EN Official Journal of the European Union C 274/21

Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) made on 18 August 2010 — NS v Secretary of State for the Home Department

(Case C-411/10)

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2010/C 274/34

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: NS

Defendant: Secretary of State for the Home Department

Interested parties: 1) Amnesty International Limited and the AIRE Centre (Advice on Individual Rights in Europe), 2) United Nations High Commissioner for Refugees, 3) Equality and Human Rights Commission

Questions referred

1. Does a decision made by a Member State under Article 3(2) of Council Regulation 343/2003 (1) (‘the Regulation’) whether to examine a claim for asylum which is not its responsibility under the criteria set out in Chapter III of the Regulation fall within the scope of EU law for the purposes of Article 6 of the Treaty of European Union and/or Article 51 of the Charter of Fundamental Rights of the European Union (‘the Charter’)?

If the answer to Question 1 is ‘yes’:

2. Is the duty of a Member State to observe EU fundamental rights (including the rights set out in Articles 1,4, 18, 19(2) and 47 of the Charter) discharged where that State sends the asylum seeker to the Member State which Article 3(1) designates as the responsible State in accordance with the criteria set out in Chapter III of the Regulation (‘the Responsible State’), regardless of the situation in the Responsible State?

3. In particular, does the obligation to observe EU fundamental rights preclude the operation of a conclusive presumption that the Responsible State will observe (i) the claimant's fundamental rights under EU law; and/or (ii) the minimum standards imposed by Directives 2003/9/EC (2) (‘the Reception Directive’); 2004/83/EC (3) (‘the Qualification Directive’) and/or 2005/85/EC (4) (‘the Procedures Directive’) (together referred to as ‘the Directives’)?

4. Alternatively, is a Member State obliged by EU law, and if so, in what circumstances, to exercise the power under Article 3(2) of the Regulation to examine and take responsibility for a claim, where transfer to the Responsible State would expose the claimant to a risk of violation of his fundamental rights, in particular the rights set out in Articles 1,4, 18, 19(2), and/or 47 of the Charter, and/or to a risk that the minimum standards set out in the Directives will not be applied to him?

5. Is the scope of the protection conferred upon a person to whom the Regulation applies by the general principles of EU law, and, in particular, the rights set out in Articles 1,18, and 47 of the Charter wider than the protection conferred by Article 3 of the European Convention on Human Rights and Fundamental Freedoms (‘the Convention’)?

6. Is it compatible with the rights set out in Article 47 of the Charter for a provision of national law to require a Court, for the purpose of determining whether a person may lawfully be removed to another Member State pursuant to the Regulation, to treat that Member State as a State from which the person will not be sent to another State in contravention of his rights pursuant to the Convention or his rights pursuant to the 1951 Convention and 1967 Protocol Relating to the Status of Refugees?

7. Insofar as the preceding questions arise in respect of the obligations of the United Kingdom, are the answers to Questions 2-4 qualified in any respect so as to take account of the Protocol (No. 30) on the application of the Charter to Poland and to the United Kingdom?

(1) Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national

OJ L 50, p. 1

(2) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers

OJ L 31, p. 18

(3) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

OJ L 304, p. 12

(4) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status

OJ L 326, p. 13