CJEU - C-647/16 A.H v Préfet du Pas-de Calais, 31 May 2018

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Date of Decision: 
Court Name: 
Tribunal Administratif de Lille
Relevant Legislative Provisions: 

Article 26(1) of the Dublin III Regulation precludes the issuance of a transfer decision by the determining Member-State until the requested Member-State implicitly or explicitly accepts the take charge/back request.



Mr. Hassan is a third-country-national who was arrested and detained by the French Police in Calais. A subsequent search on Eurodac indicated that he had applied for international protection in Germany before going to France, where he had not lodged any claim. The authorities (Prefect Pas-de-Calais) submitted a take back request to Germany and decided to issue a transfer decision which was further notified to Mr. Hassan.

Mr. Hassan lodged an appeal with suspensive effect before the French Courts against the transfer decision claiming that the French authorities had infringed upon Article 26 Dublin III Regulation, on account of the notification of the transfer decision taking place before Germany’s response to the French authorities’ take back request.

The Administrative Court of Lille decided to stay the proceedings and refer the following question to the CJEU:

Do the provisions of Article 26(1) 604/2013 EU preclude the determining Member-State which has submitted a take charge or take back request to the Member-State considered responsible from issuing a transfer decision and notifying it to the person concerned before the requested State has accepted it?


Decision & Reasoning: 

The Court found that Article 26(1) precludes the adoption of a transfer decision before the reply from the requested Member-State to the request to take charge or to take back. The Court started its analysis by examining the actual wording of the provision and it found that the notification of a transfer decision to the person concerned may take place only if, and therefore after, the requested Member State has agreed to the take charge or take back request. According to the Court, it can be clearly deduced that the EU legislature established a specific procedural order between acceptance of the request and, only after, the notification of the transfer decision.

Although Article 26(1) refers to the notification of the transfer decision and not to its adoption, Articles 5 (2) b and 5 (3) specify the conditions under which a personal interview may be omitted or when it should take place and state that such an opportunity for the applicant to submit information must take place before any decision is taken to transfer the applicant. Moreover, the Court noted that, according to Article 26 (2), a transfer decision must contain information on legal remedies and relevant time limits, something that can only be made available when the requested Member-State has explicitly accepted the request. In accordance with the Advocate General’s findings, the Court found that such information will also depend on when the requested Member State replies to the request to take back or take charge and on the content of the reply, further citing Article 6 of the Dublin Implementing Regulation.

Moreover, the adoption of a transfer decision before the reply of the requested Member-State cannot ensure effective judicial protection of the transferee’s rights as the scope of the right to an effective remedy under Article 27 could be restricted. In this connection, the Court noted that an appeal against a transfer decision before the requested Member State’s acceptance would inevitably be based only on evidence gathered by the requesting Member State. In addition, in domestic contexts which do not provide for the suspension of a decision before a reply from the requested Member State, the person would be exposed to the risk of being transferred to that Member State even before the latter had given its consent.

Finally, the Court stressed that the Dublin III Regulation has the objective of establishing a clear and effective method for determining the Member-State responsible for examining the asylum application and that Article 26 (1) seeks to strengthen the protection of the individuals’ rights. Therefore, the interpretation of Article 26(1) cannot vary depending on the legislation of different Member States involved in the determination procedure.



Article 26(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 must be interpreted as precluding a Member State that has submitted, to another Member State which it considers to be responsible for the examination of an application for international protection pursuant to the criteria laid down by that regulation, a request to take charge of or take back a person referred to in Article 18(1) of that regulation from adopting a transfer decision and notifying it to that person before the requested Member State has given its explicit or implicit agreement to that request.



Mr. Hassan had challenged the administrative detention measure before the competent authorities and the Court lifted that measure.

The Prefect of the Pas-de-Calais ruled that neither Article 26 nor any provision of the French law precluded him from issuing a transfer decision as soon as detention took place and notifying the person concerned because the latter could make use of Article 27 remedies; a statement upheld by the referring Court.

Furthermore, he claimed that under French law he was required to take a transfer decision before detaining Mr. Hassan without waiting for the reply from the requested Member-State. This assumption was nevertheless overturned by the referring Court.

The case summary was completed by Odyssefs Platonas, LLM student at Queen Mary University.


Authentic Language: 
Country of preliminary reference: 
National / Other Legislative Provisions: 
Code de l’entrée et du séjour des étrangers et du droit d’asile (Code on the entry and residence of foreign nationals and the right to asylum; ‘Ceseda’) > Article L. 512-1 point III
Article L.551-1
Article L. 561-2 Point I
Article L. 742-1
Article L. 742-3
Article L. 742-4 Point I