On 1 September 2021 the Dutch Council of State referred preliminary questions to the Court of Justice in several Dublin Cases (CJEU Case C‐556/21). The question is in essence: Does EU law preclude that a national appellate grants an interim measure to the State, which suspends the six months time limit for transferring the applicant?
In order to answer this question the Clinic examined the text, the context and objectives of the relevant provisions of the Dublin Regulation (Arts 27 and 29 Regulation 604/2013). This expert opinion concluded that Article 27 of the Dublin Regulation does not explicitly preclude an appellate court to grant an interim measure to the State, which suspends the six‐month time limit. The text of Articles 27(1) and (3)(c) only concerns the right of the applicant to a remedy with automatic suspensive effect before a court or tribunal of first instance. This provision does not indicate whether Member States are allowed to establish two levels of jurisdiction nor whether the appellate court may grant an interim measure to the Member State suspending the six‐month time limit.
The contextual interpretation of Article 27 confirms that this provision is directed at the applicant and not to the State. The background and history of the EU right to an effective remedy and Article 27 of the Dublin Regulation emphasise that the focus of the right to an effective remedy has always been to ensure that individuals can enforce their rights against administrative decisions made by the State. Moreover, the right to a remedy with automatic suspensive effect aims to protect applicants from suffering irreparable harm.
Finally, it has to be taken into account in the context of the teleological interpretation method that an important objective of the Dublin Regulation is to ensure the rapid processing of asylum applications and effective access to asylum procedures. It may be argued that a system in which an appellate court may grant an interim measure to the State, which suspends the six‐month time limit is difficult to reconcile with this objective. Such suspension would inevitably lead to delays in the Dublin procedure.
However, since Article 27 of the Dublin Regulation does not explicitly preclude an appellate court to grant an interim measure to the State, which suspends the six‐month time limit, it is possible that such a system falls within the procedural autonomy of the Member State. The procedural autonomy of Member States is limited by the principle of effectiveness. This principle precludes that national procedural rules render the exercise of rights conferred by the legal order of the European Union impossible or excessively difficult. This expert opinion contended that the relevant right conferred by the Dublin Regulation is the right to rapid determination of the responsible Member State and effective access to the asylum procedure. The six‐month time limit laid down in Article 29 of the Dublin Regulation aims to guarantee this right and can be enforced by individual applicants by making use of their right to an effective remedy before the national court or tribunal.
Whether a national procedural rule is in conformity with the principle of effectiveness must be examined ‘by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances’. This procedural rule of reason test requires a balancing between the ‘the importance of the national procedural provision limiting the exercise of Union law and the effective application of EU law’.
In this light, this expert opinion first assessed the main rationale of the Dutch system to avoid ‘meaningless’ appeals. The analysis showed that the workability and fairness of the system for the
Member State is not undermined if the State’s appeal before an appellate court cannot have
suspensive effect. Legal consistency can be achieved without ‘stopping the clock’, and it is up to the
States to change their judicial systems in order to be able to meet the time limit and avoid responsibility also in the individual case.
On the other hand, this expert examined the rationale of the six‐month time limit: ensuring the rapid determination of the responsible Member State and effective access to the asylum procedure. It showed that undermining the six‐month rule has direct detrimental effects on the applicant and effectively makes exercising their rights conferred by the Dublin Regulation impossible: It leads to significant prolongation and postponement of the determination of the responsible Member State and thus access to the asylum procedure, with a range of further consequences at the individual level. It can therefore be concluded that the Dutch system does not pass the procedural rule of reason test and thus, does not observe the principle of effectiveness.
The expert opinion will be published after the CJEU has issued its judgment.