62024CC0458
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 16 October 2025 (
1
)
Case C‑458/24 [Daraa] (
i
)
DO
v
Bundesrepublik Deutschland
(Request for a preliminary ruling from the Verwaltungsgericht Sigmaringen (Administrative Court, Sigmaringen, Germany))
(Reference for a preliminary ruling – Asylum policy – Regulation (EU) No 604/2013 – Determining the Member State responsible for examining an application for international protection – Suspension, by the Member State responsible, of the taking charge of asylum seekers – Absence of risk of inhuman or degrading treatment, resulting from systemic flaws in the asylum procedure and in the reception conditions – Scope of the obligations of the Member State which has sought to have the applicant taken charge of and wishing to transfer the applicant – No transfer of the applicant within the time limit laid down – Transfer of responsibility)
I. Introduction
1.
The Common European Asylum System is based on the approach that, in principle, only one Member State is responsible for examining an application for international protection lodged in the territory of a Member State by a third-country national or a stateless person. To that end, Regulation (EU) No 604/2013 (
2
) (‘the Dublin III Regulation’) provides for that purpose, first, for a series of designation criteria and, second, as a general rule, for transfer to the Member State responsible if the application is lodged elsewhere in the European Union. (
3
)
2.
That system is based on the principle of mutual trust, according to which the treatment of applicants for international protection in all Member States is presumed to comply, inter alia, with the requirements laid down in the Charter of Fundamental Rights of the European Union (‘the Charter’). (
4
)
3.
Since the judgment in N.S. and Others, (
5
) which was codified by the second subparagraph of Article 3(2) of the Dublin III Regulation, (
6
) an exception to that principle of mutual trust and, consequently, to the transfer to the Member State designated as responsible, applies where there are systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.
4.
The present case raises the question as to whether that exception also applies where, like the Italian Republic, a Member State designated as responsible has unilaterally suspended the taking charge of and taking back of those applicants, thereby preventing transfers to its territory.
5.
Following on from the judgment in Tudmur, (
7
) the present reference for a preliminary ruling gives the Court of Justice the opportunity to clarify the legal consequences of such a situation in the context of the interpretation of the Dublin III Regulation.
II. Legal framework
A.
The Dublin III Regulation
6.
Recitals 4 and 5 of the Dublin III Regulation state:
‘(4)
The Tampere conclusions also stated that the [Common European Asylum System] should include, in the short-term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.
(5)
Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection.’
7.
Article 3 of that regulation, entitled ‘Access to the procedure for examining an application for international protection’, provides, in paragraphs 1 and 2 thereof:
‘1.   Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
2.   Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.
Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.
Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.’
8.
Chapter III of that regulation, which comprises Articles 7 to 15, sets out the criteria for determining the Member State responsible, including the criterion of the first country of entry, laid down in Article 13(1).
9.
Article 18 of the regulation, which is in Chapter V thereof, concerns the obligations of the Member State responsible and provides, in paragraph 1(a), that ‘the Member State responsible under this Regulation shall be obliged to take charge, under the conditions laid down in Articles 21, 22 and 29, of an applicant who has lodged an application in a different Member State’.
10.
Chapter VI of the Dublin III Regulation concerns the procedures for taking charge of and taking back applicants and includes Articles 20 to 33 of that regulation.
11.
Article 29, entitled ‘Modalities and time limits’, provides, in paragraphs 1 and 2 thereof:
‘1.   The transfer of the applicant or of another person as referred to in Article 18(1)(c) or (d) from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3).
…
2.   Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.’
B.
Regulation (EC) No 1560/2003
12.
Article 8 of Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 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, (
8
) entitled ‘Cooperation on transfers’, provides, in paragraph 1 thereof:
‘It is the obligation of the Member State responsible to allow the asylum seeker’s transfer to take place as quickly as possible and to ensure that no obstacles are put in his way. …’
13.
Under Article 9 of the regulation, entitled ‘Postponed and delayed transfers’:
‘1.   The Member State responsible shall be informed without delay of any postponement due either to an appeal or review procedure with suspensive effect, or physical reasons such as ill health of the asylum seeker, non-availability of transport or the fact that the asylum seeker has withdrawn from the transfer procedure.
1a.   Where a transfer has been delayed at the request of the transferring Member State, the transferring and the responsible Member States must resume communication in order to allow for a new transfer to be organised as soon as possible, in accordance with Article 8, and no later than two weeks from the moment the authorities become aware of the cessation of the circumstances that caused the delay or postponement. In such a case, an updated standard form for the transfer of the data before a transfer is carried out as set out in Annex VI shall be sent prior to the transfer.
2.   A Member State which, for one of the reasons set out in Article 29(2) of [the Dublin III Regulation], cannot carry out the transfer within the normal time limit of six months from the date of acceptance of the request to take charge or take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect, shall inform the Member State responsible before the end of that time limit. Otherwise, the responsibility for processing the application for international protection and the other obligations under [the Dublin III Regulation] falls to the requesting Member State, in accordance with Article 29(2) of that Regulation.
