Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 8 May 2025 (1)
Case C‑560/23 [Tang] (i)
H (assisted by DRC Dansk Flygtningehjælp)
v
Udlændingestyrelsen
(Request for a preliminary ruling from the Flygtningenævnet (Refugee Tribunal, Denmark))
( Reference for a preliminary ruling – Regulation (EU) No 604/2013 – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Article 29(1) – Time limit for transfer – Setting the starting point of the six-months’ time limit at the final decision on the appeal – Examination of new circumstances by the judicial authority before which the appeal against the transfer decision is pending – National provisions allowing a judicial authority to remit a transfer decision back to the competent administrative authority for review )
I.      Introduction
1.        This reference for a preliminary ruling provides the Court with a further opportunity to interpret the provisions on how to calculate the time limit for transfer laid down in Article 29(1) of Regulation
(EU) No 604/2013, (2) which provides that the transfer of an applicant for international protection from the requesting Member State to the Member State responsible must take place within six months of the final decision on appeal or the review of the transfer decision where there is a suspensive effect. (3)
2.        This request was submitted in the context of litigation between H, an applicant for international protection from Afghanistan, and the Udlændingestyrelsen (Immigration Service, Denmark) concerning a decision adopted by that service to transfer H to Romania, that Member State having agreed to take him back under the Dublin III Regulation. While the action for annulment of that transfer decision was pending before the Flygtningenævnet (Refugee Tribunal, Denmark), that authority was informed that Romania was suspending incoming transfers because of the increased influx of refugees into the country. Accordingly, it remitted the case back to be reviewed
by the Immigration Service, which gave a new transfer decision, whose lawfulness was upheld by the Flygtningenævnet (Refugee Tribunal) in a further appeal.
3.        This case requires the Court to clarify the exact moment when a decision on an appeal becomes ‘final’ within the meaning of Article 29(1) of the Dublin III Regulation, in the context of a national procedural system that, in the presence of a significant change of circumstances occurring after a transfer decision has been adopted, allows the judicial authority seised of an appeal against that decision to annul it without ruling on its merits and to remit it back for review to the competent administrative authority, which is responsible for adopting a new transfer decision – against which a new appeal with suspensive effect may be lodged.
4.        In this opinion, I will explain the reasons why I deem that, under such a procedural system, the six-month time limit referred to in Article 29(1) of the Dublin III Regulation given to the requesting Member State for the transfer of the applicant must begin to run from the decision by which a judicial authority seised of
an action for annulment of a transfer decision adopted at the end of a review procedure gives a final ruling on the lawfulness of that decision and terminates the procedure relating to that transfer decision, either by annulling it or by allowing it to be implemented.
5.        I point out, however, that it is for that Member State to adapt its national law in such a way that, following the remittal of the case for review to the competent administrative authority, a new transfer decision and the final decision on the appeal against it are adopted promptly in order to ensure that the application for international protection is processed expeditiously.
II.    Legal context
A.      European Union law
6.        Article 1 of the Dublin III Regulation establishes 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. Recitals 4, 5 and 19 of that
regulation state in this regard:
‘(4)      The [conclusions of the European Council Special Meeting held at Tampere on 15
and
16 October 1999] … stated that the [Common European Asylum System (CEAS)] 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.
…
(19)      In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. [(4)] In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.’
7.        Article 27(3) and (4) of the Dublin III Regulation sets out the following:
‘3.      For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:
(a)      the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or
(b)      the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review;
(c)      the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.
4.      Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.’
8.        The first subparagraph of Article 29(1) and Article 29(2) of that
regulation read as follows:
‘1.      The transfer of the applicant … 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.      Danish law
1.      The special status of the Kingdom of Denmark with regard to the implementation of the CEAS
9.        The Kingdom of Denmark enjoys a special status with regard to Title V of Part Three of the TFEU, which covers, inter alia, policies on border controls, asylum and immigration, by virtue of Protocol (No 22) on the Position of Denmark annexed to the TEU and the TFEU, distinguishing it from the other Member States. Accordingly, this Member State does not participate in the CEAS, as it is not bound by Directives 2011/95/EU (5) and 2013/32/EU. (6) On the other hand, it applies the Dublin III Regulation, under an international agreement signed on 13 March 2005 with the European Union. (7)
2.      The Law on Immigration
10.      Sections 53 to 56 of the Udlændingeloven (Law on Immigration) (8) contain provisions governing the Flygtningenævnet (Refugee Tribunal).
