Presidents of Chambers A Prechal, M Vilaras, E Regan, F Biltgen, K Jürimäe, C Lycourgos,
Judges A Rosas, E Juhász, M Ilešič (Rapporteur), J Malenovský, L Bay Larsen, D Šváby,
Advocate General M Wathelet
Parliament and Council Regulation (EU) No 604/2013 (“the Dublin III Regulation”), which introduced the Common European Asylum System, repealed and replaced Council Regulation (EC) No 343/2003 (“the Dublin II Regulation”). Whereas the Dublin II Regulation laid down solely the criteria and mechanisms for determining the member state responsible for examining an asylum application, the Dublin III Regulation laid down such criteria and mechanisms with respect to applications seeking refugee status or subsidiary protection status. Article 49 of the Dublin III Regulation provided that the Regulation should enter into force on 19 July 2013. It applied to applications lodged after 1 January 2014 and the member state responsible for the examination of an application for international protection submitted before that date should be determined in accordance with the criteria set out in the Dublin II Regulation.
Parliament and Council Directive 2011/95/EU (“the Qualification Directive”) concerned, inter alia, standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection. Parliament and Council Directive 2013/32/EU on common procedures for granting and withdrawing international protection (“the Procedures Directive”) recast Council Directive 2005/85/EC. Article 33(1) of the Procedures Directive provided that, in addition to cases in which an application was not examined in accordance with the Dublin III Regulation, member states did not have to examine whether an applicant qualified for international protection in accordance with the Qualification Directive where an application was considered inadmissible pursuant to article 33 of the Procedures Directive. Article 33(2) of that Directive set out an exhaustive list of the situations in which the member states could consider an application for international protection to be inadmissible, including under article 33(2)(a), where protection had been granted by another member state. Since article 33(2)(a) provided that a member state could also reject such an application as being inadmissible where the applicant had been granted only subsidiary protection in another member state, that provision extended the option previously provided for in article 25(2)(a) of Directive 2005/85. It followed from article 51(1) of the Procedures Directive that the member states were required bring into force the provisions necessary to comply with, inter alia, article 33 of that Directive by 20 July 2015 at the latest. The first paragraph of article 52 of the Procedures Directive contained transitional provisions and, under the first sentence of that paragraph, member states were to apply the provisions referred to in article 51(1) to applications for international protection lodged and to procedures for the withdrawal of international protection started “after 20 July 2015 or an earlier date”. The second sentence of that paragraph stated that applications lodged, and procedures for the withdrawal of refugee status started, before 20 July 2015 were to be governed by the provisions adopted pursuant to Directive 2005/85.
The applicants in the first three of four joined cases, were stateless Palestinians that resided in Syria. They left Syria in order to travel to Bulgaria where they were granted subsidiary protection. They then travelled onwards, via Austria, to Germany, where, on 29 November 2013, they lodged new applications for asylum. The German authorities sent take back requests with respect to the applicants to the Bulgarian refugee authority, which rejected those requests on the ground that the subsidiary protection previously granted in Bulgaria meant that the take back rules laid down by the Dublin III Regulation were inapplicable. The German authorities refused to grant asylum to the applicants, without examining the substance of their applications, on the ground that they came from a safe third country and ordered that they should be removed to Bulgaria. A German court annulled the decisions ordering the applicants’ removal, but dismissed the actions brought before it for the remainder. According to that court, the refusal to grant asylum in Germany to the persons concerned was correct, since those persons had arrived in Germany from a safe third country, namely Austria. The decisions ordering the removal to Bulgaria were however unlawful in that it had not been established that Bulgaria remained willing to take back the applicants. On their appeal to the referring court, the applicants claimed, in particular, that, in accordance with article 49 of the Dublin III Regulation, their situation continued to fall within the scope of the Dublin II Regulation and that the latter Regulation remained applicable, even after the granting of subsidiary protection. Under the provisions of the Dublin II Regulation, the initial responsibility of Bulgaria was, according to the applicants, transferred to Germany in the course of the procedure laid down by that Regulation. Germany considered that the asylum applications were now inadmissible under national provisions corresponding to article 33(2)(a) of the Procedures Directive. In those circumstances, the German court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling a number of questions on the interpretation of, inter alia, articles 33 and 52 of the Procedures Directive, and provisions of the Dublin II and Dublin III Regulations.
