M.A. and Others v The International Protection Appeals Tribunal and Others.
Date: 2019-01-23
47


Ireland submits that, since the legal consequences of the possible withdrawal of the United Kingdom from the European Union are not yet known, questions on such consequences must be regarded as hypothetical. Therefore, any ruling which the Court might give at this stage as regards the situation after the date upon which it is expected that that Member State will cease to be a Member State of the European Union, would be hypothetical. According to settled case-law (judgment of 27 February 2014, Pohotovosť, C‑470/12, EU:C:2014:101, paragraphs 27 and 29 and the case-law cited), the Court does not answer questions which are hypothetical or seeking an advisory opinion.
48


In that regard, it is appropriate to note that, in accordance with settled case-law, the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court and national courts by means of which the former provides the latter with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 8 December 2016, Eurosaneamientos and Others, C‑532/15 and C‑538/15, EU:C:2016:932, paragraph 26 and the case-law cited).
49


In the context of that cooperation, it is solely for the national court hearing the case, which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it refers to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 8 December 2016, Eurosaneamientos and Others, C‑532/15 and C‑538/15, EU:C:2016:932, paragraph 27 and the case-law cited).
50


It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 8 December 2016, Eurosaneamientos and Others, C‑532/15 and C‑538/15, EU:C:2016:932, paragraph 28 and the case-law cited).
54


In that regard, it should be recalled that a Member State’s notification of its intention to withdraw from the European Union in accordance with Article 50 TEU does not have the effect of suspending the application of EU law in that Member State and that, consequently, that law continues in full force and effect in that Member State until the time of its actual withdrawal from the European Union (judgment of 19 September 2018, RO, C‑327/18 PPU, EU:C:2018:733, paragraph 45).
55


As has been explained in paragraph 10 of the present judgment, the Dublin III Regulation replaced Regulation No 343/2003. As regards the discretionary clause set out in Article 17(1) of the Dublin III Regulation, the Court has already stated that, since the terms of that provision coincide, in essence, with those of the sovereignty clause that was contained in Article 3(2) of Regulation No 343/2003, the interpretation of the latter provision is also transposable to Article 17(1) of the Dublin III Regulation (judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 53).
58


It is clear from the wording of Article 17(1) of the Dublin III Regulation that that provision is optional in so far it leaves it to the discretion of each Member State to decide to examine an application for international protection lodged with it, even if that examination is not its responsibility under the criteria defined by that regulation for determining the Member State responsible. The exercise of that option is not, moreover, subject to any particular condition (see, to that effect, judgment of 30 May 2013, Halaf, C‑528/11, EU:C:2013:342, paragraph 36). That option is intended to allow each Member State to decide, in its absolute discretion, on the basis of political, humanitarian or practical considerations, to agree to examine an asylum application even if it is not responsible under the criteria laid down in that regulation (judgment of 4 October 2018, Fathi, C‑56/17, EU:C:2018:803, paragraph 53).
60


That finding is also consistent, first, with the case-law of the Court relating to optional provisions, according to which such provisions afford wide discretionary power to the Member States (judgment of 10 December 2013, Abdullahi, C‑394/12, EU:C:2013:813, paragraph 57 and the case-law cited) and, second, with the objective of Article 17(1), namely to maintain the prerogatives of the Member States in the exercise of the right to grant international protection (judgment of 5 July 2018, X, C‑213/17, EU:C:2018:538, paragraph 61 and the case-law cited).
64


It should be recalled, first, that it is apparent from the case-law of the Court that the discretion conferred on Member States by Article 17(1) of the Dublin III Regulation is an integral part of the mechanisms laid down by that regulation for determining the Member State responsible for an asylum application. Thus, a decision adopted by a Member State on the basis of that provision, to examine, or to not examine, an application for international protection for which it is not responsible in the light of the criteria set out in Chapter III of that regulation implements EU law (see, to that effect, judgment of 16 February 2017, C. K and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 53 and the case-law cited).
77


It is true that the principle of effective judicial protection is a general principle of EU law to which expression is now given by Article 47 of the Charter (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 40 and the case-law cited) and under which everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.
81


It should also be added that, in accordance with the case-law of the Court, the transfer of an applicant to such a Member State must not take place if there are substantial grounds for believing that that notification would result in a real risk of that applicant suffering inhuman or degrading treatment in that Member State, within the meaning of Article 4 of the Charter (judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 65).
83


In that regard, it is important to state, 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, namely the principle of non-refoulement, and on the ECHR, and, therefore, that those Member States can have confidence in each other as regards respect for those fundamental rights (see, to that effect, judgment of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 78); all of those States are, moreover, as has been indicated in paragraphs 3 to 5 of the present judgment, parties both to the Geneva Convention and the 1967 Protocol and to the ECHR.
84


Second, as regards the fundamental rights that are conferred on an applicant for international protection, in addition to the codification, in Article 3(2) of the Dublin III Regulation, of the Court’s case-law concerning systemic flaws in the asylum procedure and in the reception conditions of asylum seekers in the State designated as responsible, within the meaning of that regulation, the Member States, as follows from recitals 32 and 39 of that regulation, are also bound, in the application of that regulation, by the case-law of the European Court of Human Rights and by Article 4 of the Charter (judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 63). As Article 4 of the Charter corresponds to Article 3 ECHR, the prohibition of inhuman or degrading treatment laid down in Article 4 has, in accordance with Article 52(3) of the Charter, the same meaning and the same scope as those conferred on it by that convention (see, to that effect, judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 67).