11.      Pursuant to Article 53a of that law, the Flygtningenævnet (Refugee Tribunal) acts on a permanent basis as an administrative appellate body against administrative decisions on asylum taken at first instance by the Immigration Service.
12.      Under Article 56(8) of the Udlændingeloven (Law on Immigration), decisions of the Flygtningenævnet (Refugee Tribunal) are final and cannot be challenged before any other administrative authority.
13.      It is clear from the legal framework set forth in the order for reference that, under Danish administrative law, the appellate body may remit a case back to the competent administrative authority for review in three circumstances: (1) if the case is not sufficiently clarified prior to the decision at first instance; (2) if significant errors were made in the handling of the case at first instance, or (3) if new relevant information comes to light.
14.      According to Danish administrative law, a remittal for review purposes implies, therefore, that the case is still being dealt with by the authorities and that it is possible to challenge before the appellate body the new decision adopted at first instance.
III. The facts in the main proceedings and the question referred for a preliminary ruling
15.      H, an Afghan national, entered Denmark on 25 April 2021, lodging an application for international protection on the same day. According to the information in the Eurodac system, H had already been registered as an applicant for international protection in Romania on 5 March 2021.
16.      Consequently, on 24 June 2021, the Immigration Service asked the Romanian authorities to take him back pursuant to Article 18(1)(c) of the Dublin III Regulation, which they agreed to, within the time limit, on 7 July 2021.
17.      On 19 July 2021, the Immigration Service decided to transfer H to Romania pursuant to that measure (the ‘first transfer decision’). By means of a statement on the same day, H brought an appeal against that measure before the Flygtningenævnet
(Refugee Tribunal).
That appeal had suspensive effect, in accordance with Article 27(3)(a) of the Dublin III Regulation.
18.      While that appeal was pending, Romania informed all Member States on 28 February 2022 that, with effect from 1 March 2022, it was suspending all incoming transfers under the Dublin III Regulation because of the conflict in Ukraine and the increased influx of refugees into Romania.
19.      Consequently, on 15 March 2022, the Flygtningenævnet (Refugee Tribunal) decided to remit the case back to the Immigration Service in order to decide on the impact of such a notification on the decision to transfer H to Romania. It is apparent from the order for reference that such a remittal for review entailed the annulment of the 19 July 2021 decision.
20.      On 8 April 2022, the Immigration Service again took the decision to transfer H to Romania pursuant to Article 18(1)(c) of the Dublin III Regulation (the ‘second transfer decision’). By means of a statement on the same day, H brought an application against that decision before the Flygtningenævnet (Refugee Tribunal). By virtue of Article 27(3)(a) of that
regulation, this application had suspensive effect.
21.      On 24 May 2022, Romania informed all Member States that the suspension of incoming transfers under the Dublin III Regulation had been lifted.
22.      By a final decision dated 2 December 2022, the Flygtningenævnet (Refugee Tribunal) confirmed the second transfer decision.
23.      On 2 February 2023, H requested that the case be reopened on the ground that the six months’ time limit from the acceptance of the request to take him back, provided for in Article 29(1) of the Dublin III Regulation, had expired when the second transfer decision was adopted, with the result that the Kingdom of Denmark was now responsible for examining his application for international protection, pursuant to Article 29(2) of that regulation.
24.      After reopening the procedure, the Flygtningenævnet (Refugee Tribunal) confirmed the second transfer decision on 19 April 2023. It is clear from that decision, part of which is reproduced in the order for reference, that the latter authority deemed that the time limit for transfer provided for in Article 29(1) of the Dublin III Regulation only began to run from its final decision of 2 December 2022. There are two reasons for this. On the one hand, the decision to remit the case back for review meant that it was still being dealt with before the Immigration Service, thereby making it impossible to transfer H to Romania.
On the other hand, the implementation of the second transfer decision had been suspended during the appeal proceedings brought before it, until its final decision on 2 December 2022.
