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EV Case C-134/21

EV Case C-134/21

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Article 27 : Remedies

04/11/2021

ORDER OF THE COURT (Fifth Chamber)

26.March 2021 ( *1 )

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court – Border controls, asylum and immigration – Asylum policy – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Regulation (EU) No 604/2013 (Dublin III) – Article 27 – Remedies against a transfer decision – Suspensive effect of the remedy – Article 29 – Modalities and time limits for transfers – Standards for the reception of applicants for international protection – Directive 2013/33/EU – Article 18 – National measure allocating to an applicant in respect of whom a transfer decision has been made a place in a specialised reception facility where those accommodated receive support in preparing to be transferred)

In Case C‑134/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal du travail de Liège (Labour Court, Liège, Belgium), made by decision of 22 February 2021, received at the Court on 4 March 2021, in the proceedings

EV

v

Agence fédérale pour l’Accueil des demandeurs d’asile (Fedasil)

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, M. Ilešič, E. Juhász (Rapporteur), C. Lycourgos and I. Jarukaitis, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 53(2) and Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1

This request for a preliminary ruling concerns the interpretation of Article 27 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 (OJ 2013 L 180, p. 31) (‘the Dublin III Regulation’).

2

The request has been made in proceedings between EV and the Agence fédérale pour l’accueil des demandeurs d’asile (Federal Agency for the Reception of Asylum Seekers; ‘Fedasil’) (Belgium), concerning the legality of a measure allocating EV a place in a specialised reception facility in which those accommodated are given support in preparing to be transferred to the Member State responsible for examining their application for international protection.

Legal context

EU law

The Dublin III Regulation

3

Article 1 of the Dublin III Regulation, which is headed ‘Subject matter’, provides:

‘This Regulation lays down 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 (“the Member State responsible”).’

4

Article 2 of the regulation, which is headed ‘Definitions’, states:

‘For the purposes of this Regulation:

(b)

“application for international protection” means an application for international protection as defined in Article 2(h) 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 (OJ 2011 L 337, p. 9)];

(c)

“applicant” means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken;

…’

5

Article 26 of that regulation, which is headed ‘Notification of a transfer decision’, provides in paragraph 1 thereof:

‘Where the requested Member State accepts to take charge of or to take back an applicant or other person as referred to in Article 18(1)(c) or (d), the requesting Member State shall notify the person concerned of the decision to transfer him or her to the Member State responsible and, where applicable, of not examining his or her application for international protection. If a legal advisor or other counsellor is representing the person concerned, Member States may choose to notify the decision to such legal advisor or counsellor instead of to the person concerned and, where applicable, communicate the decision to the person concerned.

6

Under Article 27 of that regulation:

‘1.   The applicant … shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.

3.   For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:

(a)

the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or

(b)

the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or

(c)

the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.

4.   Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.

5.   Member States shall ensure that the person concerned has access to legal assistance and, where necessary, to linguistic assistance.

6.   Member States shall ensure that legal assistance is granted on request free of charge where the person concerned cannot afford the costs involved. …

…’

7

Article 29 of the Dublin III Regulation, which concerns the modalities and time limits applicable to transfers to the Member State responsible, provides in paragraphs 1 and 2 thereof:

‘1.   The transfer of the applicant or of another person as referred to in Article 18(1)(c) or (d) from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3).

2.   Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.’

Directive 2013/33/EU

8

Article 7 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 (OJ 2013 L 180, p. 96) states, under the heading ‘Residence and freedom of movement’:

‘1.   Applicants may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.

2.   Member States may decide on the residence of the applicant for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application for international protection.

3.   Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national law.

…’

9

Under Article 18 of that directive, which is headed ‘Modalities for material reception conditions’:

‘1.   Where housing is provided in kind, it should take one or a combination of the following forms:

(b) accommodation centres which guarantee an adequate standard of living;

3.   Member States shall take into consideration gender and age-specific concerns and the situation of vulnerable persons in relation to applicants within the premises and accommodation centres referred to in paragraph 1(a) and (b).

6.   Member States shall ensure that transfers of applicants from one housing facility to another take place only when necessary. …

…’

Belgian law

The Law of 15 December 1980

10

The loi sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law on access to the territory, residence, establishment and removal of foreign nationals) of 15 December 1980 (Moniteur belge of 31 December 1980, p. 14584), in the wording applicable to the facts of the main proceedings (‘the Law of 15 December 1980’), contains a Title Ia, headed ‘Council for asylum and immigration proceedings’, which is divided into five chapters.

