Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

29 February 2024 (*)

(Reference for a preliminary ruling – Common policy on asylum and immigration – Application for international protection – Charter of Fundamental Rights of the European Union – Article 4 – Risks of inhuman or degrading treatment – Criteria and mechanisms for determining the Member State responsible for examining the application for international protection – Regulation (EU) No 604/2013 – Article 3(2) – Scope of the obligations of the Member State which has sought to have the applicant taken back by the Member State responsible and wishes to transfer the applicant to the latter Member State – Principle of mutual trust – Evidence and standard of proof of the real risk of inhuman or degrading treatment, resulting from systemic flaws – Practices of pushback to a third country and detention at border control posts)

In Case C‑392/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s-Hertogenbosch, Netherlands), made by decision of 15 June 2022, received at the Court on the same day, in the proceedings

X

v

Staatssecretaris van Justitie en Veiligheid,

THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, O. Spineanu-Matei (Rapporteur), J.-C. Bonichot, S. Rodin and L.S. Rossi, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        X, by A. Khalaf, advocaat,

–        the Netherlands Government, by M.K. Bulterman and C.S. Schillemans, acting as Agents,

–        the Belgian Government, by M. Jacobs, A. Van Baelen and M. Van Regemorter, acting as Agents,

–        the Czech Government, by A. Edelmannová, M. Smolek and J. Vláčil, acting as Agents,

–        the German Government, by J. Möller and R. Kanitz, acting as Agents,

–        the Italian Government, by G. Palmieri, acting as Agent, and by D.G. Pintus, avvocato dello Stato,

–        the Austrian Government, by A. Posch and J. Schmoll, acting as Agents,

–        the Polish Government, by B. Majczyna, acting as Agent,

–        the European Commission, initially by L. Grønfeldt and G. Wils, and subsequently by G. Wils, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 July 2023,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 3(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’).

2        The request has been made in proceedings between X and the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’) concerning the decision of the State Secretary not to consider the application for international protection lodged by X in the Netherlands.

 Legal context

3        Recitals 3, 20, 32 and 39 of the Dublin III Regulation read as follows:

‘(3)      The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing the [Common European Asylum System (CEAS)], based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967 (“the Geneva Convention”), thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement. In this respect, and without the responsibility criteria laid down in this Regulation being affected, Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals.

…

(20)      The detention of applicants should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking international protection. Detention should be for as short a period as possible and subject to the principles of necessity and proportionality. In particular, the detention of applicants must be in accordance with Article 31 of the Geneva Convention. The procedures provided for under this Regulation in respect of a detained person should be applied as a matter of priority, within the shortest possible deadlines. As regards the general guarantees governing detention, as well as detention conditions, where appropriate, Member States should apply the provisions of Directive 2013/33/EU [of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96)] also to persons detained on the basis of this Regulation.

…

(32)      With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by their obligations under instruments of international law, including the relevant case-law of the European Court of Human Rights.

…

(39)      This Regulation respects the fundamental rights and observes the principles which are acknowledged, in particular, in the Charter of Fundamental Rights of the European Union [(“the Charter”)]. In particular, this Regulation seeks to ensure full observance of the right to asylum guaranteed by Article 18 of the Charter as well as the rights recognised under Articles 1, 4, 7, 24 and 47 thereof. This Regulation should therefore be applied accordingly.’

4        Under the heading ‘Access to the procedure for examining an application for international protection’, Article 3 of that regulation provides:

‘1.      Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.

2.      Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.

Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.

Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.

…’

5        Article 5(1) to (3) of that regulation provides:

‘1.      In order to facilitate the process of determining the Member State responsible, the determining Member State shall conduct a personal interview with the applicant. The interview shall also allow the proper understanding of the information supplied to the applicant in accordance with Article 4.

2.      The personal interview may be omitted if:

…

(b)      after having received the information referred to in Article 4, the applicant has already provided the information relevant to determine the Member State responsible by other means. The Member State omitting the interview shall give the applicant the opportunity to present all further information which is relevant to correctly determine the Member State responsible before a decision is taken to transfer the applicant to the Member State responsible pursuant to Article 26(1).

