Opinion of the Advocate General — ECLI:EU:C:2018:212
Date: 2018-03-22
Language of the case: Dutch
Subject matter: Asylum policy;Immigration and asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Grand Chamber), 13 November 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 — Procedures for taking charge and taking back — Time limits for replying to a take charge or take back request — Consequences of non-compliance with the time limit — Obligation on the requested Member State to take charge of or take back an applicant for international protection — Requested Member State replying within the time limits without having made the necessary checks — No effect on that obligation (European Parliament and Council Regulation No 604/2013, Arts 22(1), (6) and (7), and 25(1) and (2); Commission Regulation No 1560/2003, as amended by Regulation No 118/2014, Art. 5(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 — Procedures for taking charge and taking back — Submission of a take charge or take back request — Negative reply from the requested Member State — Request for review — Time limit for replying — Consequences of expiry of that time limit (European Parliament and Council Regulation No 604/2013, Arts 21, 22, 23 and 25; Commission Regulation No 1560/2003, as amended by Regulation No 118/2014, Art. 5(2)) 1. In that regard, it must be recalled that the take charge and take back procedures must necessarily be conducted in accordance with the rules laid down, inter alia, in Chapter VI of the Dublin III Regulation, and that they must, in particular, be carried out with due regard to a series of mandatory time limits (see, to that effect, judgments of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 49 and 50, and of 25 January 2018, Hasan, C‑360/16, EU:C:2018:35, paragraph 60). Further, the EU legislature has laid down such mandatory time limits and the consequences of their expiry with respect to the reply to a take charge or take back request. Under Article 22(7) of the Dublin III Regulation, the absence of a reply on the expiry of the two-month period mentioned in Article 22(1) or of the one-month period mentioned in Article 22(6) is to be tantamount to accepting the request, and is to entail the obligation to take charge of the person concerned, including the obligation to provide for proper arrangements for his arrival. Under Article 25(2) of the Dublin III Regulation, the absence of a reply on the expiry of the one-month or two-month period mentioned in Article 25(1) is to be tantamount to accepting the request, and is to entail the obligation to take back the person concerned, including the obligation to provide for proper arrangements for his arrival. As regards the consequences prescribed by Article 22(7) and Article 25(2) of the Dublin III Regulation, if there is no reply, on the expiry of the mandatory time limits laid down in Article 22(1) and (6) and in Article 25(1) of that regulation, to a take charge or take back request, it must be emphasised that those consequences cannot be circumvented by sending a purely formal reply to the requesting Member State. There is no ambiguity in Article 22(1) and Article 25(1): the requested Member State must, in compliance with those mandatory time limits, make all the necessary checks in order to be able to give a decision on the take charge or take back request. Article 5(1) of the Implementing Regulation adds, further, that a negative reply to such a request must state full and detailed reasons for the refusal. (see paras 57, 61, 64, 66, 67) 2. Article 5(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 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, must be interpreted as meaning that, in the course of the procedure for determining the Member State that is responsible for processing an application for international protection, the Member State which receives a take charge or take back request under Articles 21 or 23 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, which, after making the necessary checks, has replied in the negative to that request within the time limits laid down in Articles 22 or 25 of Regulation No 604/2013 and which, thereafter, receives a re-examination request under Article 5(2) of Regulation (EC) No 1560/2003, must endeavour, in the spirit of sincere cooperation, to reply to the re-examination request within a period of two weeks. Where the requested Member State does not reply within that period of two weeks to the re-examination request, the additional re-examination procedure shall be definitively terminated, with the result that the requesting Member State must, as from the expiry of that period, be considered to be responsible for the examination of the application for international protection, unless it still has available to it the time needed to lodge, within the mandatory time limits laid down for that purpose in Article 21(1) and Article 23(2) of Regulation No 604/2013, a further take charge or take back request. It is apparent from the provisions cited in paragraphs 58 to 68 of the present judgment that the EU legislature thereby provided, as a framework for the take charge and take back procedures, a set of mandatory time limits which make a decisive contribution to achieving the objective of rapidly processing applications for international protection, as referred to in recital 5 of the Dublin III Regulation, by ensuring that those procedures will be implemented without undue delay (see, to that effect, judgments of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 53 and 54; of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 31, and of 25 January 2018, Hasan, C‑360/16, EU:C:2018:35, paragraph 62). That objective, which also underpins Article 5(2) of the Implementing Regulation, is reflected, according to the very wording of that provision, by strict time frames, through the establishment of a period of three weeks that is granted to the requesting Member State if it is to send a re-examination request to the requested Member State and a period of two weeks for any reply by the latter to that request. Article 5(2) of the Implementing Regulation must accordingly be interpreted in such a way that the length of the additional re-examination procedure, which is an optional procedure, is strictly and foreseeably circumscribed, both in the interests of legal certainty for all the parties concerned and to ensure its compatibility with the detailed time frames established by the Dublin III Regulation and not to adversely affect the objective, pursued by that regulation, of rapid processing of applications for international protection. If a re-examination procedure were to be of indefinite duration, with the consequence that the issue of which Member State is responsible for examining an application for international protection were left unresolved, and that the examination of such an application were significantly, and potentially indefinitely, delayed, that outcome would be incompatible with the objective of rapid processing. The aim of that provision is to encourage the requested Member State to engage in sincere cooperation with the requesting Member State by re-examining, within the time limit laid down by that provision, the latter Member State’s request to take charge of or take back the person concerned, but it is not the purpose of that provision to create a legal obligation to reply to a re-examination request, failure to comply with which will mean that responsibility for the examination of application for international protection is transferred. It follows therefore from Article 5(2) of the Implementing Regulation that, provided that the requested Member State has, after carrying out the necessary checks, given a negative reply to a take charge or take back request within the time limits prescribed for that purpose by the Dublin III Regulation, the additional re-examination procedure cannot trigger the effects laid down in Article 22(7) and Article 25(2) of that regulation. It must be stated, fourth, that the time limit for reply laid down, respectively, in Article 22(1) and (6) of the Dublin III Regulation or in Article 25(1) of that regulation has no effect on the calculation of the time limits laid down for the additional re-examination procedure. If Article 5(2) of the Implementing Regulation were to be interpreted as meaning that that procedure can be conducted only within the limits set out by those provisions of the Dublin III Regulation, so that that procedure would be possible only where the requested Member State had not exhausted the period laid down for its reply to the take charge or take back request, that would, in practice, significantly impede the application of that procedure and cannot, therefore, be regarded as conducive to the implementation of the Dublin III Regulation. (see paras 69, 74, 75, 77, 80, 88, 90, operative part)