Judgment;Summary — ECLI:EU:C:2022:237
Date: 2022-03-31
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Asylum policy;Immigration and asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-231/21 – 1 
Case C-231/21 
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: 
12 April 2021 
Referring court or tribunal: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
25 March 2021 
Appellant on a point of law: 
IA 
Respondent authority: 
Bundesamt für Fremdenwesen und Asyl (Federal Office for Foreign 
Affairs and Asylum) 
 
Subject matter of the main proceedings 
Expiry and extension of the transfer time limit pursuant to Article 29 of 
Regulation (EU) No 604/2013 in the context of a stay on the psychiatric ward of a 
hospital against or without the will of the person concerned due to mental illness 
Subject matter and legal basis of the request 
Interpretation of EU law, in particular Regulation (EU) No 604/2013, Article 267 
TFEU 
Questions referred for a preliminary ruling 
1. Is imprisonment within the meaning of the second sentence 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 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-231/21 
 
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international protection lodged in one of the Member States by a third-
country national or a stateless person (recast), OJ 2013 L 180, p. 31, also to 
be understood as including committal – which has been declared admissible 
by a court – of the person concerned to the psychiatric ward of a hospital 
against or without his will (in this case on account of endangerment of self 
or others resulting from his mental illness)? 
2. If the first question is answered in the affirmative: 
a) Can the time limit laid down in the first sentence of Article 29(2) of 
the above-mentioned regulation in any case be extended to one year – 
with binding effect for the person concerned – in the event of 
imprisonment by the requesting Member State? 
b) If not, for what period of time is an extension permissible, for example 
only for that period of time 
aa) that the detention actually lasted, or 
bb) that the imprisonment is likely to last in total, in relation to the 
date of informing the Member State responsible in accordance 
with Article 9(2) of Commission Regulation (EC) No 1560/2003 
of 2 September 2003 laying down detailed rules for the 
application of Council Regulation (EC) No 343/2003 (OJ 2003 
L 222, p. 3), as amended by Commission Implementing 
Regulation (EU) No 118/2014 of 30 January 2014 (OJ 2014 
L 39, p. 1), 
plus, if necessary, a reasonable period for the reorganisation of the 
transfer? 
Provisions of EU law relied on 
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 (recast) (OJ 2013 L 180, p. 31; ‘the Dublin III Regulation’), in 
particular Article 29(2) 
Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down 
detailed rules for the application of Council Regulation (EC) No 343/2003 (OJ 
2003 L 222, p. 3), as amended by Commission Implementing Regulation (EU) 
No 118/2014 of 30 January 2014 (OJ 2014 L 39, p. 1), in particular Article 9 
Charter of Fundamental Rights of the European Union, in particular Articles 6, 52 
and 53 
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Provisions of international law relied on 
European Convention on Human Rights (‘the ECHR’), in particular 
Article 5(1)(e) 
Provisions of national law relied on 
Asylgesetz 2005 (Asylum Act 2005, ‘the AsylG 2005’), in particular Paragraph 5: 
Responsibility of Another State 
Paragraph 5. (1) An application for international protection which has not 
been decided in accordance with Paragraph 4 or Paragraph 4a shall be rejected as 
inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, 
another country is responsible for examining the application for asylum or the 
application for international protection. When rendering the rejection decision, the 
authority shall also specify which country is responsible. The application shall not 
be rejected if in the course of an evaluation as referred to in Paragraph 9(2) of the 
BFA-Verfahrensgesetz (Federal Office for Immigration and Asylum Procedures 
Act, ‘the BFA-VG’) it is established that an order for removal from the country 
issued in conjunction with the rejection decision would give rise to a violation of 
Article 8 of the ECHR. 
(2) The steps set out in subparagraph 1 shall also be followed if, under treaty 
provisions or pursuant to the Dublin Regulation, another country is responsible for 
determining which country is responsible for examining the application for 
asylum or international protection. 
Fremdenpolizeigesetz 2005 (Aliens’ Police Act 2005, ‘the FPG’), Paragraphs 46 
and 61 
Unterbringungsgesetz (Law on the committal of mentally ill persons to hospitals, 
‘the UbG’), Paragraphs 3, 8, 10(1), 11, 17, 18, 20(1), 26(1) and (2) and 30(1) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellant on a point of law, a national of Morocco, travelled from Libya to 
Italy in October 2016, where he was subjected to identification procedures on 
27 October 2016. He then travelled to Austria and lodged an application for 
international protection on 20 February 2017. A consultation procedure under the 
Dublin III Regulation was then conducted and a take charge request based on 
Article 13(1) of that regulation was sent to the Italian authorities on 1 March 
2017. This request remained unanswered. Consequently, the Italian authorities 
were informed on 30 May 2017 that, in accordance with Article 22(7) of the 
Dublin III Regulation, the taking charge of the appellant on a point of law had 
been approved and that the transfer time limit had begun on 2 May 2017. 
