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On 18 December, the Court of Justice of the EU (CJEU) published its judgment in the case C-560/23 Tang regarding a preliminary question submitted by the Danish Refugee Board (Copenhagen) on the interpretation of the time limits for carrying out a Dublin transfer under Article 29 (1) and (2) of the Dublin III Regulation. 

The case concerns situations where a national judicial body makes a final decision on the substantive legality of a second transfer decision, adopted after a first transfer decision has been annulled, and remits the case to the competent administrative authority for re-examination. The Board asked the CJEU whether the six-month transfer time limit starts to run on the date of the final decision on the legality of the second transfer or on the date on which the first transfer decision was annulled. 

The Court first noted that under Article 29 (1) DRIII, the time limit starts to run from the acceptance of the take charge or take back request by the other Member State or, where an appeal with suspensive effect has been lodged against the transfer decision, from the moment the judicial decision on the appeal has become final. According to its previous case law, the second situation in the provision ensures equality of arms and the effectiveness of the appeal procedures. The Court referred to the Opinion of Advocate General Richard de la Tour and his observation that the provision gives no specific rule for calculating the time limit when a court annuls a first transfer decision, sends the case back for reexamination due to a decisive change in circumstances, and then decides on a second transfer decision for the same person.

However, it’s clear that Article 27 (1) confers a right to an effective remedy against a transfer decision and earlier jurisprudence confirmed that the starting point of the transfer time limit is the final judicial decision on the merits that can no longer block implementation and not the provisional decision suspending the implementation of the transfer. Where national legislation allows annulment of a transfer decision and remittal for re-examination following new decisive circumstances, it is possible to have two transfer decisions and two separate appeals. In such cases, because both decisions relate to the same applicant’s transfer after the responsible Member State accepted the take-back or take-charge request, they belong to a single procedural process. Therefore, the decision that annuls the first transfer decision must be understood as an interim decision that allows the authorities to examine the new circumstances but does not terminate the transfer procedure in a final manner.  

Finally, the Court stressed that, in the absence of specific EU rules, Member States can organise their national laws in line with the principle of procedural autonomy, but Article 47 of the Charter of Fundamental Rights of the EU must be observed in every case. Therefore, Member States are required to provide rapid and effective remedies, respecting both the purpose of swift processing of the Regulation and Article 47 of the Charter. While the deadline promotes speedy transfers, it cannot override the necessity of a thorough, timely appeal process. Consequently, the Court found that the sixmonth period begins on the date of the final decision on the substantive legality of the second transfer decision, and both the second decision and the subsequent annulment must be rendered promptly to avoid unnecessary delays in the overall transfer procedure.