CJEU - C‑670/16, Tsegezab Mengesteab v Bundesrepublik Deutschland

Article 27(1) of the Dublin Regulation is to 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.

The two-month period for submitting a take charge request where there has been a Eurodac hit is not cumulative with the general three-month period for take charge requests.

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.

Facts:

The main proceeding concerns Mr Mengesteab, an Eritrean national who arrived in Germany after entering the EU territory in Italy. On 14 September 2015 he requested asylum and received, on the same day, an initial certificate of registration as an asylum seeker. Mr Mengesteab was able to lodge a formal application on 22 July 2016. On 19 August 2016, the German authorities issued a “take charge request” to Italy. Mr Mengesteab challenged that decision by arguing that Germany was responsible for examining his application as per Article 21(1) of the DR III since the take charge request had been made after the expiry of the three-month time limit set out in the Regulation. In his view, the time for making such request should run from the day of his request for asylum i.e. the 14 September 2015. On appeal to the Administrative Court of Minden, the Court noted that German law distinguishes the first request for asylum with the lodging of a formal application. The latter is supposed to swiftly follow on from the former, however in 2015 there was a substantial delay in the formal lodging of applications by the German authorities. The Court, therefore, stayed proceedings and referred a preliminary question on the interpretation of Articles 17, 20 and 21 of the Dublin Regulation.

Following on from a request from the referring court the case was placed in the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice.

Decision & Reasoning:

In respect to the first question which related to whether Article 27(1) could be relied upon to appeal the expiration period laid down in Article 21(1), the Grand Chamber held that the right to an effective remedy also covers an applicant’s right to challenge transfer decisions where Member States fail to meet the applicable time limits to make a take charge request. This conclusion was reached by the Court having regard to the enhanced safeguards granted to asylum seekers under the Dublin III Regulation and its general objective of swiftly determining the MS responsible for an asylum application. These enhanced safeguards derive from the effective and complete judicial protection enjoyed by asylum seekers, as enounced in Ghezelbash. Further, and in agreement with the Advocate General, the Grand Chamber states that the procedures in the DRIII must be carried out in compliance with a series of specified time limits. Article 21(1) specifies that a tack-charge request must be made as soon as possible and at the latest three months within the date on which the application was lodged. Where a request is not made within that period responsibility lies with the Member State where the application was lodged. Transfer cannot be undertaken where that time limit has expired and a remedy against such a transfer is needed in order to guarantee that the take charge procedure was properly applied. No limitation of Article 27(1) can be inferred where the requested Member State has either explicitly or implicitly accepted the take-charge request.

Second, the Court of Justice ruled that the two-month period for submitting a take charge request where there has been a Eurodac hit is not cumulative with the general three-month period for take charge requests. This period should start from when the authorities receive the positive hit in the database. The reduced period is justified on the basis of the Regulation’s general objectives and the fact that a Eurodac hit is strong proof of irregular border crossing, which is likely to speed up the determination of the responsible Member Stat

Lastly, the Court considered what form “lodging” an application for international protection under Article 20(2) should take, namely whether a certificate of registration given by a national authority constituted a report prepared by the authorities within the meaning of 20(2). The Court noted that no details as to the procedure or information contained within the report has been given by the EU legislature. Nonetheless, in taking into account the context and objectives of the Regulation it is implied in Article 20(2) that where an application is not made in writing the preparation of a report is a formality intended to record the intention of an individual to request international protection and that the creation of this document cannot be deferred. The Court found that in order for the competent authority to be informed, with certainty, of the fact that a third-country national requested international protection as well as the determination of responsibility and information guarantees for the asylum applicant to be triggered on account of the application having been “lodged”, 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 Dublin criteria. The CJEU argues that the effectiveness of important guarantees granted to applicants 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. To illustrate family unity under the Regulation and detention for the purposes of a Dublin transfer would be either delayed or prolonged if an opposite conclusion were to be held. Furthermore, a finding that a certificate of registration given by a public authority and later transmitted to a competent authority did not constitute lodging for the purposes of Article 20(2) would mean that an applicant could move to another Member State and re-request protection there without being transferred to the first Member State of application. However, the Court limited this definition to DRIII and opposed its correlation to “lodging” and “making” an application under the Asylum Procedures Directive. Indeed, both the Dublin Regulation and the Procedures Directive interchange between the usage of lodging and making an application and whilst there are similarities between the both there are differentiations, primarily that a report reaching the competent authorities for the purposes of lodging is applicable where provided in national law under the Procedures Directive. Such an option in national law does not exist within the Dublin Regulation, however. Moreover and finally both instruments regulate two different procedures with their own time limits and own schemes.

Outcome:

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.

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.

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.

Observations/Comments:

The judgment was preceded by Advocate General Sharpston’s opinion who opined the following:

First, that the time limits set out in the Dublin III Regulation are central to its operation and provide a degree of certainty to both applicants and Member States. She rejected the argument that the time limits only govern inter-State relations, since the operation of those time limits has substantive implications for the applicants. Therefore, applicants should be able to challenge transfer decisions where Member States fail to meet the applicable time limits.

Second, she considered the two-month time limit (during which Member States have to submit a take charge request in cases where there has been a Eurodac hit) to start from when the authorities receive the positive hit in the database, and should not be cumulative with the general three-month period for take charge requests.

AG Sharpston put forward that an application for international protection is lodged within the meaning of Article 20(2) DRIII when a form or report reaches the competent national authorities responsible for such applications. In her view, an informal request does not constitute “lodging” within the meaning of the Regulation. The AG also rejected the idea that a delay to submit a take charge request would result in an obligation of a Member State to exercise its discretion under Article 17(1) of the Dublin III Regulation.

Case Law Cited:

CJEU - C‑280/04, Jyske Finans

CJEU - Case C-155/15, George Karim v Migrationsverket

CJEU - C‑63/15, Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie

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