Opinion of the Advocate General — ECLI:EU:C:2011:610
Date: 2011-09-22
Language of the case: English
Subject matter: Asylum policy;Principles, objectives and tasks of the Treaties;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: United Kingdom;Ireland

summary, it must be stated, in the light of the foregoing, that the rules of secondary law on the treatment of asylum seekers and on the examination of asylum applications which stem from the interaction between Directives 2003/9, 2004/83 and 2005/85 and Regulation No 343/2003 are, in principle, consistent with the provisions of the Charter of Fundamental Rights, the Geneva Convention and the ECHR, both in their objective and in their legal structure. 2. The overloading of the Greek asylum system 99. Regulation No 343/2003 does not contain any express provision in the case that Member States – on account of their geographical location for example – are faced with a number of asylum seekers exceeding the capacities of their asylum system, with the result that they can no longer, in practice, guarantee that those asylum seekers will be treated and their asylum applications will be reviewed in accordance with Directives 2003/9, 2004/83 and 2005/85 and with their obligations stemming from fundamental rights and from international law. (39) 100. Such an urgent situation appears to have arisen in Greece. 101. A clear indication to this effect is provided by the judgment of the European Court of Human Rights in M.S.S. v. Belgium and Greece, (40) in which the European Court of Human Rights dealt with the case of an Afghan national who had illegally entered the European Union from Turkey via Greece, and had then been detained in Greece. Without applying for asylum there, he left Greece following his release and eventually applied for asylum in Belgium. Because, after examining the Afghan asylum seeker’s particulars, the Belgian authorities for foreign nationals concluded that, on account of the illegal first entry by the asylum seeker, Greece was responsible for examining his asylum application in accordance with Article 3(1) in conjunction with Article 10(1) of Regulation No 343/2003, Belgium instituted the procedure for the transfer of the asylum seeker to Greece pursuant to Regulation No 343/2003 and, upon the conclusion of that procedure, transferred him to Greece. Before his transfer, however, the Afghan asylum seeker had lodged an application with the European Court of Human Rights. 102. In its judgment, the European Court of Human Rights found that the conditions of detention and the living conditions of the Afghan asylum seeker in Greece were to be regarded as a violation of Article 3 of the ECHR. With reference to the deficiencies in the examination of the asylum seeker’s application, the risk of direct or indirect refoulement to his home country without any serious examination of the merits of his asylum application, and the absence of an effective remedy, the European Court of Human Rights also established a violation of Article 13 in conjunction with Article 3 of the ECHR. It also found that Belgium had also violated Article 3 of the ECHR because, by sending the Afghan asylum seeker back to Greece, it had exposed him to the risks linked to the identified deficiencies in the Greek asylum system, and to detention and living conditions that were in breach of Article 3 of the ECHR. Lastly, the European Court of Human Rights also found that Belgium had violated Article 13 in conjunction with Article 3 of the ECHR. 103. The national courts of the individual Member States have also taken a critical view of the Greek asylum system and of detention and living conditions for asylum seekers in Greece in the context of Regulation No 343/2003 and the transfer of asylum seekers to Greece. For example, in its judgment of 7 October 2010, (41) the Austrian Verfassungsgerichtshof (Constitutional Court) found, in connection with a review of the constitutionality of the transfer to Greece under Regulation No 343/2003 of an Afghan single woman with three children, that whilst there is, in principle, the possibility of State provision where vulnerable persons are returned to Greece in order to implement the asylum procedure, this cannot be automatically assumed without a specific individual assurance on the part of the competent authorities. 104. The findings of fact made by the lower court, which are reproduced by the referring court as the appeal court in the order for reference, give a similar picture. (42) Furthermore, in its written observations in the present case, the Commission pointed out that on 3 November 2009 it sent Greece a letter of formal notice under Article 226 EC and on 24 June 2010 a supplementary letter of formal notice, in which Greece was alleged, inter alia, to have infringed various provisions of Directives 2003/9, 2004/83 and 2005/85. (43) 105. It follows from these findings that the Greek asylum system is under considerable pressure as a result of overloading, as a result of which it can no longer always be guaranteed that asylum seekers will be treated and their applications will be reviewed in accordance with Directives 2003/9, 2004/83 and 2005/85. Under these conditions, it cannot be ruled out that asylum seekers who are transferred from another Member State to Greece in accordance with the rules and mechanisms under Regulation No 343/2003 will experience treatment, after their transfer, which is incompatible with the provisions of the Charter of Fundamental Rights, the Geneva Convention and the ECHR. 3. Consideration of the overloading of the Member States’ asylum systems in connection with the application of Regulation No 343/2003 106. In the light of the overloading of the Greek asylum system and the effects of that overloading on the treatment of asylum seekers and on the examination of their applications, the referring court faces the question whether a Member State may transfer an asylum seeker to Greece, having regard to the provisions of Regulation No 343/2003, even if it were established that such a transfer would expose the asylum seeker to a risk of violation of his fundamental rights and human rights. The referring court expands on this question of principle in the second, third and fourth questions. 107. With the second and third questions, the referring court essentially asks the Court for clarification whether, in applying Regulation No 343/2003, the Member States may proceed from the conclusive presumption that, after the transfer of the asylum seeker, the Member State responsible for examining an asylum application will observe both the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85 and the asylum seeker’s fundamental rights (third question), with the result that a transfer of asylum seekers under Regulation No 343/2003 is always to be regarded as compatible with EU fundamental rights, regardless of the situation in the responsible State (second question). 108. In the event that these questions were to be answered in the negative, the referring court would like to know, with its fourth question, whether, and if so in what circumstances, a Member State is obliged, in applying Regulation No 343/2003, to take responsibility for reviewing an asylum application under Article 3(2) of that regulation, where transfer to the Member State which is primarily responsible would expose the asylum seeker to a risk of violation of his fundamental rights and/or to a risk that the minimum standards set out in Directives 2003/9, 2004/83 and 2005/85 will not be applied to him. 109. I will begin by considering the fourth question. I will then turn to the second and third questions. a) Fourth question: The duty to exercise the right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003 where transfer to the Member State which is primarily responsible would expose the asylum seeker to a serious risk of violation of his fundamental rights i) The problem of a serious risk of violation of fundamental rights where an asylum seeker is transferred to the Member State which is primarily responsible 110. Should a Member State be unable, for any reason, to comply with the rules of Directives 2003/9, 2004/83 or 2005/85 or its obligations under international law with regard to the treatment of asylum seekers or the examination of their asylum applications, there is a de facto risk that if asylum seekers are transferred to that Member State, they will be exposed to treatment which violates their fundamental rights and their human rights. 