Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The establishment of a unified system for the regulation of the entrance and residence of third country-nationals in the EU has always been a top priority, ever since the abolition of its internal frontiers and the establishment of the freedom of movement.
The Schengen Convention was superseded in 1997 within the EU by the Dublin Convention, which gave the Dublin system, as it stands today, its name. The Dublin Convention introduced a guarantee for asylum applicants that their applications would be examined by one of the Member States, without being referred successively from one state to another without any of these States acknowledging competence for examining the application (Recital 4, Dublin Convention).
However, the criteria and mechanisms, which determine the Member State responsible for examining an asylum application lodged in one of the EU Member States by a third-country national, was established through EU Council Regulation No. 343/20033 (also referred to as ‘Dublin II’). Dublin II was replaced by Regulation No. 604/20134 of the European Parliament and the Council (Dublin III). In general, EU legislation articulated through the Common European Asylum System (CEAS) was reformed between 2011 and 2013 on the basis of Article 78 of the Treaty on the Functioning of the European Union (TFEU).
Article 78 para. 1 of the TFEU provides that the Union shall develop a common policy on asylum … with a view to offering appropriate status to any third-country national requesting international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the [1951] Geneva Convention … and other relevant treaties.
To this effect, the CEAS does not only regulate the distribution of competence for examining asylum claims, but also the reception of asylum seekers, the procedures for obtaining international protection as well as the conditions and content thereof.
In essence, though, the Dublin Regulation has been the cause of much scrutiny and debate, especially in relation to the obligations of Member States under the Charter as well as those under the ECHR, which are linked to the allocation of the responsibility for the assessment of individual asylum applications. In other words, human rights violations may occur when an asylum seeker is returned to the first State of entry and the receiving State either has no asylum system in place or the existing one is inefficient.
The Dublin system is based on mutual trust — on the assumption that each Member State respects the rights of asylum seekers in accordance with international and European law. More specifically, mutual trust here implies that all Member States are safe countries for asylum seekers. This concept was further reinforced by the CEAS. Yet, despite the developments in the framework of the CEAS, there were — and still are — significant differences in national asylum systems and reception conditions. It should be highlighted that the Dublin regulation is also grounded on the presumption that all EU Member States, as well as states bound by its provisions through bilateral agreements, shall ensure the safeguarding of EU fundamental rights.
The Preamble of the recast Dublin III Regulation clearly stipulates that: with respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by their obligations under instruments of international law, including the relevant case-law of the European Court of Human Rights. This very assumption underlines the basis of the mutual trust mentioned above.
N.S./M.E. case — the UK and Irish courts submitted preliminary questions to the CJEU, in relation to the returns of Afghan asylum seekers to Greece under the Dublin Regulation. One of these questions concerned the discretionary power in Article 3.2 of the Dublin Regulation, which allows a Member State to deviate from the Dublin responsibility rules, and whether this could in certain circumstances constitute an obligation. This was particularly relevant to the application of the EU Charter, since according to its Article 51.1 its provisions are addressed to Member States only when they are implementing EU law. There is no doubt that the provisions of the Dublin Regulation are part of EU law. In the end, the Court replied in the affirmative by stating that a Member State must itself examine an asylum claim when it is necessary for the protection of fundamental rights, such as that of Article 4 of the EU Charter, in accordance with the sovereignty clause of Article 3.2 of the Dublin Regulation.
The CJEU began its reasoning by clarifying that Member States should not only interpret their national law in a manner consistent with European Union Law but also make sure that they do not rely on an interpretation of an instrument of secondary legislation, which would be in conflict with the fundamental rights protected by the European legal order or with the general principles of European Union law (para. 77). It then continued by referring to the principle of ‘mutual confidence’ (mutual trust) in order to support the presumption that all the participating States, whether Member States or third states, observe fundamental rights, including the rights based on the Geneva Convention, the 1967 Protocol, and on the ECHR; and that the Member States can have confidence in each other on that regard. It further added that the raison d’etre of the European Union and the creation of an area of freedom, security, and justice and, in particular, the Common European Asylum System, is based on this mutual trust and the presumption of compliance with European Union law and fundamental rights (paras. 79-83).
After highlighting the importance of mutual trust within the EU legal order, the Court moved on to indicate that certain exceptional circumstances could call for a suspension of this mutual trust, which would allow the state to refrain from returning an asylum seeker to the competent state. It stated that any transfer would be incompatible with this provision, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, which could lead to inhumane and degrading treatment, according to Article 4 of the Charter (para. 86).
At this point the Court examined ad hoc the concerns rising from the situation in Greece, the Member State to which the asylum seekers were to be sent to as the first state of entry. Here, the Court could not ignore the very recent judgment of the ECtHR in the M.S.S. case. It reaffirmed that the extent of the infringement of fundamental rights described in that judgment shows that there existed in Greece, at the time of the transfer of the applicant M.S.S., a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers.
Yet, the most important statement made by the Court concerned the principle of mutual trust: In those circumstances, the presumption [of mutual confidence] underlying the relevant legislation [Dublin Regulation], stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable. The CJEU took into consideration the principles laid down by the ECtHR in the M.S.S case and followed the reasoning of the Strasbourg Court by claiming that the presumption of compliance with the fundamental rights of the European Union, on which the Dublin regulation is based on, is not absolute but rebuttable.
