Dignity
Article 1 of the Charter: Human dignity
Case number | C-69/21 |
Case number | Staatssecretaris van Justitie en Veiligheid (Éloignement -Cannabis thérapeutique) |
Document | Judgment ECLI:EU:C:2022:913 |
Date | 22/12/2022 |
Source of the question referred for a preliminary ruling | Rechtbank Den Haag (District Court, The Hague, Netherlands) |
Name of the parties | X v Staatssecretaris van Justitie en Veiligheid |
Subject matter | Area of freedom, security and justice- asylum policy, border control; the legality of the return process |
Key words | X - Asylum policy - Charter of Fundamental Rights of the European Union - Prohibition - Inhuman or degrading treatment - Respect - Private and family life - Protection - Removal, expulsion or extradition - Right of residence - Medical grounds - Standards and procedures - Member States - Illegal return - Third country nationals - Serious illness - Treatment - Pain relief - Country of origin - Removal |
Questions referred for a preliminary ruling | ‘(1) Can a significant increase in pain intensity due to a lack of medical treatment, while the clinical picture remains unchanged, constitute a situation which is contrary to Article 19(2) of the [Charter], read in conjunction with Article 1 of the Charter and Article 4 of the Charter, if no postponement of the departure obligation resulting from [Directive 2008/115] is permitted? (2) Is the setting of a fixed period within which the consequences of the lack of medical treatment must materialise in order to constitute a medical obstacle to an obligation to return resulting from [Directive 2008/115] compatible with Article 4 of the Charter, read in conjunction with Article 1 of the Charter? If the setting of a fixed period is not contrary to EU law, is a Member State then permitted to set a general period that is the same for all possible medical conditions and all possible medical consequences? (3) Is a determination that the consequences of expulsion should be assessed solely in terms of whether, and under what conditions, the foreign national can travel, compatible with Article 19(2) of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and with [Directive 2008/115]? (4) Does Article 7 of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and in the light of [Directive 2008/115], require that the medical condition of the foreign national and the treatment he is undergoing in the Member State be assessed when determining whether private life considerations should result in permission to stay being granted? Does Article 19(2) of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and in the light of [Directive 2008/115], require that private life and family life, as referred to in Article 7 of the Charter, be taken into account when assessing whether medical problems may constitute an obstacle to expulsion?’ |
Decision | 1. Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Articles 1 and 4 of the Charter of Fundamental Rights of the European Union as well as Article 19(2) thereof must be interpreted as precluding a return decision from being taken or a removal order from being made in respect of a third-country national who is staying illegally on the territory of a Member State and suffering from a serious illness, where there are substantial grounds for believing that the person concerned would be exposed, in the third-country to which he or she would be removed, to a real risk of a significant, permanent and rapid increase in his or her pain, if he or she were returned, on account of the only effective analgesic treatment being prohibited in that country. A Member State may not lay down a strict period within which such an increase must be liable to materialise in order to preclude that return decision or that removal order. 2. Article 5 and Article 9(1)(a) of Directive 2008/115, read in conjunction with Articles 1 and 4 of the Charter of Fundamental Rights as well as Article 19(2) thereof must be interpreted as precluding the consequences of the removal order in the strict sense on the state of health of a third-country national from being taken into account by the competent national authority solely in order to examine whether he or she is able to travel. 3. Directive 2008/115, read in conjunction with Article 7, as well as Article 1 and 4 of the Charter of Fundamental Rights must be interpreted as: - meaning that it does not require the Member State on whose territory a third-country national is staying illegally to grant that national a right of residence where he or she cannot be the subject of a return decision or a removal order because there are substantial grounds for believing that he or she would be exposed, in the receiving country, to a real risk of a rapid, significant and permanent increase in the pain caused by the serious illness from which he or she suffers; - the state of health of that national and the care he or she receives on that territory, on account of that illness, must be taken into account, together with all the other relevant factors, by the competent national authority when it examines whether the right to respect for the private life of that national precludes him or her being the subject of a return decision or a removal order; - the adoption of such a decision or measure does not infringe that right on the sole ground that, if he or she were returned to the receiving country, that national would be exposed to the risk that his or her state of health deteriorates, where such a risk does not reach the severity threshold required under Article 4 of the Charter. |
Case number | C-709/20 |
Case number | The Department for Communities in Northern Ireland |
Document | Judgment ECLI:EU:C:2021:602 |
Date | 15/07/2021 |
Source of the question referred for a preliminary ruling | Appeal Tribunal for Northern Ireland (United Kingdom) |
Name of the parties | CG v The Department for Communities in Northern Ireland |
Subject matter | Citizenship of the Union; Non- discrimination on grounds of nationality; denial of social assistance |
Key words | CG - Citizenship of the Union - National of a Member State - Social assistance - Economically inactive - Non discrimination - Conditions - Stay of more than three months - Social assistance benefits - Equal treatment - Withdrawal Agreement - United Kingdom of Great Britain - Northern Ireland - Transitional period - National provision - Excluded eligibility - Temporary residence - Charter of Fundamental Rights of the EU |
Questions referred for a preliminary ruling | ‘1. ‘Is Regulation 9(3)[d](i) of the [2016 Universal Credit Regulations], which was inserted by [the 2019 Social Security Regulations], which excludes from entitlement to social security benefits [EU citizens] with a domestic right of residence (Limited Leave to Remain) [in this case “pre-settled status” under Appendix EU] unlawfully discriminatory (either directly or indirectly) pursuant to Article 18 [TFEU] and inconsistent with the [United Kingdom’s] obligations under the European Communities Act 1972? 2. If the answer to question 1 is in the affirmative, and Regulation 9(3)[d](i) of the [2016 Universal Credit Regulations] is held to be indirectly discriminatory, is [that provision] justified pursuant to Article 18 [TFEU] and inconsistent with the [United Kingdom’s] obligations under the European Communities Act 1972?’ |
Decision | Article 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as not precluding the legislation of a host Member State which excludes from social assistance economically inactive Union citizens who do not have sufficient resources and to whom that State has granted a temporary right of residence, where those benefits are guaranteed to nationals of the Member State concerned who are in the same situation.
