Abubacarr Jawo v Bundesrepublik Deutschland.
Date: 2019-03-19
55


According to the Court’s settled case-law, it follows from the need for a uniform application of EU law that, where a provision thereof makes no reference to the law of the Member States with regard to a particular concept, that concept must be given an autonomous and uniform interpretation throughout the European Union which will be arrived at by taking into account not only the wording of the provision in question but also its context and the objective pursued by the rules of which it forms part (judgment of 8 March 2018, DOCERAM, C‑395/16, EU:C:2018:172, paragraph 20 and the case-law cited).
59


Having regard to that objective of rapid processing, the six-month transfer time limit, set by Article 29(1) and the first sentence of Article 29(2) of the Dublin III Regulation, is intended to ensure that the person concerned is actually transferred as rapidly as possible to the Member State responsible for examining his application for international protection, while allowing, in view of the practical complexities and organisational difficulties associated with implementing the transfer of that person, the time necessary for the two Member States concerned to collaborate with a view to carrying out the transfer and, in particular, the requesting Member State to determine the details for implementing the transfer (see, to that effect, judgment of 29 January 2009, Petrosian, C‑19/08, EU:C:2009:41, paragraph 40).
67


In that judgment, the Court held, first, that, in order to ensure that the contested transfer decision has been adopted following a proper application of the take charge and take back procedures established by the Dublin III Regulation, the court or tribunal dealing with an action challenging a transfer decision must be able to examine the claims made by an applicant for international protection that that decision was adopted in breach of the provisions set out in Article 29(2) of that regulation, to the effect that the requesting Member State had already become the Member State responsible on the day when that decision was adopted, on account of the prior expiry of the six-month period, as defined in Article 29(1) and (2) of that regulation (judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 40).
68


Secondly, in the light of the objective, referred to in recital 19 of the Dublin III Regulation, of guaranteeing, in accordance with Article 47 of the Charter, effective protection of the persons concerned and the objective, referred to in recital 5 of that regulation, of determining rapidly the Member State responsible for examining an application for international protection, in the interests both of applicants for such protection and of the proper general functioning of the Dublin system, the applicant must have an effective and rapid remedy available to him which enables him to rely on the expiry of the six-month period, as defined in Article 29(1) and (2) of the regulation, occurring after the transfer decision was adopted (judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraphs 44 and 46).
69


The right which the German legislation seems, subject to verification by the referring court, to accord to an applicant who is in a situation such as that of Mr Jawo to plead circumstances subsequent to the adoption of the decision to transfer him, in an action brought against that decision, meets that obligation to provide for an effective and rapid remedy (see, to that effect, judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 46).
77


In that regard, it must be noted, in the first place, that a Member State’s decision to transfer an applicant pursuant to Article 29 of the Dublin III Regulation to the Member State which, in accordance with that regulation, is in principle responsible for examining the application for international protection, constitutes an element of the Common European Asylum System and, accordingly, implements EU law for the purposes of Article 51(1) of the Charter (see, by analogy, judgments of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 68 and 69, and of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraphs 53 and 54).
78


Moreover, it is settled case-law that the provisions of the Dublin III Regulation must be interpreted and applied in a manner consistent with the fundamental rights guaranteed by the Charter, inter alia Article 4 thereof, which prohibits, without any possibility of derogation, inhuman or degrading treatment in all its forms and is, therefore, of fundamental importance, and is general and absolute in that it is closely linked to respect for human dignity, which is the subject of Article 1 of the Charter (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 85 and 86, and of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraphs 59, 69 and 93).
80


In the second place, it should be recalled that EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the EU law that implements them will be respected (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 35 and the case-law cited), and that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised by the Charter, particularly Articles 1 and 4 thereof, which enshrine one of the fundamental values of the Union and its Member States (see, to that effect, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 77 and 87).
81


The principle of mutual trust between the Member States is, in EU law, of fundamental importance given that it allows an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 78, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 36).
82


Accordingly, in the context of the Common European Asylum System, and in particular the Dublin III Regulation, which is based on the principle of mutual trust and which aims, by streamlining applications for international protection, to accelerate their processing in the interest both of applicants and participating States, it must be presumed that the treatment of applicants for international protection in all Member States complies with the requirements of the Charter, the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)), and the ECHR (see, to that effect, judgment of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 78 to 80).
83


It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that applicants for international protection may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights (judgment of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 81).
84


In those circumstances, the application of an irrebuttable presumption that the fundamental rights of the applicant for international protection are observed in the Member State which, pursuant to the Dublin III Regulation, is designated as responsible for examining the application is incompatible with the duty to interpret and apply that regulation in a manner consistent with 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, paragraphs 99, 100 and 105).
85


Thus, the Court has previously held that, pursuant to Article 4 of the Charter, the Member States, including the national courts, may not transfer an asylum seeker to the Member State responsible within the meaning of the Dublin II Regulation, the predecessor to the Dublin III Regulation, where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment, within the meaning of that provision (judgment of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 106).
90


In that regard, where the court or tribunal hearing an action challenging a transfer decision has available to it evidence provided by the person concerned for the purposes of establishing the existence of such a risk, 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 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89).
95


Nonetheless, it cannot be entirely ruled out that an applicant for international protection may be able to demonstrate the existence of exceptional circumstances that are unique to him and mean that, in the event of transfer to the Member State normally responsible for processing his application for international protection, he would find himself, because of his particular vulnerability, irrespective of his wishes and personal choices, in a situation of extreme material poverty meeting the criteria set out in paragraphs 91 to 93 of the present judgment after having been granted international protection.