Bashar Ibrahim and Others v Bundesrepublik Deutschland and Bundesrepublik Deutschland v Taus Magamadov.
Date: 2019-03-19
63


It is apparent from an examination of the travaux préparatoires of the Procedures Directive, in particular a comparison of Position (EU) No 7/2013 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, adopted by the Council on 6 June 2013 (OJ 2013 C 179 E, p. 27), with the Commission Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (COM(2009) 554 final), that the words ‘or an earlier date’ in the first sentence of the first paragraph of Article 52 of the Procedures Directive were added in the course of the legislative process (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 71).
64


Consequently, notwithstanding the tension between the first and second sentences of the first paragraph of Article 52 of the Procedures Directive, it is apparent from those travaux préparatoires that the EU legislature intended to allow the Member States who wished to do so to apply their provisions implementing that directive, with immediate effect, to applications for international protection lodged before 20 July 2015 (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 72).
66


The fact remains that, while the first paragraph of Article 52 of the Procedures Directive permitted the Member States to apply their provisions implementing that directive to applications for international protection lodged before 20 July 2015, it did not compel them to do so. Since that provision offers, by using the wording ‘started after 20 July 2015 or an earlier date’, various possibilities with respect to temporal application, it is important, in order for the principles of legal certainty and equality before the law to be observed in the implementation of EU law and for applicants for international protection to be protected from arbitrariness, that each Member State bound by that directive examines applications for international protection lodged within the same period on its territory in a predictable and uniform manner (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 73).
67


It is apparent from the orders for reference that the provision whereby the additional ground for inadmissibility laid down in Article 33(2)(a) of the Procedures Directive was transposed into German law, namely Paragraph 29(1), point 2, of the AsylG, entered into force with effect from 6 August 2016 and that, in the absence of national transitional provisions, the referring court must, pursuant to the first sentence of Paragraph 77(1) of the AsylG, base its decision, on the disputes in the main proceedings, on the situation in fact and in law obtaining at the time of the last hearing before that court or, if a judgment is given without a hearing, the date at which its judgment is given, and, therefore, on Paragraph 29 of the AsylG in the version in force on that date, unless the first paragraph of Article 52 of the Procedures Directive precludes the immediate application of that version to applications which were lodged before the entry into force of that directive but on which no final decision has been made.
68


In that regard, it must be stated, first, that a provision of national law such as the first sentence of Paragraph 77(1) of the AsylG ensures that applications for international protection, which have been lodged in the course of the same period in German territory and on which no final decision had been made at the time of the entry into force of Paragraph 29(1), point 2, of the AsylG, are examined in a predictable and uniform manner.
74


In the light of the foregoing, the answer to the first question in Cases C‑297/17, C‑318/17 and C‑319/17 and to the questions referred in Case C‑438/17 is that the first paragraph of Article 52 of the Procedures Directive must be interpreted as meaning that it permits a Member State to provide for the immediate application of the provision of national law transposing Article 33(2)(a) of that directive to applications for asylum on which no final decision has yet been made, which were lodged before 20 July 2015 and before the entry into force of that provision of national law. However, the first paragraph of Article 52 of that directive, read in the light of, inter alia, Article 33 thereof, precludes such an immediate application in a situation where both the application for asylum and the take back request were lodged before the entry into force of the Procedures Directive and, in accordance with Article 49 of the Dublin III Regulation, still fall fully within the scope of the Dublin II Regulation.
76


Article 33(1) of the Procedures Directive provides that, in addition to cases in which an application is not examined in accordance with the Dublin III Regulation, Member States are not required to examine whether an applicant qualifies for international protection in accordance with the Qualification Directive where an application is considered inadmissible pursuant to Article 33 of that directive. Article 33(2) of that directive sets out an exhaustive list of the situations in which the Member States may consider an application for international protection to be inadmissible.
88


Accordingly, where a court or tribunal hearing an action brought against a decision rejecting a new application for international protection as being inadmissible has available to it evidence produced by the applicant in order to establish the existence of such a risk in the Member State that has previously granted subsidiary protection, that court or tribunal is obliged to assess, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights guaranteed by EU law, whether there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people (see, by analogy, judgment of today’s date, Jawo, C‑163/17, paragraph 90 and the case-law cited).
90


That particularly high level of severity is attained where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself, irrespective of his wishes and his personal choices, in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity (judgment of today’s date, Jawo, C‑163/17, paragraph 92 and the case-law cited).
101


It follows from all the foregoing that the answer to the third and fourth questions in Cases C‑297/17, C‑318/17 and C‑319/17 is as follows:





–


Article 33(2)(a) of the Procedures Directive must be interpreted as meaning that it does not preclude a Member State from exercising the option granted by that provision to reject an application for the grant of refugee status as being inadmissible on the ground that the applicant has been previously granted subsidiary protection by another Member State, where the living conditions that that applicant could be expected to encounter as the beneficiary of subsidiary protection in that other Member State would not expose him to a substantial risk of suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter. The fact that the beneficiaries of such subsidiary protection do not receive, in that Member State, any subsistence allowance, or that such allowance as they receive is markedly inferior to that in other Member States, though they are not treated differently from nationals of that Member State, can lead to the finding that that applicant would be exposed in that Member State to such a risk only if the consequence is that that applicant would, because of his or her particular vulnerability, irrespective of his or her wishes and personal choices, be in a situation of extreme material poverty.








–


Article 33(2)(a) of the Procedures Directive must be interpreted as not precluding a Member State from exercising that option, where the asylum procedure in the other Member State that has granted subsidiary protection to the applicant leads to a systematic refusal, without real examination, to grant refugee status to applicants for international protection who satisfy the conditions laid down in Chapters II and III of the Qualification Directive.