111. In this connection, there could be fears, for example, of violations of the right to respect for and protection of human dignity enshrined in Article 1 of the Charter of Fundamental Rights or of the prohibition of torture and inhuman or degrading treatment contained in Article 4 of the Charter in the Member State which is primarily responsible. (44) 112. If there were a serious risk in a Member State of a violation of the human dignity within the meaning of Article 1 of the Charter of Fundamental Rights of the asylum seekers transferred there, or inhuman or degrading treatment within the meaning of Article 4 of the Charter, the transfer of asylum seekers to that Member State would also be incompatible with Article 1 or Article 4 of the Charter of Fundamental Rights. Under Article 1 of the Charter, human dignity must not only be ‘respected’, but also ‘protected’. Such a positive protective function is also inherent in Article 4 of the Charter. (45) In addition, Article 19(2) of the Charter expressly provides in this connection that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. (46) 113. The complete overloading of a Member State’s asylum system may also mean, in certain circumstances, that it is necessary to examine the compatibility of the transfer of an asylum seeker to that Member State with Article 18 of the Charter of Fundamental Rights. 114. Under Article 18 of the Charter, the right to asylum is guaranteed with due respect for the rules of the Geneva Convention, the EU Treaty and the FEU Treaty. (47) One of the central elements of the Geneva Convention is the prohibition of direct or indirect expulsion or return of a refugee to a persecuting State laid down in Article 33 of that Convention, the principle of non-refoulement. Even though the precise scope of this prohibition on return is disputed, it must be assumed that it grants refugees (48) not only protection from direct deportation to the persecuting State, but also protection from chain deportation, where a transfer is made to a State in which there is a risk of deportation to a persecuting State. (49) 115. If the overloading of a Member State’s asylum system were to mean that the refugees in that Member State were at risk of direct or indirect return to a persecuting State, Article 18 of the Charter of Fundamental Rights therefore prohibits the other Member States from transferring refugees to that Member State. ii) The duty to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003 116. It follows from my above observations that, first of all, the overloading of a Member State’s asylum system may result in an environment in which one or more of the asylum seekers’ rights enshrined in the Charter of Fundamental Rights may be violated. Secondly, I have concluded that the transfer of asylum seekers to a Member State in which there is a serious risk of violation of the asylum seekers’ fundamental rights is incompatible with the Charter of Fundamental Rights. 117. Against this background, the question arises whether Regulation No 343/2003 can be interpreted in such a way that transfers of asylum seekers which violate fundamental rights can be ruled out. 118. The fact that Regulation No 343/2003 must, as far as possible, be interpreted in a manner consistent with fundamental rights follows, first, from the Court’s settled case-law, according to which the Member States must make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the EU legal order or with the other general principles of EU law. (50) Secondly, an interpretation of Regulation No 343/2003 in a manner consistent with fundamental rights is necessary in particular since it is expressly stated in Article 63(1) EC, which serves as an enabling legal basis for that regulation in primary law, that EU measures on asylum must be in accordance with the Geneva Convention and with other relevant treaties. (51) Recital 15 in the preamble to Regulation No 343/2003 also confirms that that regulation observes the fundamental rights and principles which are acknowledged in the Charter of Fundamental Rights. (52) 119. In my view, Article 3(2) of Regulation No 343/2003 allows the Member States a margin of discretion which is sufficiently wide to enable them to apply that regulation in a manner compatible with the requirements of the protection of fundamental rights where transfer to the Member State which is primarily responsible would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights. 120. Article 3(2) of Regulation No 343/2003 accords the Member States the right to examine the asylum application lodged by an asylum seeker in that Member State even where, under Article 3(1) in conjunction with the provisions contained in Chapter III of the regulation, another Member State is primarily responsible. Where a Member State exercises this right to assume responsibility for the examination, it becomes the responsible Member State under Article 3(2) of Regulation No 343/2003, which must assume the obligations associated with that responsibility. 121. If transfer to the Member State which is primarily responsible would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights, the Member State in which the asylum seeker has lodged an asylum application can therefore eliminate that risk entirely by exercising its right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003. 122. Taking particular account of the fact that the Member States are required to apply Regulation No 343/2003 in a manner consistent with fundamental rights and that a transfer of asylum seekers to a Member State in which there is a serious risk of violation of one or more fundamental rights of those asylum seekers must, as a rule, be regarded as an infringement of the Charter of Fundamental Rights by the transferring Member State, the Member States are obliged, in my view, to exercise the right to assume responsibility for the examination themselves under Article 3(2) of Regulation No 343/2003 where there is a risk in the Member State which is primarily responsible of violation of the rights of the asylum seeker to be transferred, as enshrined in the Charter of Fundamental Rights. 123. Serious risks of infringements of individual provisions of Directives 2003/9, 2004/83 and 2005/85 in the Member State primarily responsible which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred, as enshrined in the Charter of Fundamental Rights, are not sufficient, on the other hand, to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003. 124. It should be stated, first of all, in this connection that an interpretation of Regulation No 343/2003 in a manner consistent with fundamental rights cannot require the exercise of the right to assume responsibility for the examination under Article 3(2) where the host Member State infringes individual provisions of Directives 2003/9, 2004/83 or 2005/85, but without infringing the Charter of Fundamental Rights. Furthermore, the transfer of an asylum seeker to a Member State in which there is no risk of violation of the rights of that asylum seeker, as enshrined in the Charter of Fundamental Rights, does not normally lead to an infringement of the Charter by the transferring Member State. 125. Furthermore, it would be difficult to reconcile with the aims of Regulation No 343/2003 if any failure to comply with Directives 2003/9, 2004/83 or 2005/85 were sufficient to prevent the transfer of an asylum seeker to the Member State which is primarily responsible. (53) Regulation No 343/2003 is intended to establish a clear and workable method for determining the Member State responsible for the examination of an asylum application, which also makes it possible to determine rapidly the Member State responsible. (54) In order to achieve that objective, Regulation No 343/2003 lays down a provision under which responsibility for examining each asylum application lodged in the European Union rests with a single Member State, which is determined on the basis of objective criteria. In the case of an illegal entry into the European Union, the Member State of first entry is responsible for examining the asylum application under Article 10 of Regulation No 343/2003. (55) 126. If any failure to comply with individual provisions of Directives 2003/9, 2004/83 or 2005/85 on the part of the Member State of illegal first entry were now to mean that the Member State in which the asylum seeker lodged an asylum application was required to exercise its right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003, a new, far-reaching exclusion criterion would be created, in addition to the objective criteria for determining the responsible Member State laid down in Chapter III of the regulation, under which even minor infringements of Directives 2003/9, 2004/83 or 2005/85 in individual Member States could mean that those Member States would be relieved of their responsibilities under Regulation No 343/2003 and the associated duties. This could result not only in the rules on responsibility formulated in Regulation No 343/2003 being completely undermined, but could also jeopardise the aim of those rules, which is to determine rapidly the Member States responsible for examining asylum applications lodged in the European Union. iii) Interim conclusion 127. In the light of foregoing, the fourth question asked by the referring court must be answered to the effect that a Member State in which an asylum application has been lodged is obliged to exercise its right to examine that asylum application itself under Article 3(2) of Regulation No 343/2003 where transfer to the Member State primarily responsible under Article 3(1) in conjunction with the provisions contained in Chapter III of Regulation No 343/2003 would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights. Serious risks of infringements of individual provisions of Directives 2003/9, 2004/83 and 2005/85 in the Member State primarily responsible which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred, as enshrined in the Charter of Fundamental Rights, are not sufficient, on the other hand, to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003. b) Second and third questions: Recourse to conclusive presumptions in the context of the exercise of the right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003 128. With the second and third questions, the referring court is seeking to ascertain whether, in applying Regulation No 343/2003, the Member States may proceed from the conclusive presumption that, after the transfer of the asylum seeker, the Member State primarily responsible for examining the asylum application will observe the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85 and the asylum seeker’s fundamental rights (third question), with the result that a transfer of asylum seekers under Regulation No 343/2003 is always to be regarded as compatible with EU fundamental rights, regardless of the situation in the responsible State (second question). 