OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 22 September 2011 ( )

Case C‑411/10

N. S.

v

Secretary of State for the Home Department

(Reference for a preliminary ruling from the Court of Appeal (England and Wales) (United Kingdom))

(Regulation (EC) No 343/2003 – Transfer of asylum seekers to the Member State responsible for examining the asylum application – Obligation on the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003 – Compatibility of the transfer of an asylum seeker with the Charter of Fundamental Rights, the ECHR and the Geneva Convention relating to the Status of Refugees – Field of application of the Charter of Fundamental Rights – Relationship between the Charter of Fundamental Rights, the Geneva Convention relating to the Status of Refugees and the ECHR – Right to an effective remedy – Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom)









Table of contents





I – Introduction

II – Legislative framework

A – EU law

1. Charter of Fundamental Rights

2. Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom

3. Secondary law

a) Regulation No 343/2003

b) Directive 2001/55

c) Directive 2003/9

d) Directive 2004/83

e) Directive 2005/85

B – International law

1. Geneva Convention

2. European Convention on Human Rights

III – Facts and reference for a preliminary ruling

IV – Procedure before the Court

V – Arguments of the parties

VI – Legal assessment

A – First question

B – Second, third and fourth questions

1. The asylum measures in secondary law and their relationship with the Charter of Fundamental Rights, the Geneva Convention and the ECHR

a) Enabling legal basis in primary law

b) Directives 2001/55, 2003/9, 2004/83 and 2005/85

c) Regulation No 343/2003

d) Interim conclusion

2. The overloading of the Greek asylum system

3. Consideration of the overloading of the Member States’ asylum systems in connection with the application of Regulation No 343/2003

a) Fourth question: The duty to exercise the right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003 where transfer to the Member State which is primarily responsible would expose the asylum seeker to a serious risk of violation of his fundamental rights

i) The problem of a serious risk of violation of fundamental rights where an asylum seeker is transferred to the Member State which is primarily responsible

ii) The duty to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003

iii) Interim conclusion

b) Second and third questions: Recourse to conclusive presumptions in the context of the exercise of the right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003

C – Fifth question: Relationship between the protection of asylum seekers under the Charter of Fundamental Rights and their protection under the ECHR

D – Sixth question: Judicial review of compliance with the Geneva Convention and the ECHR in the Member State primarily responsible under Regulation No 343/2003

1. Article 47(1) of the Charter of Fundamental Rights and the risk of infringement of the Geneva Convention or of the ECHR following the transfer of an asylum seeker pursuant to Regulation No 343/2003

2. Incompatibility with Article 47 of the Charter of Fundamental Rights of the conclusive legal presumption that the asylum seeker will not be exposed, in the Member State which is primarily responsible, to the risk of expulsion to another State, which is incompatible with the Geneva Convention and with the ECHR

E – Seventh question

VII – Conclusion





I – Introduction

1. One of the greatest challenges in creating the Common European Asylum System is establishing a fair, but also effective distribution of the burden, associated with immigration, on the asylum systems of the European Union (‘EU’) Member States. This is illustrated particularly clearly by the present reference for a preliminary ruling, in which the referring court asks the Court to clarify the way in which the overloading of a Member State’s asylum system affects the EU arrangements for determining the Member States responsible for asylum applications lodged in the European Union.

2. The criteria for determining the Member State responsible for an asylum application lodged in the European Union are laid down in 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. ( ) A fundamental characteristic of the system for allocating responsibilities in asylum cases introduced by that regulation is that, in principle, a single Member State is responsible for each asylum application lodged in the European Union. Where a third-country national has applied for asylum in a Member State which is not primarily responsible for examining that application under Regulation No 343/2003, the regulation provides for mechanisms for the transfer of the asylum seeker to the Member State which is primarily responsible.

3. However, in the light of the current crisis affecting the Greek asylum system, the question arises, for the other Member States, whether asylum seekers may be transferred to Greece pursuant to Regulation No 343/2003 for the purpose of examining their asylum applications if it cannot be guaranteed that those asylum seekers will be treated and their applications will be examined in Greece in accordance with the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’) and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Because Article 3(2) of Regulation No 343/2003 accords the Member States the right, by way of derogation from the normal rules on responsibility, to take on the examination of an asylum application lodged in their territory, rather than the Member State which is primarily responsible, the question also arises whether the Member States’ right to assume responsibility for the examination themselves may become a duty to assume responsibility for the examination if there is a risk that the asylum seeker’s fundamental rights and human rights will be violated if he is transferred to the Member State which is primarily responsible.

4. The referring court must rule on these questions in the main proceedings, in which an Afghan asylum seeker is challenging his return from the United Kingdom to Greece. Against this background, the referring court essentially asks whether, and if so in what circumstances, the United Kingdom may be required under EU law, in a case like the main proceedings, to assume responsibility for examining asylum applications itself, even though Greece is primarily responsible for the examinations under Regulation No 343/2003.

5. Because the Charter of Fundamental Rights has particular relevance in this connection, the referring court also requests clarification about the content and scope of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom.

6. In answering the questions referred, regard must also be had to the judgment of the European Court of Human Rights in M.S.S. v. Belgium and Greece ( ) – which was delivered after the order for reference had been made – in which the European Court of Human Rights considered the transfer of an Afghan asylum seeker from Belgium to Greece to be a violation by Belgium of Article 3 and Article 13 of the ECHR.

7. Furthermore, the present case is closely connected with Case C‑493/10 M.E. and Others, in which I deliver my Opinion on the same day as in the present case. In M.E. and Others the central issue is the transfer of asylum seekers from Ireland to Greece pursuant to Regulation No 343/2003 and that case has been joined with the present case, by order of the President of the Court of Justice, for the purposes of the written and oral procedure and the judgment. For reasons of clarity, however, I am delivering separate Opinions in the present case and in M.E. and Others.

II – Legislative framework

A – EU law

1. Charter of Fundamental Rights

8. Article 1 of the Charter of Fundamental Rights provides, under the heading ‘Human dignity’:

‘Human dignity is inviolable. It must be respected and protected.’

9. Article 4 of the Charter of Fundamental Rights provides, under the heading ‘Prohibition of torture and inhuman or degrading treatment or punishment’:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

10. Article 18 of the Charter of Fundamental Rights provides, under the heading ‘Right to asylum’:

‘The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union.’

11. Article 19 of the Charter of Fundamental Rights provides, under the heading ‘Protection in the event of removal, expulsion or extradition’:

‘1. Collective expulsions are prohibited.

2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

12. Article 47 of the Charter of Fundamental Rights provides, under the heading ‘Right to an effective remedy and to a fair trial’:

‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’

13. Article 51 of the Charter of Fundamental Rights provides, under the heading ‘Field of application’:

‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’

14. Article 52 of the Charter of Fundamental Rights provides, under the heading ‘Scope and interpretation of rights and principles’:

‘1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.

3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

…

7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.’

2. Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom

15. Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union (‘Protocol No 30’), has two articles which read as follows:

‘Article 1

1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

Article 2

To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.’

3. Secondary law

16. The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967 (‘the Geneva Convention’), thus affirming the principle of non‑refoulement and ensuring that nobody is sent back to persecution. At that special meeting, the European Council also acknowledged the need to reach agreement on the issue of temporary protection for displaced persons on the basis of solidarity between Member States.

17. The measures adopted to implement the Tampere Conclusions included the following regulation and the following directives: ( )

– Regulation No 343/2003,

– Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, ( )

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

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

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

18. That regulation and those directives specifically provide as follows:

a) Regulation No 343/2003

19. In Article 1, Regulation No 343/2003 lays down the criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the Member States by a third-country national.

20. Article 3 of Regulation No 343/2003 states:

‘1. Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. 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. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.

3. Any Member State shall retain the right, pursuant to its national laws, to send an asylum seeker to a third country, in compliance with the provisions of the Geneva Convention.

4. The asylum seeker shall be informed in writing in a language that he or she may reasonably be expected to understand regarding the application of this Regulation, its time limits and its effects.’