25.      On 4 May 2023, following a request from DRC Dansk Flygtningehjælp (Danish Refugee Council), a non-governmental organisation representing H, the Flygtningenævnet (Refugee Tribunal) decided to reopen once again the case in order to review the interpretation of the rules on the time limit for transfers set out in Article 29(1) and (2) of the Dublin III Regulation, read in conjunction with Article 27 of that regulation. In its application to reopen the case, the Danish Refugee Council referred in particular to the judgment in Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal), arguing that, under the Dublin III Regulation, responsibility for examining H’s application for international protection had been transferred to Denmark at the time of the second transfer decision.
26.      In those circumstances, the Flygtningenævnet (Refugee Tribunal) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:
‘Are the time limit provisions in Article 29(1) and (2) of the Dublin III Regulation to be interpreted as meaning that the time limit of six months laid down in the second part of Article 29(1) of that regulation is to run from the final, substantive decision in the case, in a situation where an appellate body in the requesting Member State, as referred to in Article 27 of the Dublin III Regulation, has remitted the transfer case back to the competent authority at first instance, which subsequently made a fresh transfer decision more than six months after receipt of the acceptance by the Member State responsible, including where the remittal is based on the fact that the Member State responsible, which had initially accepted the transfer, subsequently decided to suspend all transfers under the [same regulation], and where suspensive effect has been granted as regards the removal of the person concerned?’
27.      The Flygtningenævnet (Refugee Tribunal) requested that the case be dealt with under the expedited preliminary ruling procedure provided for in Article 105 of the Rules of Procedure of the Court. This request was rejected by a decision of the President of the Court on 15 December 2023. (9)
28.      On 27 November 2023, the Court sent the referring court a request for information on its nature of a ‘court or tribunal’ within the meaning of Article 267 TFEU, to which the it replied.
29.      H, the Danish, French, Austrian and Swiss Governments and the European Commission submitted written observations. At the hearing of 6 February 2025, H, the Danish and French Governments and the Commission were heard and, in particular, were invited to answer orally questions put by the Court.
IV.    Assessment
30.      By its question referred for a preliminary ruling, the referring court is essentially asking the Court of Justice whether – under the procedural system of a Member State which, in the presence of a significant change in circumstances occurring after a transfer decision is adopted, allows the judicial authority seised of an
action for annulment of that decision to set it aside it without ruling on its merits and remit it back for review to the competent administrative authority, which is responsible for adopting a new transfer decision, against which a new appeal with suspensive effect is lodged – Article 29(1) and (2) of the Dublin III Regulation must be interpreted as meaning that the six-month time limit for transfer runs from the decision by which the judicial authority gives a final ruling on the lawfulness of the transfer decision.
31.      In order to answer this question, it should first of all be recalled that Article 29 of the Dublin III Regulation lays down the procedures and time limits within which the requesting Member State must transfer an applicant for international protection to the Member State responsible so that it takes charge of him or her or takes him or her back.
32.      The first subparagraph of Article 29(1) of that regulation provides that the transfer 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 the Member State responsible for taking charge of or taking 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) of that regulation.
33.      Referring to paragraph 29 of the judgment in Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal), H contends that, following the decision of 15 March 2022 by which the Flygtningenævnet (Refugee Tribunal) set the first transfer decision aside and remitted the case back to the Immigration Service for review, there was no longer a transfer decision whose implementation could be postponed and that, retroactively, the time limit for transfer started to run on 7 July 2021, the date on which Romania accepted the request to take him back. (10)
34.      However, I note, first, that such an approach would be contrary to the wording and logic of Article 29(1) of the Dublin III Regulation, from which it emerges that the two moments from which the time limit for transfer may begin to run must be understood as exclusive of each other.
35.      Thus, in the former scenario, no appeal is lodged against the transfer decision or, if such an appeal is lodged, it does not have any suspensive effect.
The time limit for transfer therefore begins to run from the date on which the Member State responsible accepts the request to take charge of or take back the person concerned. In the second scenario, an appeal with suspensive effect is lodged against the transfer decision.