However, provided that a Union citizen resides legally, on the basis of national law, in the territory of a Member State other than that of which he or she is a national, the national authorities empowered to grant social assistance are required to check that a refusal to grant such benefits based on that legislation does not expose that citizen, and the children for which he or she is responsible, to an actual and current risk of violation of their fundamental rights, as enshrined in Articles 1, 7 and 24 of the Charter of Fundamental Rights of the European Union. Where that citizen does not have any resources to provide for his or her own needs and those of his or her children and is isolated, those authorities must ensure that, in the event of a refusal to grant social assistance, that citizen may nevertheless live with his or her children in dignified conditions. In the context of that examination, those authorities may take into account all means of assistance provided for by national law, from which the citizen concerned and her children are actually entitled to benefit. |
Case number | C-233/18 |
Case number | Haqbin |
Document | Judgment ECLI:EU:C:2019:956 |
Date | 12/11/2019 |
Source of the question referred for a preliminary ruling | Arbeidshof te Brussel (Higher Labour Court, Brussels, Belgium |
Name of the parties | Zubair Haqbin v Federaal Agentschap voor de opvang van asielzoekers |
Subject matter | Area of freedom, security and justice; asylum policy; border control; the rights of the child; exclusion from the material admission conditions |
Key words | Hagbin - Applicants - International protection - Serious breach of the rules - Accommodation centers - Serious violent behavior - Scope of the right - Member States - Sanctions - Unaccompanied minor - Limitation - Termination - Material reception conditions |
Questions referred for a preliminary ruling | ‘(1) Must Article 20(1) to (3) of Directive [2013/33] be interpreted as enumerating exhaustively the cases in which material reception conditions may be reduced or withdrawn, or does it follow from Article 20(4) and (5) thereof that withdrawal of the right to material reception conditions may also occur by means of sanctions for serious breaches of the rules relating to reception centres and serious acts of violence? (2) Must Article 20(5) and (6) [of that directive] be interpreted as meaning that Member States, before taking a decision on the reduction or withdrawal of material reception conditions or on the imposition of sanctions, must, in the context of those decisions, lay down the measures necessary for guaranteeing the right to a dignified standard of living during the period of exclusion, or can those provisions be complied with by a system whereby, after the decision to reduce or withdraw the material reception conditions, an examination is carried out as to whether the person who is the subject of the decision enjoys a dignified living standard and, if necessary, remedial measures are taken at that point? (3) Must Article 20(4) to (6) [of the directive], read in conjunction with Articles 14 [and 21 to 24 thereof] and [with Articles 1, 3, 4 and 24] of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that a measure or sanction of temporary (or definitive) exclusion from the right to material reception conditions is possible, or impossible, in respect of a minor, specifically in respect of an unaccompanied minor?’ |
Decision | Article 20(4) and (5) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a Member State cannot, among the sanctions that may be imposed on an applicant for serious breaches of the rules of the accommodation centres as well as seriously violent behaviour, provide for a sanction consisting in the withdrawal, even temporary, of material reception conditions, within the meaning of Article 2(f) and (g) of the directive, relating to housing, food or clothing, in so far as it would have the effect of depriving the applicant of the possibility of meeting his or her most basic needs. The imposition of other sanctions under Article 20(4) of the directive must, under all circumstances, comply with the conditions laid down in Article 20(5) thereof, including those concerning the principle of proportionality and respect for human dignity. In the case of an unaccompanied minor, those sanctions must, in the light, inter alia, of Article 24 of the Charter of Fundamental Rights, be determined by taking particular account of the best interests of the child. |
Case number | C-148/13 |
Case number | A |
Document | Judgment ECLI:EU:C:2014:2406 |
Date | 02/12/2014 |
Source of the question referred for a preliminary ruling | Raad van State (Netherlands) |
Name of the parties | A and others v Staatssecretaris van Veiligheid en Justitie |
Subject matter | Area of freedom, security and justice; asylum policy; border control - Sexual orientation; refusal of an application for international protection |
Key words | Area of freedom, security and justice -Directive 2004/83/EC -Minimum standards for granting refugee status or subsidiary protection status -Assessment of facts and circumstances -Methods of assessment -Acceptance of certain types of evidence -Extent of the competent national authority’s powers -Fear of persecution on grounds of sexual orientation -Differences between, on the one hand, the limitations that apply to the verification of statements and documentary or other evidence as regards the declared sexual orientation of an applicant for asylum and, on the other hand, those that apply to the verification of those elements as regards other grounds for persecution -Directive 2005/85/EC -Minimum standards in respect of procedures in Member States for granting and withdrawing refugee status - Requirements for a personal interview -Charter of Fundamental Rights of the European Union - Human dignity -Respect for private and family life |
Questions referred for a preliminary ruling | ‘What limits do Article 4 of [Directive 2004/83] and [the Charter], in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?’ |
Decision | Article 4(3)(c) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Article 13(3)(a) of Directive 2005/85/EC of 1 December 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status, must be interpreted as precluding, in the context of the assessment by the competent national authorities, acting under the supervision of the courts, of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum, whose application is based on a fear of persecution on grounds of that sexual orientation, the statements of that applicant and the documentary and other evidence submitted in support of his application being subject to an assessment by those authorities, founded on questions based only on stereotyped notions concerning homosexuals.
Article 4 of Directive 2004/83, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum.
Article 4 of Directive 2004/83, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts.
Article 4(3) of Directive 2004/83 and Article 13(3)(a) of Directive 2005/85 must be interpreted as precluding, in the context of that assessment, the competent national authorities from finding that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution. |
C-411/10 | |
Case number | N. S. and others |
Document | Judgment ECLI:EU:C:2011:865 |
Date | 21/12/2011 |
Source of the question referred for a preliminary ruling | In Joined Cases C‑411/10 in C‑493/10 from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) and High Court (Ireland) |
Name of the parties | |
Subject matter | Area of freedom, security and justice; asylum policy: safe country; sending asylum seekers back to Greece |
Key words | Asylum Policy - Principles -Fundamental rights -Implementation of European Union law -Prohibition of inhuman or degrading treatment -Common European Asylum System -Regulation (EC) No 343/2003 -Concept of ‘safe countries’ -Transfer of an asylum seeker to the Member State responsible -Obligation -Rebuttable presumption of compliance, by that Member State, with fundamental right |
Questions referred for a preliminary ruling | Joined case: C-411/10 If Question 1 is answered in the affirmative: (2) Is the duty of a Member State to observe EU fundamental rights (including the rights set out in Articles 1, 4, 18, 19(2) and 47 of the Charter) discharged where that State sends the asylum seeker to the Member State which Article 3(1) [of Regulation No 343/2003] designates as the responsible State in accordance with the criteria set out in Chapter III of the regulation (“the responsible State”), regardless of the situation in the responsible State? (3) In particular, does the obligation to observe EU fundamental rights preclude the operation of a conclusive presumption that the responsible State will observe (i) the claimant’s fundamental rights under European Union law; and/ or (ii) the minimum standards imposed by Directives 2003/9 …, 2004/83 … and 2005/85 …? (4) Alternatively, is a Member State obliged by European Union law, and, if so, in what circumstances, to exercise the power under Article 3(2) of the Regulation to examine and take responsibility for a claim, where transfer to the responsible State would expose the [asylum] claimant to a risk of violation of his fundamental rights, in particular the rights set out in Articles 1, 4, 18, 19(2) and/or 47 of the Charter, and/or to a risk that the minimum standards set out in Directives [2003/9, 2004/83 and 2005/85] will not be applied to him? (5) Is the scope of the protection conferred upon a person to whom Regulation [No 343/2003] applies by the general principles of European Union law, and, in particular, the rights set out in Articles 1, 18 and 47 of the Charter wider than the protection conferred by Article 3 of the ECHR? (6) Is it compatible with the rights set out in Article 47 of the Charter for a provision of national law to require a court, for the purpose of determining whether a person may lawfully be removed to another Member State pursuant to Regulation [No 343/2003], to treat that Member State as a State from which the person will not be sent to another State in contravention of his rights pursuant to the [ECHR] or his rights pursuant to the [Geneva Convention] and [the 1967 Protocol]? (7) In so far as the preceding questions arise in respect of the obligations of the United Kingdom, are the answers to [the second to sixth questions] qualified in any respect so as to take account of the Protocol (No 30)?’ and case C-493/10 (2) If the answer is yes, and if the receiving Member State is found not to be in compliance with one or more of those provisions, is the transferring Member Sate obliged to accept responsibility for examining the application under Article 3(2) of … Regulation (EC) No 343/2003?’ |