11

Chapter 1, headed ‘Institution and jurisdiction of the Council for asylum and immigration proceedings’, incorporates, inter alia, Article 39/2 of the Law of 15 December 1980, which provides that an applicant for international protection may bring an appeal before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium), seeking annulment of a decision refusing leave to remain and ordering the applicant to leave the territory, which does not have suspensory effect.

12

Chapter 5 of Title Ia of the Law of 15 December 1980, headed ‘Procedure’, is subdivided into three sections. Section III concerns ‘appeals seeking annulment’ and incorporates, inter alia, a subsection 3 headed ‘interim administrative proceedings’. That subsection contains Article 39/82 of that law, which is worded as follows:

‘§1.   Where an act of an administrative authority is amenable to annulment under Article 39/2, the [Council for asylum and immigration proceedings] alone shall have jurisdiction to order the suspension of its enforcement.

Where the applicant seeks the suspension of implementation, he or she must opt for either suspension on grounds of extreme urgency or ordinary suspension. The applicant must not, either simultaneously or consecutively, seek further application of the third subparagraph or make a further request for suspension in the application referred to in paragraph 3, failing which the application will be inadmissible.

§4.   The President of the Chamber or the judge hearing asylum and immigration cases involving foreign nationals appointed by him or her shall rule on the application for suspension within thirty days. If suspension is ordered, a ruling shall be given on the application for annulment within four months of delivery of the decision of the court.

If the foreign national is the subject of a removal or refoulement order the enforcement of which is imminent, in particular if he or she is kept at a specific place as referred to in Articles 74/8 and 74/9 or is placed at the disposal of the government, he or she may, if he or she has not yet applied for the suspension of that order by way of the ordinary procedure, seek suspension of enforcement of that order on grounds of extreme urgency within the period referred to in Article 39/57(1)(3).

…’

The Law on the reception of asylum seekers and certain other categories of foreign nationals

13

Article 11(1) of the loi sur l’accueil des demandeurs d’asile et de certaines autres catégories d’étrangers (Law on the reception of asylum seekers and certain other categories of foreign nationals), of 12 January 2007 (Moniteur belge of 7 May 2007, p. 24027) provides, in certain circumstances, for the compulsory allocation to asylum seekers of a place in a reception facility. Under Article 12(2) of that law, Fedasil may alter the place of reception of an asylum seeker on its own initiative.

The dispute in the main proceedings and the questions referred for a preliminary ruling

14

On 16 September 2020, the applicant in the main proceedings, a Georgian national, made an application for international protection in Belgium.

15

Pending the determination of that application, he was accommodated in a Red Cross reception centre in Rocourt (Belgium).

16

The Belgian authorities made a request for the Dutch authorities to take charge of the applicant. That request was accepted on 9 October 2020.

17

The Office des étrangers (Immigration Office, Belgium) adopted a decision refusing the applicant leave to remain and ordering him to leave the territory, which was notified to the applicant in the main proceedings on 21 December 2020. That decision advised the applicant that the Kingdom of the Netherlands was responsible for examining his case and ordered him to leave Belgian territory and travel to the Netherlands.

18

On 14 January 2021, the applicant in the main proceedings brought an appeal seeking the annulment of that transfer decision before the Council for asylum and immigration proceedings.

19

By decision of 11 January 2021, made in the light of the transfer decision, Fedasil altered the place of reception of the applicant in the main proceedings, by way of compulsory assignment, to a specialised reception facility in Mouscron (Belgium), in order for him to receive the support that is provided for in relation to the organisation of his transfer to the Member State responsible.

20

The applicant in the main proceedings brought interim proceedings against that decision before the tribunal du travail de Liège (Labour Court, Liège, Belgium).

21

By interim order of 15 January 2021, confirmed on 4 February 2021, the tribunal du travail de Liège (Labour Court, Liège) provisionally ordered that the applicant in the main proceedings was to continue to be accommodated at the Rocourt Red Cross reception centre.

22

On 14 January 2021, the applicant in the main proceedings brought a substantive appeal against Fedasil’s decision. In support of that appeal, he submitted that the decision infringed his right to a remedy with suspensory effect against the decision refusing leave to remain.

23

The referring court states that Article 27 of the Dublin III Regulation guarantees the applicant an effective remedy against a decision refusing leave to remain combined with an order to leave the national territory.

24

It observes nevertheless that the bringing of an appeal does not have the effect, in national law, of automatically suspending implementation of the order to leave the territory. It is only in interim administrative proceedings that the applicant can, where there is absolute urgency – or in other words where the order to leave the territory is to be implemented imminently – seek suspension of the implementation of an order to leave the territory.