The time limit therefore begins to run from the final decision on that appeal, once the remedies available under the legal system of the Member State concerned have been exhausted. (11)
36.      To hold otherwise would be contrary to the objective of effective judicial protection as enshrined in Article 47 of the Charter. The two scenarios set out in the first subparagraph of Article 29(1) of the Dublin III Regulation allow the suspension of the implementation of the transfer decision provided for in Article 27(3) of that regulation to take full effect. If, in the context of an appeal against a transfer decision, the implementation of that decision were suspended but the time limit continued to run, it would not be possible to ensure equality of arms and the effectiveness of the appeal procedures by guaranteeing that that time limit does not expire while implementation of the transfer decision has been made impossible by the lodging of an appeal against that decision. (12)
37.      Secondly, I note that the factual circumstances of the case at hand differ from those of the case that gave rise to the judgment in Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal). In that case, the Court was asked whether the suspensive effect of an appeal against a judgment to set aside a transfer decision had an effect on the time limit for transfer. The Court held that, on the one hand, Article 27(3) of the Dublin III Regulation is not intended to govern the interim measures which may be adopted in the context of an appeal brought by the competent authorities against a judgment annulling a transfer decision and that, on the other hand, an interim measure having the effect of suspending the time limit for transfer pending the outcome of that appeal may be adopted only where the implementation of the transfer decision has been suspended pending the outcome of the appeal at first instance. (13)
38.      In the case at hand, however, implementation of the first transfer decision taken in respect of H by the Immigration Service was suspended at first instance, in accordance with Article 27(3)(a) of the Dublin III Regulation. In addition, although this first decision was set aside by the Flygtningenævnet (Refugee Tribunal), that case was remitted back to that service so that it could review his transfer, and a second transfer decision was adopted by the Immigration Service, this decision too being the subject matter of an appeal with suspensive effect lodged by the person concerned.
39.      As a result, there was indeed a transfer decision (the second transfer decision), whose implementation was suspended as an appeal was brought against it. The time limit for transfer therefore began to run from the final decision on that appeal, in accordance with Article 29(1) of the Dublin III Regulation.
40.      Article 29
does not lay down specific rules on the computation of time limits where, in the presence of a significant change in circumstances occurring after a transfer decision is adopted, the judicial authority sets aside the decision without ruling on its merits and remits it back for review to the competent administrative authority, which is responsible for adopting a new transfer decision, against which a new appeal is lodged.
41.      As the proceedings at the hearing revealed, the point at which a decision on the appeal becomes ‘final’ within the meaning of Article 29(1) of the Dublin III Regulation is a particularly difficult issue. Indeed, the final decision is either the one by which the judicial authority seised of an action for annulment of the first transfer decision annuls that decision without assessing its merits, or the decision by which that authority, seised of a new action for annulment of the second transfer decision, rules on the lawfulness of that decision. (14)
42.      I believe that, under a procedural regime such as that described by the Danish Government in its observations, the six-month time limit for transfer provided for in Article 29(1) of the Dublin III Regulation must run from the final decision on the appeal against the second transfer decision, against which no ordinary means of appeal may be exercised.
43.      Firstly, this solution takes account of the specific features in the Danish procedural system, which provides for the handling of cases ‘at two levels’ by instituting, in the context of the judicial procedure, a procedure for remittal to the competent administrative authority for review where ‘new significant information’ (15) for the implementation of a decision such as a transfer decision becomes known.
44.      Admittedly, there are two transfer decisions which have been challenged by two separate appeals. However, these decisions have the same purpose (the transfer of the applicant), were adopted in respect of the same applicant, following the same event (the Member State responsible accepting to take back the applicant) and by the same administrative authority, to the effect that this procedure must be understood as a single procedure. Thus, the decision by which the judicial authority annulled the first transfer decision without even ruling on its merits and remitted it back to the administrative authority for review constitutes an intermediate decision which allowed the competent administrative authority to assess the implications arising from the new and substantial facts concerning the procedure for transferring the person concerned and, if necessary, to adopt a different assessment of that procedure.
45.      I point out that, with regard to the interpretation of Regulation (EC) No 343/2003, (16) which has been repealed by the Dublin III Regulation, the Court has ruled that the transfer period must run not from the provisional judicial decision suspending the implementation of the transfer procedure, but only from the judicial decision ruling on the merits of the procedure and which is no longer liable to hinder its implementation. (17) It is therefore of the essence that the final decision on the appeal rules on the lawfulness of the transfer decision. By providing that the time limit for transfer should run from the final decision on the appeal against the transfer decision, the EU legislature requires a final decision on the merits that puts an end to the procedure relating to the transfer decision, either by annulling it or by allowing it to be implemented.
