CJEU: AG Sharpston delivers opinion in cases C 582/17 and C 583/17

Thursday, November 29, 2018

On 29 November, Advocate General Sharpston delivered her opinion on a case concerning effective remedy in take back procedures.

The joined cases concerned two third country nationals who applied for asylum in the Netherlands. Upon applying for international protection, it was discovered that both individuals had a Eurodac “hit” in Germany. Both applicants claimed to be married to third-country nationals who had been granted international protection in the Netherlands. However, the Dutch authorities found these marriages to not be genuine and denied annulling their transfer to Germany. After both cases were brought before the Dutch Council of State, the court decided to refer a question to the European Court of Justice, on whether effective remedy and Dublin criteria are mostly relevant in the Member State (MS) where the application was first lodged.

After examining the text of the Dublin Regulation, AG Sharpston observed that the text is not definitive and it does not stipulate that only the first MS is able to apply the Chapter III criteria, nor that both States must carry out that analysis. Moreover, neither the wording nor the context of the Regulation may support the idea that the second MS can ignore the family unity criteria, when prima facie their application would render it responsible for examining the substantive application, in favour of making a take back request that if successful will transfer the applicant away from family members.

The Advocate General found that, where a person seeks to challenge a transfer decision arising from a take back request, on the grounds that the second Member State misapplied the Chapter III criteria, in particular the provisions on family unity including Article 9 of that Regulation, the competent authorities are required to apply the relevant Chapter III criteria. Moreover, according to the Advocate’s opinion such transfer decisions are subject to the scrutiny of national courts to ensure the correct application of those criteria.

Regarding the question, if it is significant that the first Member State had already made a decision on that first application for international protection or that the applicant had withdrawn that application, the analysis was based on the relevance of the factual circumstances of each case. In the Advocate’s opinion, a decision by a MS or a withdrawal is not necessarily determinative of the competent authorities’ assessment of the correct application of the Chapter III criteria in the second Member State in order to establish whether that Member State is the Member State responsible for the purposes of the Dublin III Regulation.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.   



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