Majid auch Madzhdi Shiri v Bundesamt für Fremdenwesen und Asyl.
Date: 2017-10-25
24


In the present instance, the Court in any event considers that there is no need to take a view on the question of law to which Mr Shiri refers relating to the calculation of the period in Article 29(1) of the Dublin III Regulation. Moreover, the Court considers, after hearing the Advocate General, that it has all the information necessary to give judgment and that that information has been the subject of debate before it.
25


Accordingly, there is no need to order that the oral part of the procedure be reopened.
30


It is apparent from the very wording of Article 29(2) that it provides for an automatic transfer of responsibility to the requesting Member State, without making that transfer conditional on any reaction by the Member State responsible (see, by analogy, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 61).
31


That interpretation is, moreover, consistent with the objective, referred to in recital 5 of the Dublin III Regulation, of rapid processing of applications for international protection, in so far as the interpretation ensures, in the event of a delay in the take charge or take back procedure, that the examination of the application for international protection is carried out in the Member State where the applicant is, so as not to delay that examination further (see, by analogy, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 54).
36


Article 27(1) of the Dublin III Regulation provides that an applicant for international protection is to have 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.
37


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 that regulation and (ii) the examination of the legal and factual situation in the Member State to which the asylum seeker is to be transferred (judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 43).
38


Furthermore, it is apparent from the Court’s case-law that, in the light, in particular, of the general thrust of the developments that have taken place, as a result of the adoption of the Dublin III Regulation, in the system for determining the Member State responsible for an asylum application made in one of the Member States, and of the objectives of that regulation, Article 27(1) of the regulation must be interpreted as meaning that the action for which it provides must be capable of relating, inter alia, to observance of the procedural safeguards laid down by the regulation (see, to that effect, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 44 to 48 and the case-law cited).
39


The take charge and take back procedures established by the Dublin III Regulation must, in particular, be carried out in compliance with a series of mandatory time limits, which include the six-month time limit referred to in Article 29(1) and (2) of that regulation. Whilst those provisions are intended to provide a framework for those procedures, they also contribute, in the same way as the criteria set out in Chapter III of the regulation, to determining the Member State responsible. As is clear from paragraphs 30 to 34 of the present judgment, the expiry of that six-month period without the transfer of the applicant from the requesting Member State to the Member State responsible having been carried out results in the automatic transfer of responsibility from the second Member State to the first (see, by analogy, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 50 to 53).
40


Accordingly, in order to ensure that the contested transfer decision has been adopted following a proper application of those procedures, 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 the Dublin III Regulation in so far as the requesting Member State is said to have 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 the regulation (see, by analogy, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 55).
44


Nonetheless, in the light, first, of the objective, referred to in recital 19 of the Dublin III Regulation, of guaranteeing, in accordance with Article 47 of the Charter of Fundamental Rights, effective protection of the persons concerned and, secondly, of the objective, noted in paragraph 31 of the present judgment, of determining rapidly the Member State responsible for processing an application for international protection, in the interests both of applicants for such protection and of the proper general functioning of the system established by that regulation, 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 that occurred after the transfer decision was adopted.
45


In the present instance, the right which Austrian legislation accords to 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.
46


It follows from the foregoing considerations that Article 27(1) of the Dublin III Regulation, read in the light of recital 19 thereof, and Article 47 of the Charter of Fundamental Rights must be interpreted as meaning that an applicant for international protection 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 that regulation that occurred after the transfer decision was adopted. The right which national legislation such as that at issue in the main proceedings accords to such an applicant to plead circumstances subsequent to the adoption of that decision, in an action brought against it, meets that obligation to provide for an effective and rapid remedy.