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2 Subsequently, the Bundesamt für Fremdenwesen und Asyl (Federal Office for 
Foreign Affairs and Asylum, ‘the BFA’) rejected, by decision of 12 August 2017, 
the application for international protection lodged by the appellant on a point of 
law, pursuant to Paragraph 5(1) of the AsylG 2005. It found that, under 
Article 13(1) in conjunction with Article 22(7) of the Dublin III Regulation, Italy 
was responsible for examining the application, ordered the removal of the 
appellant on a point of law from the country (to Italy) in accordance with 
Paragraph 61(1), point 1 of the FPG and declared that the removal of the appellant 
on a point of law to Italy was permissible under Paragraph 61(2) of the FPG. 
3 The transfer of the appellant on a point of law to Italy, which had already been 
organised for 23 October 2017, had failed because he had been committed to the 
psychiatric ward of a hospital in Vienna. A Vienna District Court had first 
declared this committal under the UbG to be provisionally permissible by decision 
of 6 October 2017 and then declared it permissible for the period until 
17 November 2017 by decision of 17 October 2017. Subsequently, the Italian 
authorities were informed on 25 October 2017 that the transfer time limit had been 
extended to 12 months due to the detention of the appellant on a point of law in 
accordance with Article 29(2) of the Dublin III Regulation. 
4 This court-approved committal of the appellant on a point of law was terminated 
prematurely on 4 November 2017 and he was released from the care of the 
hospital two days later. 
5 On 6 December 2017, he was transferred from Austria to Italy by way of removal. 
He lodged an appeal against that decision within the prescribed period, on the 
ground that the transfer had been carried out despite the expiry on 2 November 
2017 of the six-month time limit available for this under the first subparagraph of 
Article 29(1) of the Dublin III Regulation. 
6 The Bundesverwaltungsgericht (Federal Administrative Court, ‘the BVwG’) 
ultimately dismissed this appeal as unfounded in its ruling of 14 February 2020, 
which was challenged before the referring court. 
7 In its legal assessment, the BVwG proceeded on the assumption that the order to 
remove the appellant on a point of law from the country, imposed by a decision of 
the BFA on 12 August 2017, was enforceable and also feasible. Nor had the order 
for removal from the country ceased to have effect before the removal on 
6 December 2017. 
8 It is true that the six-month time limit under the first subparagraph of Article 29(1) 
of the Dublin III Regulation for the transfer of the appellant on a point of law to 
Italy had expired on 2 November 2017. However, Austria had already informed 
Italy that the transfer time limit would be extended due to the detention of the 
appellant on a point of law in accordance with Article 29(2) of the Dublin III 
Regulation. Although the appellant was neither remanded in custody pending trial 
nor serving a sentence involving deprivation of liberty, he had been receiving 
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psychiatric treatment from 20 September to 6 October 2017 as a result of 
voluntary inpatient admission. From 6 to 17 October 2017 and from that date (due 
to early release, only) until 4 November 2017, he was committed to the 
psychiatric ward of a hospital on the basis of decisions of a Vienna District Court. 
Between 4 and 6 November 2017, he was again voluntarily hospitalised. 
9 During the period in which the appellant on a point of law was committed, by 
court order, to a psychiatric institution against his will, he was in court-ordered 
detention. For this to be the case, it was neither a prerequisite that this detention 
be carried out in a prison nor that it be based on a judicial conviction. The 
existence of a measure involving deprivation of liberty, which is to be assumed in 
the present case, can also be inferred from Articles 6, 52 and 53 of the Charter of 
Fundamental Rights (‘the Charter’) as well as from Article 5(1)(e) of the ECHR, 
from which it is apparent in particular that mental illness, for example, may 
constitute a basis for ordering lawful detention. Moreover, Paragraph 3 of the 
UbG cumulatively requires that the ill person seriously and substantially 
endangers his or her life or health and the life or health of others in connection 
with his or her illness. In the case of the appellant on a point of law, the committal 
was based on endangerment of self and others. 
10 The decisive factor for the extension of the transfer time limit under Article 29(2) 
of the Dublin III Regulation was that the transferring State had been prevented 
from transferring the appellant on a point of law to the Member State responsible, 
whether because he had absconded or because – as in the present case – he had 
been placed out of the reach of the administrative authorities by the judicial 
authorities. 
