Staatssecretaris van Veiligheid en Justitie v H. and R.
Date: 2019-04-02
39


The scope of that remedy 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).
40


In that context, 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) thereof must be interpreted as meaning that the remedy for which it provides against a transfer decision must be capable of relating both to observance of the rules attributing responsibility for examining an application for international protection and to the procedural safeguards laid down by that regulation (see, to that effect, judgments of 26 July 2017, A.S., C‑490/16, EU:C:2017:585, paragraphs 27 and 31; of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 44 to 48, and of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 38).
51


As regards Article 18(1)(b) to (d) of the Dublin III Regulation, it refers to a person who, first, has lodged an application for international protection, which is under examination, has withdrawn such an application while it is under examination or whose application has been rejected and who, second, has either made an application in another Member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 (judgment of 25 January 2018, Hasan, C‑360/16, EU:C:2018:35, paragraph 44).
54


The take charge and take back procedures must necessarily be carried out in accordance with the rules laid down in Chapter VI of the Dublin III Regulation (see, to that effect, judgments of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 49, and of 13 November 2018, X and X, C‑47/17 and C‑48/17, EU:C:2018:900, paragraph 57), which make those procedures subject to distinct schemes, which are set out in Sections II and III of that Chapter, respectively.
57


It follows from those factors that, in the framework of the take charge procedure, the process of determining the Member State responsible for examining the application on the basis of the criteria set out in Chapter III of the Dublin III Regulation is of crucial importance and that the competent authority of the Member State with which an application has been lodged may send another Member State a request for charge to be taken of the applicant only where that authority considers that that other Member State is responsible for examining that application (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 43).
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The Court has moreover already held that that provision sets out specific obligations on the first Member State with which an application for protection has been lodged, that Member State thus being granted a special status by the Dublin III Regulation (see, to that effect, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 93 and 95).
77


That interpretation would imply, in the cases referred to in Article 18(1)(b) to (d) of that regulation, that the competent authorities of the second Member State could re-examine, de facto, the conclusion reached, at the end of the process for determining the Member State responsible for examining the application, by the competent authorities of the first Member State regarding its own responsibility, in so far as the persons concerned leave the territory of that Member State after it has started examining their applications, which would risk encouraging third-country nationals who submitted an application for international protection in a Member State to travel to other Member States, thereby causing secondary movements of people which is specifically what the Dublin III Regulation seeks to prevent by establishing uniform mechanisms and criteria for determining the Member State responsible (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).