…’
III. The dispute in the main proceedings, the questions referred and the procedure before the Court of Justice
14.
The applicant in the main proceedings, a Syrian national, entered Germany on 18 April 2023 and applied for asylum on 26 April 2023. On the basis of the information contained in the Eurodac database, the Italian Republic was identified as the Member State responsible for examining that application.
15.
On 27 April 2023, the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany; ‘the Federal Office’) therefore sent the Italian Republic a request to take charge of the applicant in the main proceedings under the Dublin III Regulation. The Italian authorities failed to reply.
16.
In its decision of 18 July 2023, the Federal Office rejected the asylum application of the applicant in the main proceedings as inadmissible, on the ground that the Italian Republic was responsible for examining that application, and ordered his removal to Italy.
17.
On 27 July 2023, the applicant in the main proceedings brought an appeal against that decision before the referring court which, by decision of 26 October 2023, granted suspensive effect to the appeal.
18.
By two circulars dated 5 and 7 December 2022, the Italian ‘Dublin’ Unit, the competent authority under the Italian Ministry of the Interior, informed all other ‘Dublin’ units that, provisionally and subject to exceptions, the Italian Republic would no longer accept transfers of applicants for international protection to Italy under the Dublin III Regulation.
19.
According to the referring court, it is necessary to determine whether, as a result of that refusal to take charge, responsibility was transferred to the Federal Republic of Germany pursuant to the second and third subparagraphs of Article 3(2) of the Dublin III Regulation. The decision of the Federal Office would, in that event, be unlawful.
20.
That court considers that such a refusal constitutes a ‘breakdown in the system’ of the Dublin III Regulation. That regulation starts from the assumption, founded on mutual trust, that the Member States will take charge of applicants who have lodged an application for international protection whose examination is their responsibility. In the light of that assumption and of the objective of rapid processing of applications, the willingness of the Member State responsible to take charge of applicants is an ‘unwritten constituent element’ of the second subparagraph of Article 3(2) of that regulation. The referring court argues that a refusal to take charge therefore entails an infringement of the abovementioned provision, regardless of the reception conditions in the Member State responsible. That provision could therefore result in a transfer of responsibility to the Federal Republic of Germany in the present case.
21.
In the light of those circumstances, the Verwaltungsgericht Sigmaringen (Administrative Court, Sigmaringen, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Is Article 3(2) of [the Dublin III Regulation], or Regulation No 604/2013 as such, to be interpreted as meaning that the determining Member State must continue its examination of the criteria set out in Chapter III and itself becomes responsible if the Member State responsible on the basis of those criteria is not willing to [take charge of] Dublin returnees?
(2)
Does that obligation incumbent upon the determining Member State to continue its examination of the criteria set out in Chapter III also apply if there are no systemic flaws within the meaning of the second subparagraph of Article 3(2) of [the Dublin III Regulation] in the Member State that is not willing [to take charge], resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter]?
(3)
Is Article 33(1) of [Directive 2013/32/EU (
9
)] to be interpreted as precluding national legislation under which an asylum application has to be rejected as inadmissible where the Member State responsible under [the Dublin III Regulation] is not willing to [take charge]?
(4)
Does the determining Member State have to assume that the Member State responsible under [the Dublin III Regulation] is not willing to [take charge] if the Ministry of the Interior of the Member State responsible declares in writing that no Dublin returnees are being [taken charge of] for the time being and if the Member State responsible subsequently prevents the [taking charge] of Dublin returnees?
(5)
Does the refusal of the Member State responsible to [take charge of] Dublin returnees, taken in isolation and regardless of any resulting risk for the purposes of Article 4 of the [Charter], infringe subjective rights of the person concerned? Does Article 27(1) of [that regulation] also provide for an effective remedy for such an infringement of subjective rights?’
22.
Written observations were submitted by the applicant in the main proceedings, the Danish, French, Italian, Austrian and Finnish Governments and the European Commission. The Danish, German, French, Italian and Finnish Governments and the Commission took part in the hearing, which was held on 18 June 2025.
23.
In accordance with the Court of Justice’s request, the present Opinion will be confined to the analysis of the first and second questions referred for a preliminary ruling.
IV. Analysis
A.
Preliminary observations on the wording of the questions referred for a preliminary ruling and on the structure of the analysis
24.
In so far as the first and second questions referred for a preliminary ruling both concern the interpretation of Article 3(2) of the Dublin III Regulation in the event of suspension of transfers to the Member State designated as responsible, I consider it appropriate to deal with them together.
25.
In that regard, I note that although the first question referred for a preliminary ruling refers without distinction to the interpretation of that provision or of the Dublin III Regulation ‘as such’, it is clear from reading it together with the second question that the referring court’s doubts relate, more specifically, to the second and third subparagraphs of that provision, in so far as it wishes to know, as regards the obligations of the determining Member State, the consequences of a unilateral suspension of the assumption of responsibility by the Member State responsible.
