Order;Summary — ECLI:EU:C:2021:257
Date: 2021-03-26
Language of the case: French
Court formation: Fifth Chamber
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

Translation C-134/21 – 1 
Case C-134/21  
Request for a preliminary ruling 
Date lodged: 
4 March 2021 
Referring court: 
Tribunal du travail de Liège (Belgique) (Liège Labour Court, 
Belgium) 
Date of the decision to refer: 
22 February 2021 
Applicant: 
EV 
Defendant: 
Agence fédérale pour l’Accueil des demandeurs d’asile (FEDASIL) 
  
[…] 
[…] 
[…] 
[…] 
[…] 
[…] 
[…] [Or. 2]  
Tribunal du Travail de Liège – Division Liège (Liège Labour Court – Liège 
Division) 
Judgment of the Sixth Chamber, 22 February 2021 
In the proceedings: 
Mr EV, of Georgian nationality, 
[…] applicant,  
[…] 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 2. 2021 – CASE C-134/21  
 
2  
AGENCE FÉDÉRALE POUR L’ACCUEIL DES DEMANDEURS 
D’ASILE (Federal agency for the reception of asylum seekers) 
(FEDASIL) […] 
defendant,  
[…] 
[…] [procedure] [Or. 3]  
I. SUBJECT MATTER OF THE ACTION 
By application of 14 January 2021, EV requests: 
– annulment of the decision of FEDASIL of 11 January 2021 whereby the 
reception centre at Mouscron (‘return place’) is designated as his 
compulsory place of registration, and 
– that he continue to be accommodated at the Red Cross Centre in Rocourt, 
where he is currently receiving material assistance. 
II. ANALYSIS 
A. The facts 
EV, who is of Georgian origin, applied for asylum in Belgium on 16 September 
2020. 
The Belgian authorities sent requests to take charge to the German, French and 
Netherlands authorities, on the basis of Article 18(1)(b) 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 (OJ 2013 
L 182 p. 31), which was accepted by the Netherlands authorities on 9 October 
2020. 
On 21 December 2020, EV received notice of an Annex 26quater, which is a 
decision refusing leave to remain and ordering him to leave the territory (an 
‘Annex 26quater’), as the Netherlands was designated as competent to process his 
application for asylum. 
An action for annulment was brought before the [Conseil du contentieux des 
étrangers (Council for asylum and immigration proceedings; ‘CCE’)] on 
14 January 2021. Those proceedings are still pending. 
FEDASIL 
 
3 
On 11 January 2021, FEDASIL issued the contested decision, designating as the 
compulsory place of registration a ‘Dublin place’ in the Mouscron reception 
centre. EV was to report there within five working days. 
By order of 15 January 2021, the referring court ordered FEDASIL to continue to 
accommodate EV at his existing reception centre, namely the Red Cross Centre in 
Rocourt, and to provide him with material assistance as defined in Article 2(6) of 
the [loi du 12 janvier 2007 relative à l’accueil des demandeurs d’asile et de 
certaines autres catégories d’étrangers (Law of 12 January 2007 on the reception 
of asylum seekers and other categories of foreign nationals; ‘the Law on 
reception’)]. 
[…] [The referring court confirmed that decision on] 4 February 2021. 
B. The positions of the parties 
EV claims that FEDASIL’s decision does not provide a statement of reasons in 
accordance with Article 4 of the Law on reception. He maintains that the reasons 
stated do not take account of his vulnerability. The reasoning is incomplete in that 
there is no explanation of what a ‘Dublin place’ is. Moreover, contrary to what is 
asserted, he will not be able to blithely await the outcome of his action, knowing 
that he may be forced to leave the country. In the alternative, questions should be 
referred to the [Court of Justice of the European Union] concerning the quality of 
an effective/suspensive action. Last, he maintains that the health crisis precludes 
his being transferred. [Or. 4]  
FEDASIL contends that its decision is fair and well founded. It also contains a 
correct statement of reasons. It sets out the facts and the law. EV’s transfer has no 
impact on his right to an effective remedy. The material and legal conditions in 
the Mouscron centre are similar to those provided for in the Rocourt centre. Next, 
Belgian law is consistent with European law as regards respect for the right to an 
effective remedy. 
C. The position of the referring court  
1. The principles 
– (a) The right to an effective remedy under the European provisions 
Article 27 of the Dublin III Regulation 1 guarantees that an asylum seeker will 
have an effective remedy against a decision to transfer him or her to another 
Member State in order to have his or her application for international protection 
processed: 
 
1 […] [repetition]  
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‘1. The applicant or another person as referred to in Article 18(1)(c) or (d) shall 
have 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. 
2. Member States shall provide for a reasonable period of time within which 
the person concerned may exercise his or her right to an effective remedy 
pursuant to paragraph 1. 
3. For the purposes of appeals against, or reviews of, transfer decisions, 
Member States shall provide in their national law that: 
(a) the appeal or review confers upon the person concerned the right to 
remain in the Member State concerned pending the outcome of the appeal or 
review; or 
(b) the transfer is automatically suspended and such suspension lapses 
after a certain reasonable period of time, during which a court or a tribunal, 
after a close and rigorous scrutiny, shall have taken a decision whether to 
grant suspensive effect to an appeal or review; or 
(c) the person concerned has the opportunity to request within a 
reasonable period of time a court or tribunal to suspend the implementation 
of the transfer decision pending the outcome of his or her appeal or review. 
Member States shall ensure that an effective remedy is in place by 
suspending the transfer until the decision on the first suspension request is 
taken. Any decision on whether to suspend the implementation of the 
transfer decision shall be taken within a reasonable period of time, while 
permitting a close and rigorous scrutiny of the suspension request. A 
decision not to suspend the implementation of the transfer decision shall 
state the reasons on which it is based. 
4. Member States may provide that the competent authorities may decide, 
acting ex officio, to suspend the implementation of the transfer decision 
pending the outcome of the appeal or review. …’. [Or. 5]  
That right to an effective remedy therefore includes the right to a suspensive 
appeal or at least the right to request that a court or tribunal give a reasoned 
decision on the request for suspension. 
That provision is directly applicable in Belgian law. 
Article 47 of the Charter of Fundamental Rights of the European Union also 
establishes the right to an effective remedy: 
‘Everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance with 
the conditions laid down in this Article. 
FEDASIL 
 
5 
Everyone is entitled to a fair and public hearing within a reasonable time by an 
independent and impartial tribunal previously established by law. Everyone shall 
have the possibility of being advised, defended and represented. 
Legal aid shall be made available to those who lack sufficient resources in so far 
as such aid is necessary to ensure effective access to justice.’ 
Article 13 of the European Convention for the Protection on Human Rights and 
Fundamental Freedoms also provides that: 
‘Everyone whose rights and freedoms as set forth in this Convention are violated 
shall have an effective remedy before a national authority notwithstanding that the 
violation has been committed by persons acting in an official capacity.’ 
In a judgment delivered on 21 October 2014, 2 the European Court of Human 
Rights states that the analysis of the right to an effective remedy does not depend 
solely on the legal arsenal made available to the asylum seeker, but also on the 
possibilities which he or she has in practice of exercising such a remedy. 
In that judgment, the [European] Court [of Human Rights] states that:  
‘… 
167. The effectiveness of the remedy intended by Article 13 extends to a 
sufficient degree of accessibility and reality of that remedy: “in order to be 
effective, the remedy required by Article 13 must be available in practice as well 
as in law, in particular in the sense that its exercise must not be unjustifiably 
hindered by the acts or omissions of the authorities of the respondent State” 
(I.M. v. France, cited above, § 130, and the authorities cited there). On the subject 
of the remedies available for asylum seekers in Greece, the Court has also 
reasserted that the accessibility of a remedy “in practice” is decisive when 
assessing its effectiveness (M.S.S v. Belgium and Greece, cited above, § 318). 
168. As the purpose of the Convention is to protect rights that are not theoretical 
and illusory, but real and effective, for every person coming within the jurisdiction 
of the High Contracting Parties, the Court cannot assess the practical accessibility 
of a remedy without having regard to the linguistic obstacles, the possibility of 
having access to the necessary information and to informed advice, the 
material conditions which the person concerned may encounter and any 
other specific circumstance of the case (I.M. v. France, [Or. 6] cited above, §§ 
145-148; M.S.S. v. Belgium and Greece, cited above, §§ 301-308; and Rahimi v. 
Greece, No. 8687/08, § 79, 5 April 2011)’. 
 
