Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 17 November 2022 ( )

Case C‑556/21

Staatssecretaris van Justitie en Veiligheid

joined parties:

E.N.,

S.S.,

J.Y.

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

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





I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Article 27(3) and Article 29 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. ( )

2. The request has been made in proceedings between E.N., S.S. and J.Y., who are applicants for international protection, and the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’) concerning the State Secretary’s decisions not to consider their applications for international protection and to transfer them to other Member States. Those decisions were annulled by the courts of first instance having jurisdiction. The State Secretary appealed against those judgments and requested, inter alia, by way of interim measures, that the time limit for the transfer of those applicants for international protection be suspended, which was granted to him.

3. The present case gives the Court an opportunity to clarify the arrangements for calculating the time limit within which the requesting Member State may transfer the applicant for international protection to the Member State responsible.

4. This case is connected with the pending case Staatssecretaris van Justitie en Veiligheid (Transfer time limit – Trafficking in human beings) (C‑338/21), in which the question arises whether the transfer time limit under Article 29(1) of the Dublin III regulation (‘the transfer time limit’) is suspended where, alongside his or her application for international protection, the person concerned has sought a review of the decision refusing to issue the temporary residence permit provided for in Article 8 of Directive 2004/81/EC. ( )

5. Even though the Raad van State (Council of State, Netherlands) is in both cases uncertain as to the consequences of the suspension of implementation of the transfer decision for the computation of the transfer time limit in itself, the specific questions raised are different. That is why these cases form the subject of separate Opinions delivered on the same day.

6. In the present Opinion, at the conclusion of my analysis I will propose that the Court rule that Article 27(3) and Article 29 of the Dublin III regulation must be interpreted as meaning that, in so far as the requesting Member State has opted to apply Article 27(3)(c) of that regulation and where the applicant for international protection has not requested the suspension of the implementation of the transfer decision under that provision, it is not possible for the appellate court, during the hearing of the case, to grant, at the request of the competent authority of that Member State, an interim measure suspending the transfer time limit.

II. Legal context

A. European Union law

7. According to its Article 1, the Dublin III regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. Recitals 4, 5 and 19 of that regulation state in this regard:

‘(4) The … conclusions [of the European Council at its special meeting in Tampere on 15 and 16 October 1999] … stated that the [Common European Asylum System] should include, in the short-term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.

(5) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection.

…

(19) In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.’

8. Article 27(3) and (4) of the Dublin III regulation provides:

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

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

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

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

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

9. The first subparagraph of Article 29(1) and Article 29(2) of that regulation read as follows:

‘1. The transfer of the applicant … from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3).

…

2. Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.’

B. Netherlands law

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

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

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

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

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

12. On 12 July and 7 October 2019 and on 22 November 2020, E.N., S.S. and J.Y. respectively lodged applications for international protection in the Netherlands. The State Secretary requested the authorities of other Member States to take charge of them or to take them back. On 27 October and 20 November 2019 and on 19 January 2021, those authorities accepted those take charge or take back requests either explicitly or implicitly.

13. On 9 January and 8 February 2020 and on 16 February 2021, the State Secretary refused to examine the applications for international protection on the ground that the authorities of other Member States were responsible for examining those applications and E.N., S.S. and J.Y. should be transferred to those authorities. E.N., S.S. and J.Y. appealed, seeking the annulment of those decisions. It is clear from the statements made by the parties concerned at the hearing that they did not request suspension of the implementation of those decisions pending the outcome of their appeals. ( )

14. On 25 February and 16 September 2020 ( ) and on 1 April 2021, the courts of first instance annulled the decisions to refuse to examine the applications for international protection and also the transfer decisions, and ordered the State Secretary to adopt new decisions on the applications for international protection lodged by E.N., S.S. and J.Y.

15. The State Secretary appealed against those judgments before the Raad van State (Council of State). He attached to those appeals applications for interim measures seeking an order that he not be required to adopt a new decision on the applications for international protection before a decision had been taken on those appeals and that the transfer time limit be suspended. The referring court granted those applications on 17 March and 16 November 2020 and on 28 May 2021.

16. The referring court states that it will have to find that the transfer time limit has expired and that the Kingdom of the Netherlands has therefore become responsible for examining the applications for international protection lodged by E.N., S.S. and J.Y. if Article 27(3) and Article 29(1) of the Dublin III regulation are to be considered to preclude the grant, during the further appeal, of an interim measures application by the State Secretary for suspension of the transfer time limit.

17. The referring court points out that the Kingdom of the Netherlands has opted to apply Article 27(3)(c) of the Dublin III regulation, under which the person concerned has the right to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review.

