Case C‑392/22

X

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling
from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch)

Judgment of the Court (Fourth Chamber) of 29 February 2024

(Reference for a preliminary ruling – Common policy on asylum and immigration – Application for international protection – Charter of Fundamental Rights of the European Union – Article 4 – Risks of inhuman or degrading treatment – Criteria and mechanisms for determining the Member State responsible for examining the application for international protection – Regulation (EU) No 604/2013 – Article 3(2) – Scope of the obligations of the Member State which has sought to have the applicant taken back by the Member State responsible and wishes to transfer the applicant to the latter Member State – Principle of mutual trust – Evidence and standard of proof of the real risk of inhuman or degrading treatment, resulting from systemic flaws – Practices of pushback to a third country and detention at border control posts)

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 – Transfer of an applicant for international protection to the Member State responsible for examining the application – No irrebuttable presumption that EU fundamental rights are respected by that Member State

   (Art. 2 TEU; Charter of Fundamental Rights of the European Union, Arts 1 and 4; European Parliament and Council Regulation No 604/2013)

   (see paragraphs 43-46)

2. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Procedure for examining an application for international protection – Access to the procedure – Pushback to a third country – Unlawful

   (Charter of Fundamental Rights of the European Union, Arts 18 and 19(2); European Parliament and Council Regulation No 604/2013, recital 3; European Parliament and Council Directive 2013/32, Art. 6)

   (see paragraphs 50-53)

3. Border controls, asylum and immigration – Asylum policy – Standards for the reception of applicants for international protection – Directive 2013/33 – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Regulation No 604/2013 – Detention – Grounds – Detention for the sole reason that international protection was sought – Unlawful – Measure that may be ordered or extended only in compliance with the general and abstract rules laying down the conditions and procedures governing such a measure

   (Charter of Fundamental Rights of the European Union, Art. 6; European Parliament and Council Regulation No 604/2013, recital 20; European Parliament and Council Directive 2013/33, recital 15)

   (see paragraphs 54-56)

4. 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 – Transfer of an applicant for international protection to the Member State responsible for examining the application – Circumstances precluding transfer – Systemic flaws in the asylum procedure and in the reception conditions for applicants in the Member State responsible, resulting in a risk of inhuman or degrading treatment – Member State responsible having engaged in practices of pushback and detention at border control posts – Practices precluding transfer in the event of a real risk of the applicant being placed in a situation that may be equated with inhuman or degrading treatment

   (Charter of Fundamental Rights of the European Union, Art. 4; European Parliament and Council Regulation No 604/2013, Art. 3(2), second subpara.)

   (see paragraphs 57-65, operative part 1)

5. 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 – Transfer of an applicant for international protection to the Member State responsible for examining the application – Circumstances precluding transfer – Systemic flaws in the asylum procedure and in the reception conditions for applicants in the Member State responsible, resulting in a risk of inhuman or degrading treatment – Obligations of the requesting Member State in relation to the assessment of that risk – Ability to seek individual guarantees ruling out such a risk from the Member State responsible

   (Charter of Fundamental Rights of the European Union, Art. 4; European Parliament and Council Regulation No 604/2013, Arts 3(2), second subpara., 5, 21(3) and 22(2) to (5))

   (see paragraphs 67-81, operative part 2)

Résumé

Ruling on a request for a preliminary ruling from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s-Hertogenbosch, Netherlands), the Court of Justice determines the scope of the obligations of a Member State seeking to have an applicant for international protection taken back by the Member State responsible for examining that application, in a situation in which the latter Member State engages in practices such as pushbacks ( 1 ) and detention at border control posts.

On 9 November 2021, X, a Syrian national, made an application for international protection in Poland. Subsequently, on 21 November 2021, he entered the Netherlands where, the following day, he made a further application for international protection. On 1 February 2022, Poland accepted the Netherlands’ request to take charge of X in accordance with the provisions of the Dublin III Regulation. ( 2 ) Next, by a decision of 20 April 2022, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) declined to consider the application for international protection lodged by X in the Netherlands, on the ground that Poland was responsible for examining that application, and rejected the arguments put forward by X in objecting to his transfer.

X brought an action against that decision before the referring court and sought an order prohibiting his transfer to Poland, maintaining, inter alia, that the Polish authorities infringed his fundamental rights. X claimed, first, to have been subjected to pushbacks to Belarus on three occasions after entering Polish territory. Secondly, he stated that he had been held in detention for approximately one week in the border guard centre, where he had been very badly treated, particularly because of a lack of food and the absence of any medical checks. According to the referring court, X had indicated that he was afraid that his fundamental rights would be infringed again if he were to be transferred to Poland.