21. Article 4 of Regulation No 343/2003 states:

‘1. The process of determining the Member State responsible under this Regulation shall start as soon as an application for asylum is first lodged with a Member State.

2. An application for asylum shall be deemed to have been lodged once a form submitted by the applicant for asylum or a report prepared by the authorities has reached the competent authorities of the Member State concerned. Where an application is not made in writing, the time elapsing between the statement of intention and the preparation of a report should be as short as possible.

…’

22. Article 5 of Regulation No 343/2003 provides:

‘1. The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter.

2. The Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State.’

23. Article 10 of Regulation No 343/2003 states:

‘1. Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 18(3), including the data referred to in Chapter III of Regulation (EC) No 2725/2000, that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for asylum. This responsibility shall cease 12 months after the date on which the irregular border crossing took place.

2. When a Member State cannot or can no longer be held responsible in accordance with paragraph 1, and where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 18(3), that the asylum seeker – who has entered the territories of the Member States irregularly or whose circumstances of entry cannot be established – at the time of lodging the application has been previously living for a continuous period of at least five months in a Member State, that Member State shall be responsible for examining the application for asylum.

If the applicant has been living for periods of time of at least five months in several Member States, the Member State where this has been most recently the case shall be responsible for examining the application.’

24. Article 13 of Regulation No 343/2003 provides:

‘Where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for asylum was lodged shall be responsible for examining it.’

25. Article 16 of Regulation No 343/2003 states:

‘1. The Member State responsible for examining an application for asylum under this Regulation shall be obliged to:

(a) take charge, under the conditions laid down in Articles 17 to 19, of an asylum seeker who has lodged an application in a different Member State;

(b) complete the examination of the application for asylum;

…

3. The obligations specified in paragraph 1 shall cease where the third-country national has left the territory of the Member States for at least three months, unless the third-country national is in possession of a valid residence document issued by the Member State responsible.

…’

26. Article 17 of Regulation No 343/2003 provides:

‘1. Where a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2), call upon the other Member State to take charge of the applicant.

Where the request to take charge of an applicant is not made within the period of three months, responsibility for examining the application for asylum shall lie with the Member State in which the application was lodged.

…’

27. Article 18 of Regulation No 343/2003 states:

‘1. The requested Member State shall make the necessary checks, and shall give a decision on the request to take charge of an applicant within two months of the date on which the request was received.

…

7. Failure to act within the two-month period mentioned in paragraph 1 and the one-month period mentioned in paragraph 6 shall be tantamount to accepting the request, and entail the obligation to take charge of the person, including the provisions for proper arrangements for arrival.’

28. Article 19 of Regulation No 343/2003 provides:

‘1. Where the requested Member State accepts that it should take charge of an applicant, the Member State in which the application for asylum was lodged shall notify the applicant of the decision not to examine the application, and of the obligation to transfer the applicant to the responsible Member State.

2. The decision referred to in paragraph 1 shall set out the grounds on which it is based. It shall contain details of the time limit for carrying out the transfer and shall, if necessary, contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer unless the courts or competent bodies so decide on a case by case basis if national legislation allows for this.

3. The transfer of the applicant from the Member State in which the application for asylum was lodged to the Member State responsible shall be carried out in accordance with the national law of the first 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 that charge be taken or of the decision on an appeal or review where there is a suspensive effect.

…

4. Where the transfer does not take place within the six months’ time limit, responsibility shall lie with the Member State in which the application for asylum was lodged. 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 asylum seeker or up to a maximum of eighteen months if the asylum seeker absconds.

…’

b) Directive 2001/55

29. According to Article 1, the purpose of Directive 2001/55 is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin and to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons.

30. Under Article 2(a) of Directive 2001/55,‘temporary protection’ means a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection.

31. Chapter II of Directive 2001/55 contains rules on the duration and implementation of temporary protection. Chapter III concerns the obligations of the Member States towards persons enjoying temporary protection. Chapter IV of the directive regulates access to the asylum procedure in the context of temporary protection. Chapter V of the directive concerns return and measures after temporary protection. Chapter VI concerns the distribution of burdens and responsibilities among the Member States in the spirit of solidarity within the European Union.

c) Directive 2003/9

32. Article 1 states that the purpose of Directive 2003/9 is to lay down minimum standards for the reception of asylum seekers in Member States.

33. The minimum standards laid down in Directive 2003/9 relate to the Member States’ information duties vis-à-vis asylum seekers (Article 5), provision of documentation for asylum seekers (Article 6), residence and freedom of movement for asylum seekers (Article 7), the preservation of family unity for asylum seekers (Article 8), schooling and education of minors (Article 10), access to the labour market for asylum seekers (Article 11), vocational training (Article 12) and material reception conditions and health care for asylum seekers (Article 13 et seq.).

34. Article 21 of Directive 2003/9 provides, under the heading ‘Appeals’:

‘1. Member States shall ensure that negative decisions relating to the granting of benefits under this Directive or decisions taken under Article 7 which individually affect asylum seekers may be the subject of an appeal within the procedures laid down in the national law. At least in the last instance the possibility of an appeal or a review before a judicial body shall be granted.

2. Procedures for access to legal assistance in such cases shall be laid down in national law.’

35. Under Article 23 of Directive 2003/9, Member States must, with due respect to their constitutional structure, ensure that appropriate guidance, monitoring and control of the level of reception conditions are established. Under Article 24(2), Member States must allocate the necessary resources in connection with the national provisions enacted to implement that directive.

d) Directive 2004/83

36. Under Article 1 of Directive 2004/83, the purpose of the directive is to lay down minimum standards for the qualification of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

37. Chapters II, III and V of Directive 2004/83 contain a number of rules and criteria relating to the assessment of applications for the granting of refugee status or for the granting of subsidiary protection status and relating to the qualification of third-country nationals as refugees or as persons eligible for subsidiary protection. Chapter IV contains, first, a provision under which Member States must grant refugee status to a third-country national or a stateless person who qualifies as a refugee in accordance with Chapters II and III (Article 13). Secondly, that chapter lays down detailed rules on revocation of, ending of or refusal to renew refugee status (Article 14). Chapter VI contains the relevant rules on the granting of subsidiary protection status (Article 18) and on the revocation of, ending of or refusal to renew subsidiary protection status (Article 19). Chapter VII lays down the content of international protection, including protection from refoulement (Article 21). Chapter VIII governs matters of administrative cooperation. Under Article 36, Member States must ensure, among other things, that authorities and other organisations implementing the directive have received the necessary training.

e) Directive 2005/85

38. Under Article 1 of Directive 2005/85, the purpose of the directive is to establish minimum standards on procedures in Member States for granting and withdrawing refugee status.

39. Under Article 3(1) of Directive 2005/85, the directive applies to all applications for asylum made in the territory, including at the border or in the transit zones of the Member States, and to the withdrawal of refugee status. The first subparagraph of Article 4(1) provides that Member States must designate for all procedures a determining authority which will be responsible for an appropriate examination of the applications in accordance with the directive.

40. The basic principles underlying those procedures and the guarantees to be given to asylum seekers in this connection are laid down in Chapter II of Directive 2005/85. Specific rules on the procedures for granting refugee status are contained in Chapter III of the directive, which also introduces the safe third country concept (Article 27) and the safe country of origin concept (Article 31). Chapter V includes rules on the right of asylum seekers to an effective remedy (Article 39).

B – International law

1. Geneva Convention

41. Under Article 33(1) of the Geneva Convention, no Contracting State may expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. European Convention on Human Rights

42. Under Article 3 of the ECHR, no one may be subjected to torture or to inhuman or degrading treatment or punishment.

43. Under Article 13 of the ECHR, everyone whose rights and freedoms as set forth in the Convention are violated must have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

III – Facts and reference for a preliminary ruling

44. In the main proceedings, the referring court has to decide on an appeal brought by an Afghan asylum seeker (‘the appellant in the main proceedings’) against a decision of the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (‘the Administrative Court’), by which the appellant in the main proceedings challenges his transfer to Greece by the United Kingdom. The respondent in the main proceedings, the Secretary of State for the Home Department, is the Government Minister with responsibility for immigration and asylum in the United Kingdom.

