CJEU Case C-163/17/ Judgment Abubacarr Jawo v Bundesrepublik Deutschland

Key facts

  1. This request for a preliminary ruling concerns the interpretation of Article 3(2) 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’), and Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
  2. The request has been made in proceedings between Mr Abubacarr Jawo and the Bundesrepublik Deutschland (Federal Republic of Germany) concerning a decision to transfer the person concerned to Italy.

Judgement

On those grounds, the Court (Grand Chamber) hereby rules:

  1. The second sentence of Article 29(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 must be interpreted as meaning that an applicant ‘absconds’, within the meaning of that provision, where he deliberately evades the reach of the national authorities responsible for carrying out his transfer, in order to prevent the transfer. It may be assumed that that is the case where the transfer cannot be carried out due to the fact that the applicant has left the accommodation allocated to him without informing the competent national authorities of his absence, provided that he has been informed of his obligations in that regard, which it is for the referring court to determine. The applicant retains the possibility of demonstrating that the fact that he has not informed the authorities of his absence is due to valid reasons and not the intention to evade the reach of those authorities.

Article 27(1) of Regulation No 604/2013 must be interpreted as meaning that, in proceedings brought against a transfer decision, the person concerned may rely on Article 29(2) of that regulation, by claiming that, since he had not absconded, the six-month transfer time limit had expired.

  1. The second sentence of Article 29(2) of Regulation No 604/2013 must be interpreted as meaning that, in order to extend the transfer time limit by a maximum of 18 months, it suffices that the requesting Member State informs the Member State responsible, before the expiry of the six-month transfer time limit, that the person concerned has absconded and specifies, at the same time, a new transfer time limit.
  2. EU law must be interpreted as meaning that the question whether Article 4 of the Charter of Fundamental Rights of the European Union precludes the transfer, pursuant to Article 29 of Regulation No 604/2013, of an applicant for international protection to the Member State which, in accordance with that regulation, is normally responsible for examining his application for international protection, where, in the event of such protection being granted in that Member State, the applicant would be exposed to a substantial risk of suffering inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights, on account of the living conditions that he could be expected to encounter as a beneficiary of international protection in that Member State, falls within its scope.

Article 4 of the Charter of Fundamental Rights must be interpreted as not precluding such a transfer of an applicant for international protection, unless the court hearing an action challenging the transfer decision finds, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights guaranteed by EU law, that that risk is real for that applicant, on account of the fact that, should he be transferred, he would find himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty.

Paragraphs referring to EU Charter: 

1, 4-9, 11, 44, 48, 68, 76-99