25

According to the referring court, the outcome of the main proceedings depends on a prior determination as to whether, and in what circumstances, an appeal against a transfer decision has suspensory effect. It explains in that regard that, if such an effect is to be recognised, the bringing of the appeal would temporarily prevent the applicant in question from being transferred to another Member State, making it premature to move the applicant to a specialised centre in preparation for the transfer.

26

It therefore raises the question of whether a decision altering the compulsory place of reception, such as the decision at issue in the main proceedings – which, it considers, should be regarded as the beginning of the implementation of the transfer decision, is compliant with Article 27 of the Dublin III Regulation.

27

In those circumstances, the tribunal du travail de Liège (Labour Court, Liège) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)

Is a remedy, provided by domestic law to asylum seekers who have been requested to have their applications for international protection examined in another Member State, which does not have suspensory effect and may acquire such effect only if the asylum seeker is deprived of liberty with a view to his or her imminent transfer an effective remedy within the meaning of Article 27 of the Dublin III Regulation?

(2)

Must the effective remedy prescribed in Article 27 of the Dublin III Regulation be interpreted as precluding only the implementation of a measure of enforced transfer while an appeal against that transfer decision is being examined or as prohibiting any measure preparatory to removal, such as relocation to a centre which establishes return paths for asylum seekers who have been requested to have their asylum applications examined in another European country?’

Procedure before the Court

28

The referring court requested that the present case be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court, or under the expedited procedure provided for in Article 105 of those rules.

29

By decision of 16 March 2021, the Fifth Chamber decided, on the proposal of the Judge-Rapporteur and after hearing the Advocate General, that it would not be appropriate to grant the request for the present case to be dealt with under the urgent preliminary ruling procedure, as the conditions of urgency laid down in Article 107 of the Rules of Procedure were not met. By decision of the same day, the request for the case to be dealt with under the expedited procedure was also refused. On the other hand, again on 16 March 2021, the President of the Court of Justice decided that the case would be given priority, in accordance with Article 53(3) of the Rules of Procedure.

Consideration of the questions referred

30

Under Article 99 of the Rules of Procedure, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order where, inter alia, the answer to the question referred for a preliminary ruling admits of no reasonable doubt. Furthermore, under Article 53(2) of those rules, where a request for a preliminary ruling is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

31

It is appropriate to apply those provisions in the present case.

The second question

32

By its second question, which should be considered first, the referring court asks, in essence whether Article 27 of the Dublin III Regulation is to be interpreted as precluding a Member State from adopting, in relation to an applicant who has brought an appeal against a decision to transfer him or her to another Member State, as referred to in Article 26(1) of that regulation, measures preparatory to such a transfer, such as the allocation of a place in a specialised reception facility where those accommodated receive support in preparing for their transfer.

33

Under Article 27(1) of the Dublin III Regulation, the applicant has the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal. Furthermore, it is apparent from Article 27(3) to (6) of that regulation that, in order to ensure that those remedies are effective, the asylum seeker must, inter alia, be given the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal, and must also have legal assistance (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 50).

34

While, under that article, the right to an effective remedy must be combined, at least, with an opportunity for the applicant to seek suspension of the implementation of the transfer decision, that provision does not however oblige Member States to provide in their law that the pursuit of such a remedy shall automatically suspend its implementation.

35

It is apparent from Article 27(3)(c) of the Dublin III Regulation that, by specifying that the Member States are to provide that the person concerned has the opportunity to request, within a reasonable period of time, a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal, the EU legislature acknowledges that the Member States may decide that the lodging of an appeal against a transfer decision does not, of itself, have suspensory effect with regard to the transfer, which may therefore go ahead without waiting for the examination of the appeal, provided that suspension has not been requested or the request for suspension has been refused (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 59).

36

Nonetheless, it should be pointed out, first, that while it provides for a right to an effective remedy and an opportunity to request suspension of the implementation of the transfer decision pending the outcome of the appeal, neither Article 27 nor any other provision of the Dublin III Regulation prohibits the adoption of measures – such as those at issue in the main proceedings – which do not, in themselves, constitute the beginning of the implementation of the transfer decision within the meaning of that regulation.

37

Such measures should not be regarded as measures implementing the transfer, but as measures preparatory to the implementation procedure, since the execution of the measures themselves does not result in the person concerned leaving the territory of the requesting Member State. Moreover, they do not infringe the applicant’s freedom to come and go, or the exercise of the procedural rights he or she enjoys under the Dublin III Regulation.

38

Furthermore, measures such as those at issue in the main proceedings are not, of themselves, such as to influence the decision to be made on the appeal against the transfer decision, and indeed the referring court has not suggested otherwise.