26.
It should be noted that the first subparagraph of Article 3(2) of the Dublin III Regulation, which refers to a situation where no Member State responsible can be designated on the basis of the criteria listed in that regulation, is not relevant for the purposes of the present analysis. The referring court states that the German authorities identified the Italian Republic as the Member State responsible as the first country of entry. (
10
)
27.
In addition, I note that the first and second questions refer only to the suspension of the taking charge of applicants for international protection. It is apparent from the order for reference and from the judgment in Tudmur (
11
) that the Italian Republic suspended both the taking charge and the taking back of applicants. In so far as the second and third subparagraphs of Article 3(2) of the Dublin III Regulation do not distinguish between them, my analysis applies to both those situations, (
12
) although it refers only to taking charge.
28.
In the light of the foregoing, I consider that the first and second questions referred for a preliminary ruling must be understood as meaning that, by those questions, the referring court seeks to ascertain whether the second and third subparagraphs of Article 3(2) of the Dublin III Regulation must be interpreted as meaning that the determining Member State is required to continue its examination of the criteria laid down in Chapter III of that regulation, or even become responsible itself, where the Member State initially designated as responsible pursuant to those criteria is not willing to take charge of persons who are the subject of a transfer decision under that regulation and where there are no systemic flaws in the latter Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.
29.
In order to give a useful and complete answer to the referring court, I also consider it necessary to examine Article 29(2) of the Dublin III Regulation. Under that provision, if the applicant for international protection is not transferred within the prescribed time limit the requesting Member State is to assume responsibility for examining the application for international protection. That provision was mentioned by a number of interested parties in their written observations and was the subject of extensive discussion at the hearing.
30.
Accordingly, in order to answer the first and second questions, I shall first set out, in section B, a brief summary of the conditions for the application of the second and third subparagraphs of Article 3(2) of the Dublin III Regulation and the lessons learned from the judgment in Tudmur, which may be transposed to the present case. Then, in section C, I shall consider the relationship between that provision and Article 29(2) of the regulation.
B.
Conditions for the application of the second and third subparagraphs of Article 3(2) of the Dublin III Regulation
1. General observations
31.
It will be recalled that the second and third subparagraphs of Article 3(2) of the Dublin III Regulation codify the case-law relating to Regulation (EC) No 343/2003 (
13
) (‘the Dublin II Regulation’), under which, pursuant Article 4 of the Charter, the Member States, including the national courts, may not transfer an asylum seeker to the Member State responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that latter provision. (
14
)
32.
The second and third subparagraphs of Article 3(2) of the Dublin III Regulation state that, in such a situation, the determining Member State becomes responsible for examining the application for international protection if it finds, following examination of the criteria set out in Chapter III of that regulation, that the transfer cannot be made to any Member State designated on the basis of those criteria or to the first Member State in which the application was lodged. (
15
)
33.
The judicial history of that provision shows that it was conceived as an exceptional, but necessary, mechanism in order to avoid implementation in every single case, without exception, of the criteria for determining the Member State responsible and thus to ensure compliance by the European Union and its Member States with their obligations concerning the protection of the fundamental rights of asylum seekers. (
16
)
34.
Over the years, the Court has confirmed the rigorous requirements for the application of the second subparagraph of Article 3(2) of the Dublin III Regulation. Thus, only ‘systemic flaws’‘resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter]’ make the transfer of an applicant for international protection to the responsible Member State impossible; the two conditions are therefore cumulative. (
17
)
35.
It is clear from the foregoing that the second and third subparagraphs of Article 3(2) of the Dublin III Regulation cannot be applied to situations other than that referred to in that provision. As the Court of Justice held in the judgment in N.S. and Others, (
18
) as regards that regulation, it would be contrary to its aims and scheme were the slightest infringement of the provisions of EU law on asylum to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible.
2. Application to the present case
36.
The Court of Justice confirmed, in the judgment in Tudmur, that the two cumulative conditions for the application of the second subparagraph of Article 3(2) of the Dublin III Regulation cannot be regarded as satisfied on the sole ground that the Member State designated as responsible under the criteria set out in Chapter III of that regulation has unilaterally suspended the taking charge of applicants. Consequently, such a unilateral suspension does not relieve the Member State concerned of the obligation to assess the existence of systemic flaws and of the risk of infringement of Article 4 of the Charter following a specific analysis, based on information that is objective, reliable, specific and properly updated. (
19
)
37.
The Court relied on the aims of the Dublin III Regulation to reach its conclusion. That regulation seeks, inter alia, to establish a clear and effective method for determining the Member State responsible and to prevent secondary movements of asylum seekers between Member States. (
20
) According to the Court, if the Member State designated as responsible under the criteria set out in Chapter III of that regulation could discharge itself, by a mere unilateral announcement, of its responsibilities under that regulation, that would lead to those criteria being disregarded and would thus risk jeopardising the proper functioning of the system put in place by that regulation. (
21
)
38.
