Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 17 November 2022 ( )

Case C‑338/21

Staatssecretaris van Justitie en Veiligheid

joined parties:

S.S.,

N.Z.,

S.S.

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

(Reference for a preliminary ruling – Asylum policy – Regulation (EU) No 604/2013 – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Appeal against a transfer decision taken in respect of an asylum seeker – Transfer time limit – Suspension of the time limit for carrying out the transfer – Directive 2004/81/EC – Trafficking in human beings)





I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Article 27(3) and Article 29 of Regulation (EU) No 604/2013, ( ) read in conjunction with Article 8 of Directive 2004/81/EC, ( ) and gives the Court an opportunity to clarify the relationship between those provisions in a situation where a third-country national who is an applicant for international protection has both appealed against a transfer decision without requesting the suspension of the implementation of that decision and sought a review of an administrative decision refusing to issue him or her with a temporary residence permit under Article 8 of Directive 2004/81.

2. The request has been made in proceedings between S.S., N.Z., and S.S., who are third-country nationals, and the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’) concerning the State Secretary’s decisions not to consider their applications for international protection and to transfer them to the Member State responsible. At the same time, S.S., N.Z., and S.S. submitted applications for residence permits on the basis of Article 8 of Directive 2004/81, which were rejected by the State Secretary. S.S., N.Z., and S.S. sought reviews of those rejection decisions.

3. This case is connected with the pending case Staatssecretaris van Justitie en Veiligheid (Suspension of the transfer time limit on appeal) (C‑556/21), in which the question arises whether, in the context of an action for annulment of a transfer decision taken in respect of an applicant for international protection, the implementation of the transfer decision and, consequently, the transfer time limit laid down by the Dublin III regulation may be suspended at the request of the competent national authority on appeal, although the applicant has not requested suspension of the implementation of the transfer decision.

4. Even though in both cases the Raad van State (Council of State, Netherlands) is uncertain as to the consequences of the suspension of the implementation of the transfer decision for the computation of the transfer time limit laid down in Article 29(1) of the Dublin III regulation (‘the transfer time limit’) in itself, the specific questions raised are different. That is why these cases form the subject of separate Opinions delivered on the same day.

5. In the present Opinion, at the conclusion of my analysis I will propose that the Court rule that Article 27(3) and Article 29 of the Dublin III regulation must be interpreted as meaning that the implementation of the transfer decision taken in accordance with the provisions of that regulation must be suspended, pursuant to Article 47 of the Charter of Fundamental Rights of the European Union, ( ) where an appeal is lodged against a decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81, and that the transfer time limit is not suspended where the third-country national concerned has sought a review of the decision refusing to issue the temporary residence permit under Article 8 of that directive.

II. Legal context

A. European Union law

1. Directive 2004/81

6. Recital 6 of Directive 2004/81 states:

‘This Directive respects fundamental rights and complies with the principles recognised for example by the [Charter].’

7. Article 1 of that directive provides:

‘The purpose of this Directive is to define the conditions for granting residence permits of limited duration … to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration.’

8. Article 6 of that directive, entitled ‘Reflection period’, provides that third-country nationals are to be granted a reflection period to decide whether to cooperate with the competent authorities and to recover, and that it is not possible to enforce any expulsion order against them during that reflection period.

9. Article 8(1) of Directive 2004/81 provides:

‘After the expiry of the reflection period, or earlier if the competent authorities are of the view that the third-country national concerned has already fulfilled the criterion set out in subparagraph (b), Member States shall consider:

(a) the opportunity presented by prolonging his/her stay on its territory for the investigations or the judicial proceedings, and

(b) whether he/she has shown a clear intention to cooperate and

(c) whether he/she has severed all relations with those suspected of acts that might be included among the offences referred to in Article 2(b) and (c).’

10. Article 13(2) of that directive stipulates:

‘When the residence permit issued on the basis of this Directive expires ordinary aliens’ law shall apply.’