Decision | 1. The decision adopted by a Member State on the basis of Article 3(2) 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, whether to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that Regulation, implements European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of Fundamental Rights of the European Union. 2. European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to 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 that provision. Subject to the right itself to examine the application referred to in Article 3(2) of Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, entails that the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application. The Member State in which the asylum seeker is present 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 Regulation No 343/2003. 3. Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union do not lead to a different answer. 4. In so far as the preceding questions arise in respect of the obligations of the United Kingdom of Great Britain and Northern Ireland, the answers to the second to sixth questions referred in Case C-411/10 do not require to be qualified in any respect so as to take account of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom. |
Article 2 of the Charter: Right to life
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Article 3 of the Charter: Right to integrity of the person
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Article 4 of the Charter: Prohibition of torture and inhuman or degrading treatment or punishment
Case number | C-69/21 |
Case number | Staatssecretaris van Justitie en Veiligheid (Éloignement -Cannabis thérapeutique) |
Document | Judgment ECLI:EU:C:2022:913 |
Date | 22/12/2022 |
Source of the question referred for a preliminary ruling | Rechtbank Den Haag (District Court, The Hague, Netherlands) |
Name of the parties | X v Staatssecretaris van Justitie en Veiligheid |
Subject matter | Area of freedom, security and justice- asylum policy, border control; the legality of the return process |
Key words | X - Asylum policy - Charter of Fundamental Rights of the European Union - Prohibition - Inhuman or degrading treatment - Respect - Private and family life - Protection - Removal, expulsion or extradition - Right of residence - Medical grounds - Standards and procedures - Member States - Illegal return - Third country nationals - Serious illness - Treatment - Pain relief - Country of origin - Removal |
Questions referred for a preliminary ruling | ‘(1) Can a significant increase in pain intensity due to a lack of medical treatment, while the clinical picture remains unchanged, constitute a situation which is contrary to Article 19(2) of the [Charter], read in conjunction with Article 1 of the Charter and Article 4 of the Charter, if no postponement of the departure obligation resulting from [Directive 2008/115] is permitted? (2) Is the setting of a fixed period within which the consequences of the lack of medical treatment must materialise in order to constitute a medical obstacle to an obligation to return resulting from [Directive 2008/115] compatible with Article 4 of the Charter, read in conjunction with Article 1 of the Charter? If the setting of a fixed period is not contrary to EU law, is a Member State then permitted to set a general period that is the same for all possible medical conditions and all possible medical consequences? (3) Is a determination that the consequences of expulsion should be assessed solely in terms of whether, and under what conditions, the foreign national can travel, compatible with Article 19(2) of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and with [Directive 2008/115]? (4) Does Article 7 of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and in the light of [Directive 2008/115], require that the medical condition of the foreign national and the treatment he is undergoing in the Member State be assessed when determining whether private life considerations should result in permission to stay being granted? Does Article 19(2) of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and in the light of [Directive 2008/115], require that private life and family life, as referred to in Article 7 of the Charter, be taken into account when assessing whether medical problems may constitute an obstacle to expulsion?’ |
Decision | 1. Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Articles 1 and 4 of the Charter of Fundamental Rights of the European Union as well as Article 19(2) thereof must be interpreted as precluding a return decision from being taken or a removal order from being made in respect of a third-country national who is staying illegally on the territory of a Member State and suffering from a serious illness, where there are substantial grounds for believing that the person concerned would be exposed, in the third-country to which he or she would be removed, to a real risk of a significant, permanent and rapid increase in his or her pain, if he or she were returned, on account of the only effective analgesic treatment being prohibited in that country. A Member State may not lay down a strict period within which such an increase must be liable to materialise in order to preclude that return decision or that removal order. 2. Article 5 and Article 9(1)(a) of Directive 2008/115, read in conjunction with Articles 1 and 4 of the Charter of Fundamental Rights as well as Article 19(2) thereof must be interpreted as precluding the consequences of the removal order in the strict sense on the state of health of a third-country national from being taken into account by the competent national authority solely in order to examine whether he or she is able to travel. 3. Directive 2008/115, read in conjunction with Article 7, as well as Article 1 and 4 of the Charter of Fundamental Rights must be interpreted as: - meaning that it does not require the Member State on whose territory a third-country national is staying illegally to grant that national a right of residence where he or she cannot be the subject of a return decision or a removal order because there are substantial grounds for believing that he or she would be exposed, in the receiving country, to a real risk of a rapid, significant and permanent increase in the pain caused by the serious illness from which he or she suffers; - the state of health of that national and the care he or she receives on that territory, on account of that illness, must be taken into account, together with all the other relevant factors, by the competent national authority when it examines whether the right to respect for the private life of that national precludes him or her being the subject of a return decision or a removal order; - the adoption of such a decision or measure does not infringe that right on the sole ground that, if he or she were returned to the receiving country, that national would be exposed to the risk that his or her state of health deteriorates, where such a risk does not reach the severity threshold required under Article 4 of the Charter. |
Case number | C-327/18 PPU |
Case number | R O |
Document | Judgment ECLI:EU:C:2018:733 |
Date | 19/09/2018 |
Source of the question referred for a preliminary ruling | High Court (Ireland) |
Name of the parties | RO |
Subject matter | Area of freedom, security and justice; judicial and police cooperation in criminal matters; European arrest warrant |
Key words | RO - Police and judicial cooperation in criminal matters -European arrest warrant -Framework Decision 2002/584/JHA -Grounds for non-execution -Warrant issued by the judicial authorities of a Member State that has initiated the procedure for withdrawal from the European Union -Uncertainty as to the law applicable to the relationship between that State and the Union following withdrawal |
Questions referred for a preliminary ruling | ‘(1) Having regard to: - (a) the giving by the United Kingdom of notice under Article 50 [TEU]; - (b) the uncertainty as to the arrangements which will be put in place between the European Union and the United Kingdom to govern relations after the departure of the United Kingdom; and - (c) the consequential uncertainty as to the extent to which [RO] would, in practice, be able to enjoy rights under the Treaties, the Charter or relevant legislation, should he be surrendered to the United Kingdom and remain incarcerated after the departure of the United Kingdom, Is a requested Member State required by European Union Law to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be required under the national law of the Member State, (i) in all cases? (ii) in some cases, having regard to the particular circumstances of the case? (iii) in no cases? (2) If the answer to Question 1 is that set out at (ii) what are the criteria or considerations which a court in the requested Member State must assess to determine whether surrender is prohibited? (3) In the context of Question 2 is the court of the requested Member State required to postpone the final decision on the execution of the European arrest warrant to await greater clarity about the relevant legal regime which is to be put in place after the withdrawal of the relevant requesting Member State from the Union (i) in all cases? (ii) in some cases, having regard to the particular circumstances of the case? (iii) in no cases? (4) If the answer to Question 3 is that set out at (ii) what are the criteria or considerations which a court in the requested Member State must assess to determine whether it is required to postpone the final decision on the execution of the European arrest warrant?’ |
