Tsegezab Mengesteab v Bundesrepublik Deutschland.
Date: 2017-07-26
43


The scope of the remedy available to an applicant for international protection against a transfer decision is made clear in recital 19 of that regulation, which states that, in order to ensure compliance with international law, the effective remedy introduced by that regulation in respect of transfer decisions should cover (i) the examination of the application of that regulation and (ii) the examination of the legal and factual situation in the Member State to which the asylum seeker is to be transferred (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraphs 38 and 39).
44


That information is supported by the general thrust of the developments that have taken place in the system for determining the Member State responsible for examining an asylum application made in one of the Member States (‘the Dublin system’) as a result of the adoption of the Dublin III Regulation and by the objectives of the regulation (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 45).
45


As regards that development, it should be borne in mind that the EU legislature did not confine itself, in that regulation, to introducing organisational rules governing relations between Member States for the purpose of determining the Member State responsible, but decided to involve asylum seekers in that process by obliging Member States to inform them of the criteria for determining responsibility and to provide them with an opportunity to submit information relevant to the correct interpretation of those criteria, and by conferring on asylum seekers the right to an effective remedy in respect of any transfer decision that may be taken at the conclusion of that process (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraphs 47 to 51).
46


As regards the objectives of that regulation, it should be stated, inter alia, that, according to its recital 9, that regulation, while confirming the principles underlying Regulation No 343/2003, is intended to make the necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection afforded applicants under that system, to be achieved, inter alia, by the effective and complete judicial protection enjoyed by asylum seekers (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 52).
47


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 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 53).
48


It follows from the foregoing that that provision must be interpreted as ensuring that the applicant for international protection has effective judicial protection by, inter alia, guaranteeing him the opportunity of bringing an action against a transfer decision made in respect of him, which may concern the examination of the application of that regulation, including respect of the procedural guarantees laid down in that regulation (see, to that effect, judgment of 7 June 2016, Karim, C‑155/15, EU:C:2016:410, paragraph 22).
49


In that regard, although the application of the Dublin III Regulation is based essentially on the conduct of a process for determining the Member State responsible as designated by the criteria listed in Chapter III of that regulation (judgments of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 41, and of 7 June 2016, Karim, C‑155/15, EU:C:2016:410, paragraph 23), it must be stated that that process is an aspect of the take charge and take back procedures which must necessarily be carried out in accordance with the rules laid down, inter alia, in Chapter VI of that regulation.
50


As the Advocate General stated in point 72 of her Opinion, those procedures must, in particular, be carried out in compliance with a series of specified time limits.
51


Accordingly, Article 21(1) of the Dublin III Regulation provides that the take charge request must be made as quickly as possible and in any event within three months of the date on which the application for international protection was lodged. Notwithstanding that first deadline, in the case of a Eurodac hit with data registered under Article 14 of the Eurodac Regulation, that request must be made within two months of receipt of that hit.
52


In that regard, it should be noted that the EU legislature defined the effects of the expiry of those periods by specifying, in the third subparagraph of Article 21(1) of the Dublin III Regulation, that where that request is not made within those periods, responsibility for examining the application for international protection is to lie with the Member State in which the application was lodged.
53


It follows that, while the provisions of Article 21(1) of that regulation are intended to provide a framework for the take charge procedure, they also contribute, in the same way as the criteria set out in Chapter III of that regulation, to determining the responsible Member State, within the meaning of that regulation. Therefore, a decision to transfer to a Member State other than the one with which the application for international protection was lodged cannot validly be adopted once the periods laid down in those provisions have expired.
54


Those provisions thus make a decisive contribution to achieving the objective of rapidly processing applications for international protection, referred to in recital 5 of the Dublin III Regulation, by ensuring, in the event of a delay in the conduct of the take charge procedure, that the examination of the application for international protection is carried out in the Member State in which the application was lodged, so as not to further delay that examination by the adoption and implementation of a transfer decision.
55


In those circumstances, in order to satisfy itself that the contested transfer decision was adopted following a proper application of the take charge procedure laid down in that regulation, the court dealing with an action challenging a transfer decision must be able to examine the claims made by an asylum applicant who invokes an infringement of the provisions set out in Article 21(1) of that regulation (see, by analogy, judgment of 7 June 2016, Karim, C‑155/15, EU:C:2016:410, paragraph 26).
58


Moreover, the restriction of the scope of the judicial protection afforded by the Dublin III Regulation relied on in this respect would not be consistent with the objective, set out in recital 9 of that regulation, of strengthening the protection for applicants for international protection, since that strengthened protection is manifested principally by the grant, in essence, of procedural safeguards for those applicants (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraphs 47 to 51).
60


Indeed, as the remedy provided for in Article 27(1) of the Dublin III Regulation can be applied, as a matter of principle, only in a situation where the requested Member State has accepted, either explicitly, in accordance with Article 22(1) of that regulation, or implicitly, under Article 22(7) thereof, that fact cannot, in general, lead to a limitation of the scope of judicial review provided for in Article 27(1) (see, to that effect, judgment delivered today, A.S., C‑490/16, paragraphs 33 and 34).
61


Moreover, as regards more specifically Article 21(1) of that regulation, it is necessary to point out that its third subparagraph provides, in the case of the expiry of the periods laid down in the two preceding subparagraphs, for a full transfer of responsibility to the Member State in which the application for international protection was lodged, without making that transfer subject to any reaction by the requested Member State.
67


It is clear, therefore, from the very wording of the latter provision that the request must absolutely be made within the periods laid down in Article 21(1) of that regulation, which means that a take charge request cannot, in any event, be made more than three months after an application for international protection is lodged, and the receipt of Eurodac hit does not permit that period to be exceeded.
82


According to settled case-law, provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all the languages of the European Union (see, to that effect, judgment of 8 December 2005, Jyske Finans, C‑280/04, EU:C:2005:753, paragraph 31).
86


The mechanisms set up by the Dublin III Regulation to collect the necessary information in the context of that process are therefore intended to be applied after an application for international protection has been lodged.
87


Article 4(1) of that regulation indeed expressly provides that it is after such an application has been lodged that the applicant must be informed, in particular, of the criteria for determining the Member State responsible, the organisation of a personal interview and the possibility of submitting information to the competent authorities. Similarly, it follows from Article 6(4) of that regulation that appropriate action to identify the family members, siblings or relatives of the unaccompanied minor on the territory of the Member States — with a view inter alia to applying the criteria to determine the Member State responsible if the applicant for international protection is an unaccompanied minor, set out in Article 8 of that regulation — must be taken after an application for international protection is lodged.
93


In the fourth place, the Dublin III Regulation assigns a specific role to the first Member State in which an application for international protection is lodged. Thus, in accordance with Article 20(5) of that regulation, that Member State is, in principle, obliged to take back an applicant who is present in another Member State as long as the process of determining the Member State responsible has not been completed. Moreover, it follows from Article 3(2) of that regulation that where no Member State responsible can be designated on the basis of the criteria listed in that regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.
95


In those circumstances, to consider that a document such as that at issue in the case in the main proceedings does not constitute a ‘report’, within the meaning of that provision, would, in practice, allow third-country nationals to leave the Member State in which they have requested international protection and to re-request that protection in another Member State, but they could not be transferred, for that reason, to the first Member State and it would not be possible to trace their initial request by using the Eurodac system. Such a situation could seriously affect the functioning of the Dublin system by calling into question the special status which the Dublin III Regulation grants to the first Member State in which an application for international protection is lodged.