45. On his journey from Afghanistan to the United Kingdom, the appellant in the main proceedings travelled through, among other countries, Greece, where he was arrested and fingerprinted on 24 September 2008. He did not claim asylum in Greece. Following detention in that Member State, he was ordered to leave Greece within 30 days and was subsequently expelled to Turkey. Having escaped from detention in Turkey, he made his way to the United Kingdom, where he arrived on 12 January 2009 and applied for asylum on that same date.

46. On 1 April 2009, the Secretary of State requested Greece, pursuant to Regulation No 343/2003, to take charge of the appellant in the main proceedings. Following failure by the Greek authorities to respond within the period laid down by Regulation No 343/2003, Greece was deemed to have accepted responsibility under that regulation for consideration of the claim.

47. The appellant in the main proceedings was informed on 30 July 2009 that he would be removed to Greece on 6 August 2009. On 31 July 2009 the Secretary of State notified the appellant in the main proceedings of a decision taken under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 certifying that his claim that removal to Greece would violate his rights under the ECHR was clearly unfounded. The effect of that decision was that the appellant in the main proceedings did not have a right, under national law, to appeal against the decision to remove him to Greece, to which he would otherwise have been entitled.

48. Following an unsuccessful request that the Secretary of State accept responsibility for determining his asylum claim pursuant to Article 3(2) of Regulation No 343/2003 inter alia on the ground that his fundamental rights under EU law would be breached in the event of his return to Greece, the appellant in the main proceedings was informed, on 4 August 2009, that the Secretary of State was maintaining the decision to remove him to Greece.

49. On 6 August 2009, the appellant in the main proceedings issued a claim for judicial review of the decision to certify that his claim under the ECHR was unfounded and of the decision to remove him to Greece. As a result of this claim, the directions which had been made to remove him to Greece were cancelled by the Secretary of State.

50. In view of the importance of the issues raised, on 14 October 2009 the Administrative Court granted the appellant in the main proceedings permission to bring his claim for judicial review, it being ordered that his case should become the lead case in England and Wales on returns to Greece under Regulation No 343/2003.

51. By judgment of 31 March 2010, the Administrative Court dismissed the claim by the appellant in the main proceedings, but granted him permission to appeal to the referring court in view of the general importance of the issues raised.

52. The referring court concluded that the treatment of the appeal raises fundamental questions regarding the scope of Article 3 of Regulation No 343/2003 and the effect on that article of rights which the appellant in the main proceedings claims under the Charter of Fundamental Rights and under international conventions such as the ECHR.

53. Against this background, the referring court stayed the main proceedings and made reference to the Court for a preliminary ruling on the following questions:

‘1. Does a decision made by a Member State under Article 3(2) of Council Regulation No 343/2003 (“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 on European Union and/or Article 51 of the Charter of Fundamental Rights of the European Union?

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 (“the Reception Directive”); 2004/83/EC (“the Qualification Directive”) and/or 2005/85/EC (“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. In so far 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?’

IV – Procedure before the Court

54. The order for reference dated 12 July 2010 was lodged at the Registry of the Court of Justice on 18 August 2010. In its order for reference, the referring court requested, pursuant to Article 104b(1) of the Rules of Procedure, that the reference for a preliminary ruling be dealt with under the urgent procedure. By an order of the President of the Court of Justice of 1 October 2010, that request was rejected.

55. By order of the President of the Court of Justice of 9 November 2010, Cases C-411/10 and C‑493/10 were joined for the purposes of the written procedure and, by order of the President of the Court of Justice of 16 May 2011, for the purposes of the oral procedure and the judgment.

56. In the written procedure, observations were submitted by the appellant in the main proceedings, Amnesty International Limited and the AIRE (Advice on Individual Rights in Europe) Centre, the United Nations High Commissioner for Refugees and the Equality and Human Rights Commission, as interveners in the main proceedings, the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Finland, the French Republic, the Hellenic Republic, Ireland, the Italian Republic, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the United Kingdom, the Czech Republic, the Swiss Confederation and the European Commission. The representatives of the appellant in the main proceedings, Amnesty International Limited and the AIRE (Advice on Individual Rights in Europe) Centre, the United Nations High Commissioner for Refugees and the Equality and Human Rights Commission, the Republic of Slovenia, the French Republic, the Hellenic Republic, Ireland, the Kingdom of the Netherlands, the Republic of Poland, the United Kingdom and the Commission took part at the hearing on 28 June 2011.

V – Arguments of the parties

57. The first question, which asks whether a decision made by a Member State under Article 3(2) of Regulation No 343/2003 whether to examine a claim for asylum falls within the scope of EU law, must be answered in the affirmative in the view of the Commission, the Finnish, French and Netherlands Governments, the appellant in the main proceedings, the United Nations High Commissioner for Refugees, Amnesty International Limited and the AIRE Centre, and the Equality and Human Rights Commission. In the view of the Austrian Government too, the EU fundamental rights are applicable to a decision made by a Member State whether to exercise its right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003.

58. In the view of Ireland and the Italian, United Kingdom and Belgian Governments, on the other hand, the decision on the exercise of the right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003 does not fall within the scope of EU law. The Belgian Government adds a significant qualification to its statement, however, pointing out that the transfer of an asylum seeker to the Member State primarily responsible under Regulation No 343/2003 does fall within the scope of EU law.

59. In answering the first question, the Czech Government differentiates between the case where a Member State exercises the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003 and the case where it does not exercise that right. Only the decision to exercise the right to assume responsibility for the examination under Article 3(2) falls within the scope of EU law. On the other hand, the non-exercise of the right to assume responsibility for the examination under Article 3(2) does not fall within the scope of EU law.

60. The German Government does not comment expressly on the first question and answers the other questions in case the Court were to conclude that the exercise of discretion in Article 3(2) of Regulation No 343/2003 should be regarded as ‘implementing Union law’ within the meaning of the first sentence of Article 51(1) of the Charter of Fundamental Rights.

61. In answering the second, third and fourth questions, the Commission, the Finnish, French, German and Netherlands Governments, the United Kingdom Government ( ) and the Belgian Government, the appellant in the main proceedings and the United Nations High Commissioner for Refugees essentially take the view that, in the context of the application of Regulation No 343/2003, the rebuttable presumption may be made that the Member State responsible for examining an asylum application will act in accordance with EU law and international law. However, in so far as it should be established in a specific case that the transfer of the asylum seeker to the Member State which is primarily responsible and the treatment of the asylum seeker in that Member State would violate the rights enshrined in the Charter of Fundamental Rights, the transferring Member State is required, in the view of the Commission, the Finnish, French, Belgian and United Kingdom Governments, the appellant in the main proceedings, the United Nations High Commissioner for Refugees, Amnesty International Limited and the AIRE Centre, to exercise its right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003. In the view of the German and the Netherlands Governments, an asylum seeker may no longer be transferred to the Member State which is primarily responsible in such a case.

62. The United Kingdom Government also stresses that an obligation to exercise the right to assume responsibility for the examination may arise only under extraordinary circumstances, namely where the presumption that the responsible Member State will act in accordance with humans rights and EU law vis-à-vis a certain category of asylum seekers has been clearly rebutted and the asylum seeker comes under that category.

63. In the view of the Swiss Confederation, ( ) Regulation No 343/2003 inherently contains a rebuttable presumption that the participating States will comply with the Geneva Convention and the ECHR. However, where that presumption is rebutted in a specific case and it is not guaranteed that the asylum seeker will be treated in accordance with international law in the responsible State, a transfer to that State is precluded and the right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003 exceptionally becomes a duty.

64. In the view of the Italian, Polish, Slovenian and Greek Governments and Ireland, on the other hand, it is not possible to infer from Article 3(2) of Regulation No 343/2003 a duty to exercise the right to assume responsibility for the examination. In the view of the Greek, Slovenian and Polish Governments, moreover, under EU law a Member State may not review the conformity with EU law of the action of another Member State.