3.      The personal interview shall take place in a timely manner and, in any event, before any decision is taken to transfer the applicant to the Member State responsible pursuant to Article 26(1).’

6        Under Article 21 of that regulation:

‘1.      Where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any event within three months of the date on which the application was lodged within the meaning of Article 20(2), request that other Member State to take charge of the applicant.

…

3.      In the cases referred to in paragraphs 1 and 2, the request that charge be taken by another Member State shall be made using a standard form and including proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) and/or relevant elements from the applicant’s statement, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in this Regulation.

…’

7        Article 22 of the Dublin III Regulation is worded as follows:

‘…

2.      In the procedure for determining the Member State responsible elements of proof and circumstantial evidence shall be used.

3.      The [European] Commission shall, by means of implementing acts, establish, and review periodically, two lists, indicating the relevant elements of proof and circumstantial evidence in accordance with the criteria set out in points (a) and (b) of this paragraph. …

…

(b)      Circumstantial evidence:

(i)      this refers to indicative elements which while being refutable may be sufficient, in certain cases, according to the evidentiary value attributed to them;

…

4.      The requirement of proof should not exceed what is necessary for the proper application of this Regulation.

5.      If there is no formal proof, the requested Member State shall acknowledge its responsibility if the circumstantial evidence is coherent, verifiable and sufficiently detailed to establish responsibility.

…’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

8        X is a Syrian national. He made an application for international protection in Poland on 9 November 2021.

9        He subsequently entered the Netherlands on 21 November 2021 and lodged a further application for international protection there the following day.

10      On 20 January 2022, the Kingdom of the Netherlands requested the Republic of Poland to take back X pursuant to Article 18(1)(b) of the Dublin III Regulation. On 1 February 2022, the Republic of Poland accepted that request pursuant to Article 18(1)(c) of that regulation.

11      By a decision of 20 April 2022, the State Secretary declined to consider the application for international protection lodged by X in the Netherlands, on the ground that the Republic of Poland was responsible for examining that application, and rejected the arguments put forward by X in objecting to his transfer.

12      X brought an action against that decision before the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands), which is the referring court, for an order prohibiting his transfer to Poland. At the same time, he applied for an order that he should not be transferred pending final determination of that action, and that application was granted.

13      The referring court states that, in the context of his action, X claims, in the first place, that the Polish authorities infringed his fundamental rights.

14      In that regard, the order for reference sets out his claims to have been subjected to pushbacks to Belarus on three occasions after entering Polish territory, one of which was at night. He states that he was eventually able to enter Poland together with two members of his family on 7 November 2021, and that he stayed in the woods before being picked up and handed over to border guards. He adds that, while staying in the woods, his living conditions had become unbearable. He had agreed to his fingerprints being taken under threat of refoulement to Belarus, and on the advice of an organisation, unaware of the fact that that amounted to making an application for international protection. On that occasion, he had received documents in Polish and a document in Arabic containing information about the Dublin III Regulation, but had not been assisted by an interpreter. X stated that he had then been held in detention for approximately one week in the border guard centre, like all other applicants for international protection, where he had been very badly treated, particularly because of a lack of food and the absence of any medical checks. X claimed that he did not complain to the Polish authorities about the poor treatment because it had been inflicted on him by the Polish authorities themselves.

15      According to the referring court, X had indicated that he was afraid that his fundamental rights would be infringed again if he were to be transferred to Poland.

16      In the second place, X had claimed that the Polish courts are not independent.

17      X’s claims were supported by his own statements and reports by non-governmental organisations on the situation, in Poland, of third-country nationals and of persons who are the subject of a transfer decision pursuant to the Dublin III Regulation. He also invoked the case-law of the Court of Justice, the European Court of Human Rights and national courts.

