read in the light of Article 47 of the Charter of Fundamental 
FEDASIL 
 
11 
Rights of the European Union, to be interpreted as precluding national 
legislation which provides that an application for ordinary suspension, made 
together with an application for the annulment of a decision to transfer an 
applicant to a Member State declared responsible for examining his or her 
application for international protection, does not suspend the implementation of 
the transfer until a decision is given on that application for suspension? 
 
2. Is Article 27(3) of the Dublin III Regulation, where appropriate read in the 
light of Article 47 of the Charter of Fundamental Rights of the European Union, 
to be interpreted as precluding national legislation which provides that an 
application for suspension of a decision to transfer an applicant to a Member 
State responsible for examining his or her application for international 
protection suspends the implementation of the transfer until a decision is given 
on the application for suspension only if that application has been made on 
grounds of extreme urgency, where the applicant is the subject of a removal or 
refoulement order the enforcement of which is imminent, in particular where he 
or she is held in detention or is placed at the disposal of the government, and 
where he or she has not yet applied for the ordinary suspension of the decision 
at the same time as applying for its annulment? 
 
The court requests the Court of Justice to deal with the case under the urgent 
preliminary ruling procedure provided for in Article 107 of its Rules of Procedure 
or under the accelerated procedure provided for in Article 105 of those rules. 
[…] [procedural matters]