CJEU: Request for a preliminary ruling (urgent procedure) from the Supreme Court of Republic Slovenia, C-490/16 A.S., 13 September 2016

Tuesday, September 13, 2016

The Supreme Court of Republic Slovenia has referred a request for preliminary ruling to the CJEU (C-490/16 A.S.) on the interpretation to be given to Articles 13(1) and 27 of the Dublin III Regulation. The applicant in this case entered Croatia in February 2016 and travelled through a crossing point to Serbia. He was returned to Croatia, where the authorities did not deny his entrance, effect return proceedings or given him regular entry, but did organise transport to the Slovenian border. The case is therefore based on a challenge to a decision to transfer the applicant under Article 13(1) of the Dublin III Regulation in circumstances where the Croatian authorities had effectively allowed the applicant entry on the territory and facilitated his movement onwards.
The Supreme Court has referred five questions to the Court of Justice of the EU:

(1) Does judicial protection under Article 27 of Regulation No 604/2013 concern also the interpretation of the conditions of the criterion under Article 13(1) in respect of a decision that the Member State will not examine the application for international protection, that another Member State has already assumed responsibility for examining the applicant’s application on the same basis and where the applicant challenges this?
(2) Is the condition of irregular crossing under Article 13(1) of Regulation No 604/2013 to be interpreted independently or in conjunction with Article 3(2) of Directive 2008/115 on return and Article 5 of the Schengen Borders Code which define illegal crossing of the border and must that interpretation be applied in relation to Article 13(1) of Regulation No 604/2013?
(3) In view of the answer to the second question, is the concept of irregular crossing under Article 13(1) of Regulation No 604/2013 in the circumstances of the present case to be interpreted as meaning that there is no irregular crossing of the border where the public authorities of a Member State organise the crossing of the border with the aim of transit to another Member State of the EU?
(4) In the event that the answer to the third question is in the affirmative, is Article 13(1) of Regulation No 604/2013 consequently to be interpreted as meaning that it prohibits sending a national of a third State back to the State where he initially entered EU territory?
(5) Is Article 27 of Regulation No 604/2013 to be interpreted as meaning that the time-limits of Article 13(1) and Article 29(2) do not run where the applicant exercises the right to judicial protection, a fortiori where that implies also a question for a preliminary ruling or where the national court is awaiting the answer of the Court of Justice of the European Union to such a question which has been submitted in another case? In the alternative, would the time-limits run in such a case, the Member State responsible however not being entitled to refuse reception?

The ELENA Weekly Legal Update would like to thank Zoja Bajzelj LL.M for this translation. 

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Dublin Transfer
Effective access to procedures
Effective remedy (right to)
Request to take back