2. The Dublin III regulation

11. According to its Article 1, the Dublin III regulation lays down 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 at its special meeting in Tampere on 15 and 16 October 1999] … 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.

…

(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]. 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.’

12. Article 27(3) and (4) of that regulation provides:

‘3. For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:

(a) the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or

(b) the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or

(c) the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.

4. Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.’

13. The first subparagraph of Article 29(1) and Article 29(2) of the Dublin III 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. Netherlands law

1. General Law on administrative law

14. Article 8:81(1) of the Algemene wet bestuursrecht (General Law on administrative law) ( ) of 4 June 1992 provides:

‘If an appeal against a decision has been lodged before the administrative court or if, prior to any appeal before the administrative court, a review has been sought …, the judge hearing applications for interim measures at the administrative court which has or may have jurisdiction in the main proceedings may, upon application, adopt interim measures if urgency so requires, having regard to the interests involved.’

15. Under Article 8:108(1) of that law:

‘Unless otherwise provided in the present title, Titles 8.1 to 8.3 shall apply mutatis mutandis to a further appeal …’

2. Law on foreign nationals of 2000

16. Article 28(1)(a) of the Vreemdelingenwet 2000 (Law on foreign nationals of 2000) ( ) of 23 November 2000 provides:

‘The Minister van Veiligheid en Justitie [Minister for Security and Justice, Netherlands] shall be authorised:

a. to grant, to reject, not to consider, to declare inadmissible or to discontinue the examination of the application for a fixed-term residence permit.’

17. Article 73(1) of that law reads as follows:

‘The effect of the decision rejecting the application … shall be suspended until the expiry of the time limit for seeking a review … or, if a review has been sought …, until a decision has been taken on that review.’

18. Under Article 82(1) of that law:

‘The effect of the decision on a residence permit shall be suspended until the expiry of the time limit for lodging an appeal or, if an appeal has been lodged, until a decision has been taken on the appeal.’

3. Decree on foreign nationals of 2000

19. Article 3.48(1)(a) of the Vreemdelingenbesluit 2000 (Decree on foreign nationals of 2000) ( ) of 23 November 2000 reads as follows:

‘An ordinary fixed-term residence permit may be granted, subject to a restriction relating to temporary humanitarian grounds, to a foreign national who:

a. is a victim who has reported trafficking in human beings, in so far as there is a preliminary criminal investigation or criminal prosecution in respect of the person suspected of committing the reported offence or a judgment on the merits in respect of that person.’

20. Article 7.3(1) of that decree provides:

‘If an application for interim measures has been made in order to prevent deportation or transfer before a ruling is given on an appeal against a decision taken further to an application for a fixed-term residence permit for asylum purposes, the foreign national shall be authorised to await the decision on that application in the Netherlands.’

4. Circular on foreign nationals of 2000

21. Paragraph B1/7.2. of the Vreemdelingencirculaire 2000 (Circular on foreign nationals of 2000) reads as follows:

‘If the effect of a decision rejecting an application for an ordinary fixed-term residence permit is suspended under Article 73(1) [of the Law on foreign nationals of 2000] where a review is sought, such suspensive effect is considered, by operation of law, also to suspend the implementation of a transfer decision adopted in respect of the foreign national, as referred to in Article 27(3) of [the Dublin III regulation].

…’

III. The facts of the disputes in the main proceedings and the question referred for a preliminary ruling

22. S.S., N.Z., and S.S. are third-country nationals who have submitted two kinds of applications in the Netherlands.

23. As far as the first procedure is concerned, on 19 April, 5 September and 7 October 2019, the applicants in the main proceedings respectively lodged applications for international protection. The State Secretary requested the Italian authorities to take charge or to take them back. On 12 June and on 20 and 28 November 2019, those authorities accepted those take charge or take back requests either explicitly or implicitly.