129. In my view, these questions should be answered in the negative. 130. As I have already explained above, the risk that transfer of asylum seekers to another Member State for the purpose of examining their asylum applications will expose them de facto to treatment which violates fundamental rights and human rights can never be completely ruled out. If there were a serious risk of violation of the asylum seeker’s rights, as enshrined in the Charter of Fundamental Rights, in the Member State primarily responsible for examining an asylum application, the Member State in which that asylum seeker has lodged his asylum application is obliged to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003. 131. It is immediately clear from these findings that an application of Regulation No 343/2003 on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the Member State’s duty to interpret and apply Regulation No 343/2003 in a manner consistent with fundamental rights. (56) In that case, the Member State in which the asylum seeker has lodged his asylum application would never be obliged to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003, and it could not therefore be ruled out that asylum seekers would be transferred to another Member State despite the serious risk of violation of their rights as enshrined in the Charter of Fundamental Rights. 132. For the same reason, an application of Regulation No 343/2003 on the basis of the conclusive presumption that all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85 will be observed in the host Member State must also be rejected as contrary to EU law. The conclusive presumption that all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85 will be observed is no different, in practice, from the conclusive presumption that the asylum seekers’ fundamental rights, as enshrined in the Charter of Fundamental Rights, will be observed in the Member State which is primarily responsible. 133. This does not mean, however, that, the Member States are barred, in principle, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his application. It should be borne in mind in this connection that the treatment of asylum seekers and the examination of their applications under Directives 2003/9, 2004/83 and 2005/85 must satisfy substantive minimum standards in each Member State and that all the Member States must observe the Charter of Fundamental Rights (57) and – as Contracting States – the ECHR and the Geneva Convention. In view of the high level of protection which is thus (legally) ensured, it seems reasonable, in connection with the transfer of asylum seekers, to proceed from the rebuttable presumption that those asylum seekers will be treated in a manner consistent with human rights and fundamental rights in the Member State which is primarily responsible. (58) Accordingly, recital 2 in the preamble to Regulation No 343/2003 expressly states that Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals. (59) 134. If the Member States were to decide to operate such a rebuttable presumption, however, they must observe the principle of effectiveness, according to which the realisation of the rights conferred by EU law may not be rendered practically impossible or excessively difficult. (60) 135. If the Member States thus decide to introduce the rebuttable presumption that the asylum seeker’s human rights and fundamental rights will be observed in the Member State which is primarily responsible, the asylum seekers must be given the possibility, procedurally, actually to rebut that presumption. Having regard to the principle of effectiveness, the specific form of the available evidence and the definition of the rules and principles governing the assessment of evidence are, in turn, a matter for the national legal orders of the individual Member States. 136. In the light of foregoing, the second and third questions must be answered to the effect that the obligation to interpret Regulation No 343/2003 in a manner consistent with fundamental rights precludes the operation of a conclusive presumption according to which the Member State primarily responsible for examining an asylum application will observe the asylum seeker’s fundamental rights under EU law and all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85. The Member States are not barred, on the other hand, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his asylum application. C – Fifth question: Relationship between the protection of asylum seekers under the Charter of Fundamental Rights and their protection under the ECHR 137. By its fifth question, the referring court wishes to know whether Articles 1, 18 and 47 of the Charter of Fundamental Rights accord asylum seekers who are to be transferred to another Member State in accordance with Regulation No 343/2003 a wider scope of protection than Article 3 of the ECHR. 138. Although the referring court did not expressly examine the legal background to that question, the decision of the European Court of Human Rights in K.R.S. v. United Kingdom (61) appears to have played an important role in its referral. In that decision, the European Court of Human Rights was required to decide on an application under the ECHR by an Iranian national who was to be transferred from the United Kingdom to Greece pursuant to Regulation No 343/2003. The Iranian asylum seeker considered that removal to Greece would infringe Article 3 of the ECHR. In its decision of 2 December 2008, the European Court of Human Rights rejected that application as manifestly ill-founded. 139. At the time the order for reference was made, the referring court therefore faced the question of how it had to take into consideration the decision of the European Court of Human Rights in K.R.S. v. United Kingdom. It had to be clarified whether the view taken by the European Court of Human Rights, that the transfer of an Iranian asylum seeker to Greece does not infringe Article 3 of the ECHR, precludes a finding of an infringement of Articles 1, 18 and 47 of the Charter of Fundamental Rights in a case like the main proceedings. 140. As I have already explained, in its judgment of 21 January 2011 in M.S.S. v. Belgium and Greece, (62) i.e. after the order for reference was lodged, the European Court of Human Rights further developed its case-law and considered the transfer of an asylum seeker from Belgium to Greece pursuant to Regulation No 343/2003 to be a violation by Belgium of Article 3 of the ECHR and of Article 13 in conjunction with Article 3 of the ECHR. 141. In the light of this development in the European Court of Human Rights’ case-law, it would appear that the referring court is no longer required primarily to address the question under what circumstances the transfer of asylum seekers to Greece could, despite the European Court of Human Rights’ decision in K.R.S. v. United Kingdom, lead to a finding of a violation of that asylum seeker’s rights as enshrined in the Charter of Fundamental Rights, but rather the question whether, having regard to the European Court of Human Rights’ judgment in M.S.S. v. Belgium and Greece, a transfer of asylum seekers to Greece can actually still be found to be compatible with the Charter. 142. Against this background, the fifth question must therefore be construed as meaning that the Court is being asked to clarify the relationship between Articles 3 and 13 of the ECHR and the relevant provisions of the Charter of Fundamental Rights (63) and the way in which the case-law of the European Court of Human Rights on the (in)compatibility with the ECHR of transfers of asylum seekers to Greece affects the judicial review of the compatibility of such transfers with the Charter of Fundamental Rights. 