CJEU - C-4/11, Bundesrepublik Deutschland v Kaveh Puid

The CJEU held in referring to N.S. and Others (C-411/10 and C-493/10) that although the Member State which is determining the Member State responsible has the right referred to in Article 3(2) (commonly referred to as the sovereignty clause) to itself examine the application, the Court none the less did not state that the Member State was required to do so.

The CJEU reiterated the finding in N.S. and Others whereby Member States may not transfer an asylum seeker to a Member State which the criteria set out in Chapter III of the Regulation indicate is responsible, where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions for asylum seekers in that Member State provide substantial grounds for believing that the asylum seeker 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 EU (N.S. & Others Para 94 and 106). It is for the referring Court to examine whether such systemic deficiencies existed on the date on which the decision to transfer Mr. Puid to Greece was enforced.

The finding that it is impossible to transfer an applicant to the Member State initially identified as responsible in accordance with the criteria set out in Chapter III of the Regulation entails that the Member State which should carry out that transfer must continue to examine the criteria set out in Chapter III of the Regulation in order to establish whether one of those criteria enables another Member State to be identified as responsible for the examination of asylum application. If they do not, the first Member State with which the application was lodged is to be responsible for examining it in accordance with Article 13 of the Regulation.

However the Court reaffirms the point made in N.S. and Others that the Member State in which the asylum seeker is located must, ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of the Regulation.

The Court (Grand Chamber) ruled that:

Where the Member States cannot be unaware that systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum seekers in the Member State initially identified as responsible in accordance with the criteria set out in Chapter III of Council Regulation (EC) no. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national provide substantial grounds for believing that the asylum seeker concerned would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, which is a matter for the referring Court to verify, the Member State which is determining the Member State responsible is required not to transfer the asylum seeker to the Member State initally identified as responsible and, subject to the exercise of the right itself to examine the application, to continue to examine the criteria set out in that chapter, in order to establish whether another Member State can be identified as responsible in accordance with one of those criteria or, if it cannot, under Article 13 of the Regulation.

Conversely, in such a situation, a finding that it is impossible to transfer an asylum seeker to the Member State initially identified as responsible does not in itself mean that the Member State which is determining the Member State responsible is required itself, under Art. 3(2) of Regulation No. 343/2003, to examine the application for asylum.