CJEU Judgment: Case C-670/16 Mengesteab, 26 July 2017

Wednesday, July 26, 2017

On 26 July 2017, the CJEU reached its decision in case C-670/16 Mengesteab. 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 received an attestation in response to his informal request for asylum and he lodged 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 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 informal request for asylum.
First, the CJEU agreed with the opinion of AG Sharpston and ruled that, based on 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, 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 shift of responsibility does not require any reaction by the requested Member State.
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 State.
Finally, the CJEU decided, in contrast to the opinion of AG Sharpston, that, for an application to be considered “lodged” under DR III, 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. It suffices that the competent authority is informed, with certainty, of the fact that a third-country national requested international protection. 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. However, the Court limited this definition to DRIII and opposed its correlation to “lodging” and “making” an application under the Asylum Procedures Directive.


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Dublin Transfer
Effective access to procedures
Procedural guarantees