2 [ECtHR, 21 October 2014, Sharifi and others v. Italy and Greece, 
CE:ECHR:2014:1021JUD001664309)].  
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–  (b) Remedies provided for in Belgian law 
In Belgian law, the lodging of an appeal against [Annex 26quater] does not have 
the effect of suspending the enforcement of that decision (see Article[s] 39/2 and 
39/79 of the loi du 15 décembre 1981 sur l’accès au territoire, le séjour, 
l’établissement et l’éloignement des étrangers (Law of 15 December 1981 on 
access to the territory, residence, establishment and removal of foreign 
nationals)).. 
Only in the context of an extremely urgent administrative application may the 
asylum seeker request suspension of the decision refusing leave to remain and the 
order to leave the territory. 
However[,] that extremely urgent application is possible only where the asylum 
seeker is subject to a removal or refoulement the enforcement of which is 
imminent (see Article 39/82 of the Law of 15 December 1980). 
– (c) The right to reception of asylum seekers 
Under Article 3 of the […] Law on reception: 
‘Every asylum seeker shall be entitled to a reception that must permit him [or her] 
to lead a life in accordance with human dignity. 
Reception shall mean material assistance granted in accordance with this Law or 
social assistance granted by the public centres for social action in accordance with 
the Institutional Law of 8 July 1976 on public centres for social action.’ 
Under Article 2(6) of that law, material assistance is ‘assistance granted by the 
Agency or the partner, within a reception centre, consisting in particular of 
accommodation, meals, clothing, medical, social and psychological support and 
the grant of a daily allowance. It shall also include access to legal aid, access to 
services such as interpretation and training and also access to a voluntary return 
programme’. 
In application of the judgment in Cimade […], 3 the asylum seeker must continue 
to receive that material assistance until his or her actual transfer to the State 
responsible for processing the application for international protection. 
That material assistance is, in particular, [granted by means] of the designation to 
the asylum seeker by FEDASIL of a compulsory reception centre (see Article 1(1) 
of the Law on reception). 
Article 12(2) of that law states that: 
 
3 [Judgment of 27 September 2012, Cimade and GISTI (C-179/11, EU:C:2012:594)]. 
FEDASIL 
 