11 Italy was thus rightly informed that the appellant on a point of law was in 
detention. As a result, the transfer time limit was extended to 12 months, that is to 
say until 2 May 2018. At the time of the removal, therefore, the transfer time limit 
had not yet expired. The other conditions for lawful removal are also met. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 In the present case, it is necessary to clarify whether the removal (transfer) of the 
appellant on a point of law to Italy on 6 December 2017 was lawful, which 
depends on the question as to whether this measure was taken within the time 
limit specified in the light of the legal situation under Article 29 of the Dublin III 
Regulation. 
13 In the judgment of 25 October 2017, Shiri, C-201/16, ECLI:EU:C:2017:805, the 
Court of Justice of the European Union (‘the Court of Justice’) held, in that 
context, that it is apparent from the very wording of that provision that exceeding 
the time limit provides for an ‘automatic’ transfer of responsibility to the 
requesting Member State, without making that transfer conditional on any reaction 
by the Member State responsible (paragraph 30). If the transfer time limit expires 
without the transfer of the applicant from the requesting Member State to the 
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Member State responsible having been carried out, responsibility is 
‘automatically’ transferred from the second Member State to the first 
(paragraph 39), with it being possible for the transfer time limit to expire after the 
transfer decision has been adopted (paragraph 42). The competent authorities of 
the requesting Member State cannot, in such a situation, carry out the transfer of 
the person concerned to another Member State and are, on the contrary, required 
to take, on their own initiative, the measures necessary to acknowledge the 
responsibility of the first Member State and to initiate without delay the 
examination of the application for international protection lodged by that person 
(paragraph 43). 
14 In the present case, the receipt of the take charge request, dated 1 March 2017, 
triggered the two-month time limit for the requested Member State (Italy) to reply 
in accordance with Article 22(1) of the Dublin III Regulation. As the competent 
Italian authorities did not reply to the take charge request within this time limit, 
the Republic of Italy became responsible upon expiry of the time limit as a result 
of the fiction of consent under Article 22(7) of the Dublin III Regulation (tacit 
acceptance). In the absence of any suspensive effect of an appeal, this point in 
time in turn proves to be the triggering point for the six-month transfer time limit 
pursuant to the first subparagraph of Article 29(1) of the Dublin III Regulation. It 
cannot be disputed that this was the case on 2 May 2017, with the result that the 
transfer time limit mentioned expired at the end of 2 November 2017. 
15 However, the second sentence of Article 29(2) of the Dublin III Regulation 
provides that this time limit may ‘be extended up to a maximum of one year’ if the 
transfer could not be carried out due to imprisonment of the person concerned. 
16 In order to extend the transfer time limit laid down in that provision, it suffices 
that the requesting Member State informs the Member State responsible, before 
the expiry of the six-month transfer time limit, of the imprisonment of the person 
concerned and specifies, at the same time, a new transfer time limit (see, to that 
effect, judgment of 19 March 2019, Abubacarr Jawo, C-163/17, 
ECLI:EU:C:2019:218, paragraph 75). 
17 The arguments put forward in the appeal on a point of law seek to show that the 
transfer time limit had already expired at the time of the removal (transfer) to Italy 
on 6 December 2017. According to the referring court, if that argument is to be 
accepted, it is necessary, first of all, to determine whether ‘imprisonment’ (not 
defined in the context of that regulation) within the meaning of the second 
sentence of Article 29(2) of the Dublin III Regulation must also be understood as 
meaning a committal to the psychiatric ward of a hospital, which has been 
declared permissible by the court, against or without the will of the person 
concerned on account of mental illness. 
18 This conclusion could be supported by the fact that such a committal is a 
deprivation of liberty that is independent of the will of the person concerned and 
approved by the court, which, in any event, essentially makes it impossible for the 
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competent authority to gain access to the person concerned for the purpose of 
transferring him, in the same way as, for example, imprisonment in criminal 
proceedings (remand in custody pending trial, a sentence involving deprivation of 
liberty) ordered by the court. 
19 However, the Supreme Administrative Court takes the view that this conclusion 
could be challenged by the fact that ‘involuntary committal’ within the meaning of 
Paragraph 8 et seq. UbG is primarily a medical measure that has ‘merely’ been 
declared permissible by the court. The term ‘imprisonment’ (cf. also 
‘Inhaftierung’ in the German language version or ‘emprisonnement’ in the French 
language version) does not (necessarily) seem to cover such situations. 