143. In answering these questions, regard must be had to Article 52(3) of the Charter of Fundamental Rights. Under that provision, the rights contained in the Charter which correspond to rights guaranteed by the ECHR have the same meaning and scope as the corresponding rights laid down by the ECHR. It is also expressly provided in Article 52(3) of the Charter of Fundamental Rights that that provision does not prevent EU law providing more extensive protection. 144. In the Explanations relating to Article 52(3) of the Charter of Fundamental Rights it is stressed that that provision is intended to ensure the necessary consistency between the Charter and the ECHR. According to the Explanations, that reference should be construed not only as a reference to the text of the ECHR and the Protocols to it, but also to the clarification in the case-law of the European Court of Human Rights of the meaning and the scope of the guaranteed rights. This does not, however, adversely affect the autonomy of EU law and of that of the Court of Justice. 145. Under Article 52(3) of the Charter of Fundamental Rights, it must therefore be ensured that the protection guaranteed by the Charter in the areas in which the provisions of the Charter overlap with the guarantees under the ECHR is no less than the protection granted by the ECHR. Because the protection granted by the ECHR is constantly developing in the light of its interpretation by the European Court of Human Rights, (64) the reference to the ECHR contained in Article 52(3) of the Charter of Fundamental Rights is to be construed as an essentially dynamic reference which, in principle, covers the case-law of the European Court of Human Rights. (65) 146. It should be borne in mind in this connection that the judgments of the European Court of Human Rights essentially always constitute case-specific judicial decisions and not the rules of the ECHR themselves, and it would therefore be wrong to regard the case-law of the European Court of Human Rights as a source of interpretation with full validity in connection with the application of the Charter. (66) This finding, admittedly, may not hide the fact that particular significance and high importance are to be attached to the case-law of the European Court of Human Rights in connection with the interpretation of the Charter of Fundamental Rights, with the result that it must be taken into consideration in interpreting the Charter. (67) 147. This view is confirmed in the case-law of the Court of Justice, which systematically takes into consideration the case-law of the European Court of Human Rights on the relevant provisions of the ECHR in interpreting the provisions of the Charter of Fundamental Rights. (68) 148. In the light of the foregoing, the fifth question must be answered to the effect that under Article 52(3) of the Charter of Fundamental Rights it must be ensured that the protection guaranteed by the Charter in the areas in which the provisions of the Charter overlap with the provisions of the ECHR is no less than the protection granted by the ECHR. Because the extent and scope of the protection granted by the ECHR has been clarified in the case-law of the European Court of Human Rights, particular significance and high importance are to be attached to that case-law in connection with the interpretation of the relevant provisions of the Charter of Fundamental Rights by the Court of Justice. D – Sixth question: Judicial review of compliance with the Geneva Convention and the ECHR in the Member State primarily responsible under Regulation No 343/2003 149. With its sixth question, the referring court wishes to know whether a national law under which, in their review of the application of Regulation No 343/2003, the courts must proceed from the conclusive presumption that the State primarily responsible for examining the asylum application is a safe country in which asylum seekers are not exposed to the risk of expulsion to a persecuting State, which is incompatible with the Geneva Convention or with the ECHR, is compatible with Article 47 of the Charter of Fundamental Rights. 150. In order to answer this question, I will first examine the relationship between the rights of asylum seekers under Article 47 of the Charter of Fundamental Rights and risk of expulsion to a persecuting State, which is incompatible with the Geneva Convention and with the ECHR and which may arise in the event of a transfer of asylum seekers to the Member State which is primarily responsible. On the basis of those observations I will then answer the sixth question asked by the referring court. 1. Article 47(1) of the Charter of Fundamental Rights and the risk of infringement of the Geneva Convention or of the ECHR following the transfer of an asylum seeker pursuant to Regulation No 343/2003 151. Under Article 47(1) of the Charter of Fundamental Rights, everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. 152. The basic condition for the applicability of Article 47 of the Charter of Fundamental Rights is therefore that rights and freedoms guaranteed by the law of the European Union are violated. Against this background, an infringement of the Geneva Convention or the ECHR can establish a right to an effective remedy under Article 47(1) of the Charter of Fundamental Rights only if that infringement is also to be regarded as a violation of rights and freedoms guaranteed by the law of the European Union. 153. Even though an infringement of the Geneva Convention or the ECHR in connection with the transfer of an asylum seeker to a Member State in which there is a serious risk of his expulsion to a persecuting State must be distinguished strictly, de jure, from any associated infringement of EU law, there is, as a rule, a de facto parallel in such a case between the infringement of the Geneva Convention or the ECHR and the infringement of EU law. 154. In assessing whether the transfer of an asylum seeker to a Member State in which there is a serious risk of his expulsion to another State in contravention of the Geneva Convention is consistent with EU law, regard must be had to Article 18 of the Charter of Fundamental Rights, under which the right to asylum is to be guaranteed with due respect for the rules of the Geneva Convention. (69) By virtue to this express reference to the Geneva Convention, Article 18 of the Charter of Fundamental Rights grants refugees who have lodged an asylum application protection against transfers which are incompatible with the Geneva Convention. (70) Accordingly, the transfer of a refugee to the Member State primarily responsible for his asylum application is incompatible with the Charter of Fundamental Rights where there is a serious risk in that Member State of direct or indirect expulsion to a persecuting State, which is incompatible with the Geneva Convention. 155. In assessing whether the transfer of an asylum seeker to a Member State in which there is a serious risk of his expulsion to a third country in contravention of the ECHR is consistent with EU law, regard must be had to the principle laid down in Article 52(3) of the Charter of Fundamental Rights, according to which the protection of the rights enshrined in the Charter may be no less than the guarantees under the ECHR. (71) 156. In this connection, the European Court of Human Rights clarified the guarantees under the ECHR regarding the transfer of asylum seekers between Member States most recently in its judgment in M.S.S. v. Belgium and Greece. It held that the removal of an asylum seeker to an intermediary country, which is also a Contracting Party, leaves the responsibility of the transferring State intact, and that State is required, in accordance with Article 3 of the ECHR, not to deport a person where substantial grounds have been shown for believing that the person in question, if transferred to the intermediary country, would face a real risk of being exposed to a transfer to another State contrary to Article 3. (72) 157. Having regard to Article 52(3) of the Charter of Fundamental Rights, in the event that the transfer of an asylum seeker to the Member State primarily responsible under Regulation No 343/2003 were to infringe Article 3 of the ECHR because of the risk of indirect refoulement, there would generally also be an infringement of the Charter of Fundamental Rights. In this connection, there may be, in particular, a violation of the asylum seeker’s fundamental rights as enshrined in Article 1, Article 4 and Article 19(2) of the Charter. (73) 158. In the light of the foregoing, it must be stated, in summary, that the transfer of an asylum seeker to the Member State primarily responsible under Regulation No 343/2003 is, as a rule, incompatible with EU law where the asylum seeker is exposed in that Member State to the serious risk of expulsion to a persecuting State which is incompatible with the Geneva Convention or with the ECHR. If the transfer of the asylum seeker infringes EU law, Article 47 of the Charter of Fundamental Rights is applicable. 