18      On the basis of reports from authoritative sources, which it cites, and official documents, the referring court describes the approach of a number of Member States of preventing third-country nationals from entering their territory, and declarations involving all of the Member States that are said to be aimed at preventing migration to their territories. In its view, there is a contradiction between, on the one hand, that approach and those declarations and, on the other, the Member States’ obligations under the Geneva Convention, the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the Charter, compliance with which underpins the Common European Asylum System. Specifically, it refers, in particular, to practices of pushback to the borders.

19      The referring court indicates that such practices are contrary to the obligation to process every application for international protection and undermine the principle of mutual trust and the operation of that system, inter alia, because they have the effect of encouraging third-country nationals to circumvent the Member States which adopt those practices.

20      In the present case, the referring court takes the view that objective, reliable, specific and properly updated information shows that the Republic of Poland has, for a number of years, systematically infringed a number of fundamental rights of third-country nationals by subjecting them to pushbacks, regularly accompanied by the use of violence, and by systematically detaining, in what are described as ‘appalling’ conditions, third-country nationals who enter its territory illegally.

21      X’s statements concerning the pushbacks to which he was subjected, the credibility of which has not been questioned by the State Secretary, are said to be consistent with that information.

22      The referring court queries whether, if systemic infringements of fundamental rights are taking place in a Member State with respect to an applicant or to third-country nationals generally, the competent authority must refrain from taking a decision to transfer someone to that Member State, or whether the principle of mutual trust continues to apply fully.

23      If a transfer decision can be taken, the referring court queries whether, where the rights of third-country nationals are being systematically and generally infringed by the Member State responsible, the requesting Member State may nevertheless rely on the principle of mutual trust to assess the applicant’s situation after his or her transfer in the light of Article 3(2) of the Dublin III Regulation.

24      The referring court notes that it is apparent from paragraph 82 of the judgment of 19 March 2019, Jawo (C‑163/17, EU:C:2019:218), and from recital 32 of the Dublin III Regulation that fulfilment, by a Member State, of its obligations under the Common European Asylum System is not limited to the period after an applicant’s transfer or to Article 4 of the Charter.

25      The referring court considers, moreover, that, should the requesting Member State not be able to rely on the principle of mutual trust, it is conceivable that adjustments could be made with regard to the burden of proof.

26      In concrete terms, in the event of a Member State’s systematic and generalised infringement of fundamental rights, including rights other than those safeguarded by Article 4 of the Charter, the referring court envisages a lowering of the standard of proof required of the applicant in relation to his or her statements concerning the infringements of fundamental rights and in relation to the potential risks in the event of transfer. It even envisages, in that regard, a reversal of the burden of proof. It could therefore be for the requesting Member State to eliminate any serious doubts as to the real risk of infringement of Article 4 of the Charter, or of all fundamental rights, with regard to that applicant in the event of transfer, by analogy with Article 4(4) 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 (OJ 2011 L 337, p. 9) concerning the risks in the country of origin.

27      In addition, in the view of the referring court, the requesting Member State could seek individual guarantees from the authorities of the Member State responsible in relation to adequate reception conditions and the continuation of the asylum procedure, as well as to there being no detention without a lawful basis, and could even monitor compliance with the guarantees obtained.

28      Lastly, the referring court notes that the applicant makes a plausible case for having no effective opportunity to bring an action in the event of infringement of his fundamental rights after a possible transfer, and queries the consequences of that fact.

29      In those circumstances, the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s-Hertogenbosch) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Should the [Dublin III] Regulation, in view of recitals 3, 32 and 39 thereof, and read in conjunction with Articles 1, 4, 18, 19 and 47 of the [Charter], be interpreted and applied in such a way that the principle of inter-State trust is not divisible, so that serious and systematic infringements of EU law committed by the potentially responsible Member State, before transfer, with respect to third-country nationals who are not (yet) Dublin returnees absolutely preclude transfer to that Member State?