Decision | Article 50 TEU must be interpreted as meaning that mere notification by a Member State of its intention to withdraw from the European Union in accordance with that article does not have the consequence that, in the event that that Member State issues a European arrest warrant with respect to an individual, the executing Member State must refuse to execute that European arrest warrant or postpone its execution pending clarification of the law that will be applicable in the issuing Member State after its withdrawal from the European Union. In the absence of substantial grounds to believe that the person who is the subject of that European arrest warrant is at risk of being deprived of rights recognised by the Charter of Fundamental Rights of the European Union and Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, following the withdrawal from the European Union of the issuing Member State, the executing Member State cannot refuse to execute that European arrest warrant while the issuing Member State remains a member of the European Union. |
Case number | C-220/18 PPU |
Case number | Generalstaatsanwaltschaft (Conditions of imprisonment in Hungary) |
Document | Judgment ECLI:EU:C:2018:589 |
Date | 25/07/2018 |
Source of the question referred for a preliminary ruling | Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen, Germany) |
Name of the parties | ML |
Subject matter | Area of freedom, security and justice; judicial and police cooperation in criminal matters; European arrest warrant |
Key words | ML - KPolice and judicial cooperation in criminal matters - European arrest warrant –Framework Decision 2002/584/JHA - Surrender procedures between Member States -Conditions for execution -Grounds for non-execution - Charter of Fundamental Rights of the European Union - Prohibition of inhuman or degrading treatment -Detention conditions in the issuing Member State - Scope of the assessment undertaken by the executing judicial authorities -Existence of a legal remedy in the issuing Member State - Assurance given by the authorities of that Member State |
Questions referred for a preliminary ruling | ‘(1) What significance does it have, for the purpose of the interpretation of [Article 1(3), Article 5 and Article 6(1) of the Framework Decision, in conjunction with Article 4 of the Charter] if legal remedies exist for detainees in the issuing Member State in respect of the conditions of their detention? (a) If, taking account of the aforementioned provisions, the executing judicial authority is in possession of evidence of systemic or general deficiencies affecting certain groups of persons or certain prisons in the issuing Member State, is a real risk of inhuman or degrading treatment of the person whose surrender is sought in the event of his surrender, which would render the surrender inadmissible, to be ruled out merely by reason of the fact that such legal remedies have been introduced, without the need for further assessment of the conditions of detention? (b) Is it of significance in this regard that the European Court of Human Rights has held in respect of such legal remedies that there is no evidence that they do not offer detainees realistic perspectives of improving unsuitable conditions of detention? (2) If Question 1 is answered to the effect that the existence of such legal remedies for detainees, without further assessment of the specific conditions of detention in the issuing Member State by the executing judicial authority, does not of itself exclude a real risk of inhuman or degrading treatment of the person whose surrender is sought: (a) Are the aforementioned provisions to be interpreted as meaning that the assessment by the executing judicial authority of the conditions of detention in the issuing Member State extends to all prisons or other detention facilities in which the person whose surrender is sought may be incarcerated? Does this also apply to simply temporary or transitional detention in certain prisons? Or can the assessment be limited to the prison in which, according to information from the authorities of the issuing Member State, the person whose surrender is sought is likely to be incarcerated for most of the time? (b) For this purpose, is it necessary to conduct a comprehensive assessment of the conditions of detention concerned that determines both the personal space available to each prisoner and other conditions of detention? Are the conditions of detention thus determined to be assessed on the basis of the case-law of the European Court of Human Rights established in its judgment of 20 October 2016, Muršić v. Croatia (CE:ECHR:2016:1020JUD000733413)? (3) If Question 2 is also answered to the effect that the assessment required by the executing judicial authority must extend to all prisons [to which the person concerned might be transferred]: (a) Can the assessment by the executing judicial authority of the conditions of detention in each individual prison envisaged be rendered superfluous by a general assurance given by the issuing Member State that the person whose surrender is sought will not be exposed to any risk of inhuman or degrading treatment? (b) Or, in lieu of an assessment of the conditions of detention of each individual prison envisaged, can the decision by the executing judicial authority on the admissibility of the surrender be made contingent upon the person whose surrender is sought not being exposed to any such treatment? (4) If Question 3 is also answered to the effect that the provision of assurances and the imposition of conditions cannot render the assessment by the executing judicial authority of the conditions of detention in each individual prison [to which the person concerned might be transferred] superfluous: (a) Must the duty of assessment by the executing judicial authority extend to the conditions of detention in all prisons envisaged, even in the case where the judicial authority of the issuing Member State advises that the period of detention in them of the person whose surrender is sought will not exceed three weeks, circumstances permitting? (b) Does this also apply if the executing judicial authority is unable to ascertain whether that information was provided by the issuing judicial authority or whether it originates from a central authority in the issuing Member State acting in response to a request by the issuing judicial authority for support?’ |
Decision | Article 1(3), Article 5 and Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that when the executing judicial authority has information showing there to be systemic or generalised deficiencies in the conditions of detention in the prisons of the issuing Member State, the accuracy of which must be verified by the referring court in the light of all the available updated data: - the executing judicial authority cannot rule out a real risk that the person in respect of whom a European arrest warrant has been issued for the purpose of executing a custodial sentence will be subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, merely because that person has, in the issuing Member State, a legal remedy permitting him to challenge the conditions of his detention, although the existence of such a remedy may be taken into account by the executing judicial authority for the purpose of deciding on the surrender of the person concerned; - the executing judicial authority is required to assess only the conditions of detention in the prisons in which, according to the information available to it, it is likely that that person will be detained, including on a temporary or transitional basis; - the executing judicial authority must assess, to that end, solely the actual and precise conditions of detention of the person concerned that are relevant for determining whether that person will be exposed to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights; - the executing judicial authority may take into account information provided by authorities of the issuing Member State other than the issuing judicial authority, such as, in particular, an assurance that the individual concerned will not be subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights. |
Case number | C-128/18 |
Case number | Dorobantu |
Document | Judgment ECLI:EU:C:2019:857 |
Date | 15/10/2019 |
Source of the question referred for a preliminary ruling | Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) |
Name of the parties | Dumitru-Tudor Dorobantu v Generalstaatsanwaltschaft Hamburg |
Subject matter | Area of freedom, security and justice; judicial and police cooperation in criminal matters; European Arrest Warrant |
Key words | Dorobantu - Criminal matters - Framework Decision 2002/584/JHA - European arrest warrant - Grounds - Refusal to execute - Charter of Fundamental Rights of the European Union - Prohibition - Inhuman or degrading treatment - Prison conditions - Member State of destination - Judgment - Executing judicial authority |