65. In answer to the fifth question, the United Kingdom, Italian and Netherlands Governments argue that the scope of the protection conferred upon a person to whom Regulation No 343/2003 applies by the rights set out in Articles 1, 18 and 47 of the Charter of Fundamental Rights is not wider than the protection conferred by Article 3 of the ECHR. The appellant in the main proceedings, the Equality and Human Rights Commission, the United Nations High Commissioner for Refugees, Amnesty International Limited and the AIRE Centre claim, on the other hand, that the protection of an asylum seeker to be transferred on the basis of the Charter of Fundamental Rights and the general principles of EU law extends further than the protection guaranteed by Article 3 of the ECHR.

66. In the view of the German Government, the EU fundamental rights stemming from Articles 4 and 19(2) of the Charter of Fundamental Rights correspond to the fundamental right under Article 3 of the ECHR. Article 18 of the Charter of Fundamental Rights does not contain a right to guaranteed asylum, but to protection against removal in accordance with Article 33 of the Geneva Convention. The scope of Article 47 of the Charter of Fundamental Rights is wider than that of Articles 6 and 13 of the ECHR in so far as the first paragraph requires a judicial remedy and the second paragraph is not restricted to civil and criminal proceedings.

67. In answer to the sixth question, the Commission, the Netherlands Government, the appellant in the main proceedings, the United Nations High Commissioner for Refugees, Amnesty International Limited and the AIRE Centre argue that a national law imposing a conclusive presumption that each Member State is a safe country from which the asylum seeker will not be sent to another State in contravention of his rights pursuant to the ECHR and the Geneva Convention is incompatible with Article 47 of the Charter of Fundamental Rights. The United Kingdom Government stresses that this presumption may be considered to be rebutted only in the case of manifest violations of fundamental rights and human rights. The Italian Government, on the other hand, takes the view that a conclusive presumption applying in national law, according to which the other Member States are safe countries, is compatible with Article 47 of the Charter of Fundamental Rights.

68. In answer to the seventh question, the Commission, the Polish Government, the United Kingdom Government, the appellant in the main proceedings, the United Nations High Commissioner for Refugees, the Equality and Human Rights Commission, Amnesty International Limited and the AIRE Centre argue that the provisions of Protocol No 30 do not affect their proposed answers to the questions referred.

VI – Legal assessment

A – First question

69. By its first question, which asks whether a decision made by a Member State, pursuant to its right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003, to examine a claim for asylum, rather than the Member State which is primarily responsible, falls within the scope of EU law for the purposes of Article 6 TEU and/or Article 51 of the Charter of Fundamental Rights, the referring court is essentially seeking to ascertain whether, and if so in what circumstances, the Member States must comply with the provisions of the Charter of Fundamental Rights in deciding whether to exercise their right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003. ( )

70. The answer to this question should have regard to Article 6(1) TEU, which classifies the Charter of Fundamental Rights as EU primary law (first subparagraph) and also states that the provisions of the Charter do not extend in any way the competences of the European Union as defined in the Treaties (second subparagraph). With regard to the specific interpretation and application of the Charter of Fundamental Rights, the third subparagraph of Article 6(1) TEU refers to Title VII (Articles 51 to 54) of the Charter.

71. Article 51 of the Charter of Fundamental Rights defines the field of application of the Charter. Article 51 confirms, first of all, that the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the European Union, and to the Member States. Secondly, it is ensured that the binding force of fundamental rights for the EU institutions and the Member States does not have the effect of either shifting powers at the expense of the Member States or extending the field of application of EU law beyond the powers of the European Union as established in the Treaties. ( )

72. In order to preclude an extension of the European Union’s powers in relation to the Member States, Article 51(1) of the Charter of Fundamental Rights provides in particular that

– the application of the Charter must not restrict the principle of subsidiarity (first sentence of Article 51(1)),

– the Member States are bound by the Charter only when they are implementing EU law (first sentence of Article 51(1)),

– the observance and application of the Charter must respect the limits of the powers of the European Union as conferred on it in the Treaties (second sentence of Article 51(1)).

73. In addition, Article 51(2) of the Charter of Fundamental Rights contains the general statement that the Charter does not extend the field of application of EU law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties.

74. Against this background, with its first question the referring court takes up the requirement laid down in the first sentence of Article 51(1) of the Charter of Fundamental Rights that the Member States are bound by the Charter only when they are implementing EU law. In this connection it asks whether the Member States ‘are implementing Union law’ within the meaning of that provision where they decide, on the basis of their discretion under Article 3(2) of Regulation No 343/2003, whether or not to examine an asylum application instead of the Member State which is primarily responsible.

75. In my view, this question must be answered in the affirmative.

76. As can be seen from the Explanations relating to the Charter of Fundamental Rights (‘the Explanations’), ( ) the principle laid down in the first sentence of Article 51(1) of the Charter of Fundamental Rights, according to which the Member States are bound by the Charter only when they are implementing EU law, is to be regarded as a confirmation of the Court’s previous case-law on respect by the Member States for the fundamental rights defined in the context of the European Union. The Explanations make express reference to the decisions of principle in Wachauf ( ) and ERT, ( ) and to Karlsson. ( )

77. In Wachauf the Court found that the requirements of the protection of fundamental rights are also binding on the Member States when they implement EU rules and the Member States must, as far as possible, apply those rules in accordance with those requirements. ( ) In ERT the Court also found that restrictions of the fundamental freedoms made by the Member States must satisfy the requirements of the protection of fundamental rights in the EU legal order. ( )

78. Having particular regard to the fact that the Explanations make reference to both the Wachauf case-law and the ERT case-law, the Member States must be regarded as being bound by the Charter of Fundamental Rights, under Article 51(1) of the Charter, both when they implement EU rules and in the context of national restrictions of the fundamental freedoms. ( )

79. Against this background, the question arises in the present case whether a decision made by a Member State under Article 3(2) of Regulation No 343/2003 whether to examine a claim for asylum is to be regarded, for the purposes of Article 51(1) of the Charter of Fundamental Rights and in the light of the Wachauf case‑law, as a national implementing measure for Regulation No 343/2003.

80. In my view, this question must be answered in the affirmative. The discretion enjoyed by the Member State in making that decision does not preclude that assessment. Rather, the crucial factor is that Regulation No 343/2003 lays down exhaustive rules for determining the Member State responsible for examining an asylum application. The option afforded to the Member States to examine asylum applications pursuant to Article 3(2) of Regulation No 343/2003 is an integral part of those rules, which is, inter alia, reflected in the fact that the regulation lays down comprehensive rules governing the legal consequences of such a decision. ( ) Consequently, decisions taken by the Member States on the basis of Article 3(2) of Regulation No 343/2003 are also to be regarded as implementing measures, despite the discretion available to them.

81. This view is confirmed in Wachauf, ( ) in which the Court examined, among other things, the compatibility of individual provisions of Regulation No 1371/84 ( ) with the requirements of the protection of fundamental rights in the EU legal order. Regulation No 1371/84 conferred on the Member States the power to give the lessee of a milk-producing farm, under certain circumstances, compensation for the definitive discontinuance of milk production at the end of the lease. In the main proceedings, a lessee brought an action because he had been refused such compensation, even though he had definitively closed the farm intended for milk production he had built up. Against this background, the Court was required to rule, inter alia, on whether that refusal to grant compensation inevitably followed from Regulation No 1371/84 and whether it was consistent with the EU fundamental rights which had been recognised as general principles of law. In its judgment, the Court held, on the one hand, that the refusal to grant a departing lessee the compensation in question should be regarded as an infringement of the requirements of the protection of fundamental rights in the EU legal order if he was deprived, without compensation, of the fruits of his labour and of his investments in the tenanted holding. ( ) Because, however, Regulation No 1371/84 allowed the Member States, specifically in these cases, a sufficient margin of appreciation in granting the lessees due compensation which was consistent with the requirements of the protection of fundamental rights, in the view of the Court, the rules contained in the regulation were to be regarded as consistent with the fundamental rights. ( )

82. Even though in Wachauf the Court addressed, first and foremost, the consistency of the contested regulation with fundamental rights, it confirmed, at least implicitly, that the decisions by the Member States to grant compensation to departing lessees, which are taken by the national authorities on the basis of the discretion conferred by Regulation No 1371/84, must, as far as possible, be in accordance with the requirements of the protection of fundamental rights. The Court thus confirmed, at the same time, that decisions made by the Member States on the basis of the discretion available to them under EU legislation are to be regarded as implementing measures for that EU legislation for the purposes of protection of fundamental rights under EU law. ( )

83. In the light of the foregoing, the first question must be answered to the effect that a decision made by a Member State under Article 3(2) of Regulation No 343/2003 whether to examine a claim for asylum which is not its responsibility under the criteria set out in Chapter III of the regulation constitutes a measure implementing EU law for the purposes of Article 51(1) of the Charter of Fundamental Rights.

