Opinion of the Advocate General — ECLI:EU:C:2023:316
Date: 2023-04-20
Language of the case: Italian
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C­228/21 – 1 
Case C­228/21 
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: 
8 April 2021 
Referring court: 
Corte suprema di cassazione (Supreme Court of Cassation, Italy) 
Date of the decision to refer: 
29 March 2021 
Appellant: 
Ministero dell’Interno, Dipartimento per le Libertà civili e 
l’Immigrazione – Unità Dublino 
Respondent: 
CZA 
  
Subject matter of the main proceedings 
Appeal brought by the Ministero dell’Interno (Ministry of the Interior) against the 
order of the Tribunale di Catanzaro (District Court, Catanzaro, Italy) by which 
that court annulled the decision to transfer Mr CZA to Slovenia because of a 
breach of the duty to provide information laid down in Article 4 of Regulation 
(EU) No 604/2013. 
Subject matter and legal basis of the reference 
The reference for a preliminary ruling, made under Article 267 TFEU, concerns 
the interpretation 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, and, in particular, the obligation to provide 
information laid down in Article 4 of that regulation. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­228/21 
 
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Questions referred for a preliminary ruling 
1. Should Article 4 of [Regulation (EU) No 604/2013] be interpreted as meaning 
that an action may be brought under Article 27 of [that regulation] against a 
transfer decision adopted by a Member State, using the mechanism provided for in 
Article 26 of [that regulation] and on the basis of the obligation to take back laid 
down in Article 18(1)(b) thereof, solely because of a failure to deliver the 
information leaflet required under Article 4(2) of [that] regulation by the Member 
State which adopted the transfer decision? 
2. Should Article 27 of [that regulation], read in conjunction with recitals 18 and 
19 and Article 4 thereof, be interpreted as meaning that, where it has been 
determined that there has been a failure to fulfil the obligations laid down in 
Article 4 [of that regulation], an effective remedy requires that the court adopt a 
decision annulling the transfer decision? 
3. If the answer to Question 2 above is in the negative, should Article 27 of [that 
regulation], read in conjunction with recitals 18 and 19 and Article 4 thereof, be 
interpreted as meaning that, where it has been determined that there has been a 
failure to fulfil the obligations laid down in Article 4 [of that regulation], an 
effective remedy requires that the court verify the significance of that failure to 
fulfil obligations in the light of the circumstances alleged by the applicant and 
permits confirmation of the transfer decision in all cases where there are no 
grounds for adopting a transfer decision with different content? 
Provisions of EU law relied on 
Regulation (EU) No 604/2013, recitals 18 and 19, Articles 4, 18 and 27 
Article 47 of the Charter of Fundamental Rights of the European Union 
Provisions of national law relied on 
Article 3 of decreto legislativo 28 gennaio 2008, n. 25/2008 (Legislative Decree 
No 25 of 28 January 2008) implementing Directive 2005/85/EC, repealed and 
replaced by Directive 2013/32/EU on common procedures for granting and 
withdrawing international protection. 
That article, in the version updated following the amendments made by decreto 
legislativo 18 agosto 2015, n. 142 (Legislative Decree No 142 of 18 August 2015) 
and decreto-legge 17 febbraio 2017, n. 13 (Decree-Law No 13 of 17 February 
2017), converted with amendments into legge 13 aprile 2017, n. 46 (Law No 46 of 
13 April 2017), provides: 
‘… 
MINISTERO DELL’INTERNO 
 