The referring court took the view that objective, reliable, specific and properly updated information shows that Poland has, for a number of years, systematically infringed a number of fundamental rights of third-country nationals by subjecting them to pushbacks, regularly accompanied by the use of violence, and by systematically detaining, in what are described as ‘appalling’ conditions, third-country nationals who enter its territory illegally.

In those circumstances, it asked the Court, in essence, whether the fact that the Member State responsible for examining a third-country national’s application for international protection carries out pushbacks with respect to third-country nationals seeking to make such applications at its border and detains them at its border control posts precludes the transfer of that third-country national to that Member State. It also sought guidance from the Court as to the assessment of whether there is a risk of that third-country national being subjected to inhuman or degrading treatment.

Findings of the Court

The Court confirms, first of all, that practices of pushback and detention at border posts, such as those established by the referring court in this case, are incompatible with EU law and constitute serious flaws in the asylum procedure and in the reception conditions for applicants. First, the practice of pushbacks is contrary to Article 6 of Directive 2013/32, ( 3 ) which is one of the cornerstones of the Common European Asylum System. ( 4 ) Secondly, it may be incompatible with the principle of non-refoulement, which is guaranteed, as a fundamental right, in Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with Article 33 of the Geneva Convention, ( 5 ) and in Article 19(2) of the Charter. As regards the practice of detention at border control posts, recital 15 of Directive 2013/33/EU ( 6 ) and recital 20 of the Dublin III Regulation refer to the principle that a person should not be held in detention for the sole reason that he or she is seeking international protection.

However, the fact that the Member State responsible for examining a third-country national’s application for international protection has carried out pushbacks and detention at its border control posts does not in itself preclude the transfer of that third-country national to that Member State. In order for that transfer to be ruled out, the flaws established must satisfy the two cumulative conditions set out in the second subparagraph of Article 3(2) of the Dublin III Regulation, according to which only ‘systemic’ flaws ‘resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter]’ make such a transfer impossible. ( 7 ) It follows that, first, the flaws established must concern, generally, the asylum procedure and the reception conditions applicable to applicants for international protection or, at the very least, to certain groups of such applicants taken as a whole. Secondly, there must be substantial grounds for believing that the third-country national concerned would, during his or her transfer or thereafter, face a real risk of being subjected to the practices referred to above, and that those practices are capable of placing that third-country national in so grave a situation of extreme material poverty that it may be equated with the inhuman or degrading treatment prohibited by Article 4 of the Charter.

As regards the standard of proof and rules of evidence that would trigger the application of the second subparagraph of Article 3(2) of the Dublin III Regulation, it is necessary, in the absence of specific details in that provision, to refer to the general provisions and scheme of that regulation.

It follows that, first, the Member State wishing to transfer an applicant for international protection to the Member State responsible must, before it can carry out that transfer, take into consideration all of the information provided to it by the applicant, in particular as regards the possible existence of a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, at the time of that transfer or thereafter.

Secondly, the Member State which has sought to have an applicant for international protection taken back must cooperate in establishing the facts by assessing whether that risk is real, on the basis of information that is objective, reliable, specific and properly updated, and having regard to the standard of protection of fundamental rights guaranteed by EU law, if necessary by taking account, on its own initiative, of relevant information of which it cannot be unaware concerning any systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection in the Member State responsible.

Thirdly, if there are substantial grounds for believing that there is a real risk of treatment contrary to Article 4 of the Charter in the event of transfer, that Member State must refrain from carrying out that transfer. In that situation, the Member State required to carry out the process of determining the Member State responsible must continue to examine the criteria set out in Chapter III of the Dublin III Regulation in order to establish whether another Member State can be designated as responsible.

However, the Member State wishing to carry out the transfer may seek to obtain individual guarantees from the Member State responsible that are sufficient to exclude a real risk of inhuman or degrading treatment in the event of transfer and, if such guarantees are provided and appear to be both credible and sufficient to rule out any real risk of such treatment, may carry out that transfer.

( 1 ) The practice of pushback to the external borders of the European Union effectively removes persons seeking to make an application for international protection from the territory of the European Union or removes them from that territory before an application made on entry has been examined as provided for by EU legislation.

( 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’).

( 3 ) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

( 4 ) That provision means that any third-country national or stateless person has the right to make an application for international protection, including at the borders of a Member State, by expressing his or her wish to benefit from international protection to one of the authorities referred to in that provision, even if he or she is staying illegally on that territory and irrespective of the prospects of success of such a claim (judgment of 22 June 2023, Commission v Hungary (Declaration of intent prior to an asylum application), C 823/21, EU:C:2023:504, paragraph 43 and the case-law cited).

( 5 ) Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967.

( 6 ) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96).

( 7 ) The second subparagraph of Article 3(2) of the Dublin III Regulation provides: ‘Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.’