Case C‑36/17

Daher Muse Ahmed

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Verwaltungsgericht Minden)

(Request for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Regulation (EU) No 604/2013 — Determination of the Member State responsible for examining an application for asylum lodged in one of the Member States by a third-country national — Application for international protection made by a third-country national benefiting from the status conferred by subsidiary protection — Applicability of the take-back procedure)

Summary — Order of the Court (Third Chamber), 5 April 2017

Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection — Regulation No 604/2013 — Take-back procedure — Scope — Application for international protection made by a third-country national benefiting from the status conferred by subsidiary protection — Precluded

(European Parliament and Council Regulation No 604/2013, Art. 18(1)(b) to d) and 23(1))

The provisions and principles 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 which govern, directly or indirectly, the time limits for lodging an application for a take-back are not applicable in a situation, such as that at issue in the main proceedings, in which a third-country national has lodged an application for international protection in one Member State after being granted the benefit of subsidiary protection by another Member State.

In that connection, it must be stated that those rules, which are intended to govern the conduct of the take-back procedure laid down by that regulation by ensuring that a take-back request is made within a reasonable time, are not, by nature, applicable to situations in which such a procedure may, in principle, be properly brought in accordance with that regulation. It follows from Article 23(1) of that regulation that, in such situations, the take-back procedure may cover only the transfer of a person referred to in Article 18(1)(b), (c) or (d) thereof. Those three provisions refer, respectively, to an applicant whose application is being examined, a third-country national or stateless person who has withdrawn his request which was being examined, and a third-country national or stateless person whose application has been rejected.

In that connection, it must be observed that Article 18(1)(d) of Regulation No 604/2013 does not indicate whether the unsuccessful ‘application’ referred to is an application for international protection or asylum strictu sensu. If that provision were to be interpreted as referring to the rejection of an asylum application, it could be applied to a third-country national benefiting from the status granted by subsidiary protection since, pursuant to Article 10(2) of Directive 2013/32, that status may be granted only after determining that the applicant does not satisfy the conditions for granting refugee status. However, that interpretation of Article 18(1)(d) of Regulation No 604/2013 cannot be accepted.

Therefore, it follows from Article 23(1) of Regulation No 604/2013, read together with Article 18(1)(d) thereof, that a Member State cannot reasonably request another Member State to take back a third-country national, such as the person concerned in the main proceedings under the procedures defined by that regulation, who has lodged an application for international protection in the first Member State after being granted the benefit of subsidiary protection by the second Member State.

(see paras 25, 27, 28, 30-32, 41, 42, operative part)