Opinion of the Advocate General — ECLI:EU:C:2016:146
Date: 2016-03-08
Language of the case: Hungarian
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Hungary

Summary — Judgment of the Court (Fourth Chamber), 17 March 2016 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 — National legislation laying down a right for the Member State responsible to send an applicant for international protection to a safe third country — Exercise of that right after the recognition of its responsibility and after the applicant is taken back — Whether permissible (Regulation No 604/2013, Art. 3(3)) 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 — National legislation laying down a right for the Member State responsible to send an applicant for international protection to a safe third country — Exercise of that right, upon take back of the applicant, in the absence of communication by the Member State responsible of the existence of such legislation to the Member State of the transfer — Whether permissible (Regulation No 604/2013, Arts 3(3) and 27; Directive 2013/32, Arts 38, 39 and 46) 3. 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 — Obligations of the Member State responsible for examining the application in the event that the applicant for international protection is taken back — No obligation to restart the procedure for examining the application at the stage of its interruption (Regulation No 604/2013, Art. 18(2), second para.) 1. Article 3(3) of Regulation No 604/2013 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 (Dublin III) must be interpreted as meaning that the right to send an applicant for international protection to a safe third country may also be exercised by a Member State after that Member State has accepted that it is responsible, pursuant to that regulation and within the context of the take-back procedure, for examining an application for international protection submitted by an applicant who left that Member State before a decision on the substance of his first application for international protection had been taken. Preventing a Member State from exercising the right laid down in Article 3(3) of the Dublin III Regulation would have the consequence that an applicant who fled, without waiting for a final decision on his application, to a Member State other than that in which he had submitted that application would, in the event of his being taken back by the Member State responsible, be in a more favourable position than an applicant who waited until the end of the examination of his application in the Member State responsible. Such an interpretation would risk encouraging nationals of third countries and stateless persons who submitted an application for international protection in a Member State to travel to other Member States, thereby causing secondary movements which the Dublin III Regulation precisely seeks to prevent by establishing uniform mechanisms and criteria for determining the Member State responsible. (see paras 51-53, operative part 1) 2. Article 3(3) of Regulation No 604/2013 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 (Dublin III) must be interpreted as not precluding the sending of an applicant for international protection to a safe third country when the Member State carrying out the transfer of that applicant to the Member State responsible has not been informed, during the take-back procedure, either of the rules of the latter Member State relating to the sending of applicants to safe third countries or of the relevant practice of its competent authorities. The fact that the Member State responsible does not communicate to the Member State carrying out the transfer information concerning its legislation relating to safe third countries and its relevant administrative practice does not impair the applicant’s right to an effective remedy against the transfer decision and against the decision on the application for international protection. As regards the transfer decision, it is apparent from Article 27 of the Dublin III Regulation that the applicant has 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. So far as concerns the decision relating to the application for international protection, the applicant has, in the Member State responsible, the right to an effective remedy, pursuant to Article 46 of Directive 2013/32 on common procedures for granting and withdrawing international protection, before a court or tribunal of that Member State enabling him to contest the decision based on the rules of national law relating to safe third countries on the basis, depending on his individual situation, of Article 38 or Article 39 of that directive. (see paras 59, 60, 62, 63, operative part 2) 3. Article 18(2) of Regulation No 604/2013 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 (Dublin III) must be interpreted as not requiring that, in the event that an applicant for international protection is taken back, the procedure for examining that applicant’s application be resumed at the stage at which it was discontinued. In so far as it requires the applicant to be entitled to request that a final decision on his application for international protection be taken, whether it be in connection with the procedure which was discontinued or in connection with a new procedure which is not to be treated as a subsequent application, the second subparagraph of Article 18(2) of the Dublin III Regulation seeks to guarantee for the applicant an examination of his application which satisfies the requirements laid down by Directive 2013/32 on common procedures for granting and withdrawing international protection for first-time applications at first instance. However, that provision does not seek either to prescribe the manner in which the procedure must be resumed in such a situation or to deprive the Member State responsible of the possibility of declaring the application inadmissible. (see paras 66, 68, operative part 3)