2. Incompatibility with Article 47 of the Charter of Fundamental Rights of the conclusive legal presumption that the asylum seeker will not be exposed, in the Member State which is primarily responsible, to the risk of expulsion to another State, which is incompatible with the Geneva Convention and with the ECHR 159. Under Article 47(1) of the Charter of Fundamental Rights, everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal in order to review that violation. Because that remedy is intended to clarify whether rights or freedoms actually guaranteed by the law of the European Union are violated, this right to an effective remedy arises from the time that an arguable complaint relating to the infringement is made. (74) 160. The specific procedural form of the effective remedy within the meaning of Article 47 of the Charter of Fundamental Rights is largely left to the Member States. However, this margin of discretion enjoyed by the Member States is limited by the requirement that the effectiveness of the remedy must always be guaranteed. It must also be borne in mind in this connection that, under Article 52(1) of the Charter, any limitation on the exercise of the right to an effective remedy must be provided for by law (75) and respect the essence of that right and the principle of proportionality. 161. The minimum content of the right to an effective remedy includes the requirements that the remedy to be granted to the beneficiary must satisfy the principle of effectiveness. (76) According to that principle, the realisation of the rights conferred by EU law may not be rendered practically impossible or excessively difficult. (77) 162. In my view, it is immediately evident from these comments on the essence and the minimum content of the right to an effective remedy under Article 47 of the Charter of Fundamental Rights that a national law under which, in their review of the transfer of an asylum seeker to the Member State primarily responsible under Regulation No 343/2003, the courts must proceed from the conclusive presumption that that Member State will not expel the asylum seeker to another State in contravention of the ECHR or the Geneva Convention is incompatible with Article 47 of the Charter of Fundamental Rights. 163. The crucial factor in this connection is that such a presumption renders excessively difficult or even precludes de facto the judicial review of the risk of chain deportation to a persecuting State, which is incompatible with the Charter of Fundamental Rights. It would logically be difficult to understand if a national court rejected the risk of chain deportation to a persecuting State from the perspective of the ECHR and the Geneva Convention, but accepted the coextensive risk of chain deportation to a persecuting State from the perspective of the Charter of Fundamental Rights. For that reason, the conclusive presumption at issue, under which the Member State which is primarily responsible will not expel the asylum seeker to a persecuting State in contravention of the ECHR and the Geneva Convention, is incompatible with Article 47 of the Charter of Fundamental Rights. 164. In the light of the foregoing, the sixth question must be answered to the effect that a national law under which, in examining whether an asylum seeker may be lawfully transferred to another Member State pursuant to Regulation No 343/2003, the courts must proceed from the conclusive presumption that that Member State is a safe country in which asylum seekers are not exposed to the risk of expulsion to a persecuting State, which is contrary to the Geneva Convention or with the ECHR, is incompatible with Article 47 of the Charter of Fundamental Rights. E – Seventh question 165. By its seventh question, the referring court asks the Court to clarify the content and scope of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union. It essentially asks whether, having regard to that Protocol, the provisions of the Charter of Fundamental Rights which are relevant to the present case can take full effect in the legal order of the United Kingdom. 166. With this question, the referring court thus wishes to ascertain whether, and if so to what extent, Protocol No 30 can be regarded as an ‘opt-out’ from the Charter of Fundamental Rights for the United Kingdom and the Republic of Poland. 167. In my view, the question whether Protocol No 30 is to be regarded as a general opt-out from the Charter of Fundamental Rights for the United Kingdom and the Republic of Poland can be easily answered in the negative. (78) This conclusion is suggested by an analysis of the wording of Protocol No 30, having particular regard to its recitals. 168. Under Article 1(1) of Protocol No 30, the Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 169. According to its wording, Article 1(1) of Protocol No 30 therefore makes clear that the Charter of Fundamental Rights does not have the effect of either shifting powers at the expense of the United Kingdom or Poland or of extending the field of application of EU law beyond the powers of the European Union as established in the Treaties. Article 1(1) of Protocol No 30 thus merely reaffirms the normative content of Article 51 of the Charter of Fundamental Rights, which seeks to prevent precisely such an extension of EU powers or of the field of application of EU law. (79) Article 1(1) of the Protocol does not therefore, in principle, call into question the validity of the Charter of Fundamental Rights for the United Kingdom and for Poland. (80) 170. This view is confirmed in the recitals in the preamble to the Protocol, which confirms, in several places, the fundamental validity of the Charter of Fundamental Rights in the Polish and the English legal orders. (81) For example, the third recital states that under Article 6 TEU the Charter is to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that article. Reference is made in the eighth and ninth recitals to the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter and the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom. 171. Whilst Article 1(1) of Protocol No 30 does not call into question the validity of the Charter of Fundamental Rights, but should merely be regarded as an express confirmation of the normative content of Article 51 of the Charter of Fundamental Rights, Article 1(2) of Protocol No 30 appears to seek to clarify the validity of individual provisions of the Charter in the legal orders of the United Kingdom and Poland. Under Article 1(2) of Protocol No 30, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as such rights are provided for in their respective national laws. 172. Article 1(2) of Protocol No 30 relates to the social fundamental rights and principles grouped together under Title IV of the Charter of Fundamental Rights (Article 27 to 38). That title, entitled ‘Solidarity’, is regarded as one of the most controversial areas in the evolution of the Charter. There was dispute not only over the fundamental question whether social rights and principles should be incorporated into the Charter, but also how many social rights should be included, how they should be organised in detail, what binding force they should have, and whether they should be classified as fundamental rights or as principles. (82) 173. With the statement that Title IV of the Charter of Fundamental Rights does not create justiciable rights applicable to Poland or the United Kingdom, Article 1(2) of Protocol No 30 first reaffirms the principle, set out in Article 51(1) of the Charter, that the Charter does not create justiciable rights as between private individuals. However, Article 1(2) of Protocol No 30 also appears to rule out new EU rights and entitlements being derived from Articles 27 to 38 of the Charter of Fundamental Rights, on which those entitled could rely against the United Kingdom or against Poland. (83) 174. Because the contested fundamental rights in the present case are not among the social fundamental rights and principles set out in Title IV of the Charter of Fundamental Rights, however, there is no need to examine in any greater detail here the question of the precise validity and scope of Article 1(2) of Protocol No 30. It is sufficient to refer to the 10th recital in the preamble to Protocol No 30, according to which references in that protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter. 175. Article 2 of Protocol No 30 provides, lastly, that where a provision of the Charter refers to national laws and practices, it only applies to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom. 176. In the light of the abovementioned recitals, it is not possible to infer from Article 2 of Protocol No 30 a general opt-out from the Charter of Fundamental Rights for the United Kingdom and the Republic of Poland. Moreover, Article 2 of Protocol No 30 applies solely to provisions of the Charter of Fundamental Rights which make reference to national laws and practices. (84) That is not the case with the provisions of the Charter which are relevant in the present case. 177. In the light of the foregoing, the seventh question must be answered to the effect that the