CJEU - C-4/11, Bundesrepublik Deutschland v Kaveh Puid

Facts:

Mr Puid’s (Iran) asylum application in Germany was declared inadmissible on the ground that he had transited via Greece, which was therefore the country responsible under the Dublin II Regulation to examine his application. His appeal was upheld by the Administrative Court because, in light of problems with the reception conditions and procedures for asylum seekers in Greece, Germany was therefore required to examine the application. Mr Puid was granted refugee status in Germany. The Higher Administrative Court, in the context of an appeal against the first instance decision, seeks clarification from the CJEU as to what happens when a Member State cannot transfer an applicant to the State initially identified as responsible.The first three questions referred were withdrawn by the court after the CJEU’s decision in Joined Cases C‑411/10 and C‑493/10 N.S. and Others. The fourth question to the Court  is as follows:

Does an enforceable personal right on the part of the asylum-seeker to force a Member State to assume responsibility result from the duty of the Member States to exercise their right under the first sentence of Article 3(2) of Regulation 343/2003?

Apart from the parties’ submissions, submissions were also received from Belgium, Greece, France, Italy, Poland, the UK, Switzerland and the Commission. 

Decision & reasoning:

The CJEU held in referring to N.S. and Others (C-411/10 and C-493/10) that although the Member State which is determining the Member State responsible has the right referred to in Article 3(2) (commonly referred to as the sovereignty clause) to itself examine the application, the Court none the less did not state that the Member State was required to do so.

The CJEU reiterated the finding in N.S. and Others whereby Member States may not transfer an asylum seeker to a Member State which the criteria set out in Chapter III of the Regulation indicate is responsible, where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions for asylum seekers in that Member State provide substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Art. 4 of the Charter of Fundamental Rights of the EU (N.S. & Others Para 94 and 106). It is for the referring Court to examine whether such systemic deficiencies existed on the date on which the decision to transfer Mr. Puid to Greece was enforced.

The finding that it is impossible to transfer an applicant to the Member State initially identified as responsible in accordance with the criteria set out in Chapter III of the Regulation entails that the Member State which should carry out that transfer must continue to examine the criteria set out in Chapter III of the Regulation in order to establish whether one of those criteria enables another Member State to be identified as responsible for the examination of asylum application. If they do not, the first Member State with which the application was lodged is to be responsible for examining it in accordance with Article 13 of the Regulation.

However the Court reaffirms the point made in N.S. and Others that the Member State in which the asylum seeker is located must, 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, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of the Regulation.

The Court (Grand Chamber) ruled that:

Where the Member States cannot be unaware that systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum seekers in the Member State initially identified as responsible in accordance with the criteria set out in Chapter III 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 provide substantial grounds for believing that the asylum seeker concerned would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, which is a matter for the referring Court to verify, the Member State which is determining the Member State responsible is required not to transfer the asylum seeker to the Member State initally identified as responsible and, subject to the exercise of the right itself to examine the application, to continue to examine the criteria set out in that chapter, in order to establish whether another Member State can be identified as responsible in accordance with one of those criteria or, if it cannot, under Article 13 of the Regulation.

Conversely, in such a situation, a finding that it is impossible to transfer an asylum seeker to the Member State initially identified as responsible does not in itself mean that the Member State which is determining the Member State responsible is required itself, under Art. 3(2) of Regulation No. 343/2003, to examine the application for asylum.

Outcome:

The Court ruled:Where the Member States cannot be unaware that systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum seekers in the Member State initially identified as responsible in accordance with the criteria set out in Chapter III 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 provide substantial grounds for believing that the asylum seeker concerned would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, which is a matter for the referring Court to verify, the Member State which is determining the Member State responsible is required not to transfer the asylum seeker to the Member State initially identified as responsible and, subject to the exercise of the right itself to examine the application, to continue to examine the criteria set out in that chapter, in order to establish whether another Member State can be identified as responsible in accordance with one of those criteria or, if it cannot, under Article 13 of the Regulation.

Conversely, in such a situation, a finding that it is impossible to transfer an asylum seeker to the Member State initially identified as responsible does not in itself mean that the Member State which is determining the Member State responsible is required itself, under Art. 3(2) of Regulation No. 343/2003, to examine the application for asylum.

Observations/comments:

The Advocate General Jaaskinen case is available here and there the conclusion was that asylum seekers do not have an enforceable claim to compel an identified Member State to examine their application for asylum under Article 3(2). The Court did not directly address this point just holding that although the Member State which is determining the Member State responsible has the right referred to in Article 3(2) (commonly referred to as the sovereignty clause) to itself examine the application, the Court none the less did not state that the Member State was required to do so (Para. 29).

Case comment: http://frlan.tumblr.com/post/68661489240/case-note-c-4-11-bundesrepublik-deutschland-v-kaveh

This case of Puid reaffirms the approach adopted in the NS/ME Grand Chamber of the CJEU ruling.

It is important to note also that the Dublin III Recast Regulation 604/2013 has incorporated the NS/ME wording into recast Article 3(2) whereby“Where it is impossible to transfer an application to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible”.