Bundesrepublik Deutschland vertreten durch Bundesministerium des Innern, für Bau und Heimat v MA and Others.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:709
• Date: 22 September 2022
• Docket Number: C-245/21,C-248/21
• Celex Number: 62021CJ0245
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

22 September 2022 (*)

(Request for a preliminary ruling – Regulation (EU) No 604/2013 – Determination of the Member State responsible for examining an application for international protection – Articles 27 and 29 – Transfer of the person concerned to the Member State responsible for the examination of his or her request – Suspension of the transfer due to the COVID-19 pandemic – Impossibility of carrying out the transfer – Judicial protection – Consequences for the time limit for transfer)

In Joined Cases C‑245/21 and C‑248/21,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Germany), made by decisions of 26 January 2021, received at the Court on 19 April 2021, in the proceedings

Federal Republic of Germany

v

MA (C‑245/21),

PB (C‑245/21),

LE (C‑248/21),

THE COURT (First Chamber),

composed of A. Arabadjiev, President of the Chamber, L. Bay Larsen (Rapporteur), Vice-President of the Court, acting as Judge of the First Chamber, I. Ziemele, P.G. Xuereb and A. Kumin, Judges,

Advocate General: P. Pikamäe,

Registrar: R. Stefanova-Kamisheva, Administrator,

having regard to the written procedure and further to the hearing on 9 March 2022,

after considering the observations submitted on behalf of:

– MA and PB, by A. Petzold, Rechtsanwalt,

– the German Government, by J. Möller and R. Kanitz, acting as Agents,

– the Swiss Government, by S. Lauper, acting as Agent,

– the European Commission, by A. Azéma and M.G. von Rintelen, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 June 2022,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 27(4) and Article 29(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 (OJ 2013 L 180, p. 31) (‘the Dublin III Regulation’).

2 The requests for a preliminary ruling have been made in proceedings between the Bundesrepublik Deutschland (Federal Republic of Germany) and MA, PB (C‑245/21) and LE (C‑248/21) concerning decisions adopted by the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration, Germany) (‘the Office’) declaring their asylum applications inadmissible, finding that there are no grounds prohibiting their removal, ordering their deportation to Italy and imposing entry and residence bans on them.

The legal framework

European Union law

3 Recitals 4 and 5 of the Dublin III Regulation are worded as follows:

‘(4) The Tampere [European Council] conclusions [of 15 and 16 October 1999] also stated that the [Common European Asylum System] should include, in the short-term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.

(5) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as 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.’

4 Article 27(3) and (4) of that regulation provides:

‘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 The third subparagraph of Article 28(3) of that regulation provides:

‘Where a person is detained pursuant to this Article, the transfer of that person from the requesting Member State to the Member State responsible shall be carried out as soon as practically possible, and at the latest within six weeks of the implicit or explicit acceptance of the request by another Member State to take charge or to take back the person concerned or of the moment when the appeal or review no longer has a suspensive effect in accordance with Article 27(3).’

6 Article 29(1) and (2) of that regulation is worded as follows:

‘1. The transfer of the applicant … 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.’

German law

7 Paragraph 80(4) of the Verwaltungsgerichtsordnung (Code of Administrative Justice) provides that the authority which is the author of the administrative act may, in certain cases, suspend the implementation of that act, unless otherwise provided by federal law.

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

Case C‑245/21

8 MA and PB applied for asylum in Germany in November 2019.

9 As a search in the Eurodac system revealed that they had entered the territory of the Italian Republic illegally and had been registered as applicants for international protection in that Member State, the Office requested, on 19 November 2019, the Italian authorities to take charge of MA and PB on the basis of the Dublin III Regulation.

10 The Italian authorities did not respond to that request to take charge.

11 By decision of 22 January 2020, the Office declared MA’s and PB’s asylum applications inadmissible, found that there were no grounds prohibiting their removal, ordered their deportation to Italy and imposed entry and residence bans on them.

12 On 1 February 2020, MA and PB lodged an appeal against that decision of the Office before the competent Verwaltungsgericht (Administrative Court, Germany). PB also filed an appeal with a request for suspension of the decision. That request was rejected on 11 February 2020.

13 By decision of 8 April 2020, the Office suspended, until further notice, the implementation of the removal orders pursuant to Article 80(4) of the Code of Administrative Justice and Article 27(4) of the Dublin III Regulation, on the grounds that, in view of the development of the COVID-19 pandemic, the implementation of MA’s and PB’s transfers was not possible.

14 By judgment of 14 August 2020, the Verwaltungsgericht (Administrative Court) seised of the case annulled the Office’s decision of 22 January 2020. That judgment was based on the finding that, even if the Italian Republic had been responsible for the examination of MA’s and PB’s asylum applications, that responsibility was transferred to the Federal Republic of Germany due to...