24. Accordingly, on 1 August 2019 and on 17 January and 8 February 2020, the State Secretary decided not to consider the applications for international protection lodged by the applicants in the main proceedings and to transfer them to Italy. The applicants appealed, bringing actions for annulment of those decisions.

25. On 21 November 2019 and on 1 and 16 September 2020, the courts of first instance having jurisdiction annulled those decisions. Those courts found that, in so far as N.Z. and S.S. had not submitted or had withdrawn an application for measures to suspend the implementation of the transfer decision in conjunction with their appeal against that decision, the transfer time limit had expired and the Kingdom of the Netherlands had therefore become responsible for examining their applications for international protection. In the case of S.S., the transfer decision was annulled on grounds which the referring court does not consider relevant to the analysis of the question referred for a preliminary ruling. It does consider, however, that, in order to decide on the appeal, it must determine whether the transfer time limit has expired and whether the Kingdom of the Netherlands has become responsible for examining the application for international protection, as is claimed by S.S. Because the Kingdom of the Netherlands has become responsible for examining the applications for international protection, the courts of first instance also ordered the State Secretary to adopt new decisions on the applications in the cases of S.S. and N.Z.

26. The State Secretary appealed against those judgments before the Raad van State (Council of State), asserting that the transfer time limits had not expired because they had been suspended as a result of the review sought by the applicants in the main proceedings in the proceedings brought against the rejection of their applications for a temporary residence permit under Article 8 of Directive 2004/81. ( ) The State Secretary attached to those appeals applications for interim measures seeking an order that he not be required to adopt a new decision on the applications for international protection before a decision had been taken on the appeal. The Raad van State (Council of State) granted those applications for interim measures on 22 April, 21 September and 16 November 2020.

27. As far as the second procedure is concerned, on 1 October 2019 and on 21 February and 4 March 2020, the applicants in the main proceedings reported trafficking in human beings which they had suffered in the Netherlands and/or in Italy. Those reports were considered by the State Secretary as applications for a residence permit relating to temporary humanitarian grounds within the meaning of Article 3.48 of the Decree on foreign nationals of 2000. Those applications were rejected by the State Secretary by decisions of 7 October 2019 and of 3 March and 6 April 2020.

28. On 4 November 2019 and on 30 March and 4 May 2020, the applicants in the main proceedings sought reviews of those decisions.

29. Those requests for review were dismissed by the State Secretary or withdrawn on 16 December 2019 and on 22 April and 28 August 2020.

30. The referring court states that it will be able to hear the appeal lodged by the State Secretary against the judgment annulling the transfer decision taken against S.S. if it is ruled that, as the State Secretary claims, the transfer time limit has been suspended as a result of a review sought against a decision rejecting an application for a temporary residence permit under Article 8 of Directive 2004/81 and Article 3.48 of the Decree on foreign nationals of 2000.

31. The referring court considers that there are four arguments in favour of such suspension.

32. First, such suspension is necessary to guarantee the effectiveness of the Dublin III regulation and of Directive 2004/81, while preventing abuse of rights. Because the review of a decision rejecting an application for a temporary residence permit precludes the removal of the person concerned, the expiry of the transfer time limit is unavoidable where such a review is sought by a person to whom a transfer decision relates. Failure to suspend the transfer time limit in that situation therefore facilitates forum shopping and encourages the national authorities not to pay sufficient attention to such reports.

33. Second, it is possible to interpret Article 27(3) of the Dublin III regulation as meaning that the lodging of an appeal which precludes the effective implementation of a transfer decision also results in the suspension of the transfer time limit. Consequently, since a review of the decision rejecting an application for a temporary residence permit under Article 8 of Directive 2004/81 precludes the implementation of the transfer decision and although such a review does not, as such, constitute an appeal against the transfer decision itself, it militates in favour of suspension of the transfer time limit.