18. The referring court considers that the position that Articles 27 and 29 of the Dublin III regulation preclude the grant, on a further appeal, of an interim measures application by the State Secretary for suspension of the transfer time limit could be justified, first, by the definition of the concept of ‘person concerned’ within the meaning of Article 27(3)(c) of that regulation and, second, by the objective of the rapid determination of the Member State responsible for examining the application for international protection.

19. Nevertheless, it highlights considerations which would support the conclusion that that regulation does not preclude the grant, on a further appeal, of an interim measures application by the State Secretary for suspension of the transfer time limit.

20. First, the referring court infers from the judgment of 26 September 2018, Staatssecretaris van Veiligheid en Justitie (Suspensory effect of the appeal), ( ) that if a directive establishes an obligation to ensure that there is an effective judicial remedy at the first level of jurisdiction, that obligation does not prevent provision being made for proceedings at a second level of jurisdiction or a further appeal.

21. Second, the referring court argues that although one of the objectives of the Dublin III regulation is to determine rapidly the Member State responsible for the application for international protection, an effective judicial remedy against decisions regarding transfers to the Member State responsible must be guaranteed. The person concerned may, on this ground, opt for additional legal protection over the rapid determination of the Member State responsible.

22. According to the referring court, such an interpretation would avoid two undesirable situations: first, where the person concerned is transferred to the Member State responsible while the appeal is pending, only to be returned to the requesting Member State if the appeal is well founded, or, second, where the person concerned cannot be transferred to the Member State responsible and the transfer time limit expires during the further appeal, so that the application for international protection would have to be processed by the requesting Member State, even if the appeal lodged by the person concerned was dismissed.

23. Third, the referring court recognises that it is also possible for the State Secretary, on a further appeal, to request the suspension of the transfer time limit. The opposite approach would be likely to deprive the State Secretary of any practical opportunity to appeal, in so far as the transfer time limit would not always be sufficient to allow the court hearing the case to give a ruling.

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

‘Must [Article 27(3) and Article 29] of [the Dublin III regulation] be interpreted as not precluding, where the legal system of the Member State provides for appellate jurisdiction in cases such as that at issue here, the appellate court, during the hearing of the case, from granting, at the request of the competent authority of the Member State, an interim measure suspending the transfer time limit?’

25. E.N., S.S. and J.Y., the Netherlands and German Governments and the European Commission submitted written observations.

26. At a joint hearing of this case and pending Case C‑338/21, which was held on 14 July 2022, E.N., S.S. and J.Y., the Netherlands Government and the Commission presented oral argument and were requested, inter alia, to answer questions for an oral answer put by the Court.

IV. Analysis

27. By its question, the referring court asks the Court of Justice, in essence, whether Article 27(3) and Article 29(1) of the Dublin III regulation must be interpreted as not precluding a national practice under which, where the legal system of a Member State provides for a second level of jurisdiction in appeal proceedings against transfer decisions or reviews of such decisions, in accordance with Article 27(3), the appellate court may, during the hearing of the case, grant, at the request of the competent authority of the Member State, an interim measure suspending the transfer time limit.

28. In answering the questions put by the referring court, it should be borne in mind, first and foremost, that the Dublin III regulation does not, as such, provide for the possibility of a national court or tribunal suspending the six-month time limit within which the requesting Member State may carry out the transfer of the applicant for international protection to the Member State responsible.

29. Article 27(3) of that regulation does, however, provide for the possibility of a national court or tribunal suspending the implementation of the transfer decision either of its own motion ( ) or at the request of the person concerned. ( ) It is this suspension that has consequences for the computation of the transfer time limit.

30. Under Article 29(1) of the Dublin III regulation, the transfer time limit begins to run, in principle, from the time of acceptance of the request by another Member State to take charge or to take back the person concerned. However, where the person concerned has lodged an appeal or sought a review of the transfer decision, that time limit begins to run from the time of the final decision on that appeal or review where there has been a suspensive effect in accordance with Article 27(3) of that regulation.

31. Under the latter provision there are three options for suspending the implementation of the transfer decision. Member States must provide either, first, that the appeal against that decision confers upon the person concerned the right to remain in the Member State which adopted that decision pending the outcome of the appeal, ( ) which means that the transfer cannot be carried out; or, second, that, after an appeal has been lodged against the transfer decision, the transfer is automatically suspended for a reasonable period of time, during which a court or a tribunal is to determine whether to grant suspensive effect to that appeal; ( ) or, third, that the person concerned has the opportunity to lodge an appeal seeking the suspension of the implementation of the transfer decision pending the outcome of the appeal against that decision. ( ) It is evident from the relationship between Article 27(3) and Article 29(1) of the Dublin III regulation that it is only where the suspension of the implementation of the transfer decision has been granted on the basis of one of the three options under Article 27(3) of that regulation that the starting point of the transfer time limit may be delayed under Article 29(1) of that regulation.