B – Second, third and fourth questions

84. It follows from my above observations that in their decision under Article 3(2) of Regulation No 343/2003 whether to examine a claim for asylum for which another Member State is primarily responsible under the criteria set out in Chapter III of the regulation, the Member States must comply with the Charter of Fundamental Rights. By the second, third and fourth questions, the referring court essentially asks whether, and if so in what circumstances, the Member States may be required, in the light of this need to comply with the Charter of Fundamental Rights, to exercise their right to assume responsibility for the examination themselves under Article 3(2) of Regulation No 343/2003 if it were established that transfer to the Member State which is primarily responsible would expose the asylum seeker to a risk of violation of his fundamental rights and/or to a risk that that Member State would not comply with its obligations under Directives 2003/9, 2004/83 and 2005/85.

85. The referring court asks these questions because it has clear evidence that there is a wide gulf between the EU rules applicable to Greece as regards the organisation of its asylum system, on the one hand, and the actual treatment of asylum seekers in Greece, on the other, such that there may be a risk that asylum seekers’ fundamental rights and human rights will be violated if they are transferred to Greece.

86. In order to gain a better understanding of these questions, I will first examine the asylum measures in secondary law which are relevant in the present case and the relationship between those measures and the Charter of Fundamental Rights, the Geneva Convention and the ECHR. I will go on to consider the problems faced by the Greek asylum system at present. I will then address the question how the overloading of the Greek asylum system must be taken into consideration by the other Member States when applying Regulation No 343/2003.

1. The asylum measures in secondary law and their relationship with the Charter of Fundamental Rights, the Geneva Convention and the ECHR

a) Enabling legal basis in primary law

87. The European Union’s competences were extended to matters related to asylum seekers and refugees in the Treaty of Amsterdam of 1997, by which rule-making powers in relation to asylum, refugees, immigration and residence of third-country nationals were transferred to the European Union. A new Article 73k was inserted in the EC Treaty, as an enabling legal basis in primary law, which was subsequently renumbered as Article 63 EC.

88. In asylum matters, rule-making powers were transferred to the European Union on the proviso, laid down in Article 63(1) EC, that the measures on asylum to be adopted by the EU legislature must be in accordance with the Geneva Convention and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties. The ‘other relevant treaties’ include the ECHR. ( ) Furthermore, Article 63(1) EC expressly provided that the power of harmonisation in asylum matters was limited to establishing minimum standards. ( )

b) Directives 2001/55, 2003/9, 2004/83 and 2005/85

89. On the basis of this enabling legal basis in primary law, the EU legislature adopted four directives laying down minimum standards regarding various aspects of national asylum systems. The first directive adopted was Directive 2001/55, which lays down, inter alia, minimum standards for giving temporary protection in the event of mass influxes. The other three directives introduced common minimum standards for the reception of asylum seekers (Directive 2003/9), for the qualification of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Directive 2004/83), and for procedures in Member States for granting and withdrawing refugee status (Directive 2005/85) in nearly all the Member States. ( )

90. In accordance with the primary-law provisions of Article 63(1) EC, under which the measures of secondary law adopted on that basis must comply with the Geneva Convention, the recitals in the preambles to Directives 2003/9, 2004/83 and 2005/85 all make reference to the conclusion of the Tampere European Council, according to which the Common European Asylum System to be developed is to be based on the full and inclusive application of the Geneva Convention. ( ) The recitals in the preambles to those directives also stress that the directives respect the fundamental rights and observe the principles recognised by the Charter of Fundamental Rights, ( ) and that the Member States are bound by the instruments of international law to which they are party with respect to the treatment of persons falling within the scope of those directives. ( )

91. Directives 2003/9, 2004/83 and 2005/85 therefore contain substantive minimum standards with respect to the treatment of asylum seekers and the examination of their applications. Furthermore, Article 24(2) of Directive 2003/9 expressly provides that Member States must allocate the necessary resources to achieve the minimum standards for the reception of asylum seekers laid down therein. Similarly, Article 36 of Directive 2004/83 provides that Member States must ensure that authorities and other organisations implementing the directive have received the necessary training.

92. It is therefore ensured, from a legal point of view, that the treatment of asylum seekers and the examination of their applications in the Member States, which must respect the minimum standards contained in Directives 2003/9, 2004/83 and 2005/85, in principle also comply with the requirements of the Charter of Fundamental Rights, the Geneva Convention and the ECHR. ( )

c) Regulation No 343/2003

93. According to recital 3 in its preamble, the aim of Regulation No 343/2003 – adopted on the basis of Article 63(1) EC – is to introduce a clear and workable method for determining the Member State responsible for the examination of an asylum application lodged within the European Union. ( ) According to recital 4, this method should be based on objective, fair criteria both for the Member States and for the persons concerned and should make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the asylum procedure and the rapid processing of asylum applications.

94. In order to achieve these objectives, which are also intended to prevent forum shopping by asylum seekers, Regulation No 343/2003 lays down a provision under which responsibility for examining an asylum application lodged in the European Union rests with a single Member State, which is determined on the basis of objective criteria. Those objective criteria include, for example, the existence of a link, in relation to the law on asylum and foreign nationals, between the asylum seeker or a family member and a Member State. ( ) In the case of an illegal entry into the European Union, the Member State of first entry is responsible for examining the asylum application under Article 10 of Regulation No 343/2003. ( ) Under Article 16 of Regulation No 343/2003, the Member State responsible for examining an application for asylum is obliged to take charge of an asylum seeker who has lodged an application in a different Member State and to complete the examination of the application for asylum. ( ) The mechanism for transferring asylum seekers is laid down in Articles 17 to 19 of Regulation No 343/2003.

95. The system under Regulation No 343/2003 for determining the Member State responsible for examining an asylum application and for the transfer of the asylum seeker to that Member State does not expressly take into consideration any differences in the organisation or in the management of the asylum systems and asylum procedures in the different Member States. Specific reference is made to the (expected) treatment of the asylum seeker in the Member State primarily responsible for his asylum application neither in the context of fixing the criteria for determining the responsible Member State nor in connection with the mechanism for the transfer of asylum seekers between the Member States.

96. The absence of a specific reference to the treatment of the asylum seeker in the Member State which is primarily responsible can be explained by the interaction between Regulation No 343/2003 and Directives 2003/9, 2004/83 and 2005/85 and by the interaction between that regulation and obligations on the individual Member States under international law. Because, under those directives, the treatment of asylum seekers and the examination of their asylum applications must satisfy substantive minimum standards in each Member State and because all the Member States have acceded to the ECHR and to the Geneva Convention, it is ensured, from a legal point of view, that the treatment of asylum seekers in each Member State satisfies the requirements of the Charter of Fundamental Rights, the Geneva Convention and the ECHR. ( )

97. Seen from this perspective, neither the Charter of Fundamental Rights nor the Geneva Convention or the ECHR preclude the system introduced by Regulation No 343/2003, which lays down the rules for determining the Member State in which asylum seekers are to be received for the purpose of examining their asylum applications and for the transfer of asylum seekers to that Member State without express reference to the specific organisation and management of the asylum system and asylum procedures there. ( )

d) Interim conclusion

98. In summary, it must be stated, in the light of the foregoing, that the rules of secondary law on the treatment of asylum seekers and on the examination of asylum applications which stem from the interaction between Directives 2003/9, 2004/83 and 2005/85 and Regulation No 343/2003 are, in principle, consistent with the provisions of the Charter of Fundamental Rights, the Geneva Convention and the ECHR, both in their objective and in their legal structure.