Questions referred for a preliminary ruling | ‘(1) In the context of Framework Decision 2002/584, what are the minimum standards for custodial conditions required under Article 4 of the Charter? (a) Specifically, is there, under EU law, an “absolute” minimum limit for the size of custody cells, pursuant to which the use of cells under that limit will always constitute an infringement of Article 4 of the Charter? (i) When determining an individual’s portion of a custody cell, should the fact that a given cell is being used for single or multiple occupancy be taken into account? (ii) When calculating the size of the custody cell, should areas covered by furniture (beds, wardrobes, etc.) be discounted? (iii) What infrastructural requirements, if any, are relevant for the purposes of compliance of custodial conditions with EU law? Does direct (or only indirect) open access from the custody cell to, for example, sanitary facilities or other rooms, or the provision of hot and cold water, heating, lighting, etc. have any significance? (b) To what extent do the various “prison regimes”, such as differing unlock times and varying degrees of freedom of movement within a penal institution, play a role in the assessment? (c) Can legal and organisational improvements in the issuing Member State (introduction of an ombudsman system, establishment of courts of enforcement of penalties, etc.) also be taken into account, as the present Chamber did in its decisions on the permissibility of the surrender)? (2) What standards are to be used to assess whether custodial conditions comply with the fundamental rights guaranteed by EU law? To what extent do those standards influence the interpretation of the term “real risk” within the meaning of the judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198)? (a) In that regard, are the judicial authorities of the executing Member State authorised to undertake a comprehensive assessment of the custodial conditions in the issuing Member State, or are they limited to an “examination as to manifest errors”? (b) To the extent that, in the context of its reply to the first question referred for a preliminary ruling, the Court of Justice concludes that there are “absolute” requirements under EU law for custodial conditions, would a failure to meet those minimum standards be, in a sense, “unquestionable”, so that, as a result, such a failure would always immediately constitute a “real risk”, thereby prohibiting surrender, or can the executing Member State nevertheless carry out its own assessment? In that regard, can factors such as the maintenance of mutual legal assistance between Member States, the functioning of European criminal justice or the principles of mutual trust and recognition be taken into account?’ |
Decision | Article 1(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in conjunction with Article 4 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that when the executing judicial authority has objective, reliable, specific and properly updated information showing there to be systemic or generalised deficiencies in the conditions of detention in the prisons of the issuing Member State, it must, for the purpose of assessing whether there are substantial grounds for believing that, following the surrender to the issuing Member State of the person subject to a European arrest warrant, that person will run a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, take account of all the relevant physical aspects of the conditions of detention in the prison in which it is actually intended that that person will be detained, such as the personal space available to each detainee in a cell in that prison, sanitary conditions and the extent of the detainee’s freedom of movement within the prison. That assessment is not limited to the review of obvious inadequacies. For the purposes of that assessment, the executing judicial authority must request from the issuing judicial authority the information that it deems necessary and must rely, in principle, on the assurances given by the issuing judicial authority, in the absence of any specific indications that the conditions of detention infringe Article 4 of the Charter of Fundamental Rights. As regards, in particular, the personal space available to each detainee, the executing judicial authority must, in the absence, currently, of minimum standards in that respect under EU law, take account of the minimum requirements under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, as interpreted by the European Court of Human Rights. Although, in calculating that available space, the area occupied by sanitary facilities should not be taken into account, the calculation should include space occupied by furniture. Detainees must, however, still have the possibility of moving around normally within the cell. The executing judicial authority cannot rule out the existence of a real risk of inhuman or degrading treatment merely because the person concerned has, in the issuing Member State, a legal remedy enabling that person to challenge the conditions of his detention or because there are, in the issuing Member State, legislative or structural measures that are intended to reinforce the monitoring of detention conditions. A finding, by the executing judicial authority, that there are substantial grounds for believing that, following the surrender of the person concerned to the issuing Member State, that person will run such a risk, because of the conditions of detention prevailing in the prison in which it is actually intended that he will be detained, cannot be weighed, for the purposes of deciding on that surrender, against considerations relating to the efficacy of judicial cooperation in criminal matters and to the principles of mutual trust and recognition. |
Case number | C-517/17 |
Case number | Addis |
Document | Judgment ECLI:EU:C:2020:579 |
Date | 16/07/2020 |
Source of the question referred for a preliminary ruling | Bundesverwaltungsgericht (Federal Administrative Court, Germany) |
Name of the parties | Milkiyas Addis v Bundesrepublik Deutschland |
Subject matter | Area of freedom, security and justice; asylum policy; border control; denied the right to asylum |
Key words | Addis -Area of freedom, security and justice - Asylum policy - Common procedures for granting and withdrawing international protection - Directive 2013/32/EU - Obligation to give applicants for international protection the opportunity of a personal interview before the adoption of a decision declaring the application to be inadmissible - Failure to comply with that obligation in the procedure at first instance - Consequences |
Questions referred for a preliminary ruling | ‘Does the first sentence of Article 14(1) of [the Procedures Directive] or the rule in the first sentence of Article 12(1) of [Directive 2005/85] that preceded it preclude the application of a national provision under which the failure to conduct a personal interview with the applicant in the case where the determining authority rejects an asylum application as inadmissible, in implementation of the power under Article 33(2)(a) of [the Procedures Directive] or the rule in Article 25(2)(a) of [Directive 2005/85] that preceded it, does not result in that decision being annulled by reason of that failure if the applicant has an opportunity in the judicial proceedings to set out all the circumstances militating against a decision of inadmissibility and, even having regard to those submissions, no other decision can be taken in the case?’ |
Decision | Articles 14 and 34 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as precluding national legislation under which failure to comply with the obligation to give an applicant for international protection the opportunity of a personal interview before the adoption of a decision on the basis of Article 33(2)(a) of that directive declaring the application to be inadmissible does not lead to that decision being annulled and the case being remitted to the determining authority, unless that legislation allows the applicant, in the appeal procedure against that decision, to set out in person all of his or her arguments against the decision in a hearing which complies with the applicable conditions and fundamental guarantees set out in Article 15 of that directive, and those arguments are not capable of altering that decision. |
Case number | C-297/17 |
Case number | Ibrahim |
Document | Judgment ECLI:EU:C:2019:219 |
Date | 19/03/2019 |
Source of the question referred for a preliminary ruling | In Joined Cases C‑297/17, C‑318/17, C‑319/17 in C‑438/17, Bundesverwaltungsgericht (Federal Administrative Court, Germany) |
Name of the parties | Bashar Ibrahim and others v Bundesrepublik Deutschland in Bundesrepublik; Deutschland v Tausu Magamadovu |
Subject matter | Area of freedom, security and justice; asylum policy; border control; denied the right to asylum |
Key words | Ibrahim -Common procedures for granting and withdrawing international protection - Directive 2013/32/EU -- Rejection by the authorities of a Member State of an application for asylum as being inadmissible because of the prior granting of subsidiary protection in another Member State - Scope ratione temporis of that directive - Charter of Fundamental Rights of the European Union - Systemic flaws in the asylum procedure in that other Member State - Systematic rejection of applications for asylum - Substantial risk of suffering inhuman or degrading treatment - Living conditions of those granted subsidiary protection in that other State |
Questions referred for a preliminary ruling | Joined Cases C‑297/17, C‑318/17 and C‑319/17