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‘2. Pursuant to Article 11(3)(3), the Agency may on its own initiative or at the 
request of the partner or the asylum seeker alter the compulsory place of 
registration designated in application of Article 11(1).’ [Or. 7] 
Article 11(3) provides that: ‘When designating a compulsory place of registration, 
the Agency shall ensure that that place is appropriate for the beneficiary of the 
reception, within the limits of the places available’. 
4. Application to the facts 
– (a) The extent of the court’s jurisdiction 
The court recalls that its jurisdiction is limited to adjudicating on the grant by 
FEDASIL of the material assistance due to the asylum seeker under Article 2(6) 
of the Law on reception. 
[…] [a description of the respective jurisdictions of the referring court and the 
CCE] 
The question of the existence of an effective remedy against the ‘Annex 26quater’ 
decision of the Office des étrangers (Immigration Office) can also be examined by 
the court only from the perspective of material assistance. 
It is therefore solely a matter of ascertaining whether the material assistance 
granted to EV in the Mouscron centre will provide him with the same material and 
legal conditions as his reception in a different centre, in such a way as to allow 
him to exercise, under the same conditions, his right to an effective remedy. 
In order to attempt to answer that question, the court considers that it must first 
answer […] [two questions.] 
[…] 
(b) Is the transfer to a Dublin place the beginning of the implementation of the 
order to leave the territory? 
As indicated above, in Belgian law the lodging of an appeal against […] [the 
Annex 26quater] does not have the effect of suspending the implementation of 
that decision. 
It is for that reason that, where an asylum seeker is notified of an order to leave 
the country with a view to a ‘Dublin transfer’, FEDASIL takes a decision to 
modify the compulsory place of reception and orders the transfer of the asylum 
seeker to a ‘Dublin place’. [Or. 8]  
The material assistance provided for in Article 2(6) of the Law on reception is 
then compulsorily provided in that centre. 
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The decision taken by FEDASIL with respect to EV in that context states: 
‘… You must return to the Member State designated as responsible for processing 
your application for international protection. 
In application of Article 12(2), and to allow you to benefit from the 
accommodation most appropriate to your procedural status, the following 
reception facility is designated as the compulsory place of registration: 
‘Dublin place-Mouscron Reception Facility’ (emphasis added by the referring 
court) 
The decision states that material assistance will be granted until EV is actually 
transferred to the responsible Member State. 
FEDASIL maintains that the sole purpose of the transfer to a ‘Dublin place’ is to 
provide the asylum seeker with support appropriate to his specific situation and 
that the staff in those centres are specially trained to explain to residents the 
consequences of the decision taken by the Immigration Office.  
FEDASIL claims that no psychological pressure is applied to residents to 
encourage them to leave the territory, and that the transfer to a ‘Dublin place’ is 
not the beginning of the implementation of the order to leave the territory. 
The document of 13 July 2018 entitled ‘Info Place Dublin’, produced by 
FEDASIL in other identical cases, mentions, however, the purpose of the 
‘support’ put in place in a ‘Dublin place’ reception centre. 
It states that: 
– assignation to a ‘Dublin place’ is a stage in the reception path of 
beneficiaries for whom a ‘Dublin system return’ has been requested and 
granted; 
– in the ‘Dublin place’, the beneficiary receives support consistent with his 
administrative situation and is permitted to prepare for his departure to the 
Member State designated as responsible; 
– the approach in the ‘Dublin place’ aims to communicate clearly the 
consequences of the notification of the Annex 26quater, to answer any questions 
which the resident may have in that respect and to prepare him or her as far as 
possible for the next stages in the procedure. The emphasis is mainly on the 
preparation for and organisation of the journey (emphasis added by the referring 
court). 
It is also stated in that document that there are three interviews, which must relate 
to different points (checklist of the three interviews): 
– the first relates to information, 
FEDASIL 
 
9 
– the second relates to the decision, and in that connection it is stated that the 
asylum seeker is requested to complete and sign the ‘declaration relating to 
the organisation of the journey’ document; he or she is reminded that the 
appeal to the Conseil du contentieux des étrangers (Council for asylum and 
immigration proceedings) does not have suspensive effect by operation of 
law and that the failure to cooperate in the Dublin transfer [Or. 9] carries 
the risk of removal and transfer, which may be ‘enforced’ by the  
Immigration Office, 
– the third relates to actual departure (again, emphasis added by the referring 
court). 
Furthermore, the document states that: 
‘In view of the central role of the Immigration Office in the Dublin process, a 
liaison officer from that authority is present in the reception centre. 
That allows FEDASIL staff to contact it at any time for more detailed information 
concerning a case or a country or any other question linked with the Dublin 
regulation. 
It also facilitates the communication of any factor that should be taken into 
account in the context of the proposed transfer (actual organisation of the journey, 
consideration of specific needs in the journey, extension of the time to leave the 
territory)’ (emphasis added by the referring court). 
On the basis of the foregoing, and in particular of the information supplied to the 
asylum seeker, which emphasises that the order to leave the territory is 
enforceable in spite of an appeal having been lodged and that the asylum seeker 
may be subject to a forced transfer, it appears that the asylum seeker may fear that 
his or her right to an effective remedy will be compromised if he or she remains in 
the Dublin centre, may therefore feel obliged to leave the compulsory place of 
registration assigned to him or her in order to avoid  forced transfer. In that case 
he or she loses the right to the material assistance provided by FEDASIL. 
If that is the case, the ‘Dublin’ transfer decision issued by FEDASIL is contrary to 
its obligation to provide material assistance appropriate to the asylum seeker 
(since the asylum seeker can accept it only by waiving his or her rights). 
It is also contrary to European law, which guarantees the right to an effective 
remedy (including its ‘suspensive effect’ component). 
Nonetheless, at this stage the referring court considers that it does not have 
sufficient information to determine whether the abovementioned risks are real and 
whether they are confirmed by the facts. 
Conversely, the court considers that it is already certain, in the light of the 
foregoing, that the transfer to a Dublin reception centre constitutes at the 
REQUEST FOR A PRELIMINARY RULING OF 22. 2. 2021 – CASE C-134/21  
 
