(Case C-504/21 Request for a preliminary ruling from the Verwaltungsgericht Stade (Germany) lodged on 17August 2021– Applicant 1 and Others v Bundesrepublik Deutschland
Fecha: 17-Ago-2021
Request for a preliminary ruling from the Verwaltungsgericht Stade (Germany) lodged on 17August 2021– Applicant 1 and Others v Bundesrepublik Deutschland
(Case C-504/21)
Language of the case: German
Referring court
Verwaltungsgericht Stade
Parties to the main proceedings
Applicants: Applicant 1, Applicant 2, Applicant 3, Applicant 4, Applicant 5
Party opposing the applications: Bundesrepublik Deutschland (represented by the Bundesamt für Migration und Flüchtlinge)
Questions referred
Justiciability
Is Article27 of Regulation (EU) No604/2013 (‘the Dublin III Regulation’),1 whether or not read in conjunction with Articles47 and 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), and while noting the provisions of Directive 2003/86/EC,2 to be interpreted as meaning that the requested Member State is obliged to provide applicants, including children, who are present in the requesting Member State and who are seeking a transfer pursuant to Articles8, 9 or 10 of the Dublin III Regulation, or the members of their family in the requested Member State within the meaning of Articles8, 9 or 10 of the Dublin III Regulation, with an effective remedy before a court in the requested Member State against refusal of the request to take charge?
In the event that Question a.1 is answered in the negative:
In that case, does the right to an effective remedy referred to in a.1 arise directly from Article47 of the Charter, whether or not read in conjunction with Articles7, 9 and 33 of the Charter, in the absence of adequate regulation in the Dublin III Regulation (see the judgments of 7June 2016, Ghezelbash, C-63/15, paragraphs51 and 52,1 and of 26July 2017, Mengesteab, C-670/16, paragraph582 )?
In the event that Question a.1. or Question a.2. is answered in the affirmative:
Is Article47 of the Charter, whether or not read in conjunction with the principle of sincere cooperation (see the judgment of 13November 2018, X, C-47/17 and C-48/17,1 ), to be interpreted as meaning that the requested Member State is obliged to inform the requesting Member State about an appeal brought by the applicants against the refusal of the request to take charge, and that the requesting Member State is obliged to refrain from ruling on the merits of the applicants’ asylum application pending a negative outcome of the appeal proceedings?
In the event that Question a.1. or Question a.2. is answered in the affirmative:
Is Article47 of the Charter, whether or not the assessments set out in recital5 of the Dublin III Regulation are to be considered, to be interpreted in a case such as that described above as meaning that the courts of the requested Member State are obliged to guarantee legal protection by way of summary proceedings? Is there a period within which the courts in the requested Member State must take a decision on the appeal?
Transfer of responsibilities
Does the third subparagraph of Article21(1) of the Dublin III Regulation, read in conjunction with Article5(2) of Regulation (EC) No1560/2003, as amended by Regulation (EU) No118/2014,1 (‘the Implementing Regulation’) effect, in principle, a non-appealable transfer of responsibilities to the requesting Member State, if the requested Member State refuses both the original request from the [requesting] Member State and the application for reconsideration within the period (see the judgment of 13November 2018, X, C-47/17 and C-48/17, EU:C:2018:900, paragraph80)?
If Question b.1 is answered in the affirmative:
Is that also the case if the refusal decisions of the requested Member State are unlawful?
In the event that Question b.2 is answered in the negative:
Can the applicant for asylum in the requesting Member State invoke a transfer of responsibility that was unlawful due to failure to comply with responsibility criteria relating to family unity (Articles8 to 11, 16, 17(2) of the Dublin III Regulation) against the requested Member State?
Subsequent application
Are Article7(2) and Article20(1) of the Dublin III Regulation to be interpreted as not precluding the applicability of the provisions in Chapter III or the implementation of a procedure for taking charge within the meaning of Chapter VI, Section II, of the Dublin III Regulation in cases where the applicants have already lodged an asylum application in the requesting Member State, which was originally rejected as inadmissible by the requesting Member State on the basis of Article33(2)(c), read in conjunction with Article38, of Directive 2013/32/EU,1 but– for example as a result of the de facto settlement in the ‘EU-Turkey Statement of 18March 2016’ (see EN P-000604/2021, Answer given by MsJohansson on 1June 2021 on behalf of the European Commission)– an admissible subsequent application procedure has since been initiated in the requesting Member State?
In the event that Question c.1 is answered in the negative:
In the case described under c.1., are Article7(2) and Article20(1) of the Dublin III Regulation then to be interpreted in such a way that they do not preclude the applicability of the provisions in Chapter III and the implementation of a procedure to take charge pursuant to Chapter VI, Section II, of the Dublin III Regulation in cases involving responsibility criteria relating to family unity (Articles8 to 11 and 16 of the Dublin III Regulation)?
Is Article17(2) of the Dublin III Regulation still applicable in the case where the applicants have already lodged an asylum application in the requesting Member State, which was originally rejected as inadmissible by the requesting Member State on the basis of Article33(2)(c), read in conjunction with Article38, of Directive 2013/32/EU, but– for example as a result of the de facto settlement in the ‘EU-Turkey Statement of 18March 2016’ (see EN P-000604/2021, Answer given by MsJohansson on 1June 2021 on behalf of the European Commission)– an admissible subsequent application procedure has since been initiated in the requesting Member State?
If Question c.3 is answered in the affirmative:
Does Article17(2) of the Dublin III Regulation grant applicants for asylum an enforceable subjective right in the requested Member State? Does EU law lay down any stipulations regarding the exercise of administrative discretion by the national authorities in this regard– for example maintaining family unity, the best interests of children– or is this governed by national law alone?
Subjective rights of a family member residing in the requested Member State
Does a family member who is already resident in the requested Member State have a legally enforceable claim to ensure compliance with Article8 et seq. of the Dublin III Regulation and the associated transfer rules (Articles18 and 29 et seq. of the Dublin III Regulation, whether or not read in conjunction with recitals13, 14 and 15 of the Dublin III Regulation, read in conjunction with Article47 of the Charter) or with Article17(2) of the Dublin III Regulation?