20 Above all, however, it should be borne in mind that serious illnesses that 
temporarily prevent a transfer to the responsible Member State (that is to say that 
do not even permit this – as was ultimately the case here – for example under 
medical supervision or other conditions) do not form a suitable basis for an 
extension of the transfer time limit in accordance with Article 29(2) of the Dublin 
III Regulation. In any event, if the state of health of the person concerned prevents 
the requesting Member State from carrying out the transfer before the expiry of 
the six-month period provided for in the first subparagraph of Article 29(1) of the 
Dublin III Regulation, the Member State responsible would instead be relieved of 
its obligation to take charge of the person concerned and responsibility would then 
be transferred to the first Member State, in accordance with paragraph 2 of that 
article (see, to that effect, inter alia, judgment of 16 February 2017, C.K. and 
Others, C-578/16, ECLI:EU:C:2017:127, paragraph 89). 
21 Detention in the psychiatric ward of a hospital could therefore not be understood 
as ‘imprisonment’ and thus cannot be assessed differently from any other hospital 
stay that excludes the ability to travel. 
22 However, should the Court of Justice come to the conclusion that the detention in 
the psychiatric ward of a hospital at issue constitutes ‘imprisonment’ within the 
meaning of the second sentence of Article 29(2) of the Dublin III Regulation, the 
Supreme Administrative Court takes the view that it would also be necessary to 
clarify the question as to the extent to which the transfer time limit could then 
specifically be extended. In that regard, the Supreme Administrative Court 
considers that the person concerned may also rely on an incorrect calculation of 
that time limit. 
23 According to the wording of that provision, there must be a causal link between 
the ‘imprisonment’ and the failure to comply with the transfer time limit and, in 
that case, the time limit may be extended ‘up to a maximum of one year’. The use 
of the term ‘up to a maximum of’ seems to indicate that the one-year period need 
not always be decisive. 
24 This suggests that the duration of the extension of the transfer time limit should 
depend on the circumstances of the specific case, with the Supreme 
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Administrative Court taking the view that the criteria should primarily be either 
the actual duration of the ‘imprisonment’ (in the present case: 30 days, from 
6 October to 4 November 2017) or its presumptive duration at the time the 
requested Member State is informed of the ‘imprisonment’ under Article 9(2) of 
the Implementing Regulation (in the present case: 43 days, from 6 October to 
17 November 2017), if necessary plus a reasonable period for the reorganisation 
of the transfer. The maximum period of two weeks referred to in Article 9(1a) of 
the Implementing Regulation may be decisive in determining that time limit. 
25 In paragraph 75 of the above-mentioned judgment in Abubacarr Jawo, C-163/17, 
ECLI:EU:C:2019:218, the Court of Justice held – with regard to the situation that 
the person concerned has absconded – that the second sentence of Article 29(2) of 
the Dublin III Regulation must be interpreted as meaning that, in order to extend 
the transfer time limit by a maximum of 18 months, it suffices that the requesting 
Member State informs the Member State responsible, before the expiry of the six-
month transfer time limit, that the person concerned has absconded and specifies, 
at the same time, a new transfer time limit. 
26 In the light of the practical problems highlighted by the Court of Justice in that 
context, this could be understood to mean that it is open to the requesting Member 
State to ‘freely’ determine the new transfer period – even up to a maximum of 
18 months – if the person concerned absconds. If necessary, it could not be ruled 
out that this could be applied accordingly to the situation of ‘imprisonment’. 
However, the second sentence of Article 29(2) of the Dublin III Regulation links 
the extension of the time limit relating to ‘imprisonment’ to the fact that the 
transfer could not take place ‘due to’ the imprisonment of the person concerned, 
whereas, according to its wording, the extension of the time limit to a maximum 
of 18 months is based only on the fact that the person concerned ‘absconds’ (and 
the duration of the absconding is usually not even foreseeable). 
27 In relation to the extension of the time limit in the event of ‘imprisonment’, this 
difference in wording leads back to the consideration set out above (in 
paragraphs 23 and 24), with the causal link mentioned supporting the relevance of 
the actual duration of the ‘imprisonment’, whereas, having regard to the need, in 
any event, to inform the Member State responsible within the meaning of 
Article 9(2) of the Implementing Regulation, the total duration of the 
‘imprisonment’ that can be estimated at that time could also be relevant. 
28 In any event, if the answer to the first question is in the affirmative, a clarification 
of the problem addressed by the second question is required in order for the 
Supreme Administrative Court to take a decision, since the correct application of 
EU law does not appear so obvious that it leaves no scope for any reasonable 
doubt. The questions set out at the start are therefore referred to the Court of 
Justice for a preliminary ruling pursuant to Article 267 TFEU.