A.S. v Republic of Slovenia.
Date: 2017-07-26
26


The scope of the remedy available to the applicant for international protection against a decision to transfer him 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 both the examination of the application of that regulation and the examination of the legal and factual situation in the Member State to which the applicant 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).
27


In that regard, the Court held in paragraph 61 of the judgment of 7 June 2016, Ghezelbash (C‑63/15, EU:C:2016:409) that, in the context of an appeal against a transfer decision, the applicant for international protection was entitled to plead the incorrect application of one of the criteria for determining responsibility for the examination of the application for international protection laid down in Chapter III of the Dublin III Regulation.
28


In that judgment, the Court drew no distinction between the various criteria laid down in that chapter, which include the criterion concerning the irregular crossing of the border of a Member State set out in Article 13(1) of that regulation.
31


Accordingly, it should be noted, in particular, that the criteria set out in Articles 12 and 13 of the Dublin III Regulation play a comparable role in the conduct of the process for determining the Member State responsible laid down by that regulation and, therefore, in the application of that regulation (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraphs 41 to 44).
33


As regards the fact, highlighted by the referring court, that in the case in the main proceedings another Member State had already accepted responsibility for the examination of the application for international protection concerned, it should be stressed that, pursuant to Article 26(1) of the Dublin III Regulation, the person concerned may be notified of the transfer decision only after the requested Member State has agreed to take charge of or to take back that person.
41


However, it must be noted that, pursuant to Article 3(2) of the Dublin III Regulation and Article 4 of the Charter of Fundamental Rights of the European Union, an applicant for international protection must not be transferred to the Member State responsible if that transfer entails a real risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that Article 4 (see, to that effect, judgment of 16 February 2017, C.K and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 65). A transfer might, therefore, not be effected if, following the arrival of an exceptionally large number of third-country nationals wishing to obtain international protection, such a risk existed in the Member State responsible.
50


On the other hand, Article 29(2) of that regulation relates to the enforcement of the transfer decision and may be applied only once the principle of transfer has been established, that is to say, at the earliest when the requested Member State has accepted the request to take charge or take back.
54


In those circumstances, the lodging of an appeal against a transfer decision, which necessarily postdates the notification of that decision and therefore the lodging of an application for international protection, cannot, by its very nature, have any effect on the running of the period laid down in Article 13(1) of the Dublin III Regulation.
56


As regards, in the second place, the time limit laid down in Article 29(2) of the Dublin III Regulation, it follows, on the one hand, from the relationship between the various paragraphs of that article and, on the other, from the lack of any clarification in that provision as to the time from which that period starts to run, that that provision specifies only the consequences of the expiry of the period for effecting the transfer, laid down in Article 29(1) of that regulation (see, by analogy, judgment of 29 January 2009, Petrosian, C‑19/08, EU:C:2009:41, paragraph 50).