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very least an act preparatory to the enforcement of the order to leave the 
territory. 
[That] leads the court to the next question: 
– [c] Is this beginning of an enforcement contrary to Article 27 of the Dublin 
III Regulation? 
That question raises further questions: 
– Does Article 27 of the Dublin Regulation preclude any act preparatory to the 
enforcement of the transfer or does it preclude only the enforcement of the 
transfer while the appeal is pending? 
– Is the suspensive nature of the appeal guaranteed in Belgian law by the fact that 
the asylum seeker has the benefit of an extremely urgent application if he or 
she is the subject of a measure of restraint aimed at his or her removal from the 
territory? [Or. 10]  
The answer to those questions is necessary for the resolution of the present 
dispute. 
The referring court considers that the dispute raises one or more questions relating 
to the areas covered by Title V of Part Three of the Treaty on the Functioning of 
the European Union. 
Consequently, the two questions set out below must be referred to the Court of 
Justice of the European Union for a preliminary ruling. 
The court considers that there are valid grounds to request that the Court of 
Justice deal with those questions under the urgent procedure laid down in 
Article 108 of the Rules of Procedure of the Court of Justice of the European 
Union or at the very least under the expedited procedure provided for in 
Article 105. 
EV is subject to an order to leave the territory, against which he has lodged a non-
suspensive appeal and which may be enforced at any time. 
As he is being housed in a reception centre, he is at an official location, so that 
there is nothing to preclude his being forcibly removed. 
Such a measure is likely to cause him serious harm. 
EV has a clear interest in his rights being determined as quickly as possible. 
In addition, the Netherlands authorities stated that they agreed to take charge of 
EV’s international protection on 9 October 2020.  
FEDASIL 
 
11 
Pursuant to Article 29(2) of the Dublin III Regulation, Belgium will again become 
responsible for processing his application for international protection on 9 April 
2021.  
With a view to the proper and meaningful application of the Dublin III 
Regulation, it is right that an answer to the questions referred be given before that 
date. 
The court recalls that, according to the order made by the Tribunal du travail 
(Labour Court) in interlocutory proceedings on 15 January 2021, FEDASIL must 
continue to accommodate EV in the Red Cross reception centre at Rocourt in 
which he is currently being accommodated until this court has adjudicated on the 
substance of his application. [Or. 11]  
DECISION OF THE COURT 
[…] the court delivers the following judgment: 
before adjudicating on the substance, [the court]  refers, pursuant to the second 
paragraph of Article 267 of the Treaty on the Functioning of the European Union, 
the following questions to the Court of Justice of the European Union for a 
preliminary ruling: 
– Is a remedy, provided for by domestic law to asylum seekers who have 
been requested to have their applications for international protection 
examined in another Member State, which does not have suspensive 
effect and may acquire such effect only if the asylum seeker is deprived 
of liberty with a view to his imminent transfer an effective remedy 
within the meaning of Article 27 of the Dublin III Regulation […]? 
– Must the effective remedy prescribed in Article 27 of the Dublin III 
Regulation be interpreted as precluding only the implementation of a 
measure of enforced transfer while an action against that transfer 
decision is being examined or as prohibiting any measure preparatory 
to removal, such as relocation to a centre which establishes return paths 
for asylum seekers who have been requested to have their asylum 
applications examined in another European country? 
[The court] requests that the Court of Justice of the European Union deal with the 
matter under the urgent procedure, or at least under the expedited procedure. 
[…] [procedure]