In so far as, as I have indicated, (
22
) the situation at issue in the case that gave rise to the judgment in Tudmur concerned, as in the present case, the suspension by the Italian Republic, since 2022, of the taking charge of applicants, I see no reason to depart from that interpretation. It confirms the previous approach by the Court to the strict threshold for the application of the second and third subparagraphs of Article 3(2) of the Dublin III Regulation.
39.
Furthermore, the Court recalled in that judgment that, under the second and third subparagraphs of Article 3(2) of the Dublin III Regulation, it is for the competent court or tribunal to examine the risks the individual concerned would be exposed to at the very moment of the transfer, during the asylum procedure or following it. (
23
)
40.
Accordingly, that judgment confirms, in my view, that the reason why the second and third subparagraphs of Article 3(2) of the Dublin III Regulation cannot apply to a situation such as that at issue in the main proceedings relates not to the distinction, suggested by the referring court, between the ‘Dublin’ procedure and the ‘asylum procedure’, but to the absence of systemic flaws resulting in a risk of inhuman or degrading treatment of the applicant. In that regard, the referring court considers that that provision refers only to the procedure for examining an application for international protection, whereas the suspension of the taking charge at issue is confined to the prior procedure of examining the criteria for determining the Member State responsible as laid down in that regulation. That reasoning runs counter to the general and absolute nature of the prohibition laid down in Article 4 of the Charter, from which the Court has inferred that the transfer of an applicant to the Member State responsible is ruled out in any situation in which there are substantial grounds for believing that the applicant runs a real risk of inhuman or degrading treatment, within the meaning of that provision, during his or her transfer or thereafter. (
24
)
41.
In the light of the foregoing, I note that, at the present stage of the analysis, the first and second questions referred for a preliminary ruling should be answered in the negative.
42.
However, as I stated in point 29 of the present Opinion, it is still necessary to examine Article 29(2) of the Dublin III Regulation, the wording of which also militates against an interpretation under which the second and third subparagraphs of Article 3(2) of that regulation should apply to a situation such as that at issue in the present case.
C.
Relationship with Article 29(2) of the Dublin III Regulation
1. Summary of the issues
43.
As is apparent from the grounds of its first and second questions referred for a preliminary ruling, (
25
) the referring court considers that the suspension of the taking charge at issue in the present case constitutes a ‘breakdown in the system’ of the Dublin III Regulation which should be remedied by judicial decision, in order to achieve the objective of the rapid processing of applications.
44.
Such an approach would not only be incompatible with the scheme of the second and third subparagraphs of Article 3(2) of the Dublin III Regulation and with well-established case-law, summarised in point 34 of the present Opinion, but would also be based on what I consider to be an incomplete reading of that regulation.
45.
The referring court appears to take the view that the Dublin III Regulation does not contain any provision governing the consequences of a suspension by the Member State responsible of taking charge of applicants.
46.
Article 3(2) of the Dublin III Regulation concerns situations in which the transfer of the applicant is ruled out because of systemic flaws in the asylum procedure and in the reception conditions for applicants, resulting in a risk of inhuman or degrading treatment of the applicant. In the absence of such an exceptional situation or of the application of a discretionary clause, (
26
) Chapter VI of that regulation provides for the launch of a take charge procedure for the transfer of the applicant to the Member State that has been determined to be responsible for examining the application for international protection.
47.
Section VI of Chapter VI of the Dublin III Regulation, which governs the procedure for the transfer of applicants, includes Article 29, entitled ‘Modalities and time limits’. Paragraph 1 thereof provides that the transfer of the applicant from the requesting Member State to the Member State responsible is to be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible and, as a general rule, at the latest within six months. That article provides, in essence, in paragraph 2, that if the transfer does not take place within that six-month time limit, which may be extended if the person concerned is imprisoned or absconds, the Member State responsible is to be relieved of its obligations to take charge of or to take back the person concerned and responsibility is then transferred to the requesting Member State.
48.
Therefore, where, following the expiry of the time limit for transferring the applicant, as a result of the suspension of taking charge by the Member State responsible, the requesting Member State – in the present case the Federal Republic of Germany – becomes responsible for examining the application for international protection, the transfer of responsibility takes place not at the stage of the examination of the criteria for determining the Member State responsible, but at the stage of the procedure for transferring the applicant. (
27
)
49.
As is clear from their written and oral observations, (
28
) the interested parties set out various possible interpretations as to the applicability of Article 29(2) of the Dublin III Regulation to such a situation.
50.
In order to determine the relevance of those different interpretations, I shall analyse the wording, context and objectives of Article 29(2) of the Dublin III Regulation, taking into account its legislative history and the Court’s case-law on the transfer of responsibility on expiry of the time limit for transfer of the applicant for international protection.
2. Literal and contextual interpretation
51.
