CJEU Case C-458/24 / Opinion

28. In the light of the foregoing, I consider that the first and second questions referred for a preliminary ruling must be understood as meaning that, by those questions, the referring court seeks to ascertain whether the second and third subparagraphs of Article 3(2) of the Dublin III Regulation must be interpreted as meaning that the determining Member State is required to continue its examination of the criteria laid down in Chapter III of that regulation, or even become responsible itself, where the Member State initially designated as responsible pursuant to those criteria is not willing to take charge of persons who are the subject of a transfer decision under that regulation and where there are no systemic flaws in the latter Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.

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31. It will be recalled that the second and third subparagraphs of Article 3(2) of the Dublin III Regulation codify the case-law relating to Regulation (EC) No 343/2003 ( 13 ) (‘the Dublin II Regulation’), under which, pursuant Article 4 of the Charter, the Member States, including the national courts, may not transfer an asylum seeker to the Member State responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that latter provision. ( 14 )

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34. Over the years, the Court has confirmed the rigorous requirements for the application of the second subparagraph of Article 3(2) of the Dublin III Regulation. Thus, only ‘systemic flaws’‘resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter]’ make the transfer of an applicant for international protection to the responsible Member State impossible; the two conditions are therefore cumulative. ( 17 )

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36. The Court of Justice confirmed, in the judgment in Tudmur, that the two cumulative conditions for the application of the second subparagraph of Article 3(2) of the Dublin III Regulation cannot be regarded as satisfied on the sole ground that the Member State designated as responsible under the criteria set out in Chapter III of that regulation has unilaterally suspended the taking charge of applicants. Consequently, such a unilateral suspension does not relieve the Member State concerned of the obligation to assess the existence of systemic flaws and of the risk of infringement of Article 4 of the Charter following a specific analysis, based on information that is objective, reliable, specific and properly updated. ( 19 )

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40. Accordingly, that judgment confirms, in my view, that the reason why the second and third subparagraphs of Article 3(2) of the Dublin III Regulation cannot apply to a situation such as that at issue in the main proceedings relates not to the distinction, suggested by the referring court, between the ‘Dublin’ procedure and the ‘asylum procedure’, but to the absence of systemic flaws resulting in a risk of inhuman or degrading treatment of the applicant. In that regard, the referring court considers that that provision refers only to the procedure for examining an application for international protection, whereas the suspension of the taking charge at issue is confined to the prior procedure of examining the criteria for determining the Member State responsible as laid down in that regulation. That reasoning runs counter to the general and absolute nature of the prohibition laid down in Article 4 of the Charter, from which the Court has inferred that the transfer of an applicant to the Member State responsible is ruled out in any situation in which there are substantial grounds for believing that the applicant runs a real risk of inhuman or degrading treatment, within the meaning of that provision, during his or her transfer or thereafter. ( 24 )

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55. Furthermore, the automatic transfer of responsibility at the stage of the procedure for the transfer of the applicant establishes, in my view, a clear distinction between Article 29(2) and the second and third subparagraphs of Article 3(2) of the Dublin III Regulation. The latter provision requires the national authorities of the determining Member State to carry out an assessment of the cumulative conditions relating to systemic flaws resulting in a risk, for the person concerned, of being exposed to treatment that is contrary to Article 4 of the Charter. In addition, it provides for a transfer of responsibility only subsequently, the authorities of that Member State having an obligation, first, to continue to examine the criteria for determining responsibility. ( 32 )