39

It should also be observed that Article 29(1) of the Dublin III Regulation provides that the transfer of an applicant from the requesting Member State to the Member State responsible is to be carried out ‘as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal … where there is a suspensive effect’. That provision entails that the applicant must be transferred as soon as possible, upon the legal requirements for the transfer being met.

40

The adoption of measures in preparation for the transfer thus appears to be consistent with Article 29 of the Dublin III Regulation, in that such measures are intended to prepare for the applicant to be transferred as soon as possible, in the event of his or her appeal against the transfer decision being dismissed.

41

Secondly, the adoption of preparatory measures such as those at issue in the main proceedings equally does not infringe the provisions of Directive 2013/33, the purpose of which is to govern the reception conditions of asylum seekers, including those who have been notified of a transfer decision taken pursuant to the Dublin III Regulation (see, to that effect, judgment of 27 September 2012, Cimade and GISTI, C‑179/11, EU:C:2012:594, paragraph 50).

42

In that regard, the obligation on Member States to transfer applicants from one housing facility to another ‘only when necessary’, laid down in Article 18(6) of Directive 2013/33, does not prevent an applicant being assigned, after the adoption of a transfer decision, to a new reception facility offering services with a view to providing support for the transfer, notwithstanding the fact that the applicant has brought an appeal against the transfer decision.

43

The requesting Member State is not to be criticised for taking the view that a change of accommodation is necessitated by the change in the applicant’s administrative situation associated with the transfer decision, and by the constraints which that decision imposes on the Member State.

44

That having been said, it should be observed that the information provided to applicants, and the interviews conducted with them in the open reception centres to which they are directed, inevitably have the potential to subject applicants for international protection to undue pressure to decline to exercise the procedural rights they enjoy under the Dublin III Regulation.

45

In the light of the foregoing, the answer to the second question is that Article 27 of the Dublin III Regulation is to be interpreted as not precluding a Member State from adopting, in relation to an applicant who has brought an appeal against a decision to transfer him or her to another Member State as referred to in Article 26(1) of that regulation, measures preparatory to such a transfer, such as the allocation of a place in a specialised reception facility where those accommodated receive support in preparing for their transfer.

The first question

46

By its first question, the referring court asks, in essence, whether Article 27 of the Dublin III Regulation is to be interpreted as precluding national legislation which provides for the possibility for the applicant to request suspension of the implementation of a transfer decision only where that decision is in the course of implementation and the applicant is at risk of being transferred imminently.

47

Under the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 26 March 2020, A.P. (Probation measures), C‑2/19, EU:C:2020:237, paragraph 25 and the case-law cited).

48

It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 26 March 2020, A.P. (Probation measures), C‑2/19, EU:C:2020:237, paragraph 26 and the case-law cited).

49

In the present case, first, it is apparent from the request for a preliminary ruling that the referring court is required only to ‘[ascertain] whether the material assistance granted to Mr EV in the Mouscron centre will provide him with the same material and legal conditions as his reception in a different centre, in such a way as to allow him to exercise, under the same conditions, his right to an effective remedy’ in respect of the transfer decision which has been notified to him.

50

Secondly, as stated in paragraph 37 of this order, measures such as those at issue in the main proceedings do not constitute measures implementing a transfer decision within the meaning of the Dublin III Regulation.

51

It follows that the question relating to the suspensory effect of an appeal against a transfer decision is not relevant to the dispute in the main proceedings, and it should accordingly be held that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose.

52

That conclusion is not called into question by the judgment of 30 September 2020, CPAS de Liège (C‑233/19, EU:C:2020:757) since, in the present case, there is no link between the dispute in the main proceedings, which relates to the applicant having been assigned to a housing facility offering services with a view to providing support for the transfer, and Article 27 of the Dublin III Regulation. Accordingly, it is not necessary, in order to resolve the dispute in the main proceedings, for the referring court to deal with the question whether the appeal that has been brought before another court or tribunal, seeking annulment of the transfer decision, constitutes an effective remedy.

53

Having regard to the foregoing, it should be held, pursuant to Article 53(2) of the Rules of Procedure, that the first question is manifestly inadmissible.

Costs

54

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

 

On those grounds, the Court (Fifth Chamber) hereby orders:

 

Article 27 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, is to be interpreted as not precluding a Member State from adopting, in relation to an applicant who has brought an appeal against a decision to transfer him or her to another Member State as referred to in Article 26(1) of that regulation, measures preparatory to such a transfer, such as the allocation of a place in a specialised reception facility where those accommodated receive support in preparing for their transfer.

 

[Signatures]

( *1 ) Language of the case: French.

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