In the first place, I note that the wording of Article 29(2) of the Dublin III Regulation does not limit the transfer of responsibility to certain situations or grounds. The only situation expressly set out in the second sentence of that provision concerns the extension of the time limit for transferring the applicant in the event that he or she is imprisoned or absconds.
52.
Purely from the point of view of the logic of the text of the Dublin III Regulation, that second sentence, in so far as it sets out the situations in which the time limit for transfer may be extended, cannot restrict the first sentence of that provision, which is worded in open terms (‘Where the transfer does not take place within the six months’ time limit …’).
53.
That interpretation is confirmed by the judgment in Shiri, (
29
) in which the Court observed that it is apparent from the very wording of Article 29(2) of the Dublin III Regulation that that provision provides for an automatic transfer of responsibility to the requesting Member State, without making that transfer conditional on any reaction by the Member State responsible. In particular, it is not necessary, according to the Court, for the Member State to refuse to take charge of or take back the person concerned. (
30
)
54.
In the second place, having regard to the context of the provision in question, I note that Regulation No 1560/2003 refers, as regards the practical arrangements for applying the Dublin III Regulation, to the situation where the postponement of the applicant’s transfer is due either to an appeal or review procedure with suspensive effect, or to physical reasons ‘such as ill health of the asylum seeker, non-availability of transport or the fact that the asylum seeker has withdrawn from the transfer procedure’. (
31
) It should be noted, however, that that is merely an illustrative list.
55.
Furthermore, the automatic transfer of responsibility at the stage of the procedure for the transfer of the applicant establishes, in my view, a clear distinction between Article 29(2) and the second and third subparagraphs of Article 3(2) of the Dublin III Regulation. The latter provision requires the national authorities of the determining Member State to carry out an assessment of the cumulative conditions relating to systemic flaws resulting in a risk, for the person concerned, of being exposed to treatment that is contrary to Article 4 of the Charter. In addition, it provides for a transfer of responsibility only subsequently, the authorities of that Member State having an obligation, first, to continue to examine the criteria for determining responsibility. (
32
)
56.
Accordingly, like the Commission and the French and Italian Governments, I consider that, interpreted literally and in its context, Article 29(2) of the Dublin III Regulation applies to all cases where the applicant is not transferred within the six months’ time limit.
57.
That being the case, it might be asked whether, in adopting Article 29 of the Dublin III Regulation, the EU legislature intended the expiry of the six months’ time limit for transferring applicants to result, almost automatically, in the transfer of responsibility in cases where the requested Member State has in effect suspended transfers to its territory, so that the consequences of failure to comply with the time limit for transferring applicants as a result of the unilateral decision of the latter Member State are thus borne by the requesting Member State.
58.
Article 29(1) of the Dublin III Regulation provides that the transfer of the applicant to the Member State responsible is to be carried out ‘after consultation between the Member States concerned’ and as soon as practically possible. Those words could indicate that that provision was introduced on the assumption that the requested Member State is willing to take charge of or take back the applicant for international protection concerned.
59.
In order to gain a better understanding of the scope of Article 29 of the Dublin III Regulation, I think it useful to retrace its legislative history.
3. Historical approach
60.
The transfer of responsibility to the requesting Member State on expiry of the time limit for the transfer of the applicant was introduced by the Dublin II Regulation. For the take charge and take back procedures, that regulation laid down two provisions worded in the same terms as Article 29(2) of the Dublin III Regulation. (
33
)
61.
As regards take charge procedures, it is apparent from the explanatory memorandum to the Commission’s proposal for the Dublin II Regulation (
34
) that that transfer of responsibility, which did not form part of the Dublin Convention (
35
), since the latter did not provide for such a consequence in the event that the transfer of the applicant failed, was based, first, on the considerations that ‘a Member State which has been deficient in implementing the common objectives concerning the control of illegal immigration must assume the consequences vis-à-vis its partners’. Second, that mechanism sought to ‘avoid the creation of a pool of “asylum seekers in orbit”, whose applications are not examined in any Member State’. (
36
)
62.
As regards take back procedures, the explanatory memorandum to the proposal for the Dublin II Regulation stated that the provision on the transfer of responsibility ‘spells out the consequences of the inability of the requesting State to carry out a transfer to the State responsible: the agreement to take back lapses, and the requesting Member State has to assume responsibility for the asylum seeker’. (
37
)
63.
The provisions of the Dublin II Regulation corresponding to Article 29(2) of the Dublin III Regulation were therefore initially envisaged, first, for situations where the transfer of the applicant is not carried out for a reason attributable to the requesting Member State and, second, in order to ensure that the asylum application is ultimately dealt with by a Member State.
64.
The absence, in the explanatory memorandum to the proposal for the Dublin II Regulation, of any reference to a situation such as that at issue in the main proceedings does not, in my view, in any way support the conclusion that that situation does not fall within the scope of Article 29(2) of the Dublin III Regulation. It is in the nature of the law that the legislature cannot anticipate, when adopting a provision, all the possible situations which may be covered by it.