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3. The authority responsible for determining the Member State responsible for 
examining an application for international protection pursuant to Regulation (EU) 
No 604/2013 of the European Parliament and of the Council of 26 June 2013 is 
the Unità Dublino (Dublin Unit), operating within the Dipartimento per le libertà 
civili e l’immigrazione (Department of Civil Liberties and Immigration). 
3-bis. Actions against transfer decisions adopted by the authority indicated in 
paragraph 3 may be brought before the court that is the seat of the specialist 
chamber on immigration, international protection and free movement of EU 
citizens … 
3-ter. To be admissible, actions must be brought within 30 days of notification of 
the transfer decision. 
3-quater. Enforcement of the decision being contested may be suspended, at the 
request of one of the parties, where there are serious, proven reasons to do so, by 
means of a reasoned order based on summary information, where applicable. Such 
orders shall be issued within five days of submission of the request for suspension, 
without prior reference to the authority indicated in paragraph 3. To be admissible, 
the request for suspension must be lodged with the application initiating 
proceedings. The decision ordering or refusing to order the suspension of the 
decision being contested shall be notified by the court registry. The parties may 
file pleadings within five days of notification. Pleadings in response may be filed 
within five days of the expiry of the deadline indicated in the previous sentence. 
Where pleadings have been filed in accordance with the fifth and sixth sentences 
of this paragraph, the court shall issue a new order within the following five days 
confirming, amending or cancelling the measures already issued. An order issued 
under this paragraph shall not be subject to appeal. 
3-quinquies. The authority that adopted the decision shall be notified of the 
action … 
3-septies. … The procedure shall be resolved by means of an order (not subject to 
appeal) issued within 60 days of the bringing of the action. The deadline for 
lodging an appeal in cassation shall be 30 days from notification of the order … 
3-octies. Where the action described in the preceding paragraphs is accompanied 
by a request for suspension of the effects of the transfer decision, the transfer shall 
be suspended automatically and the time limit for the transfer of the applicant laid 
down in Article 29 of Regulation (EU) No 604/2013 of the European Parliament 
and of the Council of 26 June 2013 shall run from notification of the decision 
rejecting that request for suspension or, if the request is accepted, from 
notification of the order dismissing the action’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­228/21 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 Mr CZA lodged an application for international protection in Italy. The Dublin 
Unit, the competent Italian authority under Article 35 of Regulation (EU) 
No 604/2013 (‘the Regulation’ or ‘the Dublin III Regulation’), took the decision 
to transfer Mr CZA to Slovenia, the country in which he had previously lodged an 
application for international protection. Following checks, Italy sent Slovenia a 
take back request, in accordance with Article 18(1)(b) of the Regulation, which 
was accepted on 16 April 2018. 
2 The transfer decision was contested before the Tribunale di Catanzaro [(‘the 
Tribunale’)] by an action based on a failure to fulfil the obligation to provide 
information laid down in Article 4 of the Regulation. 
3 The Tribunale held that the administrative authority had not demonstrated that it 
had delivered the information leaflet required under Article 4 [of that regulation], 
and did not consider the production of the minutes of the personal interview – 
drafted in accordance with Article 5 of the Regulation – and the delivery of 
another information leaflet at the time of the formal application for international 
protection in Italy to be sufficient. 
4 The Tribunale therefore held that the breach of the duty to provide information 
laid down in Article 4 of the Regulation meant that the transfer decision was 
invalid. 
5 The Ministry of the Interior (which includes the Dublin Unit, the unit responsible 
for transfer decisions) brought an appeal against that decision before the Corte 
[suprema] di cassazione [(‘the Corte di cassazione)’]. Mr CZA is asking the Corte 
di cassazione to dismiss the appeal lodged by the Ministry of the Interior. 
Essential arguments of the parties in the main proceedings 
6 The Ministry of the Interior submits that the Tribunale erred in applying Article 4 
of the Regulation because, in this specific case, even if the information leaflet had 
not been delivered, the administrative authority, correctly applying the criteria laid 
down in the Regulation, could not have made a different decision. 
Succinct presentation of the reasons for the reference 
7 The Corte di cassazione (the referring court) notes, first of all, that in the case at 
issue in the main proceedings, the administrative authority actually conducted the 
interview required by Article 5 of the Regulation. The issue before the referring 
court is therefore only the significance of the failure to deliver the information 
leaflet required under Article 4 of the Regulation to Mr CZA as part of the take 
back procedure governed by Article 18(1)(b) of that regulation. 
MINISTERO DELL’INTERNO 
 