34. Third, a Member State may opt to suspend the transfer time limit on the basis of its procedural autonomy.

35. Fourth, the three options set out in Article 27(3) of the Dublin III regulation are not mutually exclusive. Consequently, the fact that the Kingdom of the Netherlands has chosen to apply the option described in Article 27(3)(c) of that regulation does not prevent reviews such as those at issue in the main proceedings being considered to fall within a combination of Article 27(3)(a) and Article 27(3)(c) of the regulation.

36. In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must [Article 27(3) and Article 29] of [the Dublin III regulation] be interpreted as not precluding national legislation such as that at issue here, in which a Member State has opted to implement Article 27(3)(c) [of that regulation], but has also granted the suspensive effect that can be applied to the implementation of a transfer decision, to a review or appeal against a decision in proceedings concerning an application for a residence permit on the grounds of trafficking in human beings, which, while not being a transfer decision, does nevertheless temporarily prevent the actual transfer?’

37. The applicants in the main proceedings, the Netherlands and German Governments and the European Commission submitted written observations.

38. At a joint hearing of this case and pending Case C‑556/21, which was held on 14 July 2022, the applicants in the main proceedings, the Netherlands Government and the Commission presented oral argument and were requested, inter alia, to answer questions for an oral answer put by the Court.

IV. Analysis

A. Preliminary observations

39. The present case follows on from the judgment of 20 October 2022, Staatssecretaris van Justitie en Veiligheid (Removal of a victim of trafficking in human beings), ( ) in which the Court was called upon for the first time to take a view on the relationship between the rules governing the grant of the reflection period under Article 6 of Directive 2004/81 to a third-country national who is a victim of trafficking in human beings and the rules governing the procedure for transferring that individual to the Member State responsible for examining his or her application for international protection under the Dublin III regulation.

40. In Staatssecretaris van Justitie en Veiligheid (Removal of a victim of trafficking in human beings), the Court ruled that, in the case of a third-country national who is both an applicant for international protection and a victim of trafficking in human beings, Article 6(2) of Directive 2004/81 must be interpreted as precluding, during the reflection period under that provision, the Member State from enforcing a decision to transfer that national to the Member State responsible for examining his or her application for international protection pursuant to the Dublin III regulation. The Court did not, however, clarify the consequences of that prohibition for the computation of the transfer time limit.

41. In the present case, the Court is being asked to decide whether it is possible for a national court or tribunal, under its national law, to suspend the implementation of a transfer decision and thus to suspend the transfer time limit where a third-country national has both appealed against a transfer decision without requesting the suspension of the implementation of that decision and sought review of an administrative decision refusing to issue him or her with a temporary residence permit under Article 8 of Directive 2004/81.

42. Before answering the question referred for a preliminary ruling, I consider it necessary to make two observations, first, highlighting the fact that there is no provision of the Dublin III regulation or of Directive 2004/81 that prescribes the relationship between the two instruments and, second, developing an approach that takes account of the regime and the specific aims of that directive.

1. The Dublin III regulation and Directive 2004/81

43. In the first place, I would observe that the Dublin III regulation and Directive 2004/81 have their own distinct regimes and pursue different aims. ( )

44. Directive 2004/81 provides for the issue of a residence permit to third-country nationals who are victims of trafficking in human beings and who decide to cooperate for the purposes of the criminal investigations and/or the judicial proceedings. The directive is also intended to ensure that such victims, who are particularly vulnerable, are protected and do not return to the criminal network.

45. The Dublin III regulation forms part of the system of managing migration flows and establishes a purely administrative examination procedure, the aim of which is to determine the Member State responsible for examining an application for international protection.

46. Furthermore, that regulation lays down strict time limits which make a decisive contribution to achieving the objective of rapidly processing applications for international protection. ( )

47. However, although Directive 2004/81 states that it is without prejudice to the protection granted to applicants for international protection, ( ) it does not explicitly refer to the Dublin III regulation.