In particular, does the transitional provision contained in the first paragraph of Article 52 of [the Procedures Directive] allow the Member States, in particular, to transpose the extended power conferred in Article 33(2)(a) of [the Procedures Directive] retroactively, with the result that even applications which were lodged before that extended power was transposed into national law but which were not yet the subject of a final decision at the time of transposition are inadmissible? (2) Does Article 33 of [the Procedures Directive] confer on the Member States a right to choose whether to reject an application for asylum as inadmissible either on the basis that responsibility lies with another Member State (the Dublin Regulation) or on the basis of Article 33(2)(a) of [the Procedures Directive]? (3) If the answer to Question 2 is in the affirmative, does EU law prevent a Member State from transposing the power conferred by Article 33(2)(a) of [the Procedures Directive] so as to reject an application for international protection as being inadmissible on the ground that subsidiary protection has been granted in another Member State, where: (a) the applicant seeks to have the subsidiary protection granted to him in another Member State enhanced (by recognition of refugee status) and the asylum procedure in the other Member State was (and continues to be) vitiated by systemic flaws, or (b) the form which the international protection takes, that is to say the living conditions of those benefiting from subsidiary protection, in the other Member State which has already granted the applicant subsidiary protection, - is contrary to Article 4 of the [Charter] and to Article 3 of the ECHR, or - does not satisfy the requirements of Article 20 et seq. of [the Qualification Directive] but does not in and of itself infringe Article 4 of the Charter or Article 3 of the ECHR? (4) If Question 3(b) is to be answered in the affirmative, is this also the case where, although the persons qualifying for subsidiary protection do not receive any subsistence benefits or those which they do receive are markedly inferior to those available in other Member States, they are in that regard not treated any differently from nationals of that Member State? (5) If Question 2 is answered in the negative: (a) Is the Dublin III Regulation applicable in a procedure for the grant of international protection if the asylum application was lodged before 1 January 2014 but the take back request was not sent until after 1 January 2014 and the applicant had previously (in February 2013) been granted subsidiary protection in the requested Member State? (b) Do the Dublin Regulations support the inference of an - implicit - transfer of responsibility to the Member State which has requested that an applicant be taken back, where the requested responsible Member State has rejected a take back request made, within the prescribed time limit, under the Dublin provisions and has instead referred to an international readmission agreement?’ (2) Does the transitional provision contained in the first paragraph of Article 52 of [the Procedures Directive] allow the Member States, in particular, to transpose the extended power conferred in Article 33(2)(a) of [the Procedures Directive] retroactively, with the result that even applications that were lodged before the entry into force of [the Procedures Directive] and before that extended power was transposed into national law, but that were not yet the subject of a final decision at the time of transposition, are inadmissible?’ |
Decision | 1. The first paragraph of Article 52 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that it permits a Member State to provide for the immediate application of the provision of national law transposing Article 33(2)(a) of that directive to applications for asylum on which no final decision has yet been made, which were lodged before 20 July 2015 and before the entry into force of that provision of national law. However, the first paragraph of Article 52 of that directive, read in the light of, inter alia, Article 33 thereof, precludes such an immediate application in a situation where both the application for asylum and the take back request were lodged before the entry into force of Directive 2013/32 and, in accordance with Article 49 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, still fall fully within the scope 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. 2. In a situation such as that at issue in Cases C‑297/17, C‑318/17 and C‑319/17, Article 33 of Directive 2013/32 must be interpreted as meaning that it is not a condition for Member States to be able to reject an application for asylum as being inadmissible under Article 33(2)(a) of the directive that they must, or must be able, to have recourse, as the first resort, to the take charge or take back procedures provided for by Regulation No 604/2013. 3. Article 33(2)(a) of Directive 2013/32 must be interpreted as not precluding a Member State from exercising the option granted by that provision to reject an application for the grant of refugee status as being inadmissible on the ground that the applicant has been previously granted subsidiary protection by another Member State, where the living conditions that that applicant could be expected to encounter as the beneficiary of subsidiary protection in that other Member State would not expose him to a substantial risk of suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. The fact that the beneficiaries of such subsidiary protection do not receive, in that Member State, any subsistence allowance, or that such allowance as they receive is markedly inferior to that in other Member States, though they are not treated differently from nationals of that Member State, can lead to the finding that that applicant would be exposed in that Member State to such a risk only if the consequence is that that applicant would, because of his or her particular vulnerability, irrespective of his or her wishes and personal choices, be in a situation of extreme material poverty. Article 33(2)(a) of Directive 2013/32 must be interpreted as not precluding a Member State from exercising that option, where the asylum procedure in the other Member State that has granted subsidiary protection to the applicant leads to a systematic refusal, without real examination, to grant refugee status to applicants for international protection who satisfy the conditions laid down in Chapters II and III of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. |
Case number | C-163/17 |
Case number | Jawo |
Document | Judgment ECLI:EU:C:2019:218 |
Date | 19/03/2019 |
Source of the question referred for a preliminary ruling | Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg, Germany) |
Name of the parties | Abubacarr Jawo v Bundesrepublik Deutschland |
Subject matter | Area of freedom, security and justice; asylum policy; border control; international protection; decision on the extradition; Italy |
Key words | Jawo - Asylum policy - - Dublin system - Surrender of the applicant - Member State - Examination of the application - International protection - Concept of 'escape' - Ways of extending the deadline - Charter of Fundamental Rights of the EU- Serious danger - End of the asylum procedure - Living conditions - Beneficiaries |
Questions referred for a preliminary ruling | ‘(1) Is an asylum seeker absconding within the meaning of the second sentence of Article 29(2) of [the Dublin III Regulation] only where he purposefully and deliberately evades the reach of the national authorities responsible for carrying out the transfer in order to prevent or impede the transfer, or is it sufficient if, for a prolonged period, he ceases to live in the accommodation allocated to him and the authority is not informed of his whereabouts and therefore a planned transfer cannot be carried out? Is the person concerned entitled to rely on the correct application of that provision and to plead, in proceedings against the transfer decision, that the transfer time limit of six months has expired, because he had not absconded? (2) Does an extension of the time limit provided for under the first subparagraph of Article 29(1) of [the Dublin III Regulation] arise solely as a result of the fact that the transferring Member State informs the Member State responsible, before the expiry of the time limit, that the person concerned has absconded, and at the same time specifies an actual time limit, which may not exceed 18 months, by which the transfer will be carried out, or is an extension possible only in such a way that the Member States involved stipulate by mutual agreement an extended time limit? (3) Is transfer of the asylum seeker to the Member State responsible inadmissible if, in the event of international protection status being granted, he would be exposed there, in view of the living conditions then to be expected, to a serious risk of experiencing treatment referred to in Article 4 of the [Charter]? Does this question as formulated still fall within the scope of application of EU law? According to which criteria under EU law are the living conditions of a person recognised as a beneficiary of international protection to be assessed?’ |
Decision | 1. The second sentence of Article 29(2) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person must be interpreted as meaning that an applicant ‘absconds’, within the meaning of that provision, where he deliberately evades the reach of the national authorities responsible for carrying out his transfer, in order to prevent the transfer. It may be assumed that that is the case where the transfer cannot be carried out due to the fact that the applicant has left the accommodation allocated to him without informing the competent national authorities of his absence, provided that he has been informed of his obligations in that regard, which it is for the referring court to determine. The applicant retains the possibility of demonstrating that the fact that he has not informed the authorities of his absence is due to valid reasons and not the intention to evade the reach of those authorities. Article 27(1) of Regulation No 604/2013 must be interpreted as meaning that, in proceedings brought against a transfer decision, the person concerned may rely on Article 29(2) of that regulation, by claiming that, since he had not absconded, the six-month transfer time limit had expired. 2. The second sentence of Article 29(2) of Regulation No 604/2013 must be interpreted as meaning that, in order to extend the transfer time limit by a maximum of 18 months, it suffices that the requesting Member State informs the Member State responsible, before the expiry of the six-month transfer time limit, that the person concerned has absconded and specifies, at the same time, a new transfer time limit. 3. EU law must be interpreted as meaning that the question whether Article 4 of the Charter of Fundamental Rights of the European Union precludes the transfer, pursuant to Article 29 of Regulation No 604/2013, of an applicant for international protection to the Member State which, in accordance with that regulation, is normally responsible for examining his application for international protection, where, in the event of such protection being granted in that Member State, the applicant would be exposed to a substantial risk of suffering inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights, on account of the living conditions that he could be expected to encounter as a beneficiary of international protection in that Member State, falls within its scope. Article 4 of the Charter of Fundamental Rights must be interpreted as not precluding such a transfer of an applicant for international protection, unless the court hearing an action challenging the transfer decision finds, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights guaranteed by EU law, that that risk is real for that applicant, on account of the fact that, should he be transferred, he would find himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty. |