65.
Moreover, as observed, in essence, by the Finnish Government, it is not surprising that the situation of a unilateral suspension of taking charge by a Member State was not expressly provided for in the text of the Dublin II and III Regulations: providing for such a scenario would have meant that the legislature was assuming that Member States would not comply with their obligations under those regulations.
66.
I consider that an interpretation of Article 29(2) of the Dublin III Regulation according to which that provision applies to the situation of unilateral suspension of the taking charge of asylum seekers by the Member State responsible not only corresponds to the open wording of that provision, but is also consistent, as I shall explain below, with the objectives of that regulation.
4. Teleological approach
(a) The aims of the Dublin III Regulation
67.
The governments that participated in the hearing expressed divergent views regarding the aims that should be taken into account when interpreting Article 29(2) of the Dublin III Regulation. The French, Italian, Austrian and Finnish Governments cited the aim of rapidly determining the Member State responsible and guaranteeing effective access to asylum procedures, as mentioned in recitals 4 and 5 of that regulation.
68.
The Danish and German Governments, on the other hand, emphasised the need to prevent circumvention of the criteria for determining the Member State responsible and the phenomenon of ‘asylum shopping’, that is to say, third-country nationals de facto freely choosing the Member State that will process their applications for international protection. According to those governments, Article 29(2) of the Dublin III Regulation cannot be interpreted as resulting, in the present case, in a transfer of responsibility on the expiry of the six months’ time limit. To hold otherwise would mean that the Italian Republic could unilaterally relieve itself of its obligations under that regulation and, in particular, of its responsibility for examining the application for international protection.
69.
First of all, interpreting Article 29(2) of the Dublin III Regulation as being applicable in the event that an applicant is not transferred as a result of the unilateral suspension of the taking charge of applicants by the Member State responsible is, in my view, consistent with the aim of rapid processing of applications for international protection and effective access to the procedures for granting international protection, referred to in recital 5 thereof.
70.
In that regard, like the Commission and the Austrian, Finnish, French and Italian Governments, I consider that that interpretation makes it possible, first, to maintain the responsibility of the Member State designated as responsible and, therefore, the system of criteria for determining responsibility established by the Dublin III Regulation during the six months’ transfer time limit. In the present case, since the Italian Government had stated that the suspension was only temporary, it could be lifted at any time.
71.
Second, the application of the mechanism for the automatic transfer of responsibility upon expiry of the legal time limit (
38
) makes it possible, in my view, to give precedence to legal certainty as regards the determination of the Member State responsible and thus to guarantee effective access to the procedures for granting international protection.
72.
Furthermore, as regards the argument of the Danish and German Governments that a transfer of responsibility under Article 29(2) of the Dublin III Regulation would render a strict view of the second and third subparagraphs of Article 3(2) of that regulation meaningless, I would point out that those provisions are based on different conditions and serve different purposes. (
39
) Moreover, those governments do not dispute the fact that, as is clear from the judgment in Tudmur, the latter provision does not apply to the situation at issue in the present case.
(b) The Court’s case-law on the transfer of responsibility
73.
The Court’s case-law confirms that Article 29(2) of the Dublin III Regulation ultimately gives priority to the interest of third-country nationals in having their applications for international protection processed rapidly over the risk of circumvention of the determination criteria, represented by the transfer of responsibility from the Member State normally responsible to the Member State in which such an application was lodged.
74.
Thus, in the first place, the Court of Justice has noted that Article 29(2) of the Dublin III Regulation is consistent with the objective of rapid processing of applications for international protection (
40
) and provides only for an extension of the time limit, exceptionally, in certain frequent cases where it is materially impossible to implement the transfer decision. (
41
)
75.
In the second place, the Court has declined to exclude from the scope of that provision circumstances linked to the impossibility of carrying out the transfer of the applicant which are not attributable to the requesting Member State, such as the COVID-19 pandemic (
42
) or the applicant’s state of health. (
43
) Moreover, the Court has emphasised that the EU legislature did not consider that the fact that it was materially
impossible to implement a transfer decision should be regarded as justifying the interruption or suspension of the time limit for transferring the applicant laid down in Article 29(1) of the Dublin III Regulation. (
44
)
(c) Mutual trust and deference to the legislature
76.
I note that the German and Danish Governments argue in their observations that the interpretation of Article 29(2) of the Dublin III Regulation that I propose to adopt would run counter to the principle of mutual trust and would ratify an infringement of EU law by the Italian Republic.
77.
I am not persuaded by those arguments.
78.
In the first place, I consider that the application of Article 29(2) of the Dublin III Regulation does not affect the principle of mutual trust. While it is settled case-law of the Court of Justice that the Common European Asylum System was conceived on the basis of that principle, (
45
) the application of that provision does not constitute an exception to the presumption of compliance with EU law and, in particular, with fundamental rights, by the Member States. As I have just explained, the automatic transfer of responsibility for examining an application for international protection under that provision does not depend on the reason why the applicant was not transferred within the prescribed period.
