Joined Cases C-228/21, C-254/21, C-297/21, C-315/21 and C-328/21, Ministero dell’Interno (Common leaflet — Indirect refoulement) and Others: Judgment of the Court (Second Chamber) of 30 November 2023 (requests for a preliminary ruling from the Corte suprema di cassazione, Tribunale ordinario di Roma, Tribunale ordinario di Firenze, Tribunale di Milano, Tribunale di Trieste — Ministero dell’Interno, Dipartimento per le libertà civili e l’immigrazione — Unità Dublino (C-228/21), DG (C-254/21), XXX.XX (C-297/21), PP (C-315/21), GE (C-328/21) v CZA (C-228/21), Ministero dell’Interno, Dipartimento per le libertà civili e l’immigrazione — Unità Dublino (C-254/21, C-297/21, C-315/21 and C-328/21) (Reference for a preliminary ruling — Asylum policy — Regulation (EU) No 604/2013 — Articles 3 to 5, 17 and 27 — Regulation (EU) No 603/2013 — Article 29 — Regulation (EU) No 1560/2003 — Annex X — Right to information of the applicant for international protection — Common leaflet — Personal interview — Application for international protection previously lodged in a first Member State — New application lodged in a second Member State — Illegal stay in the second Member State — Take back procedure — Infringement of the right to information — No personal interview — Protection against the risk of indirect refoulement — Mutual trust — Judicial review of the transfer decision — Scope — Finding of the existence, in the requested Member State, of systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection — Discretionary clauses — Risk of infringement of the principle of non-refoulement in the requested Member State)
Date: 2023-11-30
Institutions: Court of Justice
Subjects: EU Member State, appeal, asylum seeker, foreign national, international protection, judicial review, removal, return migration, right of asylum, right to information








C_202400695EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2024/695


22.1.2024





Judgment of the Court (Second Chamber) of 30 November 2023 (requests for a preliminary ruling from the Corte suprema di cassazione, Tribunale ordinario di Roma, Tribunale ordinario di Firenze, Tribunale di Milano, Tribunale di Trieste — Ministero dell’Interno, Dipartimento per le libertà civili e l’immigrazione — Unità Dublino (C-228/21), DG (C-254/21), XXX.XX (C-297/21), PP (C-315/21), GE (C-328/21) v CZA (C-228/21), Ministero dell’Interno, Dipartimento per le libertà civili e l’immigrazione — Unità Dublino (C-254/21, C-297/21, C-315/21 and C-328/21)
(Joined Cases C-228/21, (1) C-254/21, (2) C-297/21, C-315/21 (3) and C-328/21, Ministero dell’Interno (Common leaflet — Indirect refoulement) and Others)
(Reference for a preliminary ruling - Asylum policy - Regulation (EU) No 604/2013 - Articles 3 to 5, 17 and 27 - Regulation (EU) No 603/2013 - Article 29 - Regulation (EU) No 1560/2003 - Annex X - Right to information of the applicant for international protection - Common leaflet - Personal interview - Application for international protection previously lodged in a first Member State - New application lodged in a second Member State - Illegal stay in the second Member State - Take back procedure - Infringement of the right to information - No personal interview - Protection against the risk of indirect refoulement - Mutual trust - Judicial review of the transfer decision - Scope - Finding of the existence, in the requested Member State, of systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection - Discretionary clauses - Risk of infringement of the principle of non-refoulement in the requested Member State)
(C/2024/695)
Language of the case: Italian

Referring courts

Corte suprema di cassazione, Tribunale ordinario di Roma, Tribunale ordinario di Firenze, Tribunale di Milano, Tribunale di Trieste

Parties to the main proceedings


Applicants: Ministero dell’Interno, Dipartimento per le libertà civili e l’immigrazione — Unità Dublino (C-228/21), DG (C-254/21), XXX.XX (C-297/21), PP (C-315/21), GE (C-328/21)

Defendants: CZA (C-228/21), Ministero dell’Interno, Dipartimento per le libertà civili e l’immigrazione — Unità Dublino (C-254/21, C-297/21, C-315/21 and C-328/21)

Operative part of the judgment







1.








