Migrationsverket v Edgar Petrosian and Others.
Date: 2009-01-29
34. It must be borne in mind however that, according to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording, but also the context in which it occurs and the objective pursued by the rules of which it is part (see, inter alia, Case C‑301/98 KVS International  [2000] ECR I-3583, paragraph 21, and Case C-300/05 ZVK  [2006] ECR I-11169, paragraph 15).
40. It is in that context that Article 20(1)(d) of Regulation No 343/2003 allows the requesting Member State six months in which to carry out the transfer. Thus, in view of the practical complexities and organisational difficulties associated with implementing the transfer, the purpose of that period is to allow 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 practical details for implementing the transfer, which is carried out in accordance with that State’s legislation.
43. In that second situation, although the point in time where the period for transfer starts to run is different from that laid down for the first situation referred to above, the fact remains that each of the two Member States concerned is confronted with the same practical difficulties in organising the transfer and should thus have the same six-month period in which to carry out that transfer. There is in fact nothing in the wording of Article 20(1)(d) of Regulation No 343/2003 to suggest that the Community legislature intended to treat those two situations differently.
44. It follows that, in the second situation, in the light of the objective pursued by setting a period for the Member States, the start of that period should be determined in such a manner as to allow the Member States, as in the first situation, a six-month period which they are deemed to require in full in order to determine the practical details for carrying out the transfer.
45. Accordingly, the period for carrying out the transfer may begin to run only as from the time the future implementation of the transfer is, in principle, agreed upon and certain, and only the practical details remain to be determined. Such implementation cannot be regarded as being certain, however, if a court of the requesting Member State which is hearing an appeal has not yet ruled on the merits of the appeal but has merely ruled on an application for suspension of the operation of the contested decision.
48. In the first place, it is clear that the Community legislature did not intend that the judicial protection guaranteed by the Member States whose courts may suspend the implementation of a transfer decision, thus enabling asylum seekers duly to challenge decisions taken in respect of them, should be sacrificed to the requirement of expedition in processing asylum applications.
49. Those Member States which wished to introduce appeal remedies liable to lead to decisions having suspensive effect in the context of transfer procedures may not, for the sake of meeting the requirement of expedition, be placed in a less favourable situation than those Member States which did not deem it necessary to do so.
50. Thus, a Member State which, in the context of transfer procedures, has decided to introduce various appeal remedies, including ones having suspensive effect, and for that reason had the time available to it to proceed with deportation of the asylum seeker reduced by the amount of time necessary for the domestic courts to rule on the merits of the case, would be placed in an awkward position, since, if it is unable to organise the transfer of the asylum seeker within the very brief period between the judicial decision on the merits of the case and the expiry of the time-limit for implementation of the transfer, it runs the risk, pursuant to Article 20(2) of Regulation No 343/2003 – under which the acceptance of its responsibility by the requested Member States lapses once the time-limit for implementation of the transfer has expired – of becoming definitively the Member State responsible for processing the asylum application.
52. Regarding, secondly, observance of the principle of procedural autonomy of the Member States, the Court notes that, if the interpretation of Article 20(1)(d) of Regulation No 343/2003 to the effect that the period for implementation of the transfer begins to run as from the time of the provisional decision having suspensive effect were to prevail, a national court wishing to reconcile compliance with the time-limit with compliance with a provisional judicial decision having suspensive effect would be placed in the position of having to rule on the merits of the transfer procedure before expiry of that time-limit by a decision which may, owing to lack of sufficient time granted to the courts, have been unable to take satisfactory account of the complex nature of the proceedings. As rightly pointed out by some of the governments and the Commission in their observations submitted to the Court, such an interpretation would run counter to that principle, as upheld in the case-law of the Community Courts (see, to that effect, Case C‑13/01 Safalero  ?2003? ECR I-8679, paragraph 49, and Case C-432/05 Unibet  [2007] ECR I-2271, paragraph 39).