(2)      If the answer to the [first] question is in the negative, should Article 3(2) of the [Dublin III] Regulation, read in conjunction with Articles 1, 4, 18, 19 and 47 of the [Charter], be interpreted as meaning that, if the Member State potentially responsible infringes EU law in a serious and systematic way, the transferring Member State cannot, within the framework of [that regulation], rely blindly on the principle of inter-State trust but must eliminate all doubts or must demonstrate that, after the transfer, the applicant will not be placed in a situation which is contrary to Article 4 of the [Charter]?

(3)      What evidence can the applicant use in support of his arguments that Article 3(2) of the [Dublin III] Regulation precludes his transfer, and what standard of proof should be applied? In the light of the references to the Union acquis in the recitals of [that regulation], does the transferring Member State have a duty of cooperation or verification, or, in the event of serious and systematic infringements of fundamental rights with respect to third-country nationals, is it necessary to obtain individual guarantees from the Member State responsible that the applicant’s fundamental rights will (indeed) be respected after the transfer? Is the answer to this question different if the applicant lacks evidence in so far as he is unable to support his consistent and detailed statements with documents, when he cannot be expected to do so, given the nature of the statements?

(4)      Is the answer to [the third question] different if the applicant demonstrates that complaining to the authorities and/or recourse to legal remedies in the responsible Member State will not be possible and/or effective?’

 The request for an expedited procedure

30      The referring court requested that the present reference for a preliminary ruling be dealt with under an expedited procedure in accordance with Article 105 of the Rules of Procedure of the Court of Justice.

31      It explains that it ordered an interim measure by which it prohibited the transfer of the applicant to Poland pending a final judicial decision on the lawfulness of the transfer decision at issue in the main proceedings, and states that the case in the main proceedings raises important issues pertaining to the principles of the Common European Asylum System, namely issues relating to the practices of pushback and detention at border control posts of third-country nationals who have entered the territory of Member States in order to make an application for international protection. Furthermore, the national courts are increasingly being confronted with these issues, and therefore the usefulness of the forthcoming preliminary ruling would extend beyond the present case in the main proceedings. Accordingly, the nature of the present reference for a preliminary ruling is such as to warrant its being dealt with under an expedited procedure.

32      Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may decide, after hearing the Judge-Rapporteur and the Advocate General, that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time.

33      In the present case, on 19 July 2022, the President of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, to refuse the request made by the referring court that is referred to in paragraph 30 of the present judgment.

34      It is settled case-law that the application of the expedited preliminary ruling procedure does not depend on the nature of the dispute in the main proceedings as such, but on exceptional circumstances particular to the case in question, which must establish that a ruling on the questions referred is a matter of exceptional urgency (judgment of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 27 and the case-law cited).

35      The fact that the case concerns one or more essential aspects of the Common European Asylum System is not a reason that establishes the exceptional urgency necessary to justify an expedited procedure. The same is true of the fact that a large number of persons are potentially concerned by the questions referred (see, to that effect, judgment of 21 December 2021, Randstad Italia, C‑497/20, EU:C:2021:1037, paragraph 39 and the case-law cited).

 The request for the case to be referred to the Grand Chamber and for the oral part of the procedure to be opened

36      Following delivery of the Opinion on 13 July 2023, the applicant in the main proceedings asked the Court, by letter of 16 August 2023, to refer the present request for a preliminary ruling to the Grand Chamber and suggested that, should the case be so referred, the oral part of the procedure should be opened.

37      Those requests were refused by a decision of the President of the Fourth Chamber of 23 August 2023.

38      It should be noted that, in accordance with Article 60(1) of the Rules of Procedure, it is for the Court to decide on the formation of the Court to which a case is to be assigned, unless an assignment to the Grand Chamber has been requested, pursuant to the third paragraph of Article 16 of the Statute of the Court of Justice of the European Union, by a Member State or an institution of the European Union participating in the proceedings. Moreover, under Article 60(3) of the Rules of Procedure, the formation of the Court to which a case has been assigned has sole discretion to request the Court to assign the case to a formation composed of a greater number of Judges.

