Austria – Supreme Administrative Court, 31 March 2016, Ra 2015/20/0231

The SAC, firstly, held that it was entitled to refer the case to the CJEU and that the decision of the case at hand required the clarification of the questions referred to it regarding the interpretation of EU law.

The first question, essentially, concerned the issue whether an applicant seeking a legal remedy under Article 27 of the Dublin-III-Regulation can claim that the responsibility has been transferred to the requesting Member State. If that was not the case the appeal would already be inadmissible due to the lack of an infringement of individual rights and the question whether the time limit for transfer has expired could be left open.

The SAC referred to the CJEU’s decision in Abdullahi regarding the Dublin-II-Regulation. In this case, the CJEU held 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 Art. 10(1) of that regulation, 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 of Fundamental Rights of the European Union".

Following this decision, the German-language jurisprudence argued that asylum seekers could not claim that a time limit has expired.  The corresponding provisions in the Dublin-Regulation were to be interpreted as organisational rules effective between the Member States and not as providing for an individual right to have an application for asylum examined by a certain Member State.

Against this background, the question arose whether the provisions on the right to an effective remedy against a transfer decision under the Dublin-III-Regulation, in particular Article 27(1) read in  light of Recital 19, mean that an applicant can claim that the responsibility for examining his application has been transferred  to the Member State requesting his transfer to another Member State based on the expiration of  the six-month time limit for the transfer (Article 29(2) read in conjunction with Article 29(1) of the Regulation).

This question also differs from the ones already submitted to the CJEU in the cases Ghezelbash (C-63/15) and Karim (C-155/15). These, essentially, referred to the issue of whether the new provisions of the Dublin-III-Regulation regarding an effective remedy had to be interpreted as to allow the applicant to challenge the application of the allocation criteria laid down in Chapter III. Thus, the SAC thought it possible that the CJEU would rule differently regarding the interpretation of Article 29 (1) in Chapter VI Section VI of the Dublin-III-Regulation.

In case the first question is answered in the affirmative, it needs to be further clarified, whether the responsibility is transferred from one Member State to the other only on the basis that the time limit has expired. It is also questionable  whether the passage “the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned” in Article 29 (2) first sentence of the Dublin-III-Regulation means that the responsibility remains with the Member State originally responsible if it does not claim that its obligation to take charge of or to take the applicant back has ceased or if it does take charge of/take back the applicant despite the fact that the time limit has expired.

In this context, the SAC pointed out that there were no rules providing for a procedure or form in which a Member State would have to claim that its obligation had ceased.