46.      Secondly, that solution allows account to be taken of the principles and requirements deriving from the need to guarantee effective judicial review within the meaning of Article 27 of the Dublin III Regulation and Article 47 of the Charter. The Court has consistently held that, although the EU legislature intended to promote the rapid implementation of transfer decisions, the fact remains that it did not intend to sacrifice the judicial protection of applicants for international protection to the requirement of expedition in the processing of their application. (18)
47.      Article 27(1) of the Dublin III Regulation provides that a person who is the subject of a transfer decision shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against that decision, before a court or tribunal. (19) The scope of this remedy is set out in recital 19 of that regulation. That recital states that, in order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of that
regulation and of the legal and factual situation in the Member State to which the applicant is transferred. (20)
48.      In the judgment in
État belge (Circumstances subsequent to the transfer decision), the Court concluded that an action for annulment brought against a transfer decision – in which the court seised cannot take account of circumstances subsequent to the adoption of that decision which are decisive for the correct application of the Dublin III Regulation – does not make it possible to guarantee an effective remedy and to ensure adequate judicial protection in the light of the rights set out in Article 27 of that regulation and Article 47 of the Charter. (21)
49.      However, the Court acknowledged that the EU legislature had harmonised only some of the procedural rules governing the action brought against the transfer decision which must be available to the person concerned and that the Member States are not necessarily obliged, pursuant to Article 27 of the Dublin III Regulation, to organise their systems of legal remedies in such a way that compliance with the requirement to take into account decisive circumstances subsequent to the adoption of the transfer decision, takes place within the framework of the examination of the action by which the lawfulness of the transfer decision may be called into question. (22) According to the Court, where a circumstance subsequent to a transfer decision may call into question the transfer of the person concerned to the Member State responsible, that provision leaves it to the Member States to determine the extent to which the judicial authority may take account of that circumstance when assessing the lawfulness of the transfer decision by way of a full ex nunc assessment, or whether it is appropriate to ensure that judicial protection in other ways, for example by establishing a specific legal remedy or another procedural mode. (23)
50.      I understand that that is the context in which the Danish procedural system operates and that Member State cannot therefore be criticised for including in the annulment procedure against a transfer decision a procedure for remittal for review purposes designed to take account of a significant change in circumstances which occurred in the Member State responsible after that decision was adopted. Taking the view that, as a result of the remittal for review, responsibility for examining the application for international protection is transferred to that Member State would, in such a system, have the effect of dissuading it from taking account of those new circumstances, which are nonetheless decisive for the purposes of assessing the lawfulness and feasibility of the transfer procedure.
51.      That being so, I would add that, in accordance with settled case-law, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). (24)
52.      As regards, in the first place, the principle of equivalence, this requires that all the rules applicable to actions apply without distinction to actions alleging infringement of EU law and to similar actions alleging infringement of national law. (25)
53.      In the second place, with regard to the principle of effectiveness, this requires that, in the context of a procedure such as the one at issue, the competent judicial authority must give a final ruling on the lawfulness of the transfer decision as reviewed by the competent administrative authority without undue delay, so as to guarantee effective access to procedures for granting international protection and to ensure prompt processing of applications for international protection, in accordance with recital 5 of the Dublin III Regulation. (26) This implies that the duration of this procedure, taken as a whole, should not exceed a period that is strictly necessary for the purposes for which the review was initiated.