79.
In the second place, it is true that it is apparent from the judgment in Tudmur that the unilateral announcement by a Member State suspending all transfers of applicants for international protection to its territory and, accordingly, the procedures for taking charge of and taking back those applicants infringes its obligations in the context of the Common European Asylum System. (
46
) However, I take the view that the solution to such disregard of the obligations arising from the Dublin III Regulation cannot be sought in an interpretation of that regulation that is contrary to its wording and the objectives it pursues. As the Finnish Government also stated in its written observations, there are appropriate remedies under EU law to penalise breaches by a Member State of the obligations arising from that regulation.
80.
In the third place, the Court has jurisdiction only to interpret the law, within the limits of the wording and objectives of the legislation in force. It constitutes part of the legislator’s remit and policy choices to reform a regulation through the legislative procedure.
81.
I refer, in that regard, to the recent reform of the right to asylum which culminated in the adoption, in May 2024, of the Pact on Migration and Asylum, of which Regulation (EU) 2024/1351 forms part. (
47
)
82.
It should be noted that the text of Article 29(2) of the Dublin III Regulation was reproduced in Article 46(2) of Regulation 2024/1351, while specifying the situations in which the time limit for the transfer of the applicant may be extended and the maximum duration of that extension (
48
) in order to limit the possibility that the behaviour of applicants could lead to the cessation or shift of responsibility to another Member State. (
49
) In addition, as the Commission pointed out at the hearing, the legislature has provided for derogating rules allowing a Member State facing a situation of exceptional mass arrivals to be relieved of its obligation to take back an applicant (
50
) and a mandatory solidarity mechanism in order to provide support to Member States under migratory pressure and to ensure swift access to the procedures for granting international protection. (
51
)
83.
In my view, it follows that, as the relevant EU legislation currently stands, the impossibility of actually transferring an applicant as a result of the unilateral suspension, by the Member State designated as responsible, of the taking charge of applicants for international protection falls, in the absence of other mechanisms, within the transfer of responsibility mechanism under Article 29(2) of the Dublin III Regulation.
V. Conclusion
84.
In the light of all of the foregoing considerations, I propose that the Court of Justice answer the first and second questions referred for a preliminary ruling by the Verwaltungsgericht Sigmaringen (Administrative Court, Sigmaringen, Germany) as follows:
The second and third subparagraphs of Article 3(2) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person
must be interpreted as meaning that the determining Member State is not required to continue its examination of the criteria laid down in Chapter III of that regulation and does not itself become responsible where the Member State initially designated as responsible pursuant to those criteria is not willing to take charge of persons who are the subject of a transfer decision under that regulation and where there are no systemic flaws in the latter Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.
However, the fact that the second and third subparagraphs of Article 3(2) of Regulation No 604/2013 do not apply does not preclude, on expiry of the time limit for transfer of the applicant laid down in Article 29(1) thereof, a transfer of responsibility under the conditions laid down in Article 29(2) of that regulation.
(
1
)	Original language: French.
(
i
)	The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
(
2
)	Regulation 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 180, p. 31).
(
3
)	See Article 3(1) and Article 29(1) of the Dublin III Regulation.
(
4
)	See, inter alia, judgments of 19 March 2019, Jawo (C‑163/17, EU:C:2019:218, paragraph 82), and of 29 February 2024, Staatssecretaris van Justitie en Veiligheid (Mutual trust in the event of transfer) (C‑392/22, EU:C:2024:195, paragraph 45).
(
5
)	Judgment of 21 December 2011 (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 106).
(
6
)	See, to that effect, judgment of 19 March 2019, Jawo (C‑163/17, EU:C:2019:218, paragraph 86).
(
7
)	Judgment of 19 December 2024 (C‑185/24 and C‑189/24, ‘the judgment in Tudmur’, EU:C:2024:1036).
(
8
)	OJ 2003 L 222, p. 3, as amended by Commission Implementing Regulation (EU) No 118/2014 of 30 January 2014 (OJ 2014 L 39, p. 1) (‘Regulation No 1560/2003’).
(
9
)	Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).
(
10
)	See Article 13(1) of the Dublin III Regulation.
(
11
)	See paragraphs 18 and 19. The case which gave rise to that judgment concerned the suspension of transfers of applicants to Italy, the same situation as that in the present case.
(
12
)	Therefore, the fact that the information provided in the request for a preliminary ruling appears to be contradictory in that regard has no bearing on the present analysis. First, there is no mention of the fact that the applicant is said to have made an application for international protection in Italy, which the Italian Government denied at the hearing. The other provisions of the Dublin III Regulation cited by the referring court with regard to the responsibility of the Italian Republic also concern take charge requests. Second, the national court refers to Article 18(1)(b) of that regulation – which refers to requests to take back applicants whose application is under examination in the Member State responsible – as the basis for the request sent to the Italian Republic.
