Case C‑568/21

Staatssecretaris van Justitie en Veiligheid

v

E.,

S.,

(Request for a preliminary ruling from the Raad van State)

Judgment of the Court (First Chamber), 21 September 2023

(Reference for a preliminary ruling – Area of freedom, security and justice – Dublin System – Regulation (EU) No 604/2013 – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Responsibility of the Member State which issued a residence document to the applicant – Article 2(l) – Meaning of ‘residence document’ – Diplomatic card issued by a Member State – Vienna Convention on Diplomatic Relations)

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 – Meaning of residence document – Diplomatic card issued under the Vienna Convention on Diplomatic Relations of 1961 – Included

(European Parliament and Council Regulation No 604/2013, recitals 4 and 5, and Arts 2(l) and 12 to 14)

(see paragraphs 35-37, 44-48, 53, operative part)

Résumé

A third-country national worked at the embassy of his country of origin, established in Member State X. He lived in the territory of the latter with his wife and their children. During that stay the family was issued with diplomatic cards by the Ministry of Foreign Affairs of that Member State, in accordance with the Vienna Convention on Diplomatic Relations. ( 1 ) Some years later, the family left Member State X and applied for international protection in the Netherlands.

In January 2020, the competent authority in the Netherlands refused to examine the applications for international protection of the applicants in the main proceedings, considering that Member State X was responsible for examining them, in accordance with Article 12(1) of the Dublin III Regulation. ( 2 ) That competent authority took the view that the diplomatic cards issued by the authorities of that Member State constitute residence documents within the meaning of Article 2(l) of that regulation, capable of leading to that Member State being competent to examine the applications.

In March 2020, the rechtbank Den Haag (District Court, The Hague, Netherlands), before which the applicants in the main proceedings brought an action, upheld their actions, holding that the diplomatic cards issued by the authorities of Member State X could not be regarded as authorisation to stay, because the applicants in the main proceedings already had a right to stay in that Member State under the Vienna Convention, irrespective of whether diplomatic cards had been issued.

The competent authority of the Netherlands lodged an appeal against that judgment with the Raad van State (Council of State, Netherlands). In order to determine the Member State responsible for examining the applications for international protection lodged by the applicants in the main proceedings, that court referred to the Court of Justice the question whether a diplomatic card issued by a Member State under the Vienna Convention constitutes a ‘residence document’ within the meaning of Article 2(l) of the Dublin III Regulation. In its judgment, the Court answers that question in the affirmative.

Findings of the Court

In order to reach that conclusion, the Court states, in the first place, that the words ‘any authorisation’, which are used in Article 2(l) of the Dublin III Regulation, are broadly construed. The definition of ‘residence document’ given by that provision does not refer to the constitutive or declaratory nature of the authorisation, nor does it expressly exclude diplomatic cards issued under the Vienna Convention.

In the second place, as regards the context of that provision, the Court notes that the concept of a ‘residence document’ is one of the decisive criteria for the application of Article 12 of the Dublin III Regulation. Under Article 12(1) of that regulation, where the applicant is in possession of a valid residence document, responsibility for examining the application for international protection lies with the Member State which issued it. The application of the various criteria for determining the Member State responsible set out in Articles 12 to 14 of the Dublin III Regulation should, as a general rule, enable the responsibility for examining an application for international protection that may be lodged by a third-country national to be allocated to the Member State which that national first entered or stayed in upon entering on the territory of the Member States, taking into account the role played by that Member State when the national entered the territory of the Member States. In that regard, the Court states that, in accordance with the Vienna Convention, a receiving State is granted certain prerogatives as regards the admission to its territory of persons as members of the diplomatic staff of a mission, such as to declare a person non grata or not acceptable, to refuse to recognise the person concerned as a member of the mission ( 3 ), or even to refuse to give agrément for a person proposed as head of the mission ( 4 ). In those circumstances, the issue of a diplomatic card to a person by a Member State reflects the latter’s acceptance of that person’s stay on its territory as a member of the diplomatic staff of a mission, and thus demonstrates the role played by that Member State in the presence of that person on the territory of the Member States.

In the third place, as regards the objective pursued by the Dublin III Regulation, recitals 4 and 5 thereof emphasise the importance of a clear and workable method for determining the Member State responsible, based on objective and fair criteria both for the Member States and for the persons concerned and enabling that that Member State be determined rapidly. Taking account of the issue of a diplomatic card contributes to that objective of rapidity and thus makes it possible to prevent third-country nationals from being able to choose the Member State in which they lodge an application for international protection.

( 1 ) Vienna Convention on Diplomatic Relations, concluded in Vienna on 18 April 1961 and entered into force on 24 April 1964 (United Nations, Treaty Series, Vol. 500, p. 95; ‘the Vienna Convention’).

( 2 ) 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 (OJ 2013 L 180, p. 31) (‘the Dublin III Regulation’). Under Article 12(1) of that regulation: ‘Where the applicant is in possession of a valid residence document, the Member State which issued the document shall be responsible for examining the application for international protection.’

( 3 ) See Article 9 of the Vienna Convention.

( 4 ) See Article 4 of the Vienna Convention.