CJEU - C-19/08 Migrationsverket v Edgar Petrosian, Nelli Petrosian, Svetlana Petrosian, David Petrosian, Maxime Petrosian

Facts:

In March 2006 the Petrosian family applied for asylum in Sweden and subsequently it was discovered they had applied for asylum earlier in France. The French authorities confirmed that they would take the family back in accordance with the Dublin Regulation. The family appealed against this decision to the Skane County Administrative Court claiming their application should be examined in Sweden. The Court suspended the Applicants appeal in August 2006 pending a final decision in the case in 2007 which rejected it and ordered the suspension of transfer to be no longer applicable. The family appealed to the Court of Appeal in Sweden and that was stayed in 2007 with a final ruling in the case which referred it back to the local Administrative Court on grounds of procedural error. That local Administrative Court then gave a fresh ruling annulling the administrative decision of the Migrationsverket and referred the case back to the initial administrative authority for reassessment. The Court decided to suspend execution of the decision which meant that the time-limit for execution of the transfer expired meaning the persons could no longer be transferred. In these circumstances the Court submitted a question for preliminary ruling to the CJEU as follows:

Are Article 20(1)(d) and Article 20(2) of … Regulation No 343/2003 … to be interpreted as meaning that responsibility for the examination of an application for asylum passes to the Member State where the application was lodged if the transfer is not carried out within six months after a temporary decision has been made to suspend the transfer and irrespective of when the final decision is made on whether the transfer is to be carried out?

Decision & reasoning:

The case dealt with whether Article 20(1)(d) and 20(2) are to be interpreted as meaning that where in the context of a procedure to transfer an asylum seeker, the legislation of the requesting Member State provides for suspensive effect of an appeal, the period for implementation of the transfer begins to run as from the time of the provisional judicial decision suspending the implementation of the transfer procedure, or only as from the time of the judicial decision which rules on the merits of the procedure and which is no longer such as to prevent the implementation taking place. The Court noted that the direct meaning was not evidence from the wording of the provisions. The Court, however, bore in mind, settled case-law, that in interpreting a Community law provision it is necessary to also consider the context in which it occurs and the objective pursued by the rules of which it is part. The Court noted that 20(1)(d) allows 6 months in which to carry out the Dublin transfer. This is in view of practical complexities and organisational difficulties potentially along the way. The Court also noted the explanatory memorandum to the Dublin Regulation proposal by the Commission in explaining why the transfer time limit was increased from 1 month to 6 months. In order to ensure the effectiveness of that provision laying down the period for implementation of the transfer, in cases where an appeal has suspensive effect the period of time must begin to run not as from the time of the provisional judicial decision suspending its implementation but only as from the time of the judicial decision which rules on the merits of the procedure and which is no longer such as to prevent its implementation (Para 46).  This finding is supported by the observance of the principles judicial protection and procedural autonomy. The Court noted that States which introduced suspensive appeals would be placed in an awkward position if the time just ran from the initial decision as it would not be able to organise the transfer of the asylum seeker within the brief period between the appeal decision on the merits and the expiry of the time-limit running the risk of becoming responsible for the asylum claim itself by default. Also the Court noted if time ran from the initial decision, a national court wishing to reconcile compliance with a time limit with compliance with a provision judicial decision having suspensive effect would be placed in the position of having to rule on the merits of the transfer procedure before expiry of that time-limit by a decision which may, owing to lack of sufficient time granted to the courts, have been unable to take satisfactory account of the complex nature of the proceedings. Such a practice would not be in line with the principle of procedural autonomy.

Outcome:

Article 20(1)(d) and Article 20(2) of Regulation No 343/2003 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 are to be interpreted as meaning that, where the legislation of the requesting Member State provides for suspensive effect of an appeal, the period for implementation of the transfer begins to run, not as from the time of the provisional judicial decision suspending the implementation of the transfer procedure, but only as from the time of the judicial decision which rules on the merits of the procedure and which is no longer such as to prevent its implementation.

Observations/comments:

See the Dublin Transnational Network Project publication: the Dublin II Regulation Lives on Hold for further information: http://www.ecre.org/component/content/article/56-ecre-actions/317-dublin-ii-regulation-lives-on-hold.html

The case also relies on the EU principles of law of procedural autonomy and judicial protection in reaching its decision. There was an oral hearing from the Advocate General but the Court decided to proceed to judgment without an Opinion in this case.

Other sources:

The explanatory memorandum of the Commission proposal for the Dublin II Regulation (Com 2001) 447 final and the Dublin Convention OJ 1997 C254