—


Article 4 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 and
Article 29 of Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation No 604/2013 and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice
must be interpreted as meaning that the obligation to provide the information referred to therein, in particular the common leaflet — a model of which is set out in Annex X to Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) 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 both in the context of a first application for international protection and a take charge procedure, under Article 20(1) and Article 21(1) of Regulation No 604/2013 respectively, as well as in the context of a subsequent application for international protection and a situation, as that covered by Article 17(1) of Regulation No 603/2013, capable of giving rise to take back procedures under Article 23(1) and Article 24(1) of Regulation No 604/2013 .










—


Article 5 of Regulation No 604/2013
must be interpreted as meaning that the obligation to hold the personal interview referred to therein applies in the context of a first application for international protection and a take charge procedure, under Article 20(1) and Article 21(1) of that regulation respectively, as well as in the context of a subsequent application for international protection and a situation, as that covered by Article 17(1) of Regulation No 603/2013, capable of giving rise to take back procedures under Article 23(1) and Article 24(1) of Regulation No 604/2013 .










—


EU law, in particular Articles 5 and 27 of Regulation No 604/2013,
must be interpreted as meaning that without prejudice to Article 5(2) of that regulation, the transfer decision must, following an appeal brought against that decision under Article 27 of that regulation calling into question the absence of the personal interview provided for in that Article 5, be annulled unless the national legislation allows the person concerned, in the context of that appeal, to set out in person all his or her arguments against that decision at a hearing which complies with the conditions and safeguards laid down in the latter article, and those arguments are not capable of altering that decision.










—


EU law, in particular Articles 4 and 27 of Regulation No 604/2013 and Article 29(1)(b) of Regulation No 603/2013,
must be interpreted as meaning that, where the personal interview under Article 5 of Regulation No 604/2013 has taken place but the common leaflet which must be provided to the person concerned pursuant to the obligation to provide information laid down in Article 4 of that regulation or in Article 29(1)(b) of Regulation No 603/2013 has not been provided, the national court responsible for assessing the lawfulness of the transfer decision may order that that decision be annulled only if it considers, in the light of the factual and legal circumstances of the case, that the failure to provide the common leaflet, notwithstanding the fact that the personal interview has taken place, actually deprived that person of the possibility of putting forward his or her arguments, to the extent that the outcome of the administrative procedure in respect of that person could have been different .














2.


– Article 3(1) and the second subparagraph of Article 3(2) of Regulation No 604/2013, read in conjunction with Article 27 of that regulation and with Articles 4, 19 and 47 of the Charter of Fundamental Rights,
must be interpreted as meaning that the court or tribunal of the requesting Member State, hearing an action challenging a transfer decision, cannot examine whether there is, in the requested Member State, a risk of infringement of the principle of non-refoulement to which the applicant for international protection would be exposed during his or her transfer to that Member State or thereafter where that court or tribunal does not find that there are, in the requested Member State, systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection. Differences of opinion between the authorities and courts in the requesting Member State, on the one hand, and those of the requested Member State, on the other hand, as regards the interpretation of the material conditions for international protection do not establish the existence of systemic deficiencies.










3.


– Article 17(1) of Regulation No 604/2013, read in conjunction with Article 27 thereof and with Articles 4, 19 and 47 of the Charter of Fundamental Rights,
must be interpreted as not requiring the court or tribunal of the requesting Member State to declare that Member State responsible where it disagrees with the assessment of the requested Member State as to the risk of refoulement of the person concerned. If there are no systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection in the requested Member State during the transfer or thereafter, nor can the court or tribunal of the requesting Member State compel the latter to examine itself an application for international protection on the basis of Article 17(1) of Regulation No 604/2013 on the ground that there is, according to that court or tribunal, a risk of infringement of the principle of non-refoulement in the requested Member State.






(1)  
            OJ C 217. 7.6.2021.

(2)  
            OJ C 278, 12.7.2021.

(3)  
            OJ C 297, 26.7.2021.


ELI: http://data.europa.eu/eli/C/2024/695/oj
ISSN 1977-091X (electronic edition)