Opinion of the Advocate General — ECLI:EU:C:2017:108
Date: 2017-02-09
Language of the case: Slovenian
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Slovenia

Summary — Judgment of the Court (Fifth Chamber), 16 February 2017 1. Questions referred for a preliminary ruling — Urgent preliminary ruling procedure — Conditions — Asylum seekers who may be subject to a transfer to the Member State responsible for examining their application — Transfer adversely affecting the state of health of one of the asylum seekers (Statute of the Court of Justice, Art. 23a; Rules of Procedure of the Court of Justice, Art. 107) 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 — Member States’ discretion — Option to examine an application for international protection which is the responsibility of another Member State — Decision implementing EU law and involving its interpretation (Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 51(1); European Parliament and Council Regulation No 604/2013, Art. 17(1)) 3. Fundamental rights — Prohibition of torture and inhuman or degrading treatment or punishment — Scope — 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 — No systemic flaws in the asylum procedure and in the reception conditions for applicants in a Member State — Transfer of a seriously ill asylum seeker to that State — Scope of the obligations imposed on the Member State having to carry out the transfer — No obligation, if the transfer is impossible, to itself examine the asylum application (Charter of Fundamental Rights of the European Union, Art. 4; European Parliament and Council Regulation No 604/2013, Art. 17(1)) 1. See the text of the decision. (see paras 47-51) 2. Article 17(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 must be interpreted as meaning that the question of the application, by a Member State, of the ‘discretionary clause’ laid down in that provision is not governed solely by national law and by the interpretation given to it by the constitutional court of that Member State, but is a question concerning the interpretation of EU law, within the meaning of Article 267 TFEU. (see para. 54, operative part 1) 3. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that: – even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible for examining the application for asylum, the transfer of an asylum seeker within the framework of Regulation No 604/2013 can take place only in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that article; – in circumstances in which the transfer of an applicant for asylum with particularly serious mental or physical illness would entail a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman or degrading treatment within the meaning of that article; – it is for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions for the transfer to take place in conditions enabling appropriate and sufficient protection of that person's state of health. If, taking into account the particular severity of the illness of the applicant for asylum concerned, taking those precautions is not sufficient to ensure that his transfer does not entail a risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member States concerned to suspend the enforcement of the transfer of the person concerned for such time as his state renders him unfit for such a transfer, and – where necessary, if it is noted that the state of health of the asylum seeker concerned is not expected to improve in the short term, or that the suspension of the procedure for a long period would risk worsening the condition of the person concerned, the requesting Member State may choose to conduct its own examination of that person’s application by making use of the ‘discretionary clause’ laid down in Article 17(1) of Regulation No 604/2013. Article 17(1) of Regulation No 604/2013, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, cannot be interpreted as requiring, in circumstances such as those at issue in the main proceedings, that Member State to apply that clause. In any event, if the state of health of the applicant for asylum concerned does not enable the requesting Member State to carry out the transfer before the expiry of the period of six months provided for in Article 29(1) of the Dublin III Regulation, the Member State responsible would 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 the second paragraph of that article. (see paras 89, 96, 97, operative part 2)