Keywords

Summary



Keywords

1. Border controls, asylum and immigration – Asylum policy – Criteria and mechanisms for determining the Member State responsible for examining an asylum application – Member States’ discretion

(Art. 6 TEU; Charter of fundamental rights of the European Union, Art. 51; Council Regulation No 343/2003, Art. 3(2))

2. Border controls, asylum and immigration – Asylum policy – Criteria and mechanisms for determining the Member State responsible for examining an asylum application – Transfer of an asylum seeker to the Member State responsible for examining his application

(Charter of fundamental rights of the European Union, Arts 1, 18 and 47; Council Regulation No 343/2003, Art. 3(1))

3. Fundamental rights – Prohibition of torture and inhuman or degrading treatment or punishment – Scope

(Charter of fundamental rights of the European Union, Arts 1, 4, 18 and 47; Council Regulation No 343/2003, Art. 3(1) and (2))

4. Border controls, asylum and immigration – Asylum policy – Criteria and mechanisms for determining the Member State responsible for examining an asylum – Protection conferred on asylum seekers – Scope

(Protocol No 30, Annex to the TEU; Charter of fundamental rights of the European Union, Art. 1; Council Regulation No 343/2003)

Summary

1. Article 3(2) of Regulation No 343/2003 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 grants Member States a discretionary power which forms an integral part of the Common European Asylum System provided for by the FEU Treaty and developed by the Union legislature. That discretionary power must be exercised in accordance with the other provisions of that regulation. A Member State which exercises that power must therefore be considered as implementing Union law within the meaning of Article 51(1) of the Charter of fundamental rights of the European Union.

Therefore, the decision taken by a Member State on the basis of Article 3(2) of Regulation No 343/2003 as to whether or not to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that Regulation implements Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of fundamental rights of the European Union.

(see paras 65-66, 68-69, operative part 1)

2. European Union law precludes the application of an irrebuttable presumption that the Member State which Article 3(1) of Regulation No 343/2003 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 indicates as responsible observes the fundamental rights of the European Union.

Articles 1, 18 and 47 of the Charter fundamental rights of the European Union do not lead to an answer different from that given above.

(see paras 105, 115, operative part 2-3)

3. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the Member State responsible within the meaning of Regulation No 343/2003 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 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that that asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.

Subject to the right for that State to examine the application referred to in Article 3(2) of Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, requires the Member State that was to carry out that transfer to continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application.

The Member State in which the asylum seeker is present must, however, ensure that it does not worsen a situation in which that applicant’s fundamental rights have been infringed by use of a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, it must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003.

Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union do not lead to a different answer from that given above.

(see paras 106-108, 115, operative part 2-3)

4. It is apparent from Article 1 of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom that that protocol does not call into question the applicability of the Charter in the United Kingdom or in Poland, a position which is confirmed by the recitals in the preamble to that protocol. Thus, according to the third recital in the preamble to Protocol (No 30), the Charter must be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in Article 1 of the protocol. In addition, according to the sixth recital in the preamble to that protocol, the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles.

In those circumstances, Article 1(1) of Protocol (No 30) explains Article 51 of the Charter with regard to its field of application and is not intended to exempt the Republic of Poland or the United Kingdom from the duty to comply with the provisions of the Charter, or to prevent a court of one of those Member States from ensuring compliance with those provisions.

Consequently, the taking into account of that protocol does not affect the scope of the United Kingdom’s obligations in relation to the protection conferred on a person to whom Regulation No 343/2003 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 applies.

(see paras 119-120, 122, operative part 4)