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Home ›CJEU - C‑670/16, Tsegezab Mengesteab v Bundesrepublik Deutschland
Article 27(1) of the Dublin Regulation is to be interpreted as meaning that an applicant for international protection may rely, in the context of an action brought against a decision to transfer him, on the expiry of a period laid down in Article 21(1) of that regulation, even if the requested Member State is willing to take charge of that applicant.
The two-month period for submitting a take charge request where there has been a Eurodac hit is not cumulative with the general three-month period for take charge requests.
An application for international protection is deemed to have been lodged if a written document, prepared by a public authority and certifying that a third-country national has requested international protection, has reached the authority responsible for implementing the obligations arising from that regulation, and as the case may be, if only the main information contained in such a document, but not that document or a copy thereof, has reached that authority.
In respect to the first question which related to whether Article 27(1) could be relied upon to appeal the expiration period laid down in Article 21(1), the Grand Chamber held that the right to an effective remedy also covers an applicant’s right to challenge transfer decisions where Member States fail to meet the applicable time limits to make a take charge request. This conclusion was reached by the Court having regard to the enhanced safeguards granted to asylum seekers under the Dublin III Regulation and its general objective of swiftly determining the MS responsible for an asylum application. These enhanced safeguards derive from the effective and complete judicial protection enjoyed by asylum seekers, as enounced in Ghezelbash. Further, and in agreement with the Advocate General, the Grand Chamber states that the procedures in the DRIII must be carried out in compliance with a series of specified time limits. Article 21(1) specifies that a tack-charge request must be made as soon as possible and at the latest three months within the date on which the application was lodged. Where a request is not made within that period responsibility lies with the Member State where the application was lodged. Transfer cannot be undertaken where that time limit has expired and a remedy against such a transfer is needed in order to guarantee that the take charge procedure was properly applied. No limitation of Article 27(1) can be inferred where the requested Member State has either explicitly or implicitly accepted the take-charge request. Second, the Court of Justice ruled that the two-month period for submitting a take charge request where there has been a Eurodac hit is not cumulative with the general three-month period for take charge requests. This period should start from when the authorities receive the positive hit in the database. The reduced period is justified on the basis of the Regulation’s general objectives and the fact that a Eurodac hit is strong proof of irregular border crossing, which is likely to speed up the determination of the responsible Member Stat |
Article 27(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in the light of recital 19 thereof, must be interpreted as meaning that an applicant for international protection may rely, in the context of an action brought against a decision to transfer him, on the expiry of a period laid down in Article 21(1) of that regulation, even if the requested Member State is willing to take charge of that applicant. Article 21(1) of Regulation No 604/2013 must be interpreted as meaning that a take charge request cannot validly be made more than three months after the application for international protection has been lodged, even if that request is made within two months of receipt of a Eurodac hit within the meaning of that article. |
Article 20(2) of Regulation No 604/2013 must be interpreted as meaning that an application for international protection is deemed to have been lodged if a written document, prepared by a public authority and certifying that a third-country national has requested international protection, has reached the authority responsible for implementing the obligations arising from that regulation, and as the case may be, if only the main information contained in such a document, but not that document or a copy thereof, has reached that authority.
The judgment was preceded by Advocate General Sharpston’s opinion who opined the following: First, that the time limits set out in the Dublin III Regulation are central to its operation and provide a degree of certainty to both applicants and Member States. She rejected the argument that the time limits only govern inter-State relations, since the operation of those time limits has substantive implications for the applicants. Therefore, applicants should be able to challenge transfer decisions where Member States fail to meet the applicable time limits. Second, she considered the two-month time limit (during which Member States have to submit a take charge request in cases where there has been a Eurodac hit) to start from when the authorities receive the positive hit in the database, and should not be cumulative with the general three-month period for take charge requests. AG Sharpston put forward that an application for international protection is lodged within the meaning of Article 20(2) DRIII when a form or report reaches the competent national authorities responsible for such applications. In her view, an informal request does not constitute “lodging” within the meaning of the Regulation. The AG also rejected the idea that a delay to submit a take charge request would result in an obligation of a Member State to exercise its discretion under Article 17(1) of the Dublin III Regulation. |