interpretation of Protocol No 30 has not produced any findings which could call into question the validity for the United Kingdom of the provisions of the Charter of Fundamental Rights which are relevant in the present case. VII – Conclusion 178. In the light of the above considerations, I propose that the Court answer the questions asked by the Court of Appeal (England and Wales) as follows: (1) A decision made by a Member State under Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national whether to examine a claim for asylum which is not its responsibility under the criteria set out in Chapter III of the regulation constitutes a measure implementing European Union law for the purposes of Article 51(1) of the Charter of Fundamental Rights. (2) A Member State in which an asylum application has been lodged is obliged to exercise its right to examine that asylum application under Article 3(2) of Regulation No 343/2003 where transfer to the Member State primarily responsible under Article 3(1) in conjunction with the provisions contained in Chapter III of Regulation No 343/2003 would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights. Serious risks of infringements of individual provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in the Member State primarily responsible which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred are not sufficient, on the other hand, to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003. (3) The obligation to interpret Regulation No 343/2003 in a manner consistent with fundamental rights precludes the operation of a conclusive presumption according to which the Member State primarily responsible for examining an asylum application will observe the asylum seeker’s fundamental rights under European Union law and all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85. The Member States are not barred, on the other hand, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his asylum application. (4) Under Article 52(3) of the Charter of Fundamental Rights it must be ensured that the protection guaranteed by the Charter in the areas in which the provisions of the Charter overlap with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) is no less than the protection granted by the ECHR. Because the extent and scope of the protection granted by the ECHR has been clarified in the case-law of the European Court of Human Rights, particular significance and high importance are to be attached to that case-law in connection with the interpretation of the relevant provisions of the Charter of Fundamental Rights by the Court of Justice. (5) A national law under which, in examining whether an asylum seeker may be lawfully transferred to another Member State pursuant to Regulation No 343/2003, the courts must proceed from the conclusive presumption that that Member State is a safe country in which asylum seekers are not exposed to the risk of expulsion to a persecuting State, which is contrary to the Geneva Convention or with the ECHR, is incompatible with Article 47 of the Charter of Fundamental Rights. (6) The interpretation of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom has not produced any findings which could call into question the validity for the United Kingdom of the provisions of the Charter of Fundamental Rights which are relevant in the present case. 1 – Original language of the Opinion: German. Language of the case: English. 2 – OJ 2003 L 50, p. 1. 3 – Judgment of 21 January 2011, Application No 30696/09. 4 – In addition to the regulation and the directives mentioned here, there are many other pieces of secondary legislation which relate to the creation of a common asylum system, the policy of legal immigration, and the fight against illegal immigration, such as Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (OJ 2010 L 132, p. 11) and Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98). 5 – OJ 2001 L 212, p. 12. 6 – OJ 2003 L 31, p. 18. 7 – OJ 2004 L 304, p. 12. 8 – OJ 2005 L 326, p. 13. 9 – The United Kingdom Government has answered the other questions in the event that, contrary to its proposal, the Court were to conclude that the decision on the exercise of the right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003 does fall within the scope of EU law. 10 – On the basis of the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (OJ 2008 L 53, p. 5), the Swiss Confederation participates in the EU’s system for establishing the States responsible for asylum applications. Under Article 5(2) of that Agreement, the Swiss Confederation has the right to submit statements of case or written observations to the Court of Justice in cases where a court in a Member State has applied to the Court of Justice for a preliminary ruling concerning the interpretation of Regulation No 343/2003. 11 – In the main proceedings, the referring court considers that it must address this question because the Secretary of State had argued that, in exercising their discretion under Article 3(2) of Regulation No 343/2003, the Member States are not required to take account of EU fundamental rights, because the exercise of that discretion does not fall within the scope of EU law. 12 – See also the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 32). 13 – OJ 2007 C 303, p. 32. Under Article 52(7) of the Charter of Fundamental Rights, the Explanations, drawn up as a way of providing guidance in the interpretation of the Charter, are to be given due regard by the courts of the European Union and of the Member States. The importance of the Explanations for the interpretation of the individual provisions of the Charter is also expressly confirmed in the third subparagraph of Article 6(1) TEU. 14 – Case 5/88 [1989] ECR 2609. 15 – Case C-260/89 [1991] ECR I-2925. 16 – Case C‑292/97 Karlsson and Others [2000] ECR I-2737. This judgment can be classified in the ‘Wachauf’ line of case-law. 17 – Wachauf, cited above in footnote 14, paragraph 19. That judgment was confirmed in Case C‑540/03 Parliament v Council [2006] ECR I-5769, paragraph 104 et seq. 18 – Case C-260/89 ERT, cited above in footnote 15, paragraph 41 et seq. 19 – See also Ladenburger, C., Article 51, in Europäische Grundrechtecharta (ed. Tettinger, P./Stern, K.), Munich 2006, paragraph 22 et seq.; Nowak, C., in Handbuch der Europäischen Grundrechte (ed. Heselhaus/Nowak), Munich 2006, § 6, paragraph 44 et seq. 20 – Under Article 3(2) of Regulation No 343/2003, the Member State which decides voluntarily to examine the application for asylum becomes the Member State responsible within the meaning of that regulation and assumes the obligations associated with that responsibility. 21 – Cited above in footnote 14. 22 – Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68, OJ 1984 L 132, p. 11. 23 – Wachauf, cited above in footnote 14, paragraph 19. 24 – Ibid. (paragraph 22 et seq.). 25 – See also Case C‑540/03 Parliament v Council, cited above in footnote 17, paragraph 104. 26 – A correct analysis is given by Graßhof, M., in EU‑Kommentar (ed. Schwarze), 2nd edition, Baden-Baden 2009, Article 63 EC, paragraph 4. 27 – Article 63(1)(b), (c) and (d) EC. 28 – Under Article 1 et seq. of Protocol (No 5) on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark did not take part in the adoption of those directives and those directives are not therefore binding upon or applicable in Denmark (see recital 21 in the preamble to Directive 2003/9, recital 40 in the preamble to Directive 2004/83, and recital 34 in the preamble to Directive 2005/85). Whilst under Article 3 of Protocol (No 4) on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland took part in the adoption of Directives 2004/83 and 2005/85 (see recitals 39 and 33 in the preambles to those directives), it did not take part in the adoption of Directive 2003/9 pursuant to Article 1 of that Protocol (see recital 20 in the preamble to that directive). The United Kingdom took part in the adoption of the three directives pursuant to Article 3 of that Protocol (see recital 19 in the preamble to Directive 2003/9, recital 38 in the preamble to Directive 2004/83, and recital 32 in the preamble to Directive 2005/85). 29 – See recital 2 in the preambles to Directive 2003/9, Directive 2004/83 and Directive 2005/85. 30 – See recital 5 in the preamble to Directive 2003/9, recital 10 in the preamble to Directive 2004/83, and recital 8 in the preamble to Directive 2005/85. 31 – See recital 6 in the preamble to Directive 2003/9, recital 11 in the preamble to Directive 2004/83, and recital 9 in the preamble to Directive 2005/85. 32 – See also, in this connection, Joined Cases C‑175/08, C‑176/08, C‑178/08 and C‑179/08 Salahadin Abdulla [2010] ECR I-0000, paragraph 51 et seq., and Joined Cases C‑57/09 and C‑101/09 B [2010] ECR I-0000, paragraph 77 et seq., in which the Court held, in connection with the interpretation of Directive 2004/83, first that the provisions of the directive for determining who qualifies for refugee status and the content thereof were adopted to guide the competent authorities of the Member States in the application of the Geneva Convention on the basis of common concepts and criteria and, second, that those provisions must be interpreted in a manner which respects the fundamental rights and the principles recognised in particular by the Charter. See also, in this connection, Case C‑31/09 Bolbol [2010] ECR I-0000, paragraph 38. 