2. The overloading of the Greek asylum system

99. Regulation No 343/2003 does not contain any express provision in the case that Member States – on account of their geographical location for example – are faced with a number of asylum seekers exceeding the capacities of their asylum system, with the result that they can no longer, in practice, guarantee that those asylum seekers will be treated and their asylum applications will be reviewed in accordance with Directives 2003/9, 2004/83 and 2005/85 and with their obligations stemming from fundamental rights and from international law. ( )

100. Such an urgent situation appears to have arisen in Greece.

101. A clear indication to this effect is provided by the judgment of the European Court of Human Rights in M.S.S. v. Belgium and Greece, ( ) in which the European Court of Human Rights dealt with the case of an Afghan national who had illegally entered the European Union from Turkey via Greece, and had then been detained in Greece. Without applying for asylum there, he left Greece following his release and eventually applied for asylum in Belgium. Because, after examining the Afghan asylum seeker’s particulars, the Belgian authorities for foreign nationals concluded that, on account of the illegal first entry by the asylum seeker, Greece was responsible for examining his asylum application in accordance with Article 3(1) in conjunction with Article 10(1) of Regulation No 343/2003, Belgium instituted the procedure for the transfer of the asylum seeker to Greece pursuant to Regulation No 343/2003 and, upon the conclusion of that procedure, transferred him to Greece. Before his transfer, however, the Afghan asylum seeker had lodged an application with the European Court of Human Rights.

102. In its judgment, the European Court of Human Rights found that the conditions of detention and the living conditions of the Afghan asylum seeker in Greece were to be regarded as a violation of Article 3 of the ECHR. With reference to the deficiencies in the examination of the asylum seeker’s application, the risk of direct or indirect refoulement to his home country without any serious examination of the merits of his asylum application, and the absence of an effective remedy, the European Court of Human Rights also established a violation of Article 13 in conjunction with Article 3 of the ECHR. It also found that Belgium had also violated Article 3 of the ECHR because, by sending the Afghan asylum seeker back to Greece, it had exposed him to the risks linked to the identified deficiencies in the Greek asylum system, and to detention and living conditions that were in breach of Article 3 of the ECHR. Lastly, the European Court of Human Rights also found that Belgium had violated Article 13 in conjunction with Article 3 of the ECHR.

103. The national courts of the individual Member States have also taken a critical view of the Greek asylum system and of detention and living conditions for asylum seekers in Greece in the context of Regulation No 343/2003 and the transfer of asylum seekers to Greece. For example, in its judgment of 7 October 2010, ( ) the Austrian Verfassungsgerichtshof (Constitutional Court) found, in connection with a review of the constitutionality of the transfer to Greece under Regulation No 343/2003 of an Afghan single woman with three children, that whilst there is, in principle, the possibility of State provision where vulnerable persons are returned to Greece in order to implement the asylum procedure, this cannot be automatically assumed without a specific individual assurance on the part of the competent authorities.

104. The findings of fact made by the lower court, which are reproduced by the referring court as the appeal court in the order for reference, give a similar picture. ( ) Furthermore, in its written observations in the present case, the Commission pointed out that on 3 November 2009 it sent Greece a letter of formal notice under Article 226 EC and on 24 June 2010 a supplementary letter of formal notice, in which Greece was alleged, inter alia, to have infringed various provisions of Directives 2003/9, 2004/83 and 2005/85. ( )

105. It follows from these findings that the Greek asylum system is under considerable pressure as a result of overloading, as a result of which it can no longer always be guaranteed that asylum seekers will be treated and their applications will be reviewed in accordance with Directives 2003/9, 2004/83 and 2005/85. Under these conditions, it cannot be ruled out that asylum seekers who are transferred from another Member State to Greece in accordance with the rules and mechanisms under Regulation No 343/2003 will experience treatment, after their transfer, which is incompatible with the provisions of the Charter of Fundamental Rights, the Geneva Convention and the ECHR.

3. Consideration of the overloading of the Member States’ asylum systems in connection with the application of Regulation No 343/2003

106. In the light of the overloading of the Greek asylum system and the effects of that overloading on the treatment of asylum seekers and on the examination of their applications, the referring court faces the question whether a Member State may transfer an asylum seeker to Greece, having regard to the provisions of Regulation No 343/2003, even if it were established that such a transfer would expose the asylum seeker to a risk of violation of his fundamental rights and human rights. The referring court expands on this question of principle in the second, third and fourth questions.

107. With the second and third questions, the referring court essentially asks the Court for clarification whether, in applying Regulation No 343/2003, the Member States may proceed from the conclusive presumption that, after the transfer of the asylum seeker, the Member State responsible for examining an asylum application will observe both the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85 and the asylum seeker’s fundamental rights (third question), with the result that a transfer of asylum seekers under Regulation No 343/2003 is always to be regarded as compatible with EU fundamental rights, regardless of the situation in the responsible State (second question).

108. In the event that these questions were to be answered in the negative, the referring court would like to know, with its fourth question, whether, and if so in what circumstances, a Member State is obliged, in applying Regulation No 343/2003, to take responsibility for reviewing an asylum application under Article 3(2) of that regulation, where transfer to the Member State which is primarily responsible would expose the asylum seeker to a risk of violation of his fundamental rights and/or to a risk that the minimum standards set out in Directives 2003/9, 2004/83 and 2005/85 will not be applied to him.

109. I will begin by considering the fourth question. I will then turn to the second and third questions.

a) Fourth question: The duty to exercise the right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003 where transfer to the Member State which is primarily responsible would expose the asylum seeker to a serious risk of violation of his fundamental rights

i) The problem of a serious risk of violation of fundamental rights where an asylum seeker is transferred to the Member State which is primarily responsible

110. Should a Member State be unable, for any reason, to comply with the rules of Directives 2003/9, 2004/83 or 2005/85 or its obligations under international law with regard to the treatment of asylum seekers or the examination of their asylum applications, there is a de facto risk that if asylum seekers are transferred to that Member State, they will be exposed to treatment which violates their fundamental rights and their human rights.

111. In this connection, there could be fears, for example, of violations of the right to respect for and protection of human dignity enshrined in Article 1 of the Charter of Fundamental Rights or of the prohibition of torture and inhuman or degrading treatment contained in Article 4 of the Charter in the Member State which is primarily responsible. ( )

112. If there were a serious risk in a Member State of a violation of the human dignity within the meaning of Article 1 of the Charter of Fundamental Rights of the asylum seekers transferred there, or inhuman or degrading treatment within the meaning of Article 4 of the Charter, the transfer of asylum seekers to that Member State would also be incompatible with Article 1 or Article 4 of the Charter of Fundamental Rights. Under Article 1 of the Charter, human dignity must not only be ‘respected’, but also ‘protected’. Such a positive protective function is also inherent in Article 4 of the Charter. ( ) In addition, Article 19(2) of the Charter expressly provides in this connection that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. ( )

113. The complete overloading of a Member State’s asylum system may also mean, in certain circumstances, that it is necessary to examine the compatibility of the transfer of an asylum seeker to that Member State with Article 18 of the Charter of Fundamental Rights.

114. Under Article 18 of the Charter, the right to asylum is guaranteed with due respect for the rules of the Geneva Convention, the EU Treaty and the FEU Treaty. ( ) One of the central elements of the Geneva Convention is the prohibition of direct or indirect expulsion or return of a refugee to a persecuting State laid down in Article 33 of that Convention, the principle of non-refoulement. Even though the precise scope of this prohibition on return is disputed, it must be assumed that it grants refugees ( ) not only protection from direct deportation to the persecuting State, but also protection from chain deportation, where a transfer is made to a State in which there is a risk of deportation to a persecuting State. ( )

115. If the overloading of a Member State’s asylum system were to mean that the refugees in that Member State were at risk of direct or indirect return to a persecuting State, Article 18 of the Charter of Fundamental Rights therefore prohibits the other Member States from transferring refugees to that Member State.

ii) The duty to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003

116. It follows from my above observations that, first of all, the overloading of a Member State’s asylum system may result in an environment in which one or more of the asylum seekers’ rights enshrined in the Charter of Fundamental Rights may be violated. Secondly, I have concluded that the transfer of asylum seekers to a Member State in which there is a serious risk of violation of the asylum seekers’ fundamental rights is incompatible with the Charter of Fundamental Rights.

