Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Applicability – Yes or no? ‘Discretionary clause’ laid down in Dublin regulation

Dublin III regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Article 1 of the Dublin III).

Article 17 (1) of the Dublin III Regulation provides so-called "discretionary clause". Under this provision each Member State may decide to examine an application for international protection, even if such examination is not its responsibility under the criteria laid down in this Regulation.

Is the application, by a Member State, of the ‘discretionary clause’ governed solely by national law or  is it a question concerning the interpretation of EU law.

The question is governed by EU law, Charter is applicable.
The question is governed solely by national law, Charter is not applicable.
If domestic law provides additional criteria, when the authorities may examine asylum application under "discretionary clause" then it is question governed solely by national law

Question of application of the "discretionary clause" is governed by EU law, therefore in such matters Charter is applicable under its Article 51(1).

In the judgment C‑578/16 PPU, C.K., H.F., A.S. v Republika Slovenija the Court of Justice of the EU stated that the discretionary clause is an integral part of the system for determining the Member State responsible developed by ‘the Dublin system’. It follows that a Member State implements EU law, within the meaning of Article 51(1) of the Charter, also when it makes use of that clause (para. 53).

In the judgment in Joined Cases C‑411/10 and C‑493/10 (N.S. and M.E.) where the Court interpreted "discretionary clause" provision contained in Article 3(2) of the Dublin II Regulation (the terms of which coincide, in essence, with those of the ‘discretionary clause’ laid down in Article 17(1) of the Dublin III Regulation and the interpretation of which is, accordingly, transposable to the latter).

In this judgment the Court stated that "discretionary clause" must be exercised in accordance with the other provisions of the Dublin II regulation. The Court held that Article 3(2) of Dublin II Regulation states that the derogation from the principle laid down in Article 3(1) of that regulation gives rise to the specific consequences provided for by that regulation. Thus, a Member State which decides to examine an asylum application itself becomes the Member State responsible within the meaning of Dublin II Regulation and must, where appropriate, inform the other Member State or Member States concerned by the asylum application.

The Court held that those factors reinforce the interpretation according to which the "discretionary clause" forms part of the mechanisms for determining the Member State responsible for an asylum application provided for under the Dublin II regulation and, therefore, merely an element of the Common European Asylum System. Thus, a Member State which exercises that discretionary power must be considered as implementing European Union law within the meaning of Article 51(1) of the Charter.