CJEU: Opinion of AG Wathelet in joined cases C-47/17 and C-48/17

Thursday, March 22, 2018

On 22 March 2018, Advocate General Wathelet published his decision in joined cases C-47/17 X and C-48/17 X, which concerns the interpretation of the Dublin Implementing Regulation and the suggested time limits for responding to requests for re-examination.

Firstly, AG Wathelet expressed his opinion that the Dublin Implementing Regulation does not intend to establish new rules of responsibility criteria that are not established under the Dublin III Regulation (DRIII). In his opinion, a request for re-examination, which is not contemplated by the DRIII, only introduces a consultation between the requesting and the requested Member State following an initial negative reply, rather than a new take charge or take back request. Therefore, AG Wathelet concluded that a Member State shall endeavour to reply to a request for re-examination within the timeframe of two weeks mentioned in Article 5(2) of the Dublin Implementing Regulation, but has no legal obligation to do so. Accordingly, failing to reply within that timeframe does not cause any legal effect.

Secondly, the Advocate General found that one-month time limit to reply to a take back request established under Article 25 of the Dublin III Regulation cannot be transposed to a procedure of re-examination established under Article 5(2) of the Dublin Implementing Regulation.

Thirdly, with regard to the “reasonable timeframe” to reply to a request for re-examination, AG Wathelet advanced that a Member State is required to “endeavour to reply within two weeks”, which should be interpreted as an invitation to act in a spirit of cooperation. It should be up to the national courts to determine, in view of the factual circumstances of every individual case, whether a requested Member State has complied with the “reasonable timeframe” to reply to a request for re-examination.

Finally, AG Wathelet concluded that only if a requested Member State has not replied to a request for re-examination within a reasonable timeframe or has refused to accept responsibility to examine the asylum application, should the requesting Member State become responsible for the asylum application.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Dublin Transfer
Request that charge be taken
Request to take back