France - Council of State, 7 April 2011, Cimade and Gisti, n°335924

Country of Decision:
Country of Applicant:
Date of Decision:
07-04-2011
Citation:
Conseil d’Etat, 7 avril 2011, Cimade et Gisti, n°335924
Court Name:
Council of State/Conseil d’Etat
National / Other Legislative Provisions:
TFEU
TFEU - Art 267
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.741-4-1
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Headnote: 

The Council of State addressed a request for a preliminary ruling to the CJEU regarding the application of the Reception Conditions Directive to asylum applicants to whom the Dublin II Regulation applies.

Facts: 

The NGOs Cimade and Gisti requested the Council of State to quash an interdepartmental circular dating from the 3rd of  November 2009 relative to the temporary financial allowance granted to specific categories of asylum applicants. The NGOs claimed in particular that, by excluding from this financial allowance persons who, according to the Dublin II Regulation, are submitted to a procedure of taking charge by another State, the circular interprets the internal legislative provisions in a way which is incompatible with the objectives of the Reception Conditions Directive.

Decision & Reasoning: 

The Council of State noted that the Reception Conditions Directive applies to all asylum applicants as long as they are allowed to remain on the territory as asylum applicants. And yet, no internal legislative provision expressly provides that asylum applicants to whom the Dublin II Regulation applies are allowed to remain on the territory when the French authorities request another Member State to take charge of them.

In order to know whether asylum applicants to whom the Dublin II  Regulation applies are allowed to benefit from the temporary financial allowance, the Council of State addressed a request for a preliminary ruling to the Court of Justice of the European Union (CJEU), with the following questions:

(1) Does Council Directive 2003/9/EC of 27 January 2003 guarantee the minimum reception conditions to which it refers to applicants in respect of whom a Member State in receipt of an application for asylum decides, under Council Regulation (EC) No 343/2003 of 18 February 2003, to refer a request to another Member State which it deems to have jurisdiction to examine that asylum application, throughout the duration of the procedure for taking charge of them or for taking them back by that other Member State?

(2) If the answer to that question is in the affirmative:

(a) Does the obligation, incumbent on the first Member State, to guarantee the minimum reception conditions cease at the moment of the acceptance decision by the State to which the referral was made, upon the actual taking charge or taking back of the asylum seeker, or at some other date?

(b) Which Member State should thus assume the financial burden of providing the minimum reception conditions during that period?
 

Outcome: 

Some provisions of the circular were amended. Furthermore, the Council of State postponed its decision regarding the application of the Reception Conditions Directive to asylum applicants to whom the Dublin II Regulation applies until the CJEU gives a ruling on the abovementioned questions.

Subsequent Proceedings : 

Case pending before the CJEU.

Observations/Comments: 

The answer of the CJEU to the questions addressed by the French Council of State will be determining for significant number of asylum applicants.

In a previous decision, the Council of State considered, by citing the Reception Conditions Directive (in particular Article 3), that “the launch of a procedure to request another Member State to take charge of an asylum applicant after his/her entry on the territory does not have any influence on the right of the person concerned to benefit from decent material reception conditions as long as this taking charge has not become actual” (CE, réf., 20 octobre 2009, n° 332631, M. et Mme A.). This decision had been warmly welcomed by the NGOs advocating for refugees.