France – Lille Administrative Tribunal, 16 December 2016, 1609141

Country of Decision:
Country of Applicant:
Date of Decision:
16-12-2016
Citation:
No. 1609141
Court Name:
Lille Administrative Tribunal
Relevant Legislative Provisions:
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > Article 267 § 1 (b)
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > Article 267 § 2
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 3
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 4
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 5
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 17
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 18
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 20
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 21
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 22
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 23
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 24
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 25
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 26
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 27
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 28
National / Other Legislative Provisions:
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 512-1
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 742-4
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 742-3
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 742-1
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 551-1
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Headnote: 

The following question is referred to the CJEU under the expedited procedure provided for in Article 105 of the Rules of Procedure:

Does Article 26 of the Dublin Regulation III prevent the competent authorities in a Member State, who have requested another Member State to take responsibility under a take back or take charge request of an applicant who has applied for international protection (which has not yet been ruled definitely upon) or any other person caught by Article 18(1)(c) or (d), from taking a transfer decision and notifying the applicant before the requested State has accepted the take back or take charge request?

Facts: 

The applicant was stopped by French police within the restricted zone of the port of Calais on the 26 November 2016. His fingerprints matched those which had been previously registered on Eurodac by the German authorities in November and December 2015. On the same day the Pas-de-Calais Prefect submitted a take back request on grounds that the applicant had applied for asylum in Germany. Alongside this the Prefect decided to transfer the applicant to Germany and place him in administrative detention.

Under Article L512-1 of the Code of Entry and Residence of Foreigners and of the Right to Asylum (CESDA) the applicant appealed against his placement in detention and the transfer decision to Germany on grounds that the State had breached his procedural rights under Articles 4 and 5 of the Dublin Regulation; that the Prefect had not established that he had applied for asylum in Germany; that there had been a breach of Article 26 of the Regulation since the Prefect had taken the transfer decision before Germany had explicitly or implicitly accepted the request.

Conversely the Prefect underlines that neither Article 26 of the DRIII nor Article 742-3 of CESDA prevents a transfer decision and its notification to the applicant from the moment that he or she is placed in detention. Moreover, the right to appeal in Article 27 is available for the applicant. Lastly, a transfer decision cannot be executed until the Member State has accepted to take back or take charge of the person. 

Decision & Reasoning: 

The Tribunal addresses each of the applicant’s points in turn, surmising that the initial points of contention are without cause. First, it reasons that the applicants fingerprints were registered in Eurodac as a person having applied for asylum in Germany. Given that the applicant had not applied for asylum in France, the Prefect was not obliged to have regard to Article 17 of the DRIII. Moreover, the argument that the decision did not refer to a specific ground under Article 18 was not related to the decision being insufficiently motivated.

Second, and as an interlinked point, the applicant cannot argue that Article 4 of the DRIII has been violated since the applicant had not applied for asylum in France.

Third, and with regards to Article 5, the applicant had provided information on his personal situation and route at an interview which took place with the police at the border and that Eurodac had showed he had applied for asylum in Germany.

Finally there had been no error of law with regards to Article 3(2) since Germany was the first Member State in which an application for international protection was introduced.

Moving on to an examination of Article 26, the Tribunal finds that the legal basis for the detention decision was in fact Articles 551-1 and 742-3 CESDA relating to detention where the person is to be transferred to the responsible Member State and not Article 28 of DRIII. The Prefect, according to the Tribunal, considered that in order to place the applicant in detention he first had to take a decision without waiting for the response of the requested Member State. The Tribunal finds that Article 28 of the DRIII could have been the legal basis for detention and that Articles 551-1 and 742-3 CESDA do not oblige the authorities to take a transfer decision in order for the detention order to be lawful. Having said this the Articles do not prohibit it either. It, therefore, remains to be seen whether this administrative practice is in compliance with EU law.

Referring to previous administrative jurisprudence the Tribunal underlines that case law remains divergent. Some courts have ruled that Article 26 does not constitute an obstacle to the authorities taking a transfer decision and notifying the person concerned before the requested Member State’s response. The decisions make reference to two successive stages of the determination of the responsible Member State. The first is the determination of the responsible Member State stricto sensu requiring investigation, notably through the personal interview and Eurodac results, and in accordance with the fixed criteria of the Regulation, which State is responsible in order to submit a take back or take charge request. Following this procedure a transfer decision can already be taken and notified to the applicant. The second phase of the procedure takes place during the formulation of the request to the Member State to take back or take charge of the applicant and the response of the requested Member State.

Conversely, other jurisprudence has cancelled the transfer decision on grounds of error of law. The case law states that the requesting Member State under Article 26 must wait for the determination of the responsible Member State as outlined in Articles 20-25 before notification of the transfer decision can be given. Similarly in a decision from November 2016 the First Instance Tribunal of Lille found that the detention decision was unlawful since the Dublin transfer decision did not adhere to Article 26. The administrative authorities had not waited for the response of the requested Member State before notifying the applicant of the transfer decision.

Moving onto a literal reading of Article 26, the Tribunal finds that a teleological interpretation points towards the requesting Member State having to wait for the requested Member State’s response before notifying the applicant of the decision. The procedure for determining the responsible Member State takes into account all of the stages described in Articles 20-25 in a chronological order. It is only at the end of this procedure that it will be possible to know if the person can effectively be transferred to the requested Member State. Article 28 allows for the person to be detained until the response of the requested Member State, for up to six weeks. This interpretation flows from the travaux preparatoires on DRIII.

The Tribunal, however, notes that the applicant is not prevented from appealing the transfer decision upon its notification and before a response from the requested Member State. Article 27 specifically provides for appeal from the moment a decision is given identifying, according to the requesting Member State, the responsible Member State. If the requested Member State is not responsible the transfer decision can be cancelled. The fact that Member State has accepted or not accepted the request does nothing to change this.

The Tribunal concludes that the interpretation of Article 26 is subject to dispute and a reference to the CJEU must follow suit under Article 267 TFEU.  

Outcome: 

The following question is referred to the CJEU under the expedited procedure provided for in Article 105 of the Rules of Procedure:

Does Article 26 of the Dublin Regulation III prevent the competent authorities in a Member State, who have requested another Member State to take responsibility under a take back or take charge request of an applicant who has applied for international protection (which has not yet been ruled definitely upon) or any other person caught by Article 18(1)(c) or (d), from taking a transfer decision and notifying the applicant before the requested State has accepted the take back or take charge request?

The reference before the CJEU is Case C-647/16, Hassan.

Case Law Cited: 

France - Administrative Tribunal of Rouen, 1603199, 5 October 2016

France - Administrative Tribunal of Rouen, 1603674, 19 November 2016

France - Administrative Tribunal of Lille, 160697, 26 August 2016

France - Administrative Tribunal of Lille, 1606297, 26 August 2016

France - Administrative Tribunal of Rouen, 1603104, 23 September 2016