CJEU - C-63/15 / Opinion

Ghezelbash v Staatssecretaros van Veiligheid en Justitie
Policy area
Asylum and migration
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
17/03/2016
ECLI (European case law identifier)
ECLI:EU:C:2016:186
  • CJEU - C-63/15 / Opinion

    Key facts of the case:

    Asylum — Examination of an application for international protection — Criteria for determining the responsible Member State — Interpretation of Article 27(1) of Regulation (EU) No 604/2013 — Right of appeal or review

    Results (sanctions) and key consequences of the case:

    1. In the light of all the foregoing considerations, I am of the opinion that the Court should answer the questions raised by the Rechtbank Den Haag, sitting in ’s‑Hertogenbosch (Netherlands), as follows:

      – 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 should be interpreted as meaning that an applicant in circumstances such as those in the main proceedings is able to challenge, on appeal or by review, a transfer decision under Article 27(1) and to request the national court to verify whether the criteria in Chapter III have been correctly applied in his case. The effectiveness of judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires an assessment of the lawfulness of the grounds which were the basis of the transfer decision and whether it was taken on a sufficiently solid factual basis. The manner in which the examination is conducted as to whether the Chapter III criteria have been applied objectively and fairly in any particular case is governed by national procedural rules. Subject to the principle of effectiveness, those rules also govern the intensity and outcome of the appeal or review process.

      – There is no need to answer Questions 2 and 3.

  • Paragraphs referring to EU Charter
    1. The effectiveness of the judicial review guaranteed by Article 47 of the Charter requires an assessment of the lawfulness of the grounds which are the basis of the decision and whether the latter is taken on a sufficiently solid factual basis. Accordingly, judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated. (69) Applied to the present context, that entails verification of the facts relating to the application of the relevant Chapter III criteria underpinning the transfer decision.
    2. Article 27(1) does not specify how that examination is to be conducted. That is therefore a matter for the national court to oversee pursuant to domestic procedural rules. Those rules would also govern the intensity of the review process and the outcome — that is, whether a successful challenge would result in the application being remitted to the competent national authorities for reconsideration, or whether the decision is taken by the courts themselves, subject always to the principle of effectiveness. (70)
    3. I therefore conclude that the Dublin III Regulation should be interpreted as meaning that an applicant (in circumstances such as those in the main proceedings) is able to challenge, on appeal or by review, a transfer decision under Article 27(1) and to request the national court to verify whether the criteria in Chapter III have been correctly applied in his case. The effectiveness of judicial review guaranteed by Article 47 of the Charter requires an assessment of the lawfulness of the grounds which were the basis of the transfer decision and whether it was taken on a sufficiently solid factual basis. The manner in which the examination is conducted as to whether the Chapter III criteria have been applied objectively and fairly in any particular case is governed by national procedural rules. Subject to the principle of effectiveness, those rules also govern the intensity and outcome of the appeal or review process.