France – Lille Administrative Tribunal, 16 December 2016, 1609141

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.