CJEU - C-661/17 M.A & others, 23 January 2019

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Date of Decision: 
23-01-2019
Citation: 
ECLI:EU:C:2019:53
Court Name: 
Court of Justice of the European Union First Chamber
Relevant Legislative Provisions: 
Council of Europe Instruments
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > Article 78
Headnote: 

The notification about the intention of withdrawal from the EU by the Member-State responsible for the examination of the application for international protection does not trigger the determining Member-State’s obligation to make use of the discretionary clause of Article 17(1) 604/2013 EU. Similarly, Article 6 (1) cannot be interpreted as imposing an obligation on the Member State that is not responsible to take into account the best interests of the child and to examine the application itself under 17 (1)

Facts: 

This case concerned a couple of third-country-nationals who lodged an asylum claim while their child was receiving medical treatment in Ireland. A take charge request was submitted by the Irish authorities to the UK, which was accepted. A transfer to the UK was recommended after the authorities decided not to apply the discretionary clause under Article 17 (1) of the Dublin Regulation and examine the applicants claim.

The applicants challenged the transfer decision invoking the discretionary clause of Article 17 Reg. 604/2013 and the fact that the UK would activate Article 50 TFEU and withdraw from the EU. Following the rejection of their claims by the domestic courts, which held inter alia that the UK’s withdrawal was not the present situation under which the decision should be assessed, the applicants brought their case before the Irish High Court.

The High Court held that the implications of the UK’s withdrawal on the Dublin system should be determined and decided to stay proceedings and refer a set of five (5) questions to the CJEU:

  1. Should the UK’s prospective withdrawal from the EU oblige national-authorities to consider the discretionary clause for transfers of applicants to the UK?
  2. Does the Dublin Regulation require that the determination of the State responsible for the assessment of the asylum claim and the application of Art 17 discretionary clause are undertaken by the same authority?
  3. Does Art 17 of the Dublin Regulation oblige a Member-State which is not responsible to examine the asylum claim to take into account the best interests of the child and examine the application?
  4. Does Art 27 of the Dublin Regulation require a remedy to be made available against the decision of national-authorities not to apply the Art 17(1) discretionary clause?
  5. Does Art 20(3) create a rebuttable presumption that the best interests of the child oblige national-authorities not to treat a child’s situation separately from the parents’ one?

 

Decision & Reasoning: 

With regard to the first question of the High Court (EI) the Court held that the fact the Member-State responsible to examine the asylum claim has notified its intention to withdraw from the EU does not create any obligation whatsoever on the determining Member-State (i.e.) Ireland) to activate Art 17 discretionary clause and examine the application because the law continues to apply until the actual withdrawal of the responsible Member-State from the EU. In addition to this, the Court noted that the wording of the article generally supports an approach that the exercise of the discretionary clause is entirely optional for Member States.

Second, the Court found that the Regulation only provides that the competent authorities are notified to the Commission but leaves the determination of these authorities to the Member States. Therefore, no requirement exists for the exercise of the discretionary clause to be undertaken by the same authority charged with the determination of the responsible Member-State. Moreover, the Court held that the best interests of the child, enshrined in Article 6 of the Regulation, cannot oblige non-responsible States to examine an application for international protection by activating Article 17, as the latter has an optional character and is not subject to any particular condition.

In respect of the fourth question the Court found that Article 27(1) does not expressly include an appeal against a decision to not use the Article 17 (1) option. To accept a remedy against this decision would also contravene the objective of swift processing of applications for international protection by introducing multiple levels of remedies. Consequently, the Court found that the principle of effective judicial protection will be safeguarded by the existence of a remedy against a transfer decision, which would anyway be adopted, if a Member State decides to not exercise the discretionary clause of Article 17 (1). 

Lastly, in respect of the fifth question, the Court confirmed the existence of a presumption prescribed under Article 20 (3) endorsed by the provision’s wording and the existence of several provisions in the Dublin Regulations – Recitals 4 to 16, and, inter alia, Article 6(3) (a) and (4), Article 8(1), and Article 11 – pointing to the family unity being generally in the best interests of the child.

 

Outcome: 
  1. Article 17(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 meaning that the fact that a Member State, designated as ‘responsible’ within the meaning of that regulation, has notified its intention to withdraw from the European Union in accordance with Article 50 TEU does not oblige the determining Member State to itself examine, under the discretionary clause set out in Article 17(1), the application for protection at issue.
  2. Regulation No 604/2013 must be interpreted as meaning that it does not require the determination of the Member State responsible under the criteria defined by that regulation and the exercise of the discretionary clause set out in Article 17(1) of that regulation to be undertaken by the same national authority.
  3. Article 6(1) of Regulation No 604/2013 must be interpreted as meaning that it does not require a Member State which is not responsible, under the criteria set out by that regulation, for examining an application for international protection to take into account the best interests of the child and to itself examine that application, under Article 17(1) of that regulation.
  4. Article 27(1) of Regulation No 604/2013 must be interpreted as meaning that it does not require a remedy to be made available against the decision not to use the option set out in Article 17(1) of that regulation, without prejudice to the fact that that decision may be challenged at the time of an appeal against a transfer decision.
  5. Article 20(3) of Regulation No 604/2013 must be interpreted as meaning that, in the absence of evidence to the contrary, that provision establishes a presumption that it is in the best interests of the child to treat that child’s situation as indissociable from that of its parents.

 

Observations/Comments: 

This summary was completed by Odyssefs Platonas, LLM studen at Queen Mary University.

Case Law Cited: 

CJEU: C-295/12 P Telefónica and Telefónica de España v European Commission, 10 July 2014

CJEU: C-213/17 X v Staatssecretaris van Veiligheid en Justitie, 5 July 2018

CJEU: C-56/17 Fathi, 4 October 2018

CJEU: C-327/18 PPU-RO 19 September 2018

CJEU: C-532/15, C-538/15 Eurosaneamientos and Others, 8 December 2016

CJEU: C-470/12 Pohotovost, 27 February 2014
Attachment(s): 
Authentic Language: 
English
Country of preliminary reference: 
Ireland
National / Other Legislative Provisions: 
Regulation 2(2)
3(1)
3(3)
6(1)(9)S.I No. 525/2014 ‘the national regulations’