CJEU: AG Opinion in Case C-647/16 Hassan, 20 December 2017

Wednesday, December 20, 2017

On 20 December 2017, Advocate General Mengozzi delivered his opinion regarding case C-647/16 Hassan, which concerned the possibility of national authorities to issue an “anticipated Dublin transfer decision” to a third-country national before the Member State believed to be responsible under the Dublin III Regulation has accepted the take charge or take back request. The referring court, the Lille Administrative Tribunal in France, has sought the CJEU’s assistance on the interpretation of the Dublin III Regulation in that regard.

First, AG Mengozzi highlighted that, after the request for a preliminary ruling was sent by the French referring court, the French Council of State ruled that a transfer decision cannot be taken, and thus notified, to an asylum applicant before the requested Member State has accepted the request. Therefore, AG Mengozzi is of the opinion that the French Council of State’s decision should put an end to the administrative practice contested by the preliminary reference.

Secondly, the Advocate General found that Article 26 of the Dublin III Regulation indicates, without ambiguity, the establishment of a procedural and chronological order: first the requested Member State implicitly or explicitly accepts the take charge or take back request, and only then can the transfer decision be notified to the person concerned. Therefore, the practice of some French administrative authorities of issuing “anticipated Dublin transfer decisions” before a response from the requested Member State is contrary to the provisions of the Dublin III Regulation.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Dublin Transfer
Request that charge be taken
Request to take back