Slovenia - The Constitutional Court of Republic of Slovenia, 12 March 2015, judgment Up-797/14

Facts:

The Asylum authority issued a Dublin transfer decision, stating that France is the responsible Member State for the Applicant. The Applicant claimed that the Dublin Regulation had been erroneously applied, because he spent more than three months outside the EU and therefore Article 19(2) of the Dublin Regulation should be applied and responsibility of France should cease. The Applicant claimed that he has a right to challenge the correct application of any Dublin criteria and not just in case his transfer would expose him to inhuman and degrading treatment. The Applicant suggested that preliminary reference be asked regarding the interpretation of Article 19(2) of Dublin III Regulation and in the appeal to the Constitutional Court the Applicant claimed that the Supreme Court did not explain why it did not want to refer the preliminary reference to the CJEU.

Decision & reasoning:

When a national court must deliberate on a question which falls within  the exclusive competence of the CJEU, it cannot make its own decision, unless the CJEU has already answered such a question, or other conditions are met for the national courts to decide. If the national court has taken a position that does not comply with the above, it is a violation of the right to judicial protection (Article 23(1) of the Constitution).

A necessary prerequisite for the Constitutional Court to assess whether the individual was guaranteed judicial protection before the statutory court is that the court sufficiently explains the issues related to EU law. This includes an explanation of why the court, despite the client's request for preliminary reference, rejected this request. A reasoned judgment is an essential part of due process protected by the right to equal protection under Article 22 of the Constitution and the court has to in its judgement concretely and with sufficient clarity state the reasons on the basis of which it adopted its decision.

In the concrete case the Supreme Court decided that the Applicant’s right to a legal remedy in the Dublin procedure is limited. The Applicant could only appeal against a Dublin decision if his transfer would breach his fundamental rights. The Applicant cannot base his appeal on a wrong application of other Dublin criteria.

It results from Article 267 of the TFEU that the national court has to refer a preliminary reference to the CJEU when it raises the question of interpretation of EU law unless the following conditions are met: 1) the question is irrelevant 2) the relevant provision of the EU law has already been the subject of interpretation by the CJEU or 3) the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. Before the national court concludes that this is the case, it must be satisfied that the clarity is equally obvious to the courts of other Member States and to the CJEU. Only if these conditions are fulfilled may the national court reject the submission of questions to the CJEU and decide on its own. While assessing this, it must take into account the characteristics of EU law and the particular difficulties posed by its interpretation, including a comparison of all language versions, respecting the specific terminology of EU law and the place of interpretation in the context of EU law.

The Supreme Court rejected the request for a preliminary reference on Article 19(2) of the Dublin III Regulation because according to the Supreme Court this provision is clear and does not leave any space for reasonable doubt (act clair). According to the Supreme Court it clearly results from this provision that the Applicant cannot claim its application in the appeal, but only the Member State. The Supreme Court did not give any explanation why the Applicant’s arguments on a different interpretation of Article 19(2) are not justified.

 It follows that the Supreme Court’s position rejecting the request for a preliminary ruling on the interpretation of Article 19(2) of the Dublin III Regulation is not reasoned in accordance with the requirements of the right to equal protection of rights and the right to justice. This violated Article 22 in conjunction with Article 23(1) of the Constitution.

Outcome:

The Constitutional Court annulled the Supreme Court’s decision and remitted the case to the Supreme Court for new consideration. 

Subsequent proceedings:

In a new procedure the Supreme Court maintained its position that the Applicant does not have a right to request the use of Article 19(2) of Dublin III Regulation in the appeal, only the State can decide this.

The subsequent appeal to the Constitutional Court was rejected as inadmissible, stating that the applicant has no legal interest, no further explanation was provided. 

Observations/comments:

The Supreme Court’s decision in the renewed procedure is heavily based on the Abdullahi case. Despite the fact that at that time the Ghezelbash and Karim preliminary references were pending in front of the CJEU, where similar questions were asked, which clearly shows that these issues are not “act clair”, the Supreme Court refused to refer a preliminary reference to the CJEU, stating, without doubt, that the Applicant cannot rely on Article 19(2) of Dublin III in the appeal against a Dublin transfer.