Staatssecretaris van Justitie en Veiligheid v S.S. and Others.

JurisdictionEuropean Union
Date30 March 2023
CourtCourt of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

30 March 2023 (*)

(Reference for a preliminary ruling – Regulation (EU) No 604/2013 – Determination of the Member State responsible for examining an application for international protection – Article 27 – Appeal against a transfer decision taken in respect of an asylum seeker – Article 29 – Suspension of implementation of the transfer decision – Transfer time limit – Interruption of the transfer time limit – Directive 2004/81/EC – Residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities – Article 6 – Reflection period – Prohibition on enforcing an expulsion order – Remedies)

In Case C‑338/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Raad van State (Council of State, Netherlands), made by decision of 26 May 2021, received at the Court on 31 May 2021, in the proceedings

Staatssecretaris van Justitie en Veiligheid

v

S.S.,

N.Z.,

S.S.,

THE COURT (First Chamber),

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

Advocate General: J. Richard de la Tour,

Registrar: R. Stefanova-Kamisheva, Administrator,

having regard to the written procedure and further to the hearing on 14 July 2022,

after considering the observations submitted on behalf of:

– S.S., by A. Khalaf and P.A.J. Mulders, advocaten,

– N.Z., by F.M. Holwerda, advocaat,

– S.S., by M.H.R. de Boer, advocaat,

– the Netherlands Government, by M.K. Bulterman, M.H.S. Gijzen and P. Huurnink, acting as Agents,

– the German Government, by J. Möller and A. Hoesch, acting as Agents,

– the European Commission, by C. Cattabriga and F. Wilman, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 November 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 27(3) and Article 29(1) and (2) 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 the course of proceedings between the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’), on the one hand, and, on the other hand, S.S., N.Z. and S.S., third-country nationals, concerning decisions of the State Secretary not to consider their applications for international protection and to order their transfer to Italy.

Legal context

Directive 2004/81/EC

3 Article 1 of Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (OJ 2004 L 261, p. 19), provides:

‘The purpose of this Directive is to define the conditions for granting residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration.’

4 Article 4 of that directive is worded as follows:

‘This Directive shall not prevent Member States from adopting or maintaining more favourable provisions for the persons covered by this Directive.’

5 Article 6 of that directive provides:

‘1. Member States shall ensure that the third-country nationals concerned are granted a reflection period allowing them to recover and escape the influence of the perpetrators of the offences so that they can take an informed decision as to whether to cooperate with the competent authorities.

The duration and starting point of the period referred to in the first subparagraph shall be determined according to national law.

2. During the reflection period and while awaiting the decision of the competent authorities, the third-country nationals concerned shall have access to the treatment referred to in Article 7 and it shall not be possible to enforce any expulsion order against them.

3. The reflection period shall not create any entitlement to residence under this Directive.

4. The Member State may at any time terminate the reflection period … for reasons relating to public policy and to the protection of national security.’

6 Article 7 of that directive defines the treatment granted to the third-country nationals concerned before the issue of a residence permit.

7 Under Article 8 of Directive 2004/81:

‘1. After the expiry of the reflection period, or earlier if the competent authorities are of the view that the third-country national concerned has already fulfilled the criterion set out in subparagraph (b), Member States shall consider:

(a) the opportunity presented by prolonging his/her stay on its territory for the investigations or the judicial proceedings, and

(b) whether he/she has shown a clear intention to cooperate and

(c) whether he/she has severed all relations with those suspected of acts that might be included among the offences referred to in Article 2(b) and (c).

2. For the issue of the residence permit and without prejudice to the reasons relating to public policy and to the protection of national security, the fulfilment of the conditions referred to in paragraph 1 shall be required.

3. Without prejudice to the provisions on withdrawal …, the residence permit shall be valid for at least six months. It shall be renewed if the conditions set out in paragraph 2 of this Article continue to be satisfied.’

The Dublin III Regulation

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

‘(4) The Tampere conclusions [of the European Council at its special meeting at Tampere on 15 and 16 October 1999] also stated that the [Common European Asylum System (CEAS)] 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.’

9 Chapter VI of that regulation, entitled ‘Procedures for taking charge and taking back’, includes in Section IV, entitled ‘Procedural safeguards’, Article 27, entitled ‘Remedies’, which provides in paragraphs 1, 3 and 4 thereof:

‘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.’

10 In Section VI of Chapter VI of that regulation, entitled ‘Transfers’, Article 29, entitled ‘Modalities and time limits’, provides in paragraphs 1 and 2 thereof:

‘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.’

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1 practice notes
  • Opinion of Advocate General Pikamäe delivered on 14 September 2023.
    • European Union
    • Court of Justice (European Union)
    • 14 September 2023
    ...point 50). 36 Voir arrêt du 30 mars 2023, Staatssecretaris van Justitie en Veiligheid (Délai de transfert – Traite des êtres humains) (C‑338/21, EU:C:2023:269, points 45 et 37 Voir étude du 18 mars 2016 élaborée par l’Information and Cooperation Forum pour la Commission, « Evaluation of the......
1 cases
  • Opinion of Advocate General Pikamäe delivered on 14 September 2023.
    • European Union
    • Court of Justice (European Union)
    • 14 September 2023
    ...point 50). 36 Voir arrêt du 30 mars 2023, Staatssecretaris van Justitie en Veiligheid (Délai de transfert – Traite des êtres humains) (C‑338/21, EU:C:2023:269, points 45 et 37 Voir étude du 18 mars 2016 élaborée par l’Information and Cooperation Forum pour la Commission, « Evaluation of the......

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