32. It should be noted that Article 27(3) of the Dublin III regulation does not provide that the competent authority of the requesting Member State may request the suspension of the implementation of the transfer decision and, furthermore, that the Kingdom of the Netherlands has opted to apply, of the three alternatives for such suspension under that provision, the option where the applicant for international protection may lodge an appeal seeking suspension. ( )

33. However, under the Netherlands system at issue in the main proceedings, following the annulment of a transfer decision at first instance, the competent administrative authority may request the judge hearing applications for interim measures at the appellate court to declare that it is not required to adopt a new decision on the application for international protection pending the outcome of the appeal, and to rule that the transfer time limit is suspended until the appellate court has taken a decision on the appeal, notwithstanding the fact that the applicant for international protection has not requested the suspension of the implementation of the transfer decision at first instance or that such suspension has not been granted to the applicant.

34. It must therefore be determined whether, in so far as the Kingdom of the Netherlands has opted to apply Article 27(3)(c) of the Dublin III regulation and the applicant for international protection has not requested the suspension of the implementation of the transfer decision at first instance, Article 27(3) and Article 29(1) of that regulation preclude such a legal practice.

35. To that end, I would point out that the provisions set out in Article 27(3) and Article 29 of the Dublin III regulation pursue their own specific aim.

36. First, the take charge and take back procedures in respect of applicants for international protection must be carried out with due regard to a series of mandatory time limits, including the six-month time limit within which the requesting Member State may transfer the person concerned to the Member State responsible under Article 29(1) of the Dublin III regulation. ( )

37. Those time limits make a decisive contribution to achieving the objective of rapidly processing applications for international protection, as referred to in recital 5 of that regulation, by ensuring that the take charge and take back procedures will be implemented without undue delay. ( )

38. Second, in adopting Article 27(3) of that regulation, the EU legislature intended to enhance the procedural safeguards granted to applicants for international protection ( ) and, more specifically, the judicial protection enjoyed by them under Article 47 of the Charter of Fundamental Rights. ( )

39. In other words, it is in order to provide sufficient judicial protection for the person concerned that Article 27(3) of the Dublin III regulation gives him or her the opportunity to prevent the competent authorities of the requesting Member State from being able to carry out his or her transfer to another Member State.

40. As the Court ruled in its judgment of 29 January 2009, Petrosian, ( ) it is clear from the relationship between those objectives that, in order to reconcile the guarantee of effective judicial protection for the persons concerned with due regard for the mandatory time limits imposed on Member States, it must be possible to delay the computation of the transfer time limit from the time of the judicial decision which rules on the merits of the procedure and which is no longer such as to preclude the implementation of the transfer decision.

41. Since then it has been settled case-law that the EU legislature did not intend that judicial protection enjoyed by applicants for international protection should be sacrificed to the requirement of expedition in the processing of their application. ( )

42. In the light of the foregoing, it seems appropriate to point out that the objective of the rapid processing of applications for international protection can be undermined by delaying the computation of the transfer time limit only where the implementation of the transfer decision has been suspended under the conditions laid down in Article 27(3) of the Dublin III regulation with a view to ensuring sufficient judicial protection for the applicant for international protection. It is therefore for the benefit of that applicant alone that remedies against transfer decisions exist and the suspension of the implementation of such decisions may be granted, resulting in the suspension of the transfer time limit.

43. I therefore take the view that suspension of the implementation of the transfer decision by the appellate court, at the request of the competent authority of the requesting Member State, does not ensure effective judicial protection for applicants for international protection.

44. In the case in the main proceedings, E.N., S.S. and J.Y. had, at first instance, secured the annulment of the transfer decisions without having requested the suspension of their implementation.

45. Two remarks can be made in this regard.

46. First, with regard to the annulment of the transfer decisions, I note that suspension of the implementation of the transfer decision under Article 27(3) of the Dublin III regulation, while not necessarily automatic, is intrinsically linked to the existence of an appeal against that decision. It is precisely because a transfer decision exists that its implementation may be suspended so that the applicant for international protection is able effectively to challenge that decision.

47. In addition, the only possible justification for any delay in the computation of the six-month time limit prescribed for carrying out the transfer lies in the interest of the person concerned in having the legality of the transfer decision clarified by a judicial authority. ( )

48. Thus, since the transfer decisions have been annulled by the courts of first instance, E.N., S.S. and J.Y. are no longer at risk of being transferred to the Member State responsible for the entire duration of the appeal proceedings. There is no risk of compromising the judicial protection of those individuals, who will be able to remain in the territory of the requesting Member State and to defend their rights effectively before the appellate court.