54.      In a situation such as that at issue, each Member State must therefore adapt its national law in such a way that, following the annulment of the initial decision and where the case is remitted back to the competent administrative authority on account of new circumstances which are decisive for the purposes of the transfer procedure, said authority adopts a new decision and, where appropriate, the judicial authority rules in a short period of time. (27)
55.      Such a regime should not, therefore, lead to a situation in which the requesting Member State could evade its responsibility, avoiding becoming the responsible Member State by indefinitely remitting the case back to the competent administrative authority for review, without the procedure for granting international protection ever being decided. Such a system could lead to a situation contrary to the purpose of the Dublin III Regulation, as expressed in its recital 5, since it would have the consequence of postponing the moment from which the time limit for transfer could begin to run and, consequently, the moment from which the application for international protection could be examined, thus depriving the applicant of the rights that would attach to a recognition of that application. As the Court pointed out in the judgment of 13 November 2018,
X and X, (28) it would then be important for such an application to be examined, where appropriate, by a Member State other than that designated as responsible pursuant to the criteria set out in Chapter III of that regulation. (29)
56.      In the present case, no authority has yet ruled on the application for international protection lodged by H on 25 April 2021. Since 7 July 2021, the date on which Romania agreed to take H back for the purposes of examining his application, there has been neither a transfer nor a decision on the merits of his application. With regard to the present proceedings (which do not include the two applications to reopen the case submitted by H and then by the Refugee Council), I note that almost 17 months elapsed between the time when Romania agreed to take H back and the final decision by which the Flygtningenævnet (Refugee Tribunal) validated the second transfer decision. I point out that Article 29(2) of the Dublin III Regulation provides for only two cases in which the time period for transfer may be extended up to a maximum of one year if the person concerned could not be transferred due to imprisonment, or up to a maximum of 18 months, if the person concerned absconds. (30) In this case, while it is clear that Romania’s decision to suspend all incoming transfers under the Dublin III Regulation necessarily had an impact on the duration of this procedure by triggering the remittal procedure for review, it took almost eight months for the Flygtningenævnet (Refugee Tribunal) to rule on the lawfulness of the second transfer decision, even though, as mentioned above, this decision revolved around the same subject matter as the first decision and was adopted with regard to the same applicant, following the same event, and was made by the same administrative authority. Such a length of time seems to me difficult to reconcile with the need to ensure that the procedure for dealing with applications for international protection is expeditious.
57.      In the light of all these factors, I deem
that, under the procedural system of a Member State which, in the presence of a significant change in circumstances occurring after a transfer decision is adopted, allows the judicial authority seised of an action for annulment of that decision to annul it without ruling on its merits and to remit it back for review to the competent administrative authority, which is responsible for adopting a new transfer decision, against which a new appeal with suspensive effect is lodged, Article 29(1) of the Dublin III Regulation, read in conjunction with Article 27 of that regulation, must be interpreted as meaning that the six-month transfer period runs from the decision by which that judicial authority gives a final ruling on the merits, putting an end to the procedure relating to the transfer decision either by annulling it or by allowing it to be implemented.
58.      In this case, it is the decision of 2 December 2022, by which the Flygtningenævnet (Refugee Tribunal) gave a final ruling on the merits of the second transfer decision. Since the second application brought by H had suspensive effect under Article 27(3) of the Dublin III Regulation, the time limit for transfer began to run from that date.
V.      Conclusion
59.      In the light of all the above considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Flygtningenævnet (Refugee Tribunal, Denmark) as follows:
Article 29(1) 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, read in conjunction with Article 27 of that regulation,
must be interpreted as meaning that:
–        in the context of the procedural system of a Member State which, in the presence of a significant change in circumstances occurring after a transfer decision is adopted, allows the judicial authority seised of an action for annulment of that decision to annul it without ruling on its merits and to remit it back for review to the competent administrative authority, which is responsible for adopting a new transfer decision, against which a new appeal with suspensive effect is lodged, the six-month time limit for transfer runs from the decision by which that judicial authority gives a final ruling on the merits, putting an end to the procedure relating to the transfer decision either by annulling it or by allowing it to be implemented;
–        it is for that Member State to adapt its national law in such a way that, following the remittal of the case for review to the competent administrative authority, a new transfer decision and the final decision on the action for annulment against it are adopted within a short time in order to ensure that the application for international protection is processed
expeditiously.
1      Original language: French.
i      The name of the present case is fictive. It does not correspond to the 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)
(‘Dublin III Regulation’).
3      See, in particular, judgment of 30 March 2023, Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal) (C‑556/21,
‘Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal)’, EU:C:2023:272). See also judgments of 12 January 2023, Staatssecretaris van Justitie en Veiligheid (Time limit for transfer – Multiple applications) (C‑323/21 to C‑325/21, EU:C:2023:4), and 30 March 2023, Staatssecretaris van Justitie en Veiligheid (Transfer time limit – Trafficking in human beings) (C‑338/21, EU:C:2023:269).