Furthermore, the CJEU held that Article 4 of the EU Charter (prohibition of torture): must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.
In conclusion, it seems that the threshold set by the CJEU for the rebuttal of the principle of mutual trust is reached when the State responsible suffers from ‘systemic flaws’ in the asylum procedure and reception conditions for asylum, which result in inhuman or degrading treatment, within the meaning of Article 4 of the EU Charter, of asylum seekers transferred to the territory of that Member State.
The two landmark decisions led to a suspension of all transfers through the Dublin Regulation to Greece. Dublin II was recast leading to Dublin III and a new provision was added echoing the findings of the two courts. This new provision (Article 3.2 of the Dublin III Recast) added a prohibition of transfers to states with systemic flaws in the asylum procedure and the reception conditions for applicants in that Member State, which could lead to inhuman or degrading treatment within the meaning of Article 4 of the EU Charter.
However, in practice, Member States still remained confused, since there was no further definition of the term ‘systemic flaws’. Some states assumed they had to request an opinion from the UNHCR in order to stop a transfer under the Dublin Regulation.
The Halaf judgment (C-528/11) clarified that although Member States are free to do so, no additional request to the UNHCR is necessary to stop a transfer, especially when other UNHCR documents can indicate that the responsible Member State is in breach of the EU asylum rules. Through this judgment the Court also pointed out that states could make use of the sovereignty clause at their own discretion without being subject to any particular condition.
In the Puid case (C-4/11), the CJEU reiterated that transfer to the Member State identified as responsible in accordance with the criteria in Chapter III of the Dublin II Regulation is precluded where the Member States cannot be unaware that systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum seekers in the [identified] Member State provide substantial grounds for believing that the asylum seeker concerned 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.
The Abdullahi decision (C-394/12), however, underlined the need to prove ‘systemic deficiencies’ in the asylum procedure and reception conditions in a Member State, in order to preclude a transfer. With the aforementioned judgment, the Court appeared to limit the possibilities of asylum seekers to challenge a transfer decision as provided for in Article 19.2 of the Dublin II Regulation.
Since the Dublin III Regulation, however, the effect of this judgment was limited, given that it introduced enhanced appeal possibilities, which entered into force twenty-one days later. What is more, the Abdullahi judgment also appears to provide a narrow protection against refoulement since it does not allow for the possibility that a real risk of ill-treatment could in principle arise for reasons entirely unrelated to problems with the implementation of the CEAS in the Member State responsible, and/or to the question of whether that Member State complies with fundamental rights. In other words, for transfer to be precluded under EU law, it would seem that it is necessary and not merely sufficient that the real risk of ill-treatment contrary to Article 4 of the EU Charter is grounded on systemic deficiencies in the asylum system of the Member State concerned.
The CJEU has recently however recognised that a real risk of being subject to inhuman and degrading treatment could result even from the exceptionally high number of third-country nationals wishing to obtain international protection in the Member State of first entry (A.S. v. Slovenia, C-490/16) or from illnesses and of serious mental disorders (C.K. and Others, C-578/16; A.S., C-490/16).
Case-law has shown that the return of an asylum seeker might give rise to a breach of the principle of non-refoulement through the violation of Article 3 of the ECHR or Article 4 of the EU Charter (prohibition of torture). This has been most problematic because of the principle of ‘mutual trust’.
The analysis also shows that the CJEU, which was at first reluctant to examine in depth issues that might arise from the Charter, used the Dublin Regulation in order to set the foundations for a more fundamental-rights approach (N.S./M.E. case). The Dublin Regulation appears to have offered the CJEU significant opportunities to reaffirm the constitutional value of the EU Charter. The CJEU’s rulings have also had a significant effect on the shaping of the Dublin Regulation. Problematic provisions of the Dublin Regulations were recast so as to reflect the rulings of the CJEU as well as those of the ECtHR (Dublin III, Article 3, para 2).
It must also be recalled that, in an attempt to remedy the asylum crisis, the EU Council through its decision of September 2015 (No. 2015/1601), committed to consider options for an emergency relocation mechanism pursuant to para. 3 Article 78 of the TFEU. Unlike Dublin III, the Council Decision sought to address the unequal burden on the Southern Member-States. The legality of this Council Decision was challenged before the CJEU by Hungary and Slovakia.
Reading the opinion of Advocate General Yves Bot, it is necessary to highlight a crucial issue for the Dublin System, which is founded in the Charter itself: solidarity among the Member States. Bot stated that the present actions provide the opportunity to recall that solidarity is among the cardinal values of the Union and is even among the foundations of the Union. He continued that it is therefore appropriate to emphasise at the outset the importance of solidarity as a founding and existential value of the Union. Although surprisingly absent from the list in the first sentence of Article 2 TEU of the values on which the Union is founded, solidarity is, on the other hand, explicitly mentioned in the Preamble to the Charter as forming part of the ‘indivisible, universal values’ on which the Union is founded (para. 19).
With the benefit of hindsight, it can now be said that the Charter has been the source of very significant changes in EU law. The Charter has forced the Union to take fundamental rights even more seriously, a move that has consequently pushed the CJEU in the same direction.