39      In the present case, however, assignment to the Grand Chamber was requested by the applicant in the main proceedings and there is nothing to justify assignment to a formation composed of a greater number of Judges. In those circumstances, it is not necessary to consider the suggestion put forward by the applicant in the main proceedings that, should the case be assigned to the Grand Chamber, the oral part of the procedure should be opened. The conditions for the application of Article 76(2) of the Rules of Procedure are, in any event, satisfied, since the Court has sufficient information to give a ruling.

 Consideration of the questions referred

 The first and second questions

40      As a preliminary point, it must be noted that, by its first two questions, which it is appropriate to examine together, the referring court asks how the Dublin III Regulation, in particular the second subparagraph of Article 3(2) thereof, should be interpreted in the event that serious and systematic infringements of EU law are committed with respect to third-country nationals by the Member State responsible for examining the application for international protection of one such national before his or her possible transfer to that Member State. More specifically, the referring court is uncertain as to whether such infringements are capable of calling into question the application of the principle of mutual trust between the Member States to such an extent as to preclude that transfer, or at the very least whether they mean that the requesting Member State that wishes to proceed with that transfer is to satisfy itself that, if transferred, the applicant for international protection concerned will not be exposed to a risk of treatment contrary to Article 4 of the Charter.

41      It is apparent from the order for reference that these questions concern a situation in which an applicant is claiming that the Member State responsible carries out pushbacks to its external borders and holds in detention at its border control posts third-country nationals who are seeking to apply for international protection, practices to which the applicant in the main proceedings claims himself to have been subjected.

42      It must therefore be concluded that, by its first two questions, the referring court asks, in essence, whether the second subparagraph of Article 3(2) of the Dublin III Regulation must be interpreted as meaning that the fact that the Member State responsible for examining a third-country national’s application for international protection carries out pushbacks with respect to third-country nationals seeking to make such applications at its border and detains them at its border control posts precludes the transfer of that third-country national to that Member State.

43      It must be recalled that EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the EU law that implements them will be respected, and that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised by the Charter, including Articles 1 and 4 of the Charter, which enshrine one of the fundamental values of the European Union and its Member States, namely human dignity, which includes, inter alia, the prohibition of inhuman or degrading treatment (judgment of 30 November 2023, Ministero dell’Interno and Others (Common leaflet – Indirect refoulement), C‑228/21, C‑254/21, C‑297/21, C‑315/21 and C‑328/21, EU:C:2023:934, paragraph 130 and the case-law cited).

44      The principle of mutual trust between the Member States is, in EU law, of fundamental importance given that it allows an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 81 and the case-law cited).

45      Accordingly, in the context of the Common European Asylum System, and in particular the Dublin III Regulation, it must be presumed that the treatment of applicants for international protection in all Member States complies with the requirements of the Charter, the Geneva Convention and the Convention for the Protection of Human Rights and Fundamental Freedoms (judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 82 and the case-law cited).

46      It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that applicants for international protection may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights (judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 83 and the case-law cited).

47      Thus, the second subparagraph of Article 3(2) of the Dublin III Regulation provides that an applicant for international protection cannot be transferred to the Member State responsible for examining his or her application if there are substantial grounds for believing that he or she would be at risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, because of systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection in that Member State.

48      In the present case, the applicant in the main proceedings claims that there are systemic flaws in the reception conditions in the Member State responsible, consisting in pushbacks to the external borders and detention at border control posts of third-country nationals who are seeking to make an application for international protection or who have succeeded in making such an application. He also claims that there are systemic flaws in the asylum procedure, in so far as the pushback of a third-country national is an obstacle to initiation of that procedure.

49      The referring court considers that the existence of such practices is evidenced by objective, reliable, specific and properly updated information.

50      As regards, in the first place, the practice of pushbacks to the external borders of the European Union, which effectively removes persons seeking to make an application for international protection from the territory of the European Union or removes them from that territory before an application made on entry has been examined as provided for by EU legislation, it must be noted that this practice is contrary to Article 6 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).