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8 There are two different interpretative approaches to Article 4 of the Regulation in 
Italian case-law, differing in particular in terms of the significance and 
consequences of infringement of that article. 
9 According to one interpretation, the provision is essential and must be applied, 
without exception, in all cases where a procedure has been initiated to determine 
the Member State responsible for examining an application for international 
protection in accordance with the Dublin III Regulation. Infringement of that 
provision means that the transfer decision is irretrievably unlawful and, if 
contested by the party concerned on the ground of a failure by the State to fulfil its 
obligations to provide information, must be annulled on that basis. According to 
this interpretation, for the purpose of determining whether the transfer decision is 
invalid, it does not matter that the asylum seeker fails to allege or demonstrate a 
specific injury to his or her rights of action and defence. 
10 According to a second interpretation, infringement of Article 4 of the Regulation 
cannot be relied on to contest a take back transfer decision under Article 18 of the 
Regulation, because the asylum seeker may only claim systemic flaws in the 
asylum procedure and in the reception conditions for applicants in the Member 
State designated in the light of the second subparagraph of Article 3(2) of the 
Regulation. In any case, on the basis of this second interpretation, the court may 
not annul the transfer decision following a take back request already accepted by a 
Member State for purely formal breaches, such as a failure to deliver the 
information leaflet required under Article 4 [of the Regulation]. 
11 The Corte di cassazione is uncertain as to whether such approaches are in line 
with the Dublin III Regulation, in the light of factors including paragraphs 93 and 
95 of the judgment of the Court of Justice of 26 July 2017, Mengesteab, 
C-670/2016. 
12 Indeed, considering the effectiveness of the remedy, but also the specific role that 
the Dublin III Regulation assigns to the first Member State in which an 
application for international protection is lodged, the Corte di cassazione asks 
whether, in the circumstances of the main proceedings, and specifically in the case 
of an action brought against a transfer decision under Article 26 and 
Article 18(1)(b) [thereof], Article 4 of the Regulation should be interpreted as 
meaning that a failure to fulfil the obligation to provide information laid down in 
that article may be relied on only on condition that the asylum seeker indicates 
what information he or she would have provided to the administrative authority to 
enable it to apply correctly the responsibility criteria laid down in the Regulation 
and also indicates how that information would have been decisive for the adoption 
of a transfer decision with different content or would have led the administrative 
authority to choose not to adopt the decision. 
13 The Corte di cassazione is uncertain, in particular, as to whether the first 
approach, which considers merely complaining of a formal breach of the 
procedure sufficient for a transfer decision under Article 18(1)(b) [of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­228/21 
 
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Regulation] to be annulled, is in line with the Regulation. Indeed, the [referring] 
court feels that this would make it possible to contest, indirectly, the responsibility 
of the Member State in which the application for protection was first lodged, for 
reasons other than the correct application of the criteria laid down in the 
Regulation itself. 
14 The referring court also notes that the Regulation does not offer any indication of 
the consequences that infringement of Article 4 [of that regulation] produces on 
the transfer decision, and that Article 27 of the Regulation gives no indication of 
what is meant by an effective remedy in this case. 
15 In particular, the Corte di cassazione doubts that the first approach described 
above, whereby proven infringement of Article 4 of the Regulation requires the 
court in all cases to annul the administrative transfer decision, is in line with the 
aim of the Regulation. The Regulation is intended to enable a swift and correct 
identification of the Member State responsible, while respecting the fundamental 
rights of the asylum seeker, and at the same time to discourage secondary 
movements, namely movements of migrants from the Member State of arrival to 
another Member State. 
16 This solution does not permit a timely identification of the Member State 
responsible and exposes the State issuing the transfer decision to the risk of 
exceeding the maximum time limits for enforcing the transfer decision. 
Conversely, an interpretation whereby the asylum seeker must allege the relevant 
circumstances leading to a different decision ensures that the remedy provided by 
the Regulation is effective and at the same time allows the procedures identified 
by the Regulation for determining the Member State responsible for examining an 
application for international protection to operate in a timely and effective 
manner.