4      ‘The Charter’.
5      Directive of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).
6      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).
7      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).
8      Law as consolidated by Lovbekendtgørelse No 1079 (Codification Decree No 1079) of 10 August 2023.
9      See order of the President of the Court of 15 December 2023, Tang (C‑560/23, EU:C:2023:1035).
10      At the hearing, however, it appears that H’s representative abandoned this argument, explaining that the time limit for transfer should start to run on the date on which the Flygtningenævnet
(Refugee Tribunal) decided to set aside the first transfer decision and remit the case back to the Immigration Service for review – that is to say, 15 March 2022.
11      See judgment in Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal), paragraph 24.
12      See judgment in Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal), paragraph 35.
13      See judgment in Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal), paragraphs 27 and 34.
14      The Danish system cannot be equated with a two-tier court system, in the context of an appeal procedure, which provides for an appeal to a higher court against a first-instance judgment ruling on the lawfulness of an administrative law, as it is all part of a single procedure aimed at annulling or confirming the same transfer decision.
15      See point 13 of this Opinion.
16      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).
17      See judgment of 29 January 2009, Petrosian and Others
(C‑19/08, EU:C:2009:41, paragraph 46).
18      See judgment of 30 March 2023, Staatssecretaris van Justitie en Veiligheid (Transfer time limit – Trafficking in human beings) (C‑338/21, EU:C:2023:269, paragraph 52
and the case-law cited), as well as the judgment in
Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal), paragraph 19
and the case-law cited.
19      See judgment of 15 April 2021, État belge (Circumstances subsequent to the transfer decision)
(C‑194/19, ‘État belge (Circumstances subsequent to the transfer decision)’, EU:C:2021:270, paragraph 32).
20      See judgment in État belge (Circumstances subsequent to the transfer decision)
(paragraph 33 and the case-law cited).
21      See judgment in État belge (Circumstances subsequent to the transfer decision)
(paragraph 49).
22      See judgment in État belge (Circumstances subsequent to the transfer decision)
(paragraphs 37 and 38).
23      See judgment in État belge (Circumstances subsequent to the transfer decision)
(paragraphs 46 to 48).
24      See judgment in État belge (Circumstances subsequent to the transfer decision)
(paragraph 42 and the case-law cited), and judgment of 30 November 2023, Ministero dell’Interno and Others (Common leaflet – Indirect refoulement) (C‑228/21, C‑254/21, C‑297/21, C‑315/21 and C‑328/21, EU:C:2023:934, paragraph 113
and the case-law cited).
25      See judgment in État belge (Circumstances subsequent to the transfer decision)
(paragraph 44
and the case-law cited), as well as order of 4 October 2024, Komise pro rozhodování ve věcech pobytu cizinců (C‑761/23, EU:C:2024:879, paragraph 30, and the case-law cited).
26      See, in that regard, judgments of 13 November 2018, X and X (C‑47/17 and C‑48/17, EU:C:2018:900, paragraph 69 and the case-law cited), and État belge (Circumstances subsequent to the transfer decision)
(paragraphs 35 and 36 and the case-law cited).
27      See, by analogy, judgment of 25 July 2018, Alheto (C‑585/16, EU:C:2018:584, paragraph 148).
28      C‑47/17 and C‑48/17, EU:C:2018:900.
29      See judgment of 13 November 2018, X and X (C‑47/17 and C‑48/17, EU:C:2018:900, paragraph 70).
30      The concept of imprisonment has been defined in the 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, paragraphs 55 and 58), and that of absconding in the judgment of 19 March
2019, Jawo (C‑163/17, EU:C:2019:218, paragraphs 56 and 57). For the sake of completeness, I point out that the Court itself has confirmed that other circumstances rendering implementation of the transfer decision materially impossible, such as the COVID-19 pandemic, did not allow the time limit for transfer laid down in Article 29(1) of the Dublin III Regulation to be interrupted (judgment of 22 September
2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision) (C‑245/21 and C‑248/21, EU:C:2022:709)).