117. Against this background, the question arises whether Regulation No 343/2003 can be interpreted in such a way that transfers of asylum seekers which violate fundamental rights can be ruled out.

118. The fact that Regulation No 343/2003 must, as far as possible, be interpreted in a manner consistent with fundamental rights follows, first, from the Court’s settled case-law, according to which the Member States must make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the EU legal order or with the other general principles of EU law. ( ) Secondly, an interpretation of Regulation No 343/2003 in a manner consistent with fundamental rights is necessary in particular since it is expressly stated in Article 63(1) EC, which serves as an enabling legal basis for that regulation in primary law, that EU measures on asylum must be in accordance with the Geneva Convention and with other relevant treaties. ( ) Recital 15 in the preamble to Regulation No 343/2003 also confirms that that regulation observes the fundamental rights and principles which are acknowledged in the Charter of Fundamental Rights. ( )

119. In my view, Article 3(2) of Regulation No 343/2003 allows the Member States a margin of discretion which is sufficiently wide to enable them to apply that regulation in a manner compatible with the requirements of the protection of fundamental rights where transfer to the Member State which is primarily responsible would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights.

120. Article 3(2) of Regulation No 343/2003 accords the Member States the right to examine the asylum application lodged by an asylum seeker in that Member State even where, under Article 3(1) in conjunction with the provisions contained in Chapter III of the regulation, another Member State is primarily responsible. Where a Member State exercises this right to assume responsibility for the examination, it becomes the responsible Member State under Article 3(2) of Regulation No 343/2003, which must assume the obligations associated with that responsibility.

121. If transfer to the Member State which is primarily responsible would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights, the Member State in which the asylum seeker has lodged an asylum application can therefore eliminate that risk entirely by exercising its right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003.

122. Taking particular account of the fact that the Member States are required to apply Regulation No 343/2003 in a manner consistent with fundamental rights and that a transfer of asylum seekers to a Member State in which there is a serious risk of violation of one or more fundamental rights of those asylum seekers must, as a rule, be regarded as an infringement of the Charter of Fundamental Rights by the transferring Member State, the Member States are obliged, in my view, to exercise the right to assume responsibility for the examination themselves under Article 3(2) of Regulation No 343/2003 where there is a risk in the Member State which is primarily responsible of violation of the rights of the asylum seeker to be transferred, as enshrined in the Charter of Fundamental Rights.

123. Serious risks of infringements of individual provisions of Directives 2003/9, 2004/83 and 2005/85 in the Member State primarily responsible which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred, as enshrined in the Charter of Fundamental Rights, are not sufficient, on the other hand, to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003.

124. It should be stated, first of all, in this connection that an interpretation of Regulation No 343/2003 in a manner consistent with fundamental rights cannot require the exercise of the right to assume responsibility for the examination under Article 3(2) where the host Member State infringes individual provisions of Directives 2003/9, 2004/83 or 2005/85, but without infringing the Charter of Fundamental Rights. Furthermore, the transfer of an asylum seeker to a Member State in which there is no risk of violation of the rights of that asylum seeker, as enshrined in the Charter of Fundamental Rights, does not normally lead to an infringement of the Charter by the transferring Member State.

125. Furthermore, it would be difficult to reconcile with the aims of Regulation No 343/2003 if any failure to comply with Directives 2003/9, 2004/83 or 2005/85 were sufficient to prevent the transfer of an asylum seeker to the Member State which is primarily responsible. ( ) Regulation No 343/2003 is intended to establish a clear and workable method for determining the Member State responsible for the examination of an asylum application, which also makes it possible to determine rapidly the Member State responsible. ( ) In order to achieve that objective, Regulation No 343/2003 lays down a provision under which responsibility for examining each asylum application lodged in the European Union rests with a single Member State, which is determined on the basis of objective criteria. In the case of an illegal entry into the European Union, the Member State of first entry is responsible for examining the asylum application under Article 10 of Regulation No 343/2003. ( )

126. If any failure to comply with individual provisions of Directives 2003/9, 2004/83 or 2005/85 on the part of the Member State of illegal first entry were now to mean that the Member State in which the asylum seeker lodged an asylum application was required to exercise its right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003, a new, far-reaching exclusion criterion would be created, in addition to the objective criteria for determining the responsible Member State laid down in Chapter III of the regulation, under which even minor infringements of Directives 2003/9, 2004/83 or 2005/85 in individual Member States could mean that those Member States would be relieved of their responsibilities under Regulation No 343/2003 and the associated duties. This could result not only in the rules on responsibility formulated in Regulation No 343/2003 being completely undermined, but could also jeopardise the aim of those rules, which is to determine rapidly the Member States responsible for examining asylum applications lodged in the European Union.

iii) Interim conclusion

127. In the light of foregoing, the fourth question asked by the referring court must be answered to the effect that a Member State in which an asylum application has been lodged is obliged to exercise its right to examine that asylum application itself under Article 3(2) of Regulation No 343/2003 where transfer to the Member State primarily responsible under Article 3(1) in conjunction with the provisions contained in Chapter III of Regulation No 343/2003 would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights. Serious risks of infringements of individual provisions of Directives 2003/9, 2004/83 and 2005/85 in the Member State primarily responsible which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred, as enshrined in the Charter of Fundamental Rights, are not sufficient, on the other hand, to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003.

b) Second and third questions: Recourse to conclusive presumptions in the context of the exercise of the right to assume responsibility for the examination under Article 3(2) of Regulation No 343/2003

128. With the second and third questions, the referring court is seeking to ascertain whether, in applying Regulation No 343/2003, the Member States may proceed from the conclusive presumption that, after the transfer of the asylum seeker, the Member State primarily responsible for examining the asylum application will observe the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85 and the asylum seeker’s fundamental rights (third question), with the result that a transfer of asylum seekers under Regulation No 343/2003 is always to be regarded as compatible with EU fundamental rights, regardless of the situation in the responsible State (second question).

129. In my view, these questions should be answered in the negative.

130. As I have already explained above, the risk that transfer of asylum seekers to another Member State for the purpose of examining their asylum applications will expose them de facto to treatment which violates fundamental rights and human rights can never be completely ruled out. If there were a serious risk of violation of the asylum seeker’s rights, as enshrined in the Charter of Fundamental Rights, in the Member State primarily responsible for examining an asylum application, the Member State in which that asylum seeker has lodged his asylum application is obliged to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003.

131. It is immediately clear from these findings that an application of Regulation No 343/2003 on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the Member State’s duty to interpret and apply Regulation No 343/2003 in a manner consistent with fundamental rights. ( ) In that case, the Member State in which the asylum seeker has lodged his asylum application would never be obliged to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003, and it could not therefore be ruled out that asylum seekers would be transferred to another Member State despite the serious risk of violation of their rights as enshrined in the Charter of Fundamental Rights.

132. For the same reason, an application of Regulation No 343/2003 on the basis of the conclusive presumption that all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85 will be observed in the host Member State must also be rejected as contrary to EU law. The conclusive presumption that all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85 will be observed is no different, in practice, from the conclusive presumption that the asylum seekers’ fundamental rights, as enshrined in the Charter of Fundamental Rights, will be observed in the Member State which is primarily responsible.

