Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court of Justice of the EU interpreted provisions of the Dublin III regulation concerning the right to an effective remedy against a transfer decision, in the light of the Article 47 of the Charter
Mr Shiri entered the territory of the Member States via Bulgaria and lodged an application for international protection in Bulgaria on 19 February 2015. He then lodged an application for international protection in Austria on 7 March 2015. On 9 March 2015 Austrian authorities asked the Bulgarian authorities to take Mr Shiri back. On 23 March 2015 the Bulgarian authorities agreed to that take back request.
2 July 2015 Austrian authorities declared application for international protection lodged by Mr Shiri as inadmissible, ordered his deportation and determined that his removal to Bulgaria was lawful.
Mr Shiri challenged that decision before the Federal Administrative Court. The court annulled the decision on 20 July 2015, on the ground that, on account of Mr Shiri’s vulnerability owing to his state of health, the Office should have examined whether it was obliged to exercise the power provided for in Article 17(1) of the Dublin III Regulation.
By a fresh decision of 3 September 2015 Austrian authorities declared that the application for international protection lodged by Mr Shiri was inadmissible, ordered his deportation and determined that his removal to Bulgaria was lawful.
Mr Shiri challenged that decision before the Federal Administrative Court. By supplementary observations of 23 September 2015, Mr Shiri submitted that the Republic of Austria had become the Member State responsible for examining his application for international protection because the six-month period for a transfer, as defined in Article 29(1) and (2) of the Dublin III Regulation, had expired on that date.
Federal Administrative Court dismissed the appeal. As regards the argument set out by Mr Shiri in his supplementary observations of 23 September 2015, alleging that the six-month period as defined in Article 29(1) and (2) of the Dublin III Regulation had expired, it held that, following the annulment of the Office’s decision of 2 July 2015 and the referral of the case back to the Office for a fresh decision, a fresh period of six months began to run from the time when it again became possible to transfer Mr Shiri, namely, from the seventh day following receipt of the appeal lodged by him, that is to say, from 24 September 2015.
Mr Shiri then brought an appeal on a point of law against that judgment before the Upper Administrative Court.
1. Whether Article 29(2) of the Dublin III Regulation must be interpreted as meaning that, where the transfer does not take place within the six-month time limit as defined in Article 29(1) and (2) of that regulation, responsibility is transferred automatically to the requesting Member State, without it being necessary for the Member State responsible to refuse to take charge of or take back the person concerned.
2. Whether Article 27(1) of the Dublin III Regulation, read in the light of recital 19 thereof, must be interpreted as meaning that an applicant for international protection may rely, in an action brought against a decision to transfer him, on the expiry of the six-month period as defined in Article 29(1) and (2) of that regulation.
In respect of question 1 - the CJEU stated that Article 29(2) of Dublin III Regulation must be interpreted as meaning that, where the transfer does not take place within the six-month time limit as defined in Article 29(1) and (2) of that regulation, responsibility is transferred automatically to the requesting Member State, without it being necessary for the Member State responsible to refuse to take charge of or take back the person concerned.
In respect of question 2 – the CJEU stated that 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.
"Moreover, with its recent judgment in the Mengesteab case – which, indeed, is often recalled here in Shiri - the CJEU has extended the scope of the right to an effective remedy against a Dublin transfer also to the proper observance and application of the procedural rules and safeguards laid down in DRIII, including, therefore, the specific six-month deadline prescribed for the transfer decision to be implemented."
C.J.E.U., 25 October 2017, Shiri, C-201/16, Dublin Transfers and the right to an effective remedy: between efficiency and the protection of fundamental rights, by Francesco Luigi Gatta, available at: https://uclouvain.be/fr/instituts-recherche/juri/cedie/actualites/c-j-e-u-25-october-2017-shiri-c-201-16.html
Dublin III Regulation 604/2013
Case study - Transfer under Dublin regulation – appeal procedures