51      That provision, which concerns access to the procedure for the grant of international protection, constitutes one of the cornerstones of the Common European Asylum System and is part of EU legislation giving concrete form to the fundamental right enshrined in Article 18 of the Charter to qualify as a beneficiary of international protection, provided that the conditions required by EU law are met (see, to that effect, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 192). That provision means that any third-country national or stateless person has the right to make an application for international protection, including at the borders of a Member State, by expressing his or her wish to benefit from international protection to one of the authorities referred to in that provision. That right must be recognised, even if he or she is staying illegally on that territory and irrespective of the prospects of success of such a claim (judgment of 22 June 2023, Commission v Hungary (Declaration of intent prior to an asylum application), C‑823/21, EU:C:2023:504, paragraph 43 and the case-law cited).

52      As the Advocate General noted, in essence, in points 31 and 32 of his Opinion, a practice of pushbacks is incompatible with that fundamental element of the Common European Asylum System, in that it prevents the right to make an application for international protection from being exercised, and, accordingly, prevents the progress, in accordance with the rules laid down by EU legislation, of the process of making and examining such an application.

53      While it is, in all events, contrary to Article 6 of Directive 2013/32, a practice of pushbacks may also be incompatible with the principle of non-refoulement. As is apparent from recital 3 of the Dublin III Regulation, that principle, under which nobody can be sent back to persecution, is guaranteed, as a fundamental right, in Article 18 of the Charter, read in conjunction with Article 33 of the Geneva Convention, and in Article 19(2) of the Charter (see, to that effect, judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 55). A practice of pushbacks is therefore incompatible with that principle only if it consists in sending persons seeking to make, in the European Union, an application for international protection to a third country on whose territory they incur the risk of persecution referred to above.

54      As regards, in the second place, the practice of detention at border control posts, recital 15 of Directive 2013/33 and recital 20 of the Dublin III Regulation refer to the principle that a person should not be held in detention for the sole reason that he or she is seeking international protection.

55      In view of the gravity of the interference with the right to liberty resulting from a detention measure, and given the importance of that right, the power of the competent national authorities to detain third-country nationals is strictly circumscribed. A detention measure may thus be ordered or extended only in compliance with the general and abstract rules laying down the conditions and procedures governing such a measure (judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid and X (Ex officio review of detention), C‑704/20 and C‑39/21, EU:C:2022:858, paragraph 75 and the case-law cited).

56      In addition, the third-country national cannot be detained in the context of the Common European Asylum System where a less coercive measure can be applied effectively (see, to that effect, judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid and X (Ex officio review of detention), C‑704/20 and C‑39/21, EU:C:2022:858, paragraph 78).

57      It follows from the foregoing considerations that practices, such as those established in the present case, of pushback and of detention at border control posts are incompatible with EU law and constitute serious flaws in the asylum procedure and in the reception conditions for applicants. However, it does not necessarily follow that those flaws satisfy the two cumulative conditions, set out in the second subparagraph of Article 3(2) of the Dublin III Regulation, that must be satisfied in order to prevent the transfer of an applicant for international protection to the Member State in which those practices exist.

58      According to that provision, only ‘systemic’ flaws, ‘resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter]’, make such a transfer impossible.

59      In the present case, as regards the first of those two conditions, it will be for the referring court to examine whether the flaws established in Poland remain in place and whether they concern, generally, the asylum procedure and the reception conditions applicable to applicants for international protection or, at the very least, to certain groups of applicant for international protection as a whole, such as the group of persons seeking international protection after crossing or having attempted to cross the border between Poland and Belarus.

60      Should it transpire that that is the case, those flaws could be described as ‘systemic’, in the light of the case-law of the Court according to which deficiencies which may affect certain groups of people can be treated as systemic flaws (see, to that effect, judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 90).

61      Should it not be the case, however, it would have to be concluded that the first condition set out in the second subparagraph of Article 3(2) of the Dublin III Regulation is not satisfied in this instance. That provision would, in that case, not preclude the transfer of the applicant to the Member State responsible.