133. This does not mean, however, that, the Member States are barred, in principle, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his application. It should be borne in mind in this connection that the treatment of asylum seekers and the examination of their applications under Directives 2003/9, 2004/83 and 2005/85 must satisfy substantive minimum standards in each Member State and that all the Member States must observe the Charter of Fundamental Rights ( ) and – as Contracting States – the ECHR and the Geneva Convention. In view of the high level of protection which is thus (legally) ensured, it seems reasonable, in connection with the transfer of asylum seekers, to proceed from the rebuttable presumption that those asylum seekers will be treated in a manner consistent with human rights and fundamental rights in the Member State which is primarily responsible. ( ) Accordingly, recital 2 in the preamble to Regulation No 343/2003 expressly states that Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals. ( )

134. If the Member States were to decide to operate such a rebuttable presumption, however, they must observe the principle of effectiveness, according to which the realisation of the rights conferred by EU law may not be rendered practically impossible or excessively difficult. ( )

135. If the Member States thus decide to introduce the rebuttable presumption that the asylum seeker’s human rights and fundamental rights will be observed in the Member State which is primarily responsible, the asylum seekers must be given the possibility, procedurally, actually to rebut that presumption. Having regard to the principle of effectiveness, the specific form of the available evidence and the definition of the rules and principles governing the assessment of evidence are, in turn, a matter for the national legal orders of the individual Member States.

136. In the light of foregoing, the second and third questions must be answered to the effect that the obligation to interpret Regulation No 343/2003 in a manner consistent with fundamental rights precludes the operation of a conclusive presumption according to which the Member State primarily responsible for examining an asylum application will observe the asylum seeker’s fundamental rights under EU law and all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85. The Member States are not barred, on the other hand, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his asylum application.

C – Fifth question: Relationship between the protection of asylum seekers under the Charter of Fundamental Rights and their protection under the ECHR

137. By its fifth question, the referring court wishes to know whether Articles 1, 18 and 47 of the Charter of Fundamental Rights accord asylum seekers who are to be transferred to another Member State in accordance with Regulation No 343/2003 a wider scope of protection than Article 3 of the ECHR.

138. Although the referring court did not expressly examine the legal background to that question, the decision of the European Court of Human Rights in K.R.S. v. United Kingdom ( ) appears to have played an important role in its referral. In that decision, the European Court of Human Rights was required to decide on an application under the ECHR by an Iranian national who was to be transferred from the United Kingdom to Greece pursuant to Regulation No 343/2003. The Iranian asylum seeker considered that removal to Greece would infringe Article 3 of the ECHR. In its decision of 2 December 2008, the European Court of Human Rights rejected that application as manifestly ill-founded.

139. At the time the order for reference was made, the referring court therefore faced the question of how it had to take into consideration the decision of the European Court of Human Rights in K.R.S. v. United Kingdom. It had to be clarified whether the view taken by the European Court of Human Rights, that the transfer of an Iranian asylum seeker to Greece does not infringe Article 3 of the ECHR, precludes a finding of an infringement of Articles 1, 18 and 47 of the Charter of Fundamental Rights in a case like the main proceedings.

140. As I have already explained, in its judgment of 21 January 2011 in M.S.S. v. Belgium and Greece, ( ) i.e. after the order for reference was lodged, the European Court of Human Rights further developed its case-law and considered the transfer of an asylum seeker from Belgium to Greece pursuant to Regulation No 343/2003 to be a violation by Belgium of Article 3 of the ECHR and of Article 13 in conjunction with Article 3 of the ECHR.

141. In the light of this development in the European Court of Human Rights’ case-law, it would appear that the referring court is no longer required primarily to address the question under what circumstances the transfer of asylum seekers to Greece could, despite the European Court of Human Rights’ decision in K.R.S. v. United Kingdom, lead to a finding of a violation of that asylum seeker’s rights as enshrined in the Charter of Fundamental Rights, but rather the question whether, having regard to the European Court of Human Rights’ judgment in M.S.S. v. Belgium and Greece, a transfer of asylum seekers to Greece can actually still be found to be compatible with the Charter.

142. Against this background, the fifth question must therefore be construed as meaning that the Court is being asked to clarify the relationship between Articles 3 and 13 of the ECHR and the relevant provisions of the Charter of Fundamental Rights ( ) and the way in which the case-law of the European Court of Human Rights on the (in)compatibility with the ECHR of transfers of asylum seekers to Greece affects the judicial review of the compatibility of such transfers with the Charter of Fundamental Rights.

143. In answering these questions, regard must be had to Article 52(3) of the Charter of Fundamental Rights. Under that provision, the rights contained in the Charter which correspond to rights guaranteed by the ECHR have the same meaning and scope as the corresponding rights laid down by the ECHR. It is also expressly provided in Article 52(3) of the Charter of Fundamental Rights that that provision does not prevent EU law providing more extensive protection.

144. In the Explanations relating to Article 52(3) of the Charter of Fundamental Rights it is stressed that that provision is intended to ensure the necessary consistency between the Charter and the ECHR. According to the Explanations, that reference should be construed not only as a reference to the text of the ECHR and the Protocols to it, but also to the clarification in the case-law of the European Court of Human Rights of the meaning and the scope of the guaranteed rights. This does not, however, adversely affect the autonomy of EU law and of that of the Court of Justice.

145. Under Article 52(3) of the Charter of Fundamental Rights, it must therefore be ensured that the protection guaranteed by the Charter in the areas in which the provisions of the Charter overlap with the guarantees under the ECHR is no less than the protection granted by the ECHR. Because the protection granted by the ECHR is constantly developing in the light of its interpretation by the European Court of Human Rights, ( ) the reference to the ECHR contained in Article 52(3) of the Charter of Fundamental Rights is to be construed as an essentially dynamic reference which, in principle, covers the case-law of the European Court of Human Rights. ( )

146. It should be borne in mind in this connection that the judgments of the European Court of Human Rights essentially always constitute case-specific judicial decisions and not the rules of the ECHR themselves, and it would therefore be wrong to regard the case-law of the European Court of Human Rights as a source of interpretation with full validity in connection with the application of the Charter. ( ) This finding, admittedly, may not hide the fact that particular significance and high importance are to be attached to the case-law of the European Court of Human Rights in connection with the interpretation of the Charter of Fundamental Rights, with the result that it must be taken into consideration in interpreting the Charter. ( )

147. This view is confirmed in the case-law of the Court of Justice, which systematically takes into consideration the case-law of the European Court of Human Rights on the relevant provisions of the ECHR in interpreting the provisions of the Charter of Fundamental Rights. ( )

148. In the light of the foregoing, the fifth question must be answered to the effect that under Article 52(3) of the Charter of Fundamental Rights it must be ensured that the protection guaranteed by the Charter in the areas in which the provisions of the Charter overlap with the provisions of the ECHR is no less than the protection granted by the ECHR. Because the extent and scope of the protection granted by the ECHR has been clarified in the case-law of the European Court of Human Rights, particular significance and high importance are to be attached to that case-law in connection with the interpretation of the relevant provisions of the Charter of Fundamental Rights by the Court of Justice.

D – Sixth question: Judicial review of compliance with the Geneva Convention and the ECHR in the Member State primarily responsible under Regulation No 343/2003

149. With its sixth question, the referring court wishes to know whether a national law under which, in their review of the application of Regulation No 343/2003, the courts must proceed from the conclusive presumption that the State primarily responsible for examining the asylum application is a safe country in which asylum seekers are not exposed to the risk of expulsion to a persecuting State, which is incompatible with the Geneva Convention or with the ECHR, is compatible with Article 47 of the Charter of Fundamental Rights.

150. In order to answer this question, I will first examine the relationship between the rights of asylum seekers under Article 47 of the Charter of Fundamental Rights and risk of expulsion to a persecuting State, which is incompatible with the Geneva Convention and with the ECHR and which may arise in the event of a transfer of asylum seekers to the Member State which is primarily responsible. On the basis of those observations I will then answer the sixth question asked by the referring court.

1. Article 47(1) of the Charter of Fundamental Rights and the risk of infringement of the Geneva Convention or of the ECHR following the transfer of an asylum seeker pursuant to Regulation No 343/2003

151. Under Article 47(1) of the Charter of Fundamental Rights, everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.

152. The basic condition for the applicability of Article 47 of the Charter of Fundamental Rights is therefore that rights and freedoms guaranteed by the law of the European Union are violated. Against this background, an infringement of the Geneva Convention or the ECHR can establish a right to an effective remedy under Article 47(1) of the Charter of Fundamental Right