Case C‑670/16

Tsegezab Mengesteab

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Verwaltungsgericht Minden)

(Reference for a preliminary ruling — Regulation (EU) No 604/2013 — Determination of the Member State responsible for examining an application for international protection made in one of the Member States by a third-country national — Article 20 — Start of the determination process — Lodging an application for international protection — Report prepared by the authorities that reached the competent authorities — Article 21(1) — Time limits for making a take charge request — Transfer of responsibility to another Member State — Article 27 — Remedy — Scope of judicial review)

Summary — Judgment of the Court (Grand Chamber), 26 July 2017

1. Border controls, asylum and immigration—Asylum policy—Criteria and mechanisms for determining the Member State responsible for examining an application for international protection—Regulation No 604/2013—Action brought against a decision to transfer an applicant for international protection—Possibility to rely on expiry of the periods provided for making a take charge request—Acceptance of that request by the requested Member State—Irrelevant

   (European Parliament and Council Regulation No 604/2013, Recital 19 and Art. 21(1) and 27(1))

2. Border controls, asylum and immigration—Asylum policy—Criteria and mechanisms for determining the Member State responsible for examining an application for international protection—Regulation No 604/2013—Take charge procedure—Periods provided for making a take charge request—Maximum period of three months from the date on which the application for international protection was lodged

   (European Parliament and Council Regulation No 604/2013, Art. 21(1))

3. Border controls, asylum and immigration—Asylum policy—Criteria and mechanisms for determining the Member State responsible for examining an application for international protection—Regulation No 604/2013—Take charge procedure—Beginning of the procedure—Lodging an application for international protection—Report prepared by the authorities that reached the competent authorities—Meaning

   (European Parliament and Council Regulation No 604/2013, Art. 20(2))

1.  Article 27(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, read in the light of recital 19 thereof, must be interpreted as meaning that an applicant for international protection may rely, in the context of an action brought against a decision to transfer him, on the expiry of a period laid down in Article 21(1) of that regulation, even if the requested Member State is willing to take charge of that applicant.

   As regards the objectives of that regulation, it should be stated, inter alia, that, according to its recital 9, that regulation, while confirming the principles underlying Regulation No 343/2003, is intended to make the necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection afforded applicants under that system, to be achieved, inter alia, by the effective and complete judicial protection enjoyed by asylum seekers (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 52).

   A restrictive interpretation of the scope of the remedy provided for in Article 27(1) of the Dublin III Regulation might thwart the attainment of that objective (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 53).

   It follows from the foregoing that that provision must be interpreted as ensuring that the applicant for international protection has effective judicial protection by, inter alia, guaranteeing him the opportunity of bringing an action against a transfer decision made in respect of him, which may concern the examination of the application of that regulation, including respect of the procedural guarantees laid down in that regulation (see, to that effect, judgment of 7 June 2016, Karim, C‑155/15, EU:C:2016:410, paragraph 22).

   In that regard, it should be noted that the EU legislature defined the effects of the expiry of those periods by specifying, in the third subparagraph of Article 21(1) of the Dublin III Regulation, that where that request is not made within those periods, responsibility for examining the application for international protection is to lie with the Member State in which the application was lodged. It follows that, while the provisions of Article 21(1) of that regulation are intended to provide a framework for the take charge procedure, they also contribute, in the same way as the criteria set out in Chapter III of that regulation, to determining the responsible Member State, within the meaning of that regulation. Therefore, a decision to transfer to a Member State other than the one with which the application for international protection was lodged cannot validly be adopted once the periods laid down in those provisions have expired.

   In those circumstances, in order to satisfy itself that the contested transfer decision was adopted following a proper application of the take charge procedure laid down in that regulation, the court dealing with an action challenging a transfer decision must be able to examine the claims made by an asylum applicant who invokes an infringement of the provisions set out in Article 21(1) of that regulation (see, by analogy, judgment of 7 June 2016, Karim, C‑155/15, EU:C:2016:410, paragraph 26).

   (see paras 46-48, 52, 53, 55, 62, operative part 1)

2.  Article 21(1) of Regulation No 604/2013 must be interpreted as meaning that a take charge request cannot validly be made more than three months after the application for international protection has been lodged, even if that request is made within two months of receipt of a Eurodac hit within the meaning of that article.

   (see para. 74, operative part 2)

3.  Article 20(2) of Regulation No 604/2013 must be interpreted as meaning that an application for international protection is deemed to have been lodged if a written document, prepared by a public authority and certifying that a third-country national has requested international protection, has reached the authority responsible for implementing the obligations arising from that regulation, and as the case may be, if only the main information contained in such a document, but not that document or a copy thereof, has reached that authority.

   In that regard, it should, in the first place, be pointed out that the second sentence of Article 20(2) states that, where an application is not made in writing, the time elapsing between the statement of intention and the preparation of a report should be as short as possible, which suggests (i) that the preparation of that report is in essence a formality intended to record the intention of a third-country national to request international protection and (ii) that the creation of that document must not be deferred.

   In the second place, it is clear from Article 20(1) of that regulation that the process of determining the Member State responsible is to start as soon as an application for asylum is first lodged with a Member State. It follows that, in order to be able effectively to start the process of determining the responsible Member State, the competent authority needs to be informed, with certainty, of the fact that a third-country national has requested international protection, and it is not necessary for the written document prepared for that purpose to have a precisely defined form or for it to include additional information relevant to the application of the criteria laid down by the Dublin III Regulation or, a fortiori, to the examination of the application for international protection. Nor is it necessary, at that stage of the procedure, for a personal interview already to have been organised.

   In the third place, the effectiveness of certain important guarantees granted to applicants for international protection would be restricted if the receipt of a written document, such as that at issue in the case in the main proceedings, was not sufficient to demonstrate that an application for international protection had been lodged.

   In the fourth place, the Dublin III Regulation assigns a specific role to the first Member State in which an application for international protection is lodged. In those circumstances, to consider that a document such as that at issue in the case in the main proceedings does not constitute a ‘report’, within the meaning of that provision, would, in practice, allow third-country nationals to leave the Member State in which they have requested international protection and to re-request that protection in another Member State, but they could not be transferred, for that reason, to the first Member State and it would not be possible to trace their initial request by using the Eurodac system. Such a situation could seriously affect the functioning of the Dublin system by calling into question the special status which the Dublin III Regulation grants to the first Member State in which an application for international protection is lodged.

   In the light of all those factors, a written document such as that at issue in the case in the main proceedings, prepared by a public authority and certifying that a third-country national has requested international protection, must be considered to be a ‘report’ within the meaning of Article 20(2) of that regulation.

   (see paras 84, 85, 88, 91, 93, 95, 97, 103, operative part 3)