48. Similarly, the subject matter of the Dublin III regulation, according to its Article 1, is the determination of the Member State responsible for examining an application for international protection, in particular, in a situation such as that at issue in the main proceedings where the applicant for international protection has appealed against a transfer decision taken pursuant to that regulation. The regulation makes no reference either to Directive 2004/81 ( ) or to any other appeal by an applicant for international protection against another decision on residence that would have the effect of suspending the implementation of the transfer decision.

49. Therefore, the relationship between the appeal against a decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81 and the implementation of a transfer decision taken pursuant to the Dublin III regulation makes it necessary to develop a balanced approach taking account not only of the strict time limits laid down by that regulation, but also of the vulnerability of the third-country national by virtue of his or her status both as a victim of human trafficking and as an applicant for international protection. ( )

2. Directive 2004/81 and suspension of the implementation of the transfer decision

50. In the second place, I would observe that although, as in Staatssecretaris van Justitie en Veiligheid (Removal of a victim of trafficking in human beings), in their observations the parties took a view exclusively on the scope of Article 27(3) and Article 29 of the Dublin III regulation, in the situation at issue in the main proceedings one of the appeals brought by the applicants in the main proceedings relates to the review of decisions refusing to issue a temporary residence permit under Article 8 of Directive 2004/81.

51. I am of the view, however, that in the case of a third-country national who is both an applicant for international protection and a victim of trafficking in human beings, an appeal against a decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81 precludes the requesting Member State from implementing, during the examination of that appeal, a decision to transfer that same national to the Member State responsible pursuant to the Dublin III regulation.

52. It is true that a situation such as that at issue in the main proceedings, where, at the end of the reflection period, the third-country national concerned is not issued with a residence permit under Article 8 of Directive 2004/81, is not envisaged by that directive, which, unlike other secondary legislation, ( ) does not establish procedural safeguards for that national either.

53. However, as to the need to have regard to the requirements arising from the right to an effective remedy, it should be stated that the interpretation of Directive 2004/81, as is clear from recital 6, ( ) must respect the fundamental rights and principles recognised by the Charter, in particular Article 47 thereof which enshrines the right to effective judicial protection. It can be inferred from the case-law of the Court that in order to ensure, as regards the third-country national, compliance with the requirements arising from Article 47 of the Charter, any appeal brought against a decision whose implementation may lead to the transfer of that national to another Member State must be able to have suspensory effect. ( )

54. In addition, I consider that the approach adopted by the Court in Staatssecretaris van Justitie en Veiligheid (Removal of a victim of trafficking in human beings), according to which it is prohibited to enforce a transfer decision taken pursuant to the Dublin III regulation during the reflection period guaranteed in Article 6(1) of Directive 2004/81, may be applied at a later stage of the procedure.

55. The various stages of the procedure for issuing the temporary residence permit are designed to take into account not only the third-country national’s special status as a victim, but also the seriousness of the criminal offence concerned, and each of those stages requires that victims are allowed to remain in the territory of the Member State concerned during the reflection period. ( )

56. The possibility for the third-country national of remaining in the territory of the Member State concerned, at an early stage of the procedure and until the competent authorities have decided on his or her application for a temporary residence permit under Article 8 of Directive 2004/81, is intended not to jeopardise the attainment of the twofold objective pursued by that directive of protecting the rights of victims of trafficking in human beings, in particular by permitting him or her to escape the influence of the perpetrators of the offences, and of contributing to the effectiveness of criminal proceedings. ( )

57. It seems illogical to argue that these objectives would not be jeopardised if, at a later stage of the procedure, when an appeal had been lodged against the decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81, the third-country national who was a victim of trafficking in human beings was not authorised to remain in the territory of the Member State concerned.

58. In the event that such an appeal can lead to the annulment of that decision and to the adoption by the competent authority of a new decision issuing a temporary residence permit to that national, it is crucial that he or she be permitted to remain in the territory of the Member State concerned until the competent authorities have decided on the appeal.

59. Were that not the case, the third-country national could fall back under the influence of the perpetrators of the offences of which he or she has been a victim, which would prejudice that victim’s cooperation in the criminal investigations and/or judicial proceedings, even though he or she could be involved if his or her appeal against the decision refusing to issue a residence permit were to be successful.