Case number | C-578/16 PPU |
Case number | C. K. and others |
Document | Judgment ECLI:EU:C:2017:127 |
Date | 16/02/2017 |
Source of the question referred for a preliminary ruling | Vrhovno sodišče (Slovenia) |
Name of the parties | C. K. and others v Republika Slovenija |
Subject matter | Area of freedom, security and justice; asylum policy; border control; Dublin system; transfer of persons to Croatia |
Key words | C.K. -Borders, asylum and immigration - Dublin system - Regulation (EU) No 604/2013 - Article 4 of the Charter of Fundamental Rights of the European Union - Inhuman or degrading treatment - Transfer of a seriously ill asylum seeker to the State responsible for examining his application - No substantial grounds for believing that there are proven systemic flaws in that Member State - Obligations imposed on the Member State having to carry out the transfer |
Questions referred for a preliminary ruling | ‘(1) Is the interpretation of the rules relating to the application of the discretionary clause under Article 17(1) of the Dublin III Regulation, having regard to the nature of that provision, ultimately a matter for the courts and tribunals of the Member State, and do those rules release the courts and tribunals against whose decisions there is no judicial remedy from the obligation to refer the case to the Court of Justice under the third paragraph of Article 267 of the Treaty on the Functioning of the European Union? In the alternative, if the answer to the above question is in the negative: (2) Is the assessment of circumstances under Article 3(2) of the Dublin III Regulation (in a case such as the one forming the subject matter of the present reference for a preliminary ruling) sufficient to satisfy the requirements of Article 4 and Article 19(2) of the Charter of Fundamental Rights of the European Union, in conjunction with Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 33 of the Geneva Convention? In connection with that question: (3) Does it follow from the interpretation of Article 17(1) of the Dublin III Regulation that the application of the discretionary clause by the Member State is mandatory for the purposes of ensuring effective protection against an infringement of the rights under Article 4 of the Charter of Fundamental Rights of the European Union in cases such as the one forming the subject matter of the present reference for a preliminary ruling, and that such application prohibits the transfer of the applicant for international protection to a competent Member State which has accepted its competence in accordance with that regulation? If the answer to the above question is in the affirmative: (4) Can the discretionary clause under Article 17(1) of the Dublin III Regulation be used as a basis permitting an applicant for international protection, or another person, in a transfer procedure under that regulation, to make a claim that that provision should be applied, which the competent authorities and courts and tribunals of the Member State must assess, or are those administrative authorities and courts and tribunals required to establish the circumstances cited of their own motion?’ |
Decision | 1. Article 17(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person must be interpreted as meaning that the question of the application, by a Member State, of the ‘discretionary clause’ laid down in that provision is not governed solely by national law and by the interpretation given to it by the constitutional court of that Member State, but is a question concerning the interpretation of EU law, within the meaning of Article 267 TFEU. 2. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that: - even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible for examining the application for asylum, the transfer of an asylum seeker within the framework of Regulation No 604/2013 can take place only in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that article; - in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that article; - it is for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person’s state of health. If, taking into account the particular seriousness of the illness of the asylum seeker concerned, the taking of those precautions is not sufficient to ensure that his transfer does not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member States concerned to suspend the execution of the transfer of the person concerned for such time as his condition renders him unfit for such a transfer; and - where necessary, if it is noted that the state of health of the asylum seeker concerned is not expected to improve in the short term, or that the suspension of the procedure for a long period would risk worsening the condition of the person concerned, the requesting Member State may choose to conduct its own examination of that person’s application by making use of the ‘discretionary clause’ laid down in Article 17(1) of Regulation No 604/2013. Article 17(1) of Regulation No 604/2013, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, cannot be interpreted as requiring, in circumstances such as those at issue in the main proceedings, that Member State to apply that clause. |
Case number | C-353/16 |
Case number | MP (Subsidiary protection or a person previously a victim of torture) |
Document | Judgment ECLI:EU:C:2018:276 |
Date | 24/04/2018 |
Source of the question referred for a preliminary ruling | Supreme Court of the United Kingdom |
Name of the parties | MP v Secretary of State for the Home Department |
Subject matter | Area of freedom, security and justice; asylum policy; border control; Rejection Application |
Key words | MP - Asylum policy - Charter of Fundamental Rights of the European Union - Asylum seeker - Conditions - Entitlement to subsidiary protection - Risk - Serious harm - Mental health - Victim of torture - Country of origin |
Questions referred for a preliminary ruling | ‘Does Article 2(e), read with Article 15(b), of Directive 2004/83 cover a real risk of serious harm to the physical or psychological health of the applicant if returned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?’ |
Decision | Articles 2(e) and 15(b) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a third country national who in the past has been tortured by the authorities of his country of origin and no longer faces a risk of being tortured if returned to that country, but whose physical and psychological health could, if so returned, seriously deteriorate, leading to a serious risk of him committing suicide on account of trauma resulting from the torture he was subjected to, is eligible for subsidiary protection if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of that torture, that being a matter for the national court to determine. |
Case number | C-404/15 |
Case number | Aranyosi |
Document | Judgment ECLI:EU:C:2016:198 |
Date | 05/04/2016 |
Source of the question referred for a preliminary ruling | In Joined Cases C‑404/15 and C‑659/15 PPU from the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court of Bremen, Germany) |
Name of the parties | Pál Aranyosi and Robert Căldăraru |
Subject matter | Area of freedom, security and justice; judicial and police cooperation in criminal matters; European arrest warrant |
Key words | Aranvosi - Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - European arrest warrant - Grounds for refusal to execute - Charter of Fundamental Rights of the European Union - Prohibition of inhuman or degrading treatment - Conditions of detention in the issuing Member State |
Questions referred for a preliminary ruling | ‘1. Is Article 1(3) of the Framework Decision to be interpreted as meaning that a request for surrender for the purposes of prosecution is inadmissible where there are strong indications that detention conditions in the issuing Member State infringe the fundamental rights of the person concerned and the fundamental legal principles as enshrined in Article 6 TEU, or is it to be interpreted as meaning that, in such circumstances, the executing Member State can or must make the decision on the admissibility of the request for surrender conditional upon assurances that detention conditions are compliant? To that end, can or must the executing Member State lay down specific minimum requirements applicable to the detention conditions in respect of which an assurance is sought? 2. Are Articles 5 and 6(1) of the Framework Decision to be interpreted as meaning that the issuing judicial authority is also entitled to give assurances that detention conditions are compliant, or do assurances in this regard remain subject to the domestic rules of competence in the issuing Member State?’ |
Decision | Article 1(3), Article 5 and Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State. To that end, the executing judicial authority must request that supplementary information be provided by the issuing judicial authority, which, after seeking, if necessary, the assistance of the central authority or one of the central authorities of the issuing Member State, under Article 7 of the Framework Decision, must send that information within the time limit specified in the request. The executing judicial authority must postpone its decision on the surrender of the individual concerned until it obtains the supplementary information that allows it to discount the existence of such a risk. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end. |