62      So far as the second condition is concerned, which relates to there being a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, resulting from systemic flaws in the asylum procedure and in the reception conditions for applicants, it will be for the referring court to assess whether systemic flaws result in a risk, for the person concerned, of being exposed to treatment that is contrary to Article 4 of the Charter.

63      In that regard, the referring court will have to examine, first, whether there are substantial grounds for believing that the applicant in the main proceedings would, in the event of transfer, face a real risk of again being taken to the border between Poland and Belarus and of being subjected there to a pushback to Belarus, possibly after being detained at a border control post, and, secondly, whether such measures or such practices would expose him to a situation of extreme material poverty that would not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that would undermine his physical or mental health or put him in a state of degradation incompatible with human dignity, placing him in a situation of such gravity that it may be equated with inhuman or degrading treatment (see, to that effect, judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraphs 85 and 87, and 91 to 93, respectively).

64      In that assessment, the situation that must be considered is the situation in which the applicant concerned would risk finding himself or herself during his or her transfer to the Member State responsible or thereafter (see, by analogy, judgments of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraphs 85, 87 and 88, and of 30 November 2023, Ministero dell’Interno and Others (Common leaflet – Indirect refoulement), C‑228/21, C‑254/21, C‑297/21, C‑315/21 and C‑328/21, EU:C:2023:934, paragraphs 134 and 135), and not his or her situation when he or she originally entered the territory of that Member State.

65      Having regard to all of the foregoing considerations, the answer to the first and second questions is that the second subparagraph of Article 3(2) of the Dublin III Regulation must be interpreted as meaning that the fact that the Member State responsible for examining a third-country national’s application for international protection has carried out pushbacks with respect to third-country nationals seeking to make such applications at its border and has detained them at its border control posts does not in itself preclude the transfer of that third-country national to that Member State. The transfer of that third-country national to that Member State must, however, be ruled out if there are substantial grounds for believing that he or she would, during his or her transfer or thereafter, face a real risk of being subjected to such practices, and that those practices are, depending on the circumstances, which it is for the competent authorities and any court or tribunal which may be seised of an action against the transfer decision to assess, capable of placing that third-country national in so grave a situation of extreme material poverty that it may be equated with the inhuman or degrading treatment prohibited by Article 4 of the Charter.

 The third question

66      By its third question, the referring court asks, in essence, whether Article 3(2) of the Dublin III Regulation, read in the light of Article 4 of the Charter, must be interpreted as meaning, first, that the Member State which has sought to have an applicant for international protection taken back by the Member State responsible and wishes to transfer that applicant to the latter Member State must, before it can carry out that transfer, take into consideration all of the information provided to it by the applicant, in particular as regards the possible existence of a real risk of the applicant being subjected, during the transfer or thereafter, to inhuman or degrading treatment, within the meaning of Article 4 of the Charter; secondly, that it must cooperate in establishing the facts and/or verify the truth of those facts; and thirdly that, in the event of serious and systematic infringements of the fundamental rights of third-country nationals in the Member State responsible, it is required to ask the Member State responsible to provide individual guarantees that the fundamental rights of that third-country national will be respected in the event of transfer.

67      As regards the standard of proof and rules of evidence that would trigger the application of the second subparagraph of Article 3(2) of the Dublin III Regulation, it is necessary, in the absence of specific details in that provision, to refer to the general provisions and scheme of that regulation.

68      In that regard, it should be noted that the EU legislature did not confine itself, in the context of that regulation, to introducing organisational rules simply governing relations between Member States for the purpose of determining the Member State responsible, but decided to involve applicants for international protection in that process by obliging Member States to inform them of the criteria for determining responsibility and to provide them with an opportunity to submit information relevant to the correct interpretation of those criteria (judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 51).

69      First of all, as the Advocate General noted in point 46 of his Opinion, the personal interview provided for in Article 5 of the Dublin III Regulation as well as any action that may be brought against the transfer decision must enable the applicant for international protection to present all the material in his or her possession.

70      According to Article 5(1) and (3) of the Dublin III Regulