The Court of Justice of the European Union: Opinion of Advocate General Trstenjak in case C-245/11, K, reference for a preliminary ruling from the Asylgerichtshofs [Austria]

(Regulation (EC) No 343/2003 – Determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third‑country national – Article 3(2) – Sovereignty clause – Article 15 – Humanitarian clause – Application of Regulation No 343/2003 consistent with fundamental rights – Article 4 of the Charter of Fundamental Rights – Prohibition of torture and inhuman or degrading treatment or punishment – Article 7 of the Charter of Fundamental Rights – Respect for private and family life)

This reference for a preliminary ruling from the Austrian Asylgerichtshof (Asylum Court) relates to the interpretation of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national. By its first question the referring court is asking in essence whether the application of the ‘humanitarian clause’ set out in Article 15 of Regulation No 343/2003 can oblige a Member State to examine an asylum claim in place of the Member State responsible under the basic rules, even if that Member State has not requested it to do so, if family members in need of support in the first-named Member State are dependent on the assistance of the asylum seeker. By its second question the referring court is asking whether under Article 3(2) of Regulation No 343/2003 a duty to intervene in the examination of an asylum application may arise for a Member State not prima facie responsible, if the responsibility of another Member State actually determined under the Regulation would result in an infringement of Article 3 or Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) or Article 4 or Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’ or ‘the Charter’). In addition, the referring court seeks to know the manner in which the case-law of the European Court of Human Rights is to be taken into account in this connection.

The Advocate General suggested that the Court give the following answers:

1)         In exceptional circumstances, a Member State may have a duty to exercise its right to examine an asylum application on humanitarian grounds under Article 15 of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national if otherwise there would be a serious risk of unjustified interference with one of the asylum seeker’s rights enshrined in the Charter of Fundamental Rights. If in such a case no request to take over the procedure within the meaning of the second sentence of Article 15(1) of Regulation No 343/2003 is made, the Member State with a duty to assume responsibility would be obliged to inform the other Member State involved in the asylum procedure about the factual and legal situation and seek its agreement to the taking-over of the asylum procedure.

2)         The Member State in which the asylum seeker is present but which in accordance with the criteria of Chapter III of Regulation No 343/2003 is not responsible for his asylum application may not transfer the asylum seeker to the Member State responsible under Chapter III of Regulation No 343/2003 if it cannot be unaware that this would lead to an infringement of the asylum seeker’s rights guaranteed by the Charter of Fundamental Rights. In such a case the Member State in which the asylum seeker is present must, subject to the right itself to examine the application referred to in Article 3(2) of this regulation, disregard the criterion of Chapter III under which the other Member State is responsible and ascertain whether one of the other criteria enables another Member State to be identified as responsible for the examination of the asylum application, to which the asylum seeker can be transferred without infringing his fundamental rights. The Member State in which the asylum seeker is present must, however, ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, that Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003.

3)         The examination whether in a case such as that in the main proceedings the transfer of the applicant to the Member State responsible for that applicant’s asylum application under Chapter III of Regulation No 343/2003 would lead to an unjustified restriction of Article 4 or of Article 7 of the Charter of Fundamental Rights may not be based on definitions of ‘inhuman treatment’ and ‘family’ at variance with those used in the case-law of the European Court of Human Rights within the meaning of Articles 3 and 8 respectively of the ECHR

For the full text of the opinion please visit: CJEU: Opinion of Advocate General in Case C-245/11, K

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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, the IRC or its partners.