Case number | C-394/12 |
Case number | Abdullahi |
Document | Judgment ECLI:EU:C:2013:813 |
Date | 10/12/2013 |
Source of the question referred for a preliminary ruling | Asylgerichtshof (Austria) |
Name of the parties | Shamso Abdullahi v Bundesasylamt |
Subject matter | Area of freedom, security and justice; common asylum policy; border control; designating the Member State responsible for examining an asylum application |
Key words | Abdullahi - Common European Asylum System -Regulation (EC) No 343/2003 -Determination of the Member State responsible for examining an asylum application -Review of compliance with the criteria for determining responsibility for examining the asylum application -Scope of judicial review |
Questions referred for a preliminary ruling | ‘1. Is Article 19 of Regulation No 343/2003, read in conjunction with Article 18 thereof, to be interpreted as meaning that, following the agreement of a Member State in accordance with those provisions, that Member State is the State responsible for examining the asylum application for the purposes of the introductory part of Article 16(1) of Regulation No 343/2003, or does European Union law oblige the national review authority, where, in the course of an appeal or review procedure in accordance with Article 19(2) of Regulation No 343/2003, it comes to the view, irrespective of that agreement, that another State is the Member State responsible pursuant to Chapter III of Regulation No 343/2003 (even where that State has not been requested to take charge or has not given its agreement), to determine that the other Member State is responsible for the purposes of its appeal or review procedure? In that regard, does every asylum seeker have an individual right to have his application for asylum examined by a particular Member State responsible in accordance with those responsibility criteria? 2. Is Article 10(1) of Regulation No 343/2003 to be interpreted as meaning that the Member State in which a first irregular entry takes place (“first Member State”) must accept its responsibility for examining the asylum application of a third-country national if the following situation materialises: A third-country national travels from a third country, entering the first Member State irregularly. He does not claim asylum there. He then departs for a third country. After less than three months, he travels from a third country to another EU Member State (“second Member State”), which he enters irregularly. From that second Member State, he continues immediately and directly to a third Member State, where he lodges his first asylum claim. At this point, fewer than 12 months have elapsed since his irregular entry into the first Member State. 3. Irrespective of the answer to Question 2, if the “first Member State” referred to therein is a Member State whose asylum system displays systemic deficiencies equivalent to those described in the judgment of the European Court of Human Rights of 21 January 2011, M.S.S., 30.696/09, is it necessary to come to a different assessment of the Member State with primary responsibility for the purposes of Regulation No 343/2003, notwithstanding the judgment [in N.S. and Others]? In particular, can it be assumed that a stay in such a Member State cannot from the outset constitute an event establishing responsibility for the purposes of Article 10 of Regulation No 343/2003?’ |
Decision | Article 19(2) 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 must be interpreted as meaning that, in circumstances where a Member State has agreed to take charge of an applicant for asylum on the basis of the criterion laid down in Article 10(1) of that regulation -namely, as the Member State of the first entry of the applicant for asylum into the European Union -the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that the applicant for asylum 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. |
Case number | C-4/11 |
Case number | Puid |
Document | Judgment ECLI:EU:C:2013:740 |
Date | 14/11/2013 |
Source of the question referred for a preliminary ruling | Hessischer Verwaltungsgerichtshof (Germany) |
Name of the parties | Bundesrepublik Deutschland v Kaveh Puid |
Subject matter | Area of freedom, security and justice; asylum policy; border control; responsible Member State; inadmissibility of asylum applications, transfer to Greece |
Key words | Puid - Asylum -Charter of Fundamental Rights of the European Union –Article 4 -Regulation (EC) No 343/2003 -Article 3(1) and (2) -Determination of the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national -Articles 6 to 12 -Criteria for determining the Member State responsible -Article 13 -Fall-back clause |
Questions referred for a preliminary ruling | ‘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 [the] Regulation?’ |
Decision | 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 Article 3(2) of Regulation No 343/2003, to examine the application for asylum. |
Case number | C-411/10 |
Case number | N. S. and others |
Document | Judgment ECLI:EU:C:2011:865 |
Date | 21/12/2011 |
Source of the question referred for a preliminary ruling | In Joined Cases C‑411/10 in C‑493/10 from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) and High Court (Ireland) |
Name of the parties | |
Subject matter | Area of freedom, security and justice; asylum policy: safe country; sending asylum seekers back to Greece |
Key words | Asylum Policy - Principles -Fundamental rights -Implementation of European Union law -Prohibition of inhuman or degrading treatment -Common European Asylum System -Regulation (EC) No 343/2003 -Concept of ‘safe countries’ -Transfer of an asylum seeker to the Member State responsible -Obligation -Rebuttable presumption of compliance, by that Member State, with fundamental right |
Questions referred for a preliminary ruling | Joined case: C-411/10 If Question 1 is answered in the affirmative: (2) Is the duty of a Member State to observe EU fundamental rights (including the rights set out in Articles 1, 4, 18, 19(2) and 47 of the Charter) discharged where that State sends the asylum seeker to the Member State which Article 3(1) [of Regulation No 343/2003] designates as the responsible State in accordance with the criteria set out in Chapter III of the regulation (“the responsible State”), regardless of the situation in the responsible State? (3) In particular, does the obligation to observe EU fundamental rights preclude the operation of a conclusive presumption that the responsible State will observe (i) the claimant’s fundamental rights under European Union law; and/ or (ii) the minimum standards imposed by Directives 2003/9 …, 2004/83 … and 2005/85 …? (4) Alternatively, is a Member State obliged by European Union law, and, if so, in what circumstances, to exercise the power under Article 3(2) of the Regulation to examine and take responsibility for a claim, where transfer to the responsible State would expose the [asylum] claimant to a risk of violation of his fundamental rights, in particular the rights set out in Articles 1, 4, 18, 19(2) and/or 47 of the Charter, and/or to a risk that the minimum standards set out in Directives [2003/9, 2004/83 and 2005/85] will not be applied to him? (5) Is the scope of the protection conferred upon a person to whom Regulation [No 343/2003] applies by the general principles of European Union law, and, in particular, the rights set out in Articles 1, 18 and 47 of the Charter wider than the protection conferred by Article 3 of the ECHR? (6) Is it compatible with the rights set out in Article 47 of the Charter for a provision of national law to require a court, for the purpose of determining whether a person may lawfully be removed to another Member State pursuant to Regulation [No 343/2003], to treat that Member State as a State from which the person will not be sent to another State in contravention of his rights pursuant to the [ECHR] or his rights pursuant to the [Geneva Convention] and [the 1967 Protocol]? (7) In so far as the preceding questions arise in respect of the obligations of the United Kingdom, are the answers to [the second to sixth questions] qualified in any respect so as to take account of the Protocol (No 30)?’ and case C-493/10 (2) If the answer is yes, and if the receiving Member State is found not to be in compliance with one or more of those provisions, is the transferring Member Sate obliged to accept responsibility for examining the application under Article 3(2) of … Regulation (EC) No 343/2003?’ |
Decision | 1. The decision adopted by a Member State on the basis of Article 3(2) 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, whether to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that Regulation, implements European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of Fundamental Rights of the European Union. 2. European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to 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 that provision. Subject to the right itself to examine the application referred to in Article 3(2) of Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, entails that the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application. The Member State in which the asylum seeker is present 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 Regulation No 343/2003. 3. Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union do not lead to a different answer. 4. In so far as the preceding questions arise in respect of the obligations of the United Kingdom of Great Britain and Northern Ireland, the answers to the second to sixth questions referred in Case C-411/10 do not require to be qualified in any respect so as to take account of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom. |
Article 5 of the Charter: Prohibition of slavery and forced labour
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Funded by the European Union. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union or the Directorate General Justice and Consumers (DG JUST). Neither the European Union nor DG JUST can be held responsible for them.