Bundesrepublik Deutschland v Aziz Hasan.
Date: 2018-01-25
30


The scope of the remedy available to an applicant for international protection against a decision to transfer him is explained in recital 19 of the Dublin III Regulation, which states that, in order to ensure compliance with international law, the effective remedy introduced by that regulation in respect of transfer decisions must cover (i) the examination of the application of the regulation and (ii) the examination of the legal and factual situation in the Member State to which the applicant is to be transferred (judgments of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 43, and of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 37).
31


Furthermore, it follows from the Court’s case-law concerning Article 29 of the Dublin III Regulation that, in view of (i) the objective mentioned in recital 19 of the regulation of guaranteeing, in accordance with Article 47 of the Charter of Fundamental Rights, effective protection of the persons concerned and (ii) the objective set out in recital 5 of the regulation of determining rapidly the Member State responsible for processing an application for international protection, an applicant must have an effective and rapid remedy available to him which enables him to rely on circumstances subsequent to the adoption of the decision to transfer him, when the correct application of the Dublin III Regulation depends upon those circumstances being taken into account (see, to that effect, judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 44).
32


A legislative provision such as that at issue in the main proceedings, which enables an applicant for international protection 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, by analogy, judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 45).
38


Third, an approach other than that would, moreover, be liable to render largely redundant the appeal or review for which Article 27(1) of the Dublin III Regulation provides and to undermine the judicial protection guaranteed to the persons concerned, since it follows from Article 27(3) of the regulation that the introduction of an appeal or of a request for review does not necessarily entail suspension of the transfer decision and that the fact that such an appeal or request has been introduced does not automatically prevent the transfer from being carried out before the legality of that decision has been assessed by a court or tribunal.
39


Fourth, certain provisions of the Dublin III Regulation may result in the responsibility of a Member State being called into question owing to circumstances that have arisen after the transfer to that Member State has been carried out. That is the case, in particular, of Article 19(2) of the regulation when the person concerned has, after that transfer, left the territory of the Member States for a period of at least three months before making a new application for international protection in another Member State (see, to that effect, judgment of 7 June 2016, Karim, C‑155/15, EU:C:2016:410, paragraph 17).
42


The scope of the take back procedure is defined in Articles 23 and 24 of the Dublin III Regulation (order of 5 April 2017, Ahmed, C‑36/17, EU:C:2017:273, paragraph 26).
43


It follows from Article 23(1) and Article 24(1) of that regulation that the take back procedure is applicable to the persons referred to in Article 18(1)(b) to (d) of the regulation.
44


The last-mentioned provisions refer to a person who, first, has lodged an application for international protection, which is under examination, has withdrawn such an application or whose application has been rejected and who, second, has either made an application in another Member State or is staying on the territory of another Member State without a residence document.
60


In that regard, the Court notes that the take back procedures must necessarily be conducted in accordance with the rules laid down, inter alia, in Chapter VI of the Dublin III Regulation and that they must, in particular, be carried out in compliance with a series of mandatory time limits (see, to that effect, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 49 and 50).
62


As regards the calculation of those time limits, it must be noted that they are intended to provide a framework for the take back procedure and make a decisive contribution to achieving the objective of rapidly processing applications for international protection by ensuring that the take back procedure will be implemented without undue delay (see, by analogy, judgments of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 53 and 54, and of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 31).
66


In addition, if those time limits were considered to run from the time when the Member State, during an initial take charge or take back procedure, had information indicating that another Member State was responsible, that could appreciably limit the effectiveness of the procedures provided for by the Dublin III Regulation and, moreover, would be likely to encourage the persons concerned to return illegally to the requesting Member State after a first transfer, thereby frustrating the application of the principles and rules laid down by that regulation (see, by analogy, judgments of 17 March 2016, Mirza, C‑695/15 PPU, EU:C:2016:188, paragraph 52, and of 13 September 2017, Khir Amayry, C‑60/16, EU:C:2017:675, paragraph 37).
74


Nonetheless, it follows from settled case-law of the Court that, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness (see, to that effect, judgment of 27 October 2011, Commission v Poland, C‑311/10, not published, EU:C:2011:702, paragraph 20 and the case-law cited).