KS and Others v The International Protection Appeals Tribunal and Others.
Date: 2021-01-14
37


In that context, the referring tribunal seeks to ascertain whether persons whose transfer to another Member State has been decided pursuant to the Dublin III Regulation may constitute a category distinct from that of ‘applicant’, within the meaning of Article 15(1) of Directive 2013/33, which would be, consequently, excluded from access to the labour market of the Member State which requested that transfer. In its view, that directive does not allow any distinction to be made between applicants for international protection, as the Court confirmed in paragraph 40 of the judgment of 27 September 2012, Cimade and GISTI (C‑179/11, EU:C:2012:594).
53


Although questions referred for a preliminary ruling which relate to EU law enjoy a presumption of relevance, the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgments of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 28, and of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 44).
57


According to the Court’s settled case-law, it follows from the requirement for the uniform application of EU law and from the principle of equal treatment that the terms of a provision of EU law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope must be given an autonomous and uniform interpretation throughout the European Union, which interpretation must take into account not only the wording of that provision but also its context and the objective pursued by the legislation in question (judgment of 25 June 2020, Ministerio Fiscal (Authority likely to receive an application for international protection), C‑36/20 PPU, EU:C:2020:495, paragraph 53 and the case-law cited).
69


In the fourth place, recital 11 of Directive 2013/33 states that standards for the reception of applicants that will suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down. The Court has also stated that respect for human dignity applies not only with regard to asylum seekers present in the territory of the Member State responsible pending the decision on their application for asylum but also to asylum seekers awaiting a decision on which Member State will be held responsible for their application (judgment of 27 September 2012, Cimade and GISTI, C‑179/11, EU:C:2012:594, paragraph 43). As the Advocate General observed in point 85 of his Opinion, work clearly contributes to the preservation of the applicant’s dignity, since the income from employment enables him or her not only to provide for his or her own needs, but also to obtain housing outside the reception facilities in which he or she can, where necessary, accommodate his or her family.
77


It thus follows from Article 31(3) of Directive 2013/32 that a delay in the examination of his or her application for international protection is attributable to the applicant where that applicant fails to comply with his or her obligations under Article 13 of that directive. That provision provides that applicants have an obligation to cooperate with the competent authorities with a view to establishing their identity and other elements referred to in Article 4(2) of Directive 2011/95, namely their age, background, including that of relevant relatives, nationality (or nationalities), country (or countries) and place(s) of previous residence, previous asylum applications, travel routes, travel documents and the reasons for applying for international protection. The applicant’s obligation to cooperate means that he or she must supply, as far as possible, the required supporting documents and, where appropriate, the explanations and information requested (judgment of 14 September 2017, K., C‑18/16, EU:C:2017:680, paragraph 38).
88


Those provisions must be interpreted in the light of recital 19 of the Dublin III Regulation, which states that, in order to guarantee effective protection of the rights of applicants for international protection, 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 with Article 47 of the Charter. It has thus been held, first, 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, by guaranteeing them effective and complete judicial protection (see, to that effect, judgments of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 57, and of 31 May 2018, Hassan, C‑647/16, EU:C:2018:368, paragraph 57), and, secondly, that a restrictive interpretation of the scope of the remedy provided for in Article 27(1) of the Dublin III Regulation might thwart the attainment of that objective (see, to that effect, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 46 and 47).
91


In that regard, it must be borne in mind that proof of an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (judgment of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraph 54 and the case-law cited).
92


The Court has also stated, in essence, that the fact that a Member State is faced, as the case may be, with a high number of cases of abuse of rights or fraud committed by third-country nationals cannot justify the adoption of a measure founded on considerations of general prevention, to the exclusion of any specific assessment of the conduct of the person concerned him or herself. The adoption of measures pursuing an objective of general prevention in respect of widespread cases of abuse of rights or fraud would mean that the mere fact of belonging to a particular group of persons would allow the Member States to refuse to recognise a right expressly conferred by EU law (see, to that effect, judgment of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraphs 55 and 56).