49. Second, with regard to the lack of suspensive effect of the appeal, the Court has already ruled that, in adopting Article 27(3) of the Dublin III regulation, the EU legislature acknowledged that the Member States could decide that the lodging of an appeal against a transfer decision did not, of itself, have suspensory effect with regard to the implementation of the decision to transfer, which could therefore go ahead without waiting for the examination of the appeal, provided that suspension had not been requested or the request for suspension had been refused. ( )

50. It is clear from the statements made by their counsel at the hearing that in their appeals at first instance against the transfer decisions taken against them, E.N., J.Y. and S.S. did not request that those appeals have suspensive effect. ( )

51. To that extent, it may be inferred that E.N., J.Y. and S.S. intended to favour the rapid processing of their application for international protection and that the suspension of the implementation of the transfer decisions, which is requested on a further appeal at the initiative of the State Secretary, really serves that administrative authority’s interest in maintaining the transfer decisions which were annulled at first instance and in having the implementation of those transfer decisions suspended and, consequently, the computation of the transfer time limit delayed.

52. I note that, according to the request for a preliminary ruling, the interim measures granted in the further appeal and on the initiative of the competent national authority are intended, in essence, to prevent the transfer time limit expiring before that appeal is heard. Those measures are therefore granted for the benefit of that authority alone.

53. However, as the Netherlands Government pointed out at the hearing, in so far as the appeal brought at first instance by an applicant for international protection is not accompanied by interim measures suspending the implementation of the transfer decision, there is nothing to prevent the competent national authorities from transferring that applicant for international protection to the Member State responsible while the proceedings at first instance are pending. ( )

54. It is true that such a scenario could lead the requesting Member State to transfer an applicant for international protection to the Member State which has agreed to take charge of or to take back that applicant, even if the transfer decision were subsequently to be annulled by the courts or tribunals having jurisdiction in the requesting Member State.

55. I would observe, however, that Article 29(3) of the Dublin III regulation provides that, in such a situation, ‘the Member State which carried out the transfer shall promptly accept that person back’. ( )

56. Thus, as the requesting Member State has opted to apply Article 27(3)(c) of the Dublin III regulation and the person concerned has not requested the suspension of the implementation of the transfer decision at first instance, there is no obstacle to the implementation of that decision that would justify the need to suspend, as a result, the transfer time limit.

57. I conclude that there is no reason for the requesting Member State to depart from the six-month time limit laid down in Article 29(1) of the Dublin III regulation running from the time when the Member State responsible accepted the request to take charge or to take back the person concerned if that person did not request, at first instance, the suspension of the implementation of the transfer decision.

58. Consequently, the further appeal brought by the competent national authorities cannot result in either the suspension of the implementation of the transfer decision, which only the person concerned may request, or the suspension of the transfer time limit.

59. The situation would be different if E.N., J.Y. and S.S. had requested and secured the suspension of the implementation of the transfer decision at first instance. In the case of a suspensive appeal, which is a matter for the national court to verify, such a suspension decision would be maintained pending the decision of the appellate court and pending the outcome of the appeal, regardless of the number of levels of jurisdiction under national law. It is only in this situation that the transfer time limit could begin to run from the time the appeal against the transfer decision or the review of that decision ceases to have suspensive effect.

60. This interpretation is corroborated by Article 27(3) of the Dublin III regulation, which provides that an applicant for international protection may request the suspension of the implementation of the transfer decision pending ‘the outcome of his or her appeal or review’, and by the first subparagraph of Article 29(1) of that regulation, which provides that the transfer time limit begins to run from ‘the final decision on an appeal or review’, where the implementation of the transfer decision has been suspended under Article 27(3).

61. On this basis, I propose that the Court rule that in so far as the requesting Member State has opted to apply Article 27(3)(c) of the Dublin III regulation and where the applicant for international protection has not requested the suspension of the implementation of the transfer decision under that provision, it is not possible for the appellate court, during the hearing of the case, to grant, at the request of the competent authority of that Member State alone, an interim measure suspending the transfer time limit.

V. Conclusion

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

Article 27(3) and Article 29 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person

must be interpreted as meaning that in so far as the requesting Member State has opted to apply Article 27(3)(c) of that regulation and where the applicant for international protection has not requested the suspension of the implementation of the transfer decision under that provision, the appellate court is precluded, during the hearing of the case, from granting, at the request of the competent authority of that Member State alone, an interim measure suspending the transfer time limit provided for in Article 29(1) of the regulation.