Opinion of Advocate General Tanchev delivered on 9 February 2017.

• Jurisdiction: European Union
• Date: 09 February 2017
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 9 February 2017 ( 1 )

Case C‑578/16 PPU

C. K.,

H. F.,

A. S.

v

Republika Slovenija

(Request for a preliminary ruling from the Vrhovno sodišče (Supreme Court, Slovenia))

‛Reference for a preliminary ruling — Notion of a national court or tribunal against whose decisions there is no judicial remedy under national law — Common European Asylum System — Determination of the Member State responsible for examining an application for international protection — Regulation (EU) No 604/2013 — Second subparagraph of Article 3(2) — Systemic flaws in the asylum procedure and in the reception conditions for applicants in the Member State responsible — Article 17(1) — Sovereignty clause’

I. Introduction

1. The present request for a preliminary ruling concerns the interpretation 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. ( 2 ) This regulation seeks, like its predecessors, ( 3 ) on the one hand, to prevent third-country nationals from being able, by lodging an application for international protection in several Member States, to choose the Member State which will examine their application (the phenomenon of ‘forum shopping’), and, on the other hand, to ensure that every application will be effectively examined by a Member State. ( 4 ) To that end, Regulation No 604/2013 provides that each application is to be examined by a single Member State and lays down the criteria for determining which Member State must be designated as responsible for examining the application. ( 5 )

2. What happens if, when a Member State has been designated as being responsible in accordance with the criteria laid down by Regulation No 604/2013, it is alleged that that Member State does not respect the fundamental rights of asylum seekers? It is true that the Member States guarantee respect for the fundamental rights, as set out, not only by Charter of Fundamental Rights of the European Union (‘the Charter’), but also by the European Convention for the Protection of Human Rights and Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), and by the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 ( 6 ) (‘the Geneva Convention’). Nevertheless, it cannot be ruled out that a situation may arise in which a Member State infringes a fundamental right of asylum seekers. Regulation No 604/2013 takes that hypothesis into account. The second subparagraph of Article 3(2) provides that it is impossible to transfer an applicant to the Member State responsible if, in that Member State, there are systemic flaws in the asylum procedure and in the reception conditions for applicants, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.

3. However, what if the flaws, without affecting the entire asylum system of the Member State responsible, concern only the individual situation of an applicant? May those flaws be classed as ‘systemic’ within the meaning of the second subparagraph of Article 3(2) of Regulation No 604/2013? If not, do they nevertheless give rise to an obligation not to transfer the applicant to the Member State responsible? These are the questions which the Court is called upon to answer in the present case.

II. Legal context

A. International law

4. Article 3 ECHR provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

5. Article 33 of the Geneva Convention provides: ‘1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’

B. European Union law

1. The Charter

6. Article 4 of the Charter provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

7. Article 19(2) of the Charter provides: ‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

2. Regulation No 604/2013

8. Paragraph 2 of Article 3 of Regulation No 604/2013, entitled ‘Access to the procedure for examining an application for international protection’, provides: ‘Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for international protection was lodged shall be responsible for examining it. Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible. Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.’

9. Paragraph 1 of Article 17 of Regulation No 604/2013, entitled ‘Discretionary clauses’, provides: ‘By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation. The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the “DubliNet” electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003, the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant. The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with Regulation (EU) No 603/2013 by adding the date when the decision to examine the application was taken.’

III. The facts, the main proceedings and the questions referred for a preliminary ruling

10. Ms C. K., a Syrian national, and her husband, Mr H. F., an Egyptian national, entered the territory of the Member States via Croatia on 16 August 2015. They were in possession of tourist visas issued by Croatia, which were valid from 6 August 2015 to 28 August 2015.

11. On 17 August 2015, Ms C. K., who was six months pregnant, and Mr H. F. entered Slovenia with false Greek identity papers. They are there at the present time and are being accommodated at the Ljubljana reception centre for asylum seekers.

12. On 20 August 2015, Ms C. K. and Mr H. F. lodged applications for international protection in Slovenia. It is apparent from the observations of the Slovenian Government that, on the same day, a doctor examined Ms C. K. and found that her pregnancy was proceeding normally, that she had no obvious psychological symptoms and that she was communicative. On the same day, Mr H. F. was also examined by a doctor, who found him to be in good health. ( 7 )

13. On 28 August 2015, the Slovenian authorities submitted a query to the Croatian authorities. On 14 September 2015, the Republic of Croatia replied that it was responsible for examining the application of Ms C. K. and Mr H. F.

14. On 20 November 2015, Ms C. K. gave birth to a son, A. S. On 27 November 2015, an application for international protection was lodged in Slovenia on behalf of A. S. The Slovenian authorities dealt with that application in conjunction with those lodged by Ms C. K. and Mr H. F.

15. On 18 January 2016, the Slovenian authorities received from the appellants’ representative medical opinions outlining Ms C. K.’s high-risk pregnancy and her difficulties following childbirth. Those documents included a psychiatric assessment of Ms C. K., dated 4 December 2015, stating that she and her new-born son should remain at the reception centre because they were in need of care. Further psychiatric assessments, dated 1 April, 15 April, 22 April and 13 May 2016, indicated that, since her confinement, Ms C. K. had suffered depression and periodic suicidal tendencies, attributable to the uncertainty surrounding her status.

16. Due to the presence of, inter alia, an infant, the Slovenian authorities sought from their Croatian counterparts...