CJEU Joined Cases C-297/17, C-318/17, C-319/17, C-438/17/ Judgment

Key facts

1. These requests for a preliminary ruling concern the interpretation of Article 33(2)(a) and of the first paragraph of Article 52 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60; ‘the Procedures Directive’), and of Articles 4 and 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2. The requests have been made in four sets of proceedings, where in three instances the opposing parties are Mr Bashar Ibrahim (Case C‑297/17), Mr Mahmud Ibrahim, Mrs Fadwa Ibrahim, Mr Bushra Ibrahim and the minor children Mohammad and Ahmad Ibrahim (Case C‑318/17), and Mrs Nisreen Sharqawi and her minor children Yazan and Hosam Fattayrji (Case C‑319/17), on the one hand, and the Bundesrepublik Deutschland (Federal Republic of Germany), on the other, and in the fourth instance (Case C‑438/17) the opposing parties are the Federal Republic of Germany and Mr Taus Magamadov, concerning decisions adopted by the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany) (‘the Federal Office’) refusing the parties concerned a right of asylum.

Judgement

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

1. The first paragraph of Article 52 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that it permits a Member State to provide for the immediate application of the provision of national law transposing Article 33(2)(a) of that directive to applications for asylum on which no final decision has yet been made, which were lodged before 20 July 2015 and before the entry into force of that provision of national law. However, the first paragraph of Article 52 of that directive, read in the light of, inter alia, Article 33 thereof, precludes such an immediate application in a situation where both the application for asylum and the take back request were lodged before the entry into force of Directive 2013/32 and, in accordance with Article 49 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, still fall fully within the scope of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.
2. In a situation such as that at issue in Cases C‑297/17, C‑318/17 and C‑319/17, Article 33 of Directive 2013/32 must be interpreted as meaning that it is not a condition for Member States to be able to reject an application for asylum as being inadmissible under Article 33(2)(a) of the directive that they must, or must be able, to have recourse, as the first resort, to the take charge or take back procedures provided for by Regulation No 604/2013.
3. Article 33(2)(a) of Directive 2013/32 must be interpreted as not precluding a Member State from exercising the option granted by that provision to reject an application for the grant of refugee status as being inadmissible on the ground that the applicant has been previously granted subsidiary protection by another Member State, where the living conditions that that applicant could be expected to encounter as the beneficiary of subsidiary protection in that other Member State would not expose him to a substantial risk of suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. The fact that the beneficiaries of such subsidiary protection do not receive, in that Member State, any subsistence allowance, or that such allowance as they receive is markedly inferior to that in other Member States, though they are not treated differently from nationals of that Member State, can lead to the finding that that applicant would be exposed in that Member State to such a risk only if the consequence is that that applicant would, because of his or her particular vulnerability, irrespective of his or her wishes and personal choices, be in a situation of extreme material poverty.

Article 33(2)(a) of Directive 2013/32 must be interpreted as not precluding a Member State from exercising that option, where the asylum procedure in the other Member State that has granted subsidiary protection to the applicant leads to a systematic refusal, without real examination, to grant refugee status to applicants for international protection who satisfy the conditions laid down in Chapters II and III of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.