Shamso Abdullahi v Bundesasylamt.
Date: 2013-12-10
48. It should be recalled in that connection that, under the second paragraph of Article 288 TFEU, regulations are of general application, they are binding in their entirety and they are directly applicable in all Member States. Accordingly, owing to their very nature and their place in the system of sources of EU law, regulations operate to confer rights on individuals which the national courts have a duty to protect (Case 34/73 Variola  [1973] ECR 981, paragraph 8; Case C‑253/00 Muñoz and Superior Fruiticola  [2002] ECR I‑7289, paragraph 27; and Joined Cases C‑4/10 and C‑27/10 Bureau national interprofessionnel du Cognac  [2011] ECR I‑6131, paragraph 40).
51. As regards the scope of the appeal provided for in Article 19(2) of Regulation No 343/2003, that regulation must be construed not only in the light of the wording of its provisions, but also in the light of its general scheme, its objectives and its context, in particular its evolution in connection with the system of which it forms part.
52. In that regard, it should be borne in mind, first, that the Common European Asylum System was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard ( N.S. and Others , paragraph 78).
53. It is precisely because of that principle of mutual confidence that the EU legislature adopted Regulation No 343/2003 in order to rationalise the treatment of applications for asylum and to avoid blockages in the system as a result of the obligation on State authorities to examine multiple applications by the same applicant, and in order to increase legal certainty with regard to the determination of the State responsible for examining the asylum application and thus to avoid forum shopping, it being the principal objective of all these measures to speed up the handling of claims in the interests both of asylum seekers and the participating Member States ( N.S. and Others , paragraph 79).
56. Furthermore, certain provisions of Regulations Nos 343/2003 and 1560/2003 attest to an intention on the part of the EU legislature to lay down, as regards the determination of the Member State responsible for examining an asylum application, organisational rules governing the relations between the Member States, like the Dublin Convention (see, by analogy, Joined Cases C‑671/11 to C‑676/11 Unanimes and Others  [2013] ECR I‑0000, paragraph 28, and Case C‑3/12 Syndicat OP 84  [2013] ECR I‑0000, paragraph 29).
57. Thus, Article 3(2) of Regulation No 343/2003 (the ‘sovereignty’ clause) and Article 15(1) of that regulation (the humanitarian clause) are designed to maintain the prerogatives of the Member States in the exercise of the right to grant asylum, irrespective of the Member State responsible for the examination of an application on the basis of the criteria set out in that regulation. These are optional provisions which grant a wide discretionary power to Member States (see, to that effect, N.S. and Others , paragraph 65, and Case C‑245/11 K  [2012] ECR I‑0000, paragraph 27).
60. In the present case, the decision at issue is the decision of the Member State in which Ms Abdullahi’s asylum claim was lodged not to examine that claim and to transfer her to another Member State. That second Member State agreed to take charge of Ms Abdullahi on the basis of the criterion laid down in Article 10(1) of Regulation No 343/2003, namely, as the Member State of Ms Abdullahi’s first entry into EU territory. In such a situation, in which the Member State agrees to take charge of the applicant for asylum, and given the factors mentioned in paragraphs 52 and 53 above, the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that latter Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter (see, to that effect, N.S. and Others , paragraphs 94 and 106, and Case C‑4/11 Puid  [2013] ECR I‑0000, paragraph 30).