Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Article 19 - Protection in the event of removal, expulsion or extradition
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling – Asylum policy – Regulation (EU) No 604/2013 – Articles 3 to 5, 17 and 27 – Regulation (EU) No 603/2013 – Article 29 – Regulation (EU) No 1560/2003 – Annex X – Right to information of the applicant for international protection – Common leaflet – Personal interview – Application for international protection previously lodged in a first Member State – New application lodged in a second Member State – Illegal stay in the second Member State – Take back procedure – Infringement of the right to information – No personal interview – Protection against the risk of indirect refoulement – Mutual trust – Judicial review of the transfer decision – Scope – Finding of the existence, in the requested Member State, of systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection – Discretionary clauses – Risk of infringement of the principle of non-refoulement in the requested Member State.
Outcome of the case:
On those grounds, the Court (Second Chamber) hereby rules:
(1) – Article 4 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 and
Article 29 of Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation No 604/2013 and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice
must be interpreted as meaning that the obligation to provide the information referred to therein, in particular the common leaflet – a model of which is set out in Annex X to Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 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 – applies both in the context of a first application for international protection and a take charge procedure, under Article 20(1) and Article 21(1) of Regulation No 604/2013 respectively, as well as in the context of a subsequent application for international protection and a situation, as that covered by Article 17(1) of Regulation No 603/2013, capable of giving rise to take back procedures under Article 23(1) and Article 24(1) of Regulation No 604/2013.
– Article 5 of Regulation No 604/2013
must be interpreted as meaning that the obligation to hold the personal interview referred to therein applies in the context of a first application for international protection and a take charge procedure, under Article 20(1) and Article 21(1) of that regulation respectively, as well as in the context of a subsequent application for international protection and a situation, as that covered by Article 17(1) of Regulation No 603/2013, capable of giving rise to take back procedures under Article 23(1) and Article 24(1) of Regulation No 604/2013.
– EU law, in particular Articles 5 and 27 of Regulation No 604/2013,
must be interpreted as meaning that without prejudice to Article 5(2) of that regulation, the transfer decision must, following an appeal brought against that decision under Article 27 of that regulation calling into question the absence of the personal interview provided for in that Article 5, be annulled unless the national legislation allows the person concerned, in the context of that appeal, to set out in person all his or her arguments against that decision at a hearing which complies with the conditions and safeguards laid down in the latter article, and those arguments are not capable of altering that decision.
– EU law, in particular Articles 4 and 27 of Regulation No 604/2013 and Article 29(1)(b) of Regulation No 603/2013,
must be interpreted as meaning that, where the personal interview under Article 5 of Regulation No 604/2013 has taken place but the common leaflet which must be provided to the person concerned pursuant to the obligation to provide information laid down in Article 4 of that regulation or in Article 29(1)(b) of Regulation No 603/2013 has not been provided, the national court responsible for assessing the lawfulness of the transfer decision may order that that decision be annulled only if it considers, in the light of the factual and legal circumstances of the case, that the failure to provide the common leaflet, notwithstanding the fact that the personal interview has taken place, actually deprived that person of the possibility of putting forward his or her arguments, to the extent that the outcome of the administrative procedure in respect of that person could have been different.
(2) Article 3(1) and the second subparagraph of Article 3(2) of Regulation No 604/2013, read in conjunction with Article 27 of that regulation and with Articles 4, 19 and 47 of the Charter of Fundamental Rights,
must be interpreted as meaning that the court or tribunal of the requesting Member State, hearing an action challenging a transfer decision, cannot examine whether there is, in the requested Member State, a risk of infringement of the principle of non-refoulement to which the applicant for international protection would be exposed during his or her transfer to that Member State or thereafter where that court or tribunal does not find that there are, in the requested Member State, systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection. Differences of opinion between the authorities and courts in the requesting Member State, on the one hand, and those of the requested Member State, on the other hand, as regards the interpretation of the material conditions for international protection do not establish the existence of systemic deficiencies.
(3) Article 17(1) of Regulation No 604/2013, read in conjunction with Article 27 thereof and with Articles 4, 19 and 47 of the Charter of Fundamental Rights,
must be interpreted as not requiring the court or tribunal of the requesting Member State to declare that Member State responsible where it disagrees with the assessment of the requested Member State as to the risk of refoulement of the person concerned. If there are no systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection in the requested Member State during the transfer or thereafter, nor can the court or tribunal of the requesting Member State compel the latter to examine itself an application for international protection on the basis of Article 17(1) of Regulation No 604/2013 on the ground that there is, according to that court or tribunal, a risk of infringement of the principle of non-refoulement in the requested Member State.
(19) In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the [Charter]. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.’
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41 DG contested that transfer decision before the Tribunale di Roma (District Court, Rome, Italy), which is the referring court in Case C‑254/21, on the ground that it infringed Article 4 of the Charter and Article 17(1) of the Dublin III Regulation.
42 According to DG, the Kingdom of Sweden rejected his application for international protection without any consideration of the general situation of indiscriminate violence in Afghanistan. DG argues that the Italian Republic’s transfer decision infringed Article 4 of the Charter because of the risk of ‘indirect refoulement’ to which that decision exposes DG, in that it would lead to his refoulement by the Kingdom of Sweden to Afghanistan, a third country in which he would be at risk of inhuman and degrading treatment. Consequently, DG claims that the referring court should declare that the Italian Republic is responsible for examining his application for international protection pursuant to Article 17(1) of the Dublin III Regulation.
‘(1) Does the right to an effective remedy under Article 47 of the [Charter] require that Articles 4 and 19 of [the Charter], in the circumstances referred to in the main proceedings, also provide protection against the risk of indirect refoulement following a transfer to a Member State of the European Union which has no systemic flaws within the meaning of Article 3(2) of the [Dublin III Regulation] (in the absence of other Member States responsible on the basis of the criteria set out in Chapters III and IV) and which has already examined and rejected the first application for international protection?
50 In those circumstances, the Tribunale di Firenze (District Court, Florence) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Must Article 17(1) of [the Dublin III Regulation] be interpreted, in accordance with Articles 19 and 47 of the [Charter] and Article 27 of [that regulation], as meaning that the court of the Member State, hearing an appeal against the decision of the [Ministry of the Interior], may establish the responsibility of the Member State which would have to carry out the transfer under Article 18(1)(d) [of that regulation], if it determines the existence, in the Member State responsible, of a risk of infringement of the principle of non-refoulement by returning the applicant to his country of origin, where the applicant’s life would be in danger and where he would be at risk of inhuman and degrading treatment?
(2) In the alternative, must Article 3(2) of [the Dublin III Regulation] be interpreted in accordance with Articles 19 and 47 of the [Charter] and Article 27 of [that regulation], as meaning that the court may establish the responsibility of the Member State required to carry out the transfer under Article 18(1)(d) of that regulation, where it is established that:
