CJEU: Opinion of Advocate General Jääskinen in the case C-4/11 Puid, 18 April 2013

Friday, October 4, 2013

The main proceedings concern an Iranian national, Mr. Puid, who traveled from Teheran to Athens in October 2007 and after four days there continued to Frankfurt, where he requested asylum at the airport. The German Asylum Office determined that his application was inadmissible because, according to the Dublin Regulation, Greece was responsible for its processing. The applicant brought a court action against this decision seeking its annulment and asking the competent court to order Germany to process his application. He was shortly afterwards returned to Greece. However, some months later his appeal was resolved in his favour. The court annulled the decision of the Asylum Office and determined that the enforcement of the removal order had been unlawful. This judgment was appealed before the Administrative Court of Hesse, which referred four questions for a preliminary ruling. In the meantime, the German Asylum Office annulled its decision and decided to examine Mr. Puid's asylum application, recognising that Mr. Puid qualified as a refugee.

The Administrative Court of Hesse withdrew three of the four questions referred after the CJEU's NS judgment of December 2011. The remaining question is:
"Does an enforceable personal right on the part of the asylum seeker to force a Member State to assume responsibility result from the duty of the Member State to exercise their right under the first sentence of Article 3(2) of Regulation No 343/2003?

Advocate General Jääskinen examines first how the Dublin Regulation should be interpreted under normal circumstances. He concludes that it is not directed at vesting individuals with rights, but at organising relations between Member States. Whenever it confers discretion, it does so upon Member States and not individuals. Moreover, a provision of EU law only produces direct effects between individuals and Member States when it contains a clear and unconditional obligation for the latter the execution or effects of which are not subject to an act of the Member States or the Commission, and this is not the case of the sovereignty clause (Article 3(2)) of the Dublin Regulation.

The Opinion then goes on to examine whether this conclusion changes when the Dublin Regulation is to be applied in exceptional situations. Advocate General Jääskinen relies on the NS judgment to describe such situations. They are characterised by systemic flaws in the asylum procedures and reception conditions for asylum seekers in the country responsible for the examination of an application and by the fact that the Member State transferring the asylum seeker to the responsible state cannot be unaware of such deficiencies because they have become notorious. Even in such a case, individuals do not have a right under the Dublin Regulation to force a Member State to assume responsibility for their asylum application relying on the sovereignty clause. However, the competent authorities should desist from transferring asylum applicants to [the responsible] Member State of their own motion. The fact that asylum seekers do not have an individual right does not attenuate the Member States' positive obligation to refrain from taking action that would expose asylum seekers to inhuman and degrading treatment, prohibited by Article 4 of the EU Charter of Fundamental Rights. Instead, in an exceptional situation, Member States should, in accordance with the Dublin Regulation, try to find within a reasonable time whether there is another Member State which would be responsible. If there is not one, then they are obliged to examine the application themselves. This would not constitute an exercise of discretion under the sovereignty clause in the Advocate General's view. Instead, in an exceptional situation, the Member State where a first or a subsequent asylum claim has been lodged would be responsible for the examination of the application under Article 13 if an eventual third Member State cannot be found according to the criteria set out by the Dublin Regulation. This is because a Member State with a deficient asylum system ceases to be the Member State responsible in the meaning of Article 3(1) of the Regulation.

In addition, Advocate General Jääskinen opines that, in the event of an appeal against a transfer decision under the Dublin Regulation, a national court that cannot be unaware of the systemic deficiencies in the asylum system of the Member State to which the applicant is to be returned is obliged to suspend that transfer and, if necessary, to set aside any national provision that would prevent it from doing so. This follows from general EU law principles concerning provision of effective remedies and protection of fundamental rights. In his view, the assumption that the transfer would not cause the person concerned a serious loss difficult to repair, which underlies the non-suspensive effect of appeals under Article 19(2) of the Dublin Regulation, is not valid where the person concerned can be exposed to inhuman or degrading treatment.

Advocate General Jääskinen proposes therefore the following answer to the question referred:

Asylum seekers do not have an enforceable claim to compel an identified Member State to examine their applications for asylum in accordance with the first sentence of Article 3(2) of Council Regulation (EC) No 343/2003 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. However, a national court that cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in the Member State responsible under Regulation No 343/2003 amount to substantial grounds for believing that asylum seekers 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 is, within the context of application of Article 19(2) of that regulation, obliged to suspend the transfer of asylum seekers to that Member State.

Read the full text of the opinion on the CJEU's website.

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Inhuman or degrading treatment or punishment
Dublin Transfer
Responsibility for examining application
Effective remedy (right to)
Right to remain pending a decision (Suspensive effect)