Opinion of the Advocate General — ECLI:EU:C:2017:1018
Date: 2017-12-20
Language of the case: French
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (Second Chamber), 31 May 2018 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 –Adoption and notification of the transfer decision before the acceptance of the take back request by the requested Member State — Not permissible (European Parliament and Council Regulation No 604/2013, Art. 26(1)) Article 26(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 precluding a Member State that has submitted, to another Member State which it considers to be responsible for the examination of an application for international protection pursuant to the criteria laid down by that regulation, a request to take charge of or take back a person referred to in Article 18(1) of that regulation from adopting a transfer decision and notifying it to that person before the requested Member State has given its explicit or implicit agreement to that request. In that regard, if it were to be accepted that a transfer decision may be notified to the person concerned before the requested Member State has replied to the request to take charge or take back, that could result in that person being required, in order to challenge that decision, to lodge an appeal within a period ending at the time when the requested Member State is supposed to provide its reply or even, as in the main proceedings, before that reply has been given since, in accordance with Article 27(2) of the Dublin III Regulation, it is for the Member States to determine the period within which the person concerned may exercise his right to an effective remedy, the only obligation imposed by that provision being that that period is reasonable. In those circumstances, the person concerned is, where appropriate, required, preventatively, before the requested Member State has even responded to the request to take charge or take back the person concerned, to lodge, on the basis of Article 27(1) of the Dublin III Regulation, an appeal against the transfer decision or an application to review that decision. Moreover, the Court has previously held that, as a matter of principle, such an appeal or application for review can take effect only in a situation where the requested Member State has accepted that request (see, by analogy, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 60). Moreover, as regards the fact, referred to in paragraph 33 of the present judgment, that, in a situation such as that in the main proceedings, the enforcement of a transfer decision is suspended until the reply from the requested Member State, suffice it to note that no provision of the Dublin III Regulation provides for such suspension. Thus, to permit the notification of such a decision, within the meaning of Article 26(1) of the Dublin III Regulation, to take place before the reply from the requested Member State would, in legal systems which, in contrast to that at issue in the main proceedings, do not provide for suspension of such a decision before that reply, expose the person concerned to the risk of a transfer to that Member State even before that State had given its consent in principle. Moreover, in so far as the Dublin III Regulation has the objective, as recalled in paragraph 56 of this judgment, of establishing a clear and workable method for determining the Member State responsible for examining an asylum application, it cannot be accepted that the interpretation of Article 26(1) of that regulation, by which the legislature has sought to strengthen the protection of the rights of the person concerned, may vary depending on the legislation of the Member States involved in the procedure for determining the Member State responsible. Following the same logic, the fact that French law does not allow the person concerned to be placed in administrative detention before he is notified of the transfer decision, a difficulty which, as confirmed by the referring court, stems solely from the national law, cannot call into question the interpretation of Article 26(1) of the Dublin III Regulation given in paragraph 46 of the present judgment. Besides, it is clear from Article 28(2) and (3) of that regulation that the Member States are authorised to detain persons concerned even before the request to take charge or take back is submitted to the requested Member State, when the conditions laid down by that article are met, the notification of the transfer decision not being a prerequisite for such a placement (see, to that effect, judgments of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 25, and of 13 September 2017, Khir Amayry, C‑60/16, EU:C:2017:675, paragraphs 25 to 27, 30 and 31). (see paras 59, 60, 64-67, 74, 75, operative part)