The applicant in the fourth case, who was of Russian nationality but declared himself to be Chechen, arrived in Poland where he was granted subsidiary protection. Some five years later he entered Germany with his wife and child, where, in June 2012, he lodged an application for asylum. In February 2013 the German authorities sent a take back request with respect to applicant and his family to the Polish authorities, who stated that they were willing to take them back. The German authorities held, without any examination of their substance, that the asylum applications were inadmissible, on the ground that Poland was responsible for the examination of those applications, and ordered the transfer of the applicant and his family to Poland. When that transfer did not occur within the period prescribed, the German authorities withdrew its earlier decision on the ground that Germany had become the member state responsible, because the prescribed period had expired. The German authorities refused to grant the applicant international protection and a right of asylum, on the ground that he had arrived in Germany from a safe third country, namely Poland, and ordered his removal to Poland. A German court annulled that decision. As the asylum application in issue was lodged before 20 July 2015, Directive 2005/85 was applicable, which permitted a member state to reject an application for asylum, without any examination of its substance, only where another member state had recognised the refugee status of the person concerned. On its appeal to the referring court, Germany claimed that the application for asylum in issue was now inadmissible, under national law, since the applicant had been granted international protection in Poland. The applicant considered that his application, lodged in June 2012, was not inadmissible since Poland did not grant him refugee status, but merely subsidiary protection. In those circumstances, the German court stayed the proceedings and referred to the Court of Justice for a preliminary ruling questions on the interpretation of articles 33(2)(a) and 52 of the Procedures Directive and article 49 of the Dublin III Regulation.
Held, (1) notwithstanding the tension between the first and second sentences of the first paragraph of article 52 of Directive 2013/32 (“the Procedures Directive”), it was apparent from the travaux préparatoires of that Directive that the European Union legislature intended to allow the member states, who wished to do so, to implement the Directive with immediate effect to applications for international protection lodged before 20 July 2015. The Procedures Directive, which was adopted on the same day as the Dublin III Regulation, provided, in the same way as the latter, for an extension of its scope to applications for international protection, as compared with Directive 2005/85 which preceded it and which governed solely asylum procedure. That was the wider legislative framework surrounding the introduction of the additional ground for inadmissibility provided for in article 33(2)(a) of the Procedures Directive, which permitted member states also to reject an application for asylum as being inadmissible where the applicant had been granted by another member state, not a right to asylum, but solely subsidiary protection. An immediate application of the additional ground for inadmissibility provided for in article 33(2)(a) of that Directive could not extend to a situation such as that at issue in the fourth case, where both the application for asylum submitted in Germany and the take back request were lodged before 1 January 2014, so that that application, in accordance with article 49 of the Dublin III Regulation, remained fully within the scope of the Dublin II Regulation. It followed from the structure of the Dublin III Regulation and from that of the Procedures Directive, and from the wording of article 33(1) of that Directive, that the additional ground for inadmissibility provided for in article 33(2)(a) was not intended to be applicable to an application for asylum which still fell entirely within the scope of the Dublin II Regulation. Accordingly, the first paragraph of article 52 of the Procedures Directive permitted 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 had yet been made, which were lodged before 20 July 2015 and before the entry into force of that provision in national law. However, that paragraph, read in the light of, inter alia, article 33 thereof, precluded 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 the Directive and, in accordance with article 49 of the Dublin III Regulation, still fell fully within the scope of the Dublin II Regulation (judgment paras 64, 65, 70–74, operative part, para 1).
(2) In the situations listed in article 33(2) of the Procedures Directive, that provision permitted the member states to reject an application for international protection as being inadmissible without those states being obliged to have recourse, as the first resort, to the take charge or take back procedures provided for by the Dublin III Regulation. Further, with respect to applications for international protection, such as those in issue in the first three cases, which fell in part within the scope of the Dublin III Regulation, a member state could not properly make a request of another member state that it take charge of or take back a third-country national who had submitted an application for international protection in the former member state after having been granted subsidiary protection by the latter member state. In such a situation, the rejection of such an application for international protection had to be made by means of a decision of inadmissibility, pursuant to article 33(2)(a) of the Procedures Directive, rather than by means of a decision to transfer the person concerned and not to examine the application, under article 26 of the Dublin III Regulation. Accordingly, in a situation such as that in the first three cases, it was 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 Procedures Directive that they had, or had to be able, to have recourse, as the first resort, to the take charge or take back procedures provided for by the Dublin III Regulation (judgment paras 77–80, operative part, para 2).
(3) Article 33(2)(a) of the Procedures Directive did not preclude 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 had 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 did not receive, in that member state, any subsistence allowance, or that such allowance as they received was markedly inferior to that in other member states, though they were not treated differently from nationals of that state, could lead to the finding that that applicant would be exposed in that member state to such a risk only if the consequence was 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 the Procedures Directive did not preclude a member state from exercising that option, where the asylum procedure in the other member state that had granted subsidiary protection to the applicant lead to a systematic refusal, without real examination, to grant refugee status to applicants for international protection who satisfied the conditions laid down in Chapters II and III of Parliament and Council Directive 2011/95/EU (the Qualification Directive) (judgment, paras 85–88, 101, operative part, para 3).
D Kösterke-Zerbe for the applicants in the first three cases.
I Stern for the applicant in the fourth case.
T Henze and R Kanitz, agents, for the German Government.
D Colas, E de Moustier and E Armoët, agents, for the French Government.
MZ Fehér, G Koós and M Tátrai, agents, for the Hungarian Government.
B Majczyna, agent, for the Polish Government.
M Condou-Durande and C Ladenburger, agents, for the European Commission.