Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court held that Art. 19(2) of Council Regulation (EC) No 343/2003 must be interpreted as meaning that, in circumstances where a Member State has agreed to take charge of an applicant for asylum on the basis of the Art. 10(1) criterion the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Art. 4 of the Charter.
Ms Abdullahi is a Somali national aged 22. She entered Syria by air in April 2011 and then travelled through Turkey in July of the same year before entering Greece illegally by boat. With the assistance of people smugglers, she travelled to Austria, in the company of other persons, passing through the Former Yugoslav Republic of Macedonia, Serbia and Hungary. She crossed the borders of all of those countries illegally. Ms Abdullahi was arrested in Austria, close to the Hungarian border, by Austrian police officials who established the route taken by Ms Abdullahi by also interviewing other persons who had made the same journey.
In Austria, she lodged an application for international protection with the Bundesasylamt, the competent authority. The Bundesasylamt requested that Hungary take charge of Ms Abdullahi in accordance with Article 10(1) of Regulation No 343/2003. Hungary agreed to do so. The Bundesasylamt rejected as inadmissible Ms Abdullahi’s asylum application in Austria and ordered her removal to Hungary. Ms Abdullahi brought an appeal against that decision, which the Asylgerichtshof allowed on the account of procedural issues. The Bundesasylamt then reviewed the decision and still pursued transfer to Hungary. A further appeal was brought but this time Ms Abdullahi claimed that the Member State responsible was Greece and not Hungary. She argued that as she could not be sent back there (as they did not observe human rights in certain respects) and accordingly Austria had to examine her asylum application. The Asylgerichtshof declared the appeal unfounded and therefore Ms Abdullahi brought an appeal before the Verfassungsgerichtshof (Constitutional Court).
The Verfassungsgerichtshof set aside the judgment of the Asylgerichtsgof on the ground that the Court should have referred to the Court of Justice for the preliminary ruling. Following that the Asylgerichtshof decided to stay the proceedings and send questions to the Court for a preliminary ruling.
The Court held that referring Court was asking, whether Art. 19(2) must be interpreted as obliging States to provide that an applicant is to have a right, in an appeal under Art. 19(1), to request a review of the determination of the Member State responsible, on the grounds that the criteria laid down in Chapter III of that regulation had been misapplied. The Court recalled of the Art. 288 TFEU, which states that regulations operate to confer rights on individuals which the national courts have a duty to protect. The Court held it was necessary to ascertain to what extent the provisions in Chapter III of the regulation actually confer on applicant’s rights which the national courts have a duty to protect. It noted that the regulation provides for a single appeal and that the regulation must be read in light of its general scheme, objectives and context and in particular its evolution in connection with the system of which it forms part. It referred to the principle of mutual confidence in the CEAS and the reason why the Regulation was established in order to avoid blockages in the system, increase legal certainty and avoid forum shopping as well as the principle objective of all these measures to speed up the handling of claims in the interests both of asylum seekers and the participating Member States.
The Court took into account the organisational rules in the Dublin Regulation and its implementing regulation 1560/2003 as well as the purpose of the humanitarian and discretionary provisions to ‘maintain the prerogatives of the Member States in the exercise of the right to grant asylum’ and confirming that they are optional provisions which grant a wide discretionary power to Member States. Furthemore, according to the Article 23 of Regulation No 343/2003Member States can establish, on a bilateral basis, administrative arrangements between themselves concerning the practical details of the implementation of that regulation, which may relate, inter alia, to simplification of the procedures and shortening of the time-limits relating to the transmission and examination of requests to take charge of asylum seekers or to take them back. Also, the Court noted that in line with the Article 14(1) of Regulation No 1560/2003 – currently Article 37 of Regulation No 604/2013 – when the Member States cannot resolve a dispute regarding the application of Regulation No 343/2003, they may use a conciliation procedure but which does not foresee that the applicanz will be heard.
The Court noted that one of the principal objective of the Regulation No 343/2003 (recitals 3 and 4 of the preamble) is the establishment of a clear and workable method for determining rapidly the Member State responsible for the processing of an asylum application so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications. According to the Court, in the present case, the decision at issue is the decision of the Member State in which Ms Abdullahi’s asylum claim was lodged not to examine that claim and to transfer her to another Member State. That second Member State agreed to take charge of Ms Abdullahi on the basis of the criterion laid down in Article 10(1) of Regulation No 343/2003, namely, as the Member State of Ms Abdullahi’s first entry into EU territory. In such a situation, in which the Member State agrees to take charge of the applicant for asylum, the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that latter Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. However, as is apparent from the documents placed before the Court, the Court concluded that there is nothing to suggest that that is the position in the dispute before the referring court.
Hence, the Court concluded that Article 19(2) of Regulation No 343/2003 must be interpreted as meaning that, in circumstances where a Member State has agreed to take charge of an applicant for asylum on the basis of the criterion laid down in Article 10(1) of that regulation – namely, as the Member State of the first entry of the applicant for asylum into the European Union – the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.
Article 19(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national must be interpreted as meaning that, in circumstances where a Member State has agreed to take charge of an applicant for asylum on the basis of the criterion laid down in Article 10(1) of that regulation – namely, as the Member State of the first entry of the applicant for asylum into the European Union – the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.