Judges A Rosas, C Toader, A Prechal, E Jarašiūnas
Advocate General P Mengozzi
The applicant, an Iraqi national, was arrested in France and a search showed that his fingerprints had been taken by the German authorities where the applicant had applied for international protection, without making any such application in France. The French authorities sent a request to the German authorities to take the applicant back and decided at the same time to transfer him to Germany. The applicant lodged an appeal against the transfer decision, arguing, inter alia, that the transfer decision infringed article 26 of Parliament and Council Regulation (EU) No 604/20133 (“the Dublin III Regulation”), since it was taken and notified to him before the requested member state had explicitly or implicitly responded to the French authorities’ take back request. The French court stayed the proceedings and referred to the Court of Justice of the European Union for preliminary ruling the question whether article 26(1) of the Dublin III Regulation precluded a member state which had submitted to another member state, which it considered responsible for the examination of an application for international protection pursuant to the criteria laid down in that Regulation, a request to take charge or take back a person referred to in article 18(1), from adopting a transfer decision and notifying it to that person before the requested member state had given its explicit or implicit agreement to that request.
On the reference—
Held, it was clear from the wording of article 26(1) of the Dublin III Regulation, read in the light of the history of that provision, that a transfer decision could be notified to the person concerned only after the requested member state had, implicitly or explicitly, agreed to take charge of that person or to take him back. The Dublin III Regulation had the objective of establishing a clear and workable method based on objective and fair criteria both for the member states and for the persons concerned for the purpose of determining rapidly the member state responsible in order to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection, while ensuring that an effective remedy was established by that Regulation against transfer decisions. A transfer decision could not be enforced against the person concerned before it had been notified to him, the time at which notification had to take place being defined precisely in article 26(1) of the Regulation. It followed that the adoption of such a decision before the reply of the requested member state, even if its notification took place only after that reply, did not contribute to the objective of the rapid processing of applications for international protection or to that of ensuring effective legal protection of that person’s rights, since the lodging of an appeal against a transfer decision necessarily post-dated the notification of that decision. Accordingly, article 26(1) of the Dublin III Regulation precluded a member state that had submitted, to another member state which it considered to be responsible for the examination of an application for international protection pursuant to the criteria laid down by that Regulation, a request to take charge of or take back a person referred to in article 18(1) from adopting a transfer decision and notifying it to that person before the requested member state had given its explicit or implicit agreement to that request (judgment, paras 46, 56, 73, 75, operative part).
D Colas, E de Moustier and E Armoet, agents, for the French Government.
MZ Fehér, agent, for the Hungarian Government.
M Condou-Durande, agent, for the European Commission.