60. Accordingly, if the view were taken that the lodging of an appeal against a decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81 does not require the suspension of the implementation of a transfer decision taken under the provisions of the Dublin III regulation, this would effectively render redundant not only the right to effective judicial protection laid down in EU law, ( ) but also the procedure for the issue of that temporary residence permit.

61. Lastly, I would add that, according to settled case-law, in the absence of harmonisation 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). ( )

62. It follows that there is no obstacle to the national practice at issue whereby, if the review of the decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81 results in the suspension of that decision, this automatically leads to the suspension of the implementation of the transfer decision taken pursuant to the Dublin III regulation.

63. This procedural autonomy must nevertheless be exercised having due regard to EU law.

64. Accordingly, since, in the situation at issue in the main proceedings, the third-country nationals who appealed against a decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81 are also applicants for international protection under the Dublin III regulation and have been the subject of a decision to transfer them to another Member State, the consequences attached to that decision must be consistent with that regulation.

65. It must therefore be determined whether the lodging of a suspensive appeal against a decision refusing to issue a temporary residence permit under Article 8 of that directive also suspends the transfer time limit.

B. Suspension of the transfer time limit

66. By its question, the referring court asks the Court, in essence, whether Article 27(3) and Article 29(1) of the Dublin III regulation must be interpreted as meaning that the transfer time limit is suspended where the third-country national concerned has lodged a suspensive appeal against the decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81.

67. In other words, that court is seeking to ascertain whether the lodging of such an appeal, which is distinct from the appeal against a transfer decision within the meaning of Article 27(3) of the Dublin III regulation, but which, like the latter appeal, results in the suspension of the implementation of the transfer decision, has the effect of suspending the transfer time limit.

68. In this regard, the Dublin III regulation envisages only the situation where an applicant for international protection lodges an appeal against a transfer decision taken under that regulation and requests the suspension of the implementation of that decision while his or her appeal is being examined. Such suspension, if granted, suspends the transfer time limit pursuant to Article 29 of the regulation. On the other hand, neither the Dublin III regulation nor Directive 2004/81 contains provisions governing the effects on the transfer time limit of a review of a decision refusing to issue a temporary residence permit under Article 8 of that directive.

69. However, with regard to the suspension of the implementation of a transfer decision and the computation of the transfer time limit, the provisions set out in Article 27(3) and Article 29 of the Dublin III regulation are clear and precise and have their own specific aim.

70. It is only where the suspension of the implementation of the transfer decision has been granted on the basis of one of the three options under Article 27(3) of that regulation that the starting point of the transfer time limit may be delayed pursuant to Article 29(1) of the regulation.

71. A number of remarks can be made in this regard.

72. First, I note that the Kingdom of the Netherlands has opted to apply Article 27(3)(c) of the Dublin III regulation, under which the person concerned has the right to request a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review.

73. This means that an appeal lodged or a review sought by an applicant for international protection against a transfer decision taken under the Dublin III regulation does not automatically result in the suspension of the implementation of that decision or, therefore, the suspension of the transfer time limit. Such suspension is possible only following a decision ordering suspension.

74. In addition, contrary to the assertion made by the State Secretary, the three options for the suspension of the implementation of a transfer decision under Article 27(3) of the Dublin III regulation are not cumulative, but alternatives, as is shown by the use of the coordinating conjunction ‘or’ in subparagraphs (a) and (b) of that provision. ( )

75. Consequently, in so far as it appears – which is a matter for the referring court to determine – that the applicants in the main proceedings have not requested the suspension of the implementation of the transfer decisions taken against them in the context of their appeals against those transfer decisions, the transfer time limit began to run from the time when the Member State responsible accepted the request to take charge or to take back the person concerned. ( )

76. Second, the remedies provided for in Article 27 of the Dublin III regulation apply only to appeals against a transfer decision taken under that regulation, not against other decisions.

