Austria: Verfassungsgerichtshof: Case U330/12, 27/06/2012

Friday, October 4, 2013

The case concerns an asylum seeker who entered the EU illegally via Greece, did not ask for asylum there and traveled on via the Former Yugoslav Republic of Macedonia and Serbia to Hungary and Austria. He then asked for asylum in Austria. The question was whether or not Greece was still the responsible Member State under Art. 10.1 of the Dublin Regulation, even though the asylum seeker had left the territory of the Member States and re-entered it, or if by leaving the Member States’ territory the link to Greece’s responsibility had “broken” and Hungary was now responsible. If Greece was still responsible, Austria would have had to apply Art. 3.2. If not, they could transfer him to Hungary. The time he spent outside the Member States’ territory was less than three months, so Art. 16.3 was not applicable. The previous instance, the Asylum Court (Asylgerichtshof), decided that Hungary was responsible (applying the argument of the “broken link”), and Hungary accepted the take back request. The Constitutional Court now stated that the question of responsibility in this constellation is unclear, therefore the Asylum Court is obliged to put this question before the CJEU. This is also not changed by the fact that Hungary accepted the request. The Constitutional Court did not itself make a reference to the CJEU but indicated that the Asylum Court must do so. The Constitutional Court stated that by not having made the reference to the CJEU, the Asylum Court had violated the asylum seekers’ rights. A second question that should be put before the CJEU, according to the Constitutional Court, would be whether because of the systemic failures in the Greek asylum system and the danger of violation of Art. 3 ECHR a different assessment of the primarily responsible Member State according to the Dublin Regulation would be in order.

For the full text of the ruling please visit: Verfassungsgerichtshof: Case U330/1

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Responsibility for examining application
The former Yugoslav Republic of Macedonia