Adil Hassan v Préfet du Pas-de-Calais.
Date: 2018-05-31
40


In accordance with the settled case-law of the Court, in interpreting a provision of EU law it is necessary to consider its wording, its origin, its context and the objectives pursued by the legislation of which it forms part (see, to that effect, judgments of 20 December 2017, Acacia and D’Amato, C‑397/16 and C‑435/16, EU:C:2017:992, paragraph 31, and of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 44 and the case-law cited).
46


Therefore, it follows from the actual wording of Article 26(1) of the Dublin III Regulation, read in the light of the history of that provision, that a transfer decision may be notified to the person concerned only after the requested Member State has, implicitly or explicitly, agreed to take charge of that person or to take him back (see, to that effect, judgment of 26 July 2017, A.S., C‑490/16, EU:C:2017:585, paragraph 33).
48


In that regard, it should be noted that Article 26(1) of the Dublin III Regulation forms part of Chapter VI of that regulation, entitled ‘Procedures for taking charge and taking back’, which contains provisions specifying the successive stages of those procedures and a series of mandatory time limits which contribute to determining the Member State responsible for the examination of an application for international protection (see, to that effect, judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 39 and the case-law cited).
49


Those take charge and take back procedures must necessarily be carried out in accordance with the rules laid down in, inter alia, Chapter VI of that regulation (see, to that effect, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 49 and the case-law cited).
52


Therefore, it is only once the requested Member State has carried out those checks that it may give a decision on the request to take charge or take back and reply to the requesting Member State. In that regard, a favourable reply implies agreement in principle to the transfer of the person concerned, agreement which is generally followed by the enforcement of the transfer, in accordance with the provisions of Article 29 of the Dublin III Regulation (see, to that effect, judgment of 26 July 2017, A.S., C‑490/16, EU:C:2017:585, paragraph 50).
56


In that regard, it should be recalled at the outset that the Dublin III Regulation has the objective, according to the Court’s settled case-law, of establishing a clear and workable method based on objective and fair criteria both for the Member States and for the persons concerned for the purpose of determining rapidly the Member State responsible in order to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection, while ensuring, in accordance with recital 19 of that regulation, that an effective remedy is established by that regulation against transfer decisions (see, to that effect, judgments of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 42, and of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraphs 31 and 37 and the case-law cited).
57


Moreover, the Court has previously held that the EU legislature did not intend that the judicial protection enjoyed by applicants for international protection should be sacrificed to the requirement of expedition in processing applications for international protection (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 57, and of 13 September 2017, Khir Amayry, C‑60/16, EU:C:2017:675, paragraph 65).
58


Concerning effective judicial protection guaranteed by, inter alia, Article 47 of the Charter of Fundamental Rights of the European Union, it is apparent from Article 27(1) of the Dublin III Regulation that an applicant for international protection has the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal. Such a remedy, the scope of which may not be interpreted restrictively, must cover (i) the examination of the application of that regulation, concerning both the implementation of the criteria set out in Chapter III thereof and compliance with the procedural safeguards provided for in, inter alia, Chapter VI and (ii) the examination of the legal and factual situation in the Member State to which the applicant for international protection is to be transferred (see, to that effect, judgments of 26 July 2017, A.S., C‑490/16, EU:C:2017:585, paragraphs 26 to 28; of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 43, 47 and 48; and of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraphs 36 and 37).
60


In those circumstances, the person concerned is, where appropriate, required, preventatively, before the requested Member State has even responded to the request to take charge or take back the person concerned, to lodge, on the basis of Article 27(1) of the Dublin III Regulation, an appeal against the transfer decision or an application to review that decision. Moreover, the Court has previously held that, as a matter of principle, such an appeal or application for review can take effect only in a situation where the requested Member State has accepted that request (see, by analogy, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 60).
62


It should be noted, as the Advocate General also observed in point 48 of his Opinion, that such information from the requested Member State is of particular importance in appeals and applications for review brought against a transfer decision taken as a result of a take charge procedure, since the requested Member State is required to check exhaustively whether it is responsible on the basis of the criteria laid down in the Dublin III Regulation and also to take account of information of which the requesting Member State is not necessarily aware (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 43).
63


It must also be noted that the requested Member State may find it necessary, even where there is a Eurodac hit, to refuse a request to take back or take charge where, inter alia, it considers that its responsibility has ceased pursuant to Article 19 or the second subparagraph of Article 20(5) of the Dublin III Regulation, as Article 4 of the Implementing Regulation also confirms, the applicant having to have the opportunity to rely on such a matter in his appeal (see, in that regard, judgment of 7 June 2016, Karim, C‑155/15, EU:C:2016:410, paragraphs 26 and 27).
64


Moreover, as regards the fact, referred to in paragraph 33 of the present judgment, that, in a situation such as that in the main proceedings, the enforcement of a transfer decision is suspended until the reply from the requested Member State, suffice it to note that no provision of the Dublin III Regulation provides for such suspension. The rules on the suspensive effect of appeals, laid down in Article 27(3) and (4) of that regulation, concern the possibility of suspending the transfer decision for a period from the date of the lodging of the appeal or application for review and, at the latest, following the outcome of that appeal or application for review, without the lodging of those proceedings necessarily implying the suspension of the transfer decision (see, to that effect, judgments of 13 September 2017, Khir Amayry, C‑60/16, EU:C:2017:675, paragraphs 64 and 68, and of 25 January 2018, Hasan, C‑360/16, EU:C:2018:35, paragraph 38).
67


Following the same logic, the fact that French law does not allow the person concerned to be placed in administrative detention before he is notified of the transfer decision, a difficulty which, as confirmed by the referring court, stems solely from the national law, cannot call into question the interpretation of Article 26(1) of the Dublin III Regulation given in paragraph 46 above. Besides, it is clear from Article 28(2) and (3) of that regulation that the Member States are authorised to detain persons concerned even before the request to take charge or take back is submitted to the requested Member State, when the conditions laid down by that article are met, the notification of the transfer decision not being a prerequisite for such a placement (see, to that effect, judgments of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 25, and of 13 September 2017, Khir Amayry, C‑60/16, EU:C:2017:675, paragraphs 25 to 27, 30 and 31).
73


In any event, a transfer decision cannot be enforced against the person concerned before it has been notified to him, the time at which notification must take place being, as is apparent from the foregoing considerations, defined precisely in Article 26(1) of the Dublin III Regulation. It follows that the adoption of such a decision before the reply of the requested Member State, even if its notification takes place only after that reply, does not contribute to the objective of the rapid processing of applications for international protection or to that of ensuring effective legal protection of that person’s rights, since the lodging of an appeal against a transfer decision necessarily postdates the notification of that decision (see, to that effect, judgment of 26 July 2017, A.S., C‑490/16, EU:C:2017:585, paragraph 54).