(
13
)	Council Regulation 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 (OJ 2003 L 50, p. 1). That regulation was repealed by the Dublin III regulation.
(
14
)	Judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 106).
(
15
)	Judgment of 19 March 2019, Jawo (C‑163/17, EU:C:2019:218, paragraphs 85 and 86).
(
16
)	See, in particular, judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 94).
(
17
)	See, most recently, the judgment in Tudmur (paragraph 35 and the case-law cited). By way of example, the Court noted that the practices of pushback to a third country and of detention at border control posts do not automatically satisfy those cumulative conditions, even though they are incompatible with EU law and constitute serious flaws in the asylum procedure and in the reception conditions for applicants; see judgment of 29 February 2024, Staatssecretaris van Justitie en Veiligheid (Mutual trust in the event of transfer) (C‑392/22, EU:C:2024:195, paragraphs 57 and 58).
(
18
)	Judgment of 21 December 2011 (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 84), concerning minimum standards for the reception of asylum seekers, qualification for refugee status and procedures for granting and withdrawing refugee status.
(
19
)	The judgment in Tudmur (paragraphs 43 and 44).
(
20
)	The judgment in Tudmur (paragraph 41 and the case-law cited).
(
21
)	The judgment in Tudmur (paragraph 42).
(
22
)	See point 27 of and footnote 11 to the present Opinion.
(
23
)	The judgment in Tudmur (paragraph 45 and the case-law cited).
(
24
)	See, to that effect, judgment of 19 March 2019, Jawo (C‑163/17, EU:C:2019:218, paragraphs 87 to 89).
(
25
)	See the summary of that reasoning in point 20 of the present Opinion.
(
26
)	See Article 17 of the Dublin III Regulation.
(
27
)	It is apparent from the observations submitted to the Court that, in a number of cases in which the applicants were to be transferred to Italy, the Danish and German authorities applied Article 29(2) of the Dublin III Regulation in order to assume responsibility for examining applications for international protection.
(
28
)	See points 67 and 68 of the present Opinion.
(
29
)	Judgment of 25 October 2017 (C‑201/16, EU:C:2017:805, paragraph 30).
(
30
)	See paragraph 34 of the judgment.
(
31
)	See Article 9(1) of Regulation No 1560/2003.
(
32
)	See points 32 and 36 of the present Opinion.
(
33
)	See Article 19(4) and Article 20(2) of the Dublin II Regulation.
(
34
)	COM(2001) 447 final.
(
35
)	Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, signed in Dublin on 5 June 1990 (OJ 1997 C 254, p. 1).
(
36
)	See the explanations under Article 20 of the proposal for a regulation.
(
37
)	See the explanations under Article 21 of the proposal for a regulation.
(
38
)	Taking into account the starting point of that time limit, in accordance with Article 29(1) of the Dublin III Regulation, which depends, inter alia, on any suspensive effect of an appeal brought against or review of the transfer decision in accordance with Article 27(4) thereof; see, in that regard, judgment of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision) (C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 49).
(
39
)	See points 53 and 55 of the present Opinion.
(
40
)	See, to that effect, judgments of 25 October 2017, Shiri (C‑201/16, EU:C:2017:805, paragraphs 31 and 39), and of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision) (C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 70).
(
41
)	See, to that effect, judgment of 31 March 2022, Bundesamt für Fremdenwesen und Asyl and Others (Committal of an asylum seeker to a psychiatric hospital) (C‑231/21, EU:C:2022:237, paragraph 56), and of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision) (C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 65).
(
42
)	Judgment of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision) (C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 71).
(
43
)	Judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127, paragraph 89).
(
44
)	Judgment of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision) (C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 65).
(
45
)	See point 2 of the present Opinion and, to that effect, judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 78 to 80); Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454, paragraph 191) and, most recently, the judgment in Tudmur (paragraphs 31 and 32).
(
46
)	The judgment in Tudmur (paragraph 40).
(
47
)	Regulation of the European Parliament and of the Council of 14 May 2024 on asylum and migration management, amending Regulations (EU) 2021/1147 and (EU) 2021/1060 and repealing Regulation (EU) No 604/2013 (OJ L, 2024/1351). Article 83 of that regulation repeals the Dublin III Regulation with effect from 1 July 2026.
(
48
)	The provision allows the transfer time limit to be extended to a maximum of three years (instead of 18 months), not only in the event of the applicant absconding, but also where the person concerned, or a family member to be transferred together with the person concerned, is physically resisting the transfer, is intentionally making himself or herself unfit for the transfer, or is not complying with the medical requirements for the transfer.
(
49
)	See recital 59 of Regulation 2024/1351.
(
50
)	See Article 13 of Regulation (EU) 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147 (OJ L, 2024/1359).
(
51
)	See recital 22 and Chapter I of Part IV of Regulation 2024/1351.