77. I therefore consider that the expression ‘appeals against … transfer decisions’ within the meaning of Article 27(3) of the Dublin III regulation does not refer to any appeal which would have the effect of precluding the implementation of a transfer decision, but only appeals against the transfer decision itself.

78. Third, Article 29(1) of the Dublin III regulation makes clear that where there is a suspensive effect in accordance with Article 27(3) of that regulation, the transfer time limit begins to run again from ‘the final decision on an appeal or review’.

79. It should be borne in mind that the appeal against a transfer decision in accordance with the provisions of the Dublin III regulation and the appeal against another decision on residence – in this case the appeal against a decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81 – are subject to two distinct procedures.

80. In this regard, just as the Court has recognised that the fact that it is not practically possible to implement a transfer decision must not be regarded as being capable of justifying the suspension of the transfer time limit, ( ) I take the view that any cases in which it is legally impossible to implement the transfer decision are also incapable of resulting in the suspension of that time limit.

81. If the Court were to recognise that the transfer time limit is suspended by the lodging of an appeal against another decision on residence whenever such an appeal has the effect of suspending the implementation of the transfer decision taken under the Dublin III regulation, there would be a risk that the computation of the transfer time limit could be delayed repeatedly in different procedures, which would compromise the objective of the rapid determination of the Member State responsible for examining applications for international protection, which is guaranteed by that regulation.

82. I am therefore of the view that a review of the decision refusing to issue a temporary residence permit under Article 8 of Directive 2004/81 does not constitute an appeal against the transfer decision taken under the Dublin III regulation and cannot therefore suspend the transfer time limit.

83. In addition, with regard to the relationship between the transfer procedure, which is subject to strict time limits under the Dublin III regulation, and the procedure for the issue of a temporary residence permit under Article 8 of Directive 2004/81, there is nothing to prevent the requesting Member State, during the procedure by which an appeal has been lodged against the decision refusing to issue the temporary residence permit, from preparing for the implementation of the transfer decision taken under the Dublin III regulation, provided that such measures do not jeopardise the effectiveness of the right to effective judicial protection. ( )

84. Such an interpretation is not such as to compromise compliance with the clearly defined mandatory time limits which provide the framework for the administrative procedure for transferring responsibility for examining the application for international protection to the requested Member State, pursuant to the provisions of the Dublin III regulation. ( )

85. In this regard, it is for the Member States to ensure that a balance is struck between the duration of appeals lodged against any decision refusing to issue a residence permit under Article 8 of Directive 2004/81 and compliance with the time limit laid down in Article 29(1) and (2) of the Dublin III regulation, in order to ensure the correct relationship between those instruments and the preservation of their effectiveness. ( )

86. Lastly, in any case where the relationship between the two procedures would not permit the requesting Member State to carry out the transfer of the third-country national concerned within the six-month time limit laid down in Article 29(1) of the Dublin III regulation, that Member State may still apply the discretionary clause in Article 17 of that regulation and decide to examine an application for international protection lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in that regulation. ( )

87. On this basis, I propose that the Court rule that, where the third-country national concerned has sought a review of the decision refusing to issue the temporary residence permit under Article 8 of Directive 2004/81, the implementation of the transfer decision taken pursuant to the provisions of the Dublin III regulation must be suspended for the entire duration of the appeal, without such suspension interrupting the transfer time limit.

V. Conclusion

88. In the light of all the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Raad van State (Council of State, Netherlands) as follows:

Article 27(3) and Article 29 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 implementation of a transfer decision taken in accordance with the provisions of that regulation must be suspended, pursuant to Article 47 of the Charter of Fundamental Rights of the European Union, by the lodging of an appeal against a decision refusing to issue a temporary residence permit under Article 8 of Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities;

– such suspension does not have the effect of suspending the transfer time limit laid down in Article 29(1) of Regulation No 604/2013.