33 – Under Article 1 et seq. of Protocol (No 5) on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark did not take part in the adoption of Regulation No 343/2003 and was not therefore initially bound by it nor subject to its application. The Dublin Convention thus remained in force between Denmark and the Member States (see recital 18 et seq. in the preamble to Regulation No 343/2003). With the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and Eurodac for the comparison of fingerprints for the effective application of the Dublin Convention (OJ 2006 L 66, p. 38), the scope of Regulation No 343/2003 was extended to the relations between the Community and Denmark. Ireland and the United Kingdom took part in the adoption and application of that regulation in accordance with Article 3 of Protocol (No 4) on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community (see recital 17 in the preamble to Regulation No 343/2003). It should also be borne in mind that some non-EU Member States have participated under international agreements in the EU system for determining the State responsible for asylum applications, such as the Swiss Confederation; see footnote 10 of this Opinion. 34 – See Articles 6(1), 7, 8 and 9(1) and (2) of Regulation No 343/2003. 35 – Article 10 of Regulation No 343/2003. However, that responsibility expires 12 months after the illegal entry. 36 – Accordingly, Article 25(1) of Directive 2005/85 provides that Member States are not required to examine whether the applicant qualifies as a refugee in accordance with Directive 2004/83 where they are required to do so in accordance with Regulation No 343/2003. 37 – See point 92 of this Opinion. 38 – Against this background, reference is also made in the recitals in the preamble to Regulation No 343/2003 to the conclusion of the Tampere European Council, according to which the Common European Asylum System to be developed is to be based on the full and inclusive application of the Geneva Convention (see recital 2 in the preamble to Regulation No 343/2003). It is also stressed that the Member States are bound by the instruments of international law to which they are party with respect to the treatment of persons falling within the scope of that regulation (see recital 12 in the preamble to Regulation No 343/2003) and that the regulation observes the fundamental rights and principles which are acknowledged in the Charter of Fundamental Rights (see recital 15 in the preamble to Regulation No 343/2003). 39 – On the other hand, the Commission’s Proposal for a Regulation of the European Parliament and of the Council 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 (COM(2008) 820 final), by which Regulation No 343/2003 was to be recast, provides for a mechanism for the temporary suspension of transfers of asylum seekers to Member States faced with a particularly urgent situation which places an exceptionally heavy burden on their reception capacities, asylum systems or infrastructures (Article 31). According to the Commission’s Explanatory Memorandum, the proposal is aimed at addressing situations of particular pressure on Member States’ reception capacities and asylum systems. 40 – Cited above in footnote 3. 41 – Judgment No U694/10, available on the internet in the Legal Information System of the Republic of Austria (http://www.ris.bka.gv.at). 42 – Order for reference of 12 July 2010, paragraph 13 et seq. 43 – These letters of formal notice are attached to the Commission’s written observations as Annexes 1 and 2. 44 – The question whether, and if so in what circumstances, Article 1 of the Charter of Fundamental Rights can apply autonomously, in addition to Article 4 of the Charter, does not need to be examined in any greater depth for the purposes of the present case. It should be pointed out, however, that, according to the prevailing opinion in German legal literature, an examination of Article 4 of the Charter of Fundamental Rights should be carried out first. If interference in the protection afforded by this specific fundamental right were to be taken to exist, this specific fundamental right would prevail and rule out Article 1 of the Charter as an isolated or supplementary basis for assessment; see Jarass, D., Charta der Grundrechte der Europäischen Union, Munich 2010, Article 1, paragraph 4; Borowsky, D., in Charta der Grundrechte der Europäischen Union (ed. Meyer, J.), 3rd edition, Baden‑Baden 2011, Article 1, paragraph 33; Höfling, W., in Kölner Gemeinschaftskommentar zur Europäischen Grundrechte-Charta (ed. Tettinger, J./Stern, K.), Munich 2006, Article 1, paragraph 18. 45 – See Höfling, W., loc. cit. (footnote 44), Article 4, paragraph 3; Borowsky, D., loc. cit. (footnote 44), Article 4, paragraph 20. 46 – The question whether, and if so in what circumstances, Article 1 and/or Article 4 of the Charter of Fundamental Rights can apply autonomously, in addition to Article 19(2) of the Charter of Fundamental Rights, does not need to be examined in any greater depth for the purposes of the present case. It should be pointed out, however, that, according to the prevailing opinion in German legal literature, in the event of an overlap with Article 1 and/or Article 4 of the Charter of Fundamental Rights, Article 19(2) of the Charter prevails as the specific provision for the examination. See Jarass, D., loc. cit. (footnote 44), Article 19, paragraph 4. 47 – With the finding that the right to asylum is guaranteed with due respect for the rules of the EU Treaty and the FEU Treaty, reference is made, inter alia, to Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the EU Treaty and the FEU Treaty. Because, however, under Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom took part in Directives 2003/9, 2004/85 and 2005/85 and in Regulation No 343/2003, the question of the effective force of Article 18 of the Charter of Fundamental Rights vis-à-vis the United Kingdom does not arise in the main proceedings. 48 – Because the prohibition on return under Article 33 of the Geneva Convention applies to refugees, the scope of the protection afforded by Article 18 of the Charter of Fundamental Rights in this regard is influenced by the notion of ‘refugee’ in the Geneva Convention (see Jarass, D., loc. cit. (footnote 44), Article 18, paragraph 5). In the context of the prohibition on return under Article 33 of the Geneva Convention, the notion of ‘refugee’ covers not only those who have already been recognised as refugees, but also those who fulfil the conditions for recognition as a refugee. See Lauterpacht, E./Bethlehem, D., ‘The scope and content of the principle of non-refoulement: Opinion’, in Refugee Protection in International Law (ed. Feller, E./Türk, V./Nicholson, F.), Cambridge 2003, p. 87, 116 et seq. 49 – See Lauterpacht, E./Bethlehem, D., loc. cit. (footnote 48), p. 122; Hailbronner, K., Asyl- und Ausländerrecht, 2nd edition, Stuttgart 2008, paragraph 655. 50 – See Case C-403/09 PPU Detiček [2009] ECR I-12193, paragraph 34; Case C-305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 28; and Case C-101/01 Lindqvist [2003] ECR I-12971, paragraph 87. 51 – See also, in this connection, Lenaerts, K., ‘The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice’, ICLQ 2010, p. 255, 298, who concludes, after a rigorous analysis of the Court’s most recent case-law, that in its rulings the Court is concerned with respecting the fundamental rights dimension of the European asylum system. 52 – See also Salahadin Abdulla, cited above in footnote 32, paragraph 54, and Bolbol, cited above in footnote 32, paragraph 38, with regard to the similarly worded recital 10 in the preamble to Directive 2004/83 and the resulting duty to interpret the provisions of the directive in a manner consistent with fundamental rights. 53 – According to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording, but also the context in which it occurs and the objective pursued by the rules of which it is part; see Case C‑19/08 Petrosian and Others [2009] ECR I-495, paragraph 34. 54 – See recital 3 et seq. in the preamble to Regulation No 343/2003. 55 – Article 10 of Regulation No 343/2003. 56 – See point 118 of this Opinion. 57 – With regard to the content and scope of Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, see point 165 et seq. of this Opinion. 58 – For example, in its decision of 2 December 2008, K.R.S. v. United Kingdom (Application No 32733/08), the European Court of Human Rights held that it must be presumed that Greece would comply with the obligations under Directives 2005/85 and 2003/9. 59 – See also, in this connection, Protocol (No 24) on asylum for nationals of Member States of the European Union, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union. That Protocol points out, first of all, that given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States are to be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Against this background, the Protocol then states that any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only under the very restrictive conditions set out in the Protocol. 60 – With regard to the principle of effectiveness, see Case C-246/09 Bulicke [2010] ECR I-0000, paragraph 25; Case C-2/06 Kempter [2008] ECR I-411, paragraph 57; Joined Cases C-222/05 to C-225/05 Van der Weerd and Others [2007] ECR I-4233, paragraph 28; and Case C‑432/05 Unibet [2007] ECR I-2271, paragraph 43. 61 – Cited above in footnote 58. 62 – Cited above in footnote 3. 63 – Articles 3 and 13 of the ECHR have their counterpart in Articles 4 and 47(1) of the Charter of Fundamental Rights. In the Explanations relating to Article 4, it is stated that the right in Article 4 is the right guaranteed by Article 3 of the ECHR, which has the same wording, with the result that, by virtue of Article 52(3) of the Charter, it has the same meaning and the same scope as the ECHR. The Explanations relating to Article 47(1) state that that provision is based on Article 13 of the ECHR, but nevertheless grants more extensive protection, since it guarantees the right to an effective remedy before a court. 64 – The European Court of Human Rights has confirmed in consistent case-law that the ECHR is to be construed as a ‘living instrument’; see the judgments of the European Court of Human Rights of 25 April 1978, Tyler v. the United Kingdom (Application No 5856/72, paragraph 31), and of 16 December 1999, v. v. the United Kingdom (Application No 24888/94, paragraph 72). 65 – See also, in this connection, Rengeling, H.‑W./Szczekalla, P., Grundrechte in der Europäischen Union, Cologne 2004, paragraph 468, who point out that Article 52(3) of the Charter of Fundamental Rights brings a high degree of dynamism to the development of EU fundamental rights. Naumann, K., ‘Art. 52 Abs. 3 GrCh zwischen Kohärenz des europäischen Grundrechtsschutzes und Autonomie des Unionsrechts’, EuR 2008, p. 424, points out that, without taking into consideration the case-law of the European Court of Human Rights, it is not possible to state, in any case, the meaning and the scope of the rights under the ECHR, and that only a dynamic reference can prevent the case-law of the Court of Justice and the case-law of the European Court of Human Rights drifting apart. 66 – See also the Opinion of Advocate General Poiares Maduro of 9 September 2008 in Case C‑465/07 Elgafaji [2009] ECR I-921, paragraph 23. 67 – See also, in this connection, Von Danwitz, T., Article 52, in Europäische Grundrechtecharta (ed. Tettinger, P./Stern, K.), Munich 2006, paragraph 57 et seq., who stresses, on the one hand, that the Charter of Fundamental Rights does not accord the European Court of Human Rights the exclusive power of interpretation of the relevant rights, but, on the other, concedes that the Court of Justice is bound by the interpretation by the European Court of Human Rights of the rights under the ECHR in so far as it may not fall short of the level of protection guaranteed by the European Court of Human Rights. See also Lenaerts, K./de Smijter, E., ‘The Charter and the Role of the European Courts’, Maastricht Journal of European and Comparative Law 2001, p. 90, 99, who appear to accept that the Court of Justice is required to respect and adopt the relevant case-law of the European Court of Human Rights. 68 – See, most recently, Joined Cases C‑92/09 and C‑93/09 Volker and Markus Schecke [2010] ECR I-0000, paragraph 43 et seq. See also Elgafaji, cited above in footnote 66, paragraph 44, in which the Court stressed as an obiter dictum that the interpretation given in that judgment of the relevant provisions of Directive 2004/83 was fully compatible with the ECHR, including the case-law of the European Court of Human Rights relating to Article 3 of the ECHR. In Case C‑400/10 PPU McB [2010] ECR I-0000, paragraph 53, the Court expressly found, with regard to Article 7 of the Charter of Fundamental Rights, that that provision must be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights. 69 – See point 114 et seq. of this Opinion. 70 – With regard to the reference to the Geneva Convention in Article 18 of the Charter of Fundamental Rights, see Bernsdorff, N., in Charta der Grundrechte der Europäischen Union (ed. Meyer, J.), 3rd edition, Baden‑Baden 2011, Article 18, paragraph 10; Wollenschläger, M., in Handbuch der Europäischen Grundrechte (ed. Heselhaus/Nowak), Munich 2006, § 16, paragraph 32; Jochum, G., in Europäische Grundrechtecharta (ed. Tettinger, P./Stern, K.), Munich 2006, Article 18, paragraph 6. 71 – See point 143 et seq. of this Opinion. 72 – M.S.S. v. Belgium and Greece, cited above in footnote 3, paragraph 342. 73 – With regard to the question whether Articles 1, 4 and 19(2) of the Charter of Fundamental Rights are applicable autonomously of one another in the case of a transfer of an asylum seeker to a Member State which is incompatible with those provisions, see above, footnotes 44 and 46. 74 – See Jarass, D., loc. cit. (footnote 44), Article 47, paragraph 11; Alber, S., in Europäische Grundrechtecharta (ed. Tettinger, P./Stern, K.), Munich 2006, Article 47, paragraph 25; Nowak, C., loc. cit. (footnote 19), § 51, paragraph 32. See also the consistent case-law of the European Court of Human Rights relating to Article 13 of the ECHR, according to which the right to an effective remedy enshrined therein is applicable where there is an arguable complaint that the ECHR has been infringed. See M.S.S. v. Belgium and Greece, cited above in footnote 3, paragraph 288, and judgment of 26 October 2000 in Kudła v. Poland (Application No 30210/96, paragraph 157). 75 – Because of this statutory limitation on restrictions of fundamental rights, limitations of the rights enshrined in the Charter of Fundamental Rights must be provided for either by the EU legislature or by the national legislature. Where the fundamental right is limited in the national legal order, however, that statutory limitation is to be given a broad interpretation with the result that – having particular regard to the different legal traditions of the Member States – it can also include customary law or judge-made law; see: Jarass, D., loc. cit. (footnote 44), Article 52, paragraph 28; Borowsky, D., loc. cit. (footnote 44), Article 52, paragraph 20. 76 – With regard to the role of the principle of effectiveness in the application of Article 47 of the Charter of Fundamental Rights, see Alber, S., loc. cit. (footnote 74 above), Article 47, paragraph 34; Jarass, D., ‘Bedeutung der EU-Rechtsschutzgewährleistung für nationale und EU-Gerichte’, NJW 2011, p. 1393, 1395. See also the consistent case-law of the European Court of Human Rights relating to Article 13 of the ECHR, according to which the right to an effective remedy enshrined therein must be construed as meaning that the remedy must be available to the beneficiary in practice as well as in law, allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. See M.S.S. v. Belgium and Greece, cited above in footnote 3, paragraph 290 et seq. 77 – See the case-law cited in footnote 60. 78 – See also: House of Lords – European Union Committee, The Treaty of Lisbon: an impact assessment. Volume I: Report (10th Report of Session 2007-08), http://www.parliament.the-stationery-office.co.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf, paragraphs 5.87 and 5.103. See also Pernice, I., The Treaty of Lisbon and Fundamental Rights, in Griller, S./Ziller, J. (ed.), The Lisbon Treaty. EU Constitutionalism without a Constitutional Treaty?, Vienna 2008, p. 235, 245. 79 – See point 71 et seq. of this Opinion. See also Craig, P., The Lisbon Treaty, Oxford 2010, p. 239; Pernice, I., loc. cit. (footnote 78), p. 246 et seq. 80 – See also House of Lords – European Union Committee, loc. cit. (footnote 78), paragraph 5.103.a.; Dougan, M., ‘The Treaty of Lisbon 2007: winning minds, not hearts’, CMLR 2008, p. 617, 669. See also Craig, P., loc. cit. (footnote 79), p. 239, who rightly states, in this connection, that Article 1(2) of Protocol No 30 would be meaningless if Article 1(1) of the Protocol contained a general opt-out. 81 – See House of Lords – European Union Committee, loc. cit. (footnote 78), paragraph 5.102. 82 – See Riedel, E., in Charta der Grundrechte der Europäischen Union (ed. Meyer, J.), 3rd edition, Baden‑Baden 2011, before Title IV, paragraph 7 et seq. 83 – See House of Lords – European Union Committee, loc. cit. (footnote 78), paragraph 5.103(b), in whose view Article 1(2) of the Protocol prevents the Court, in interpreting individual Title IV ‘rights’, concluding that those ‘rights’ represent legally enforceable rights which could be relied upon against the United Kingdom. 84 – See also Dougan, M., loc. cit. (footnote 80), p. 670; House of Lords – European Union Committee, loc. cit. (footnote 78), paragraph 5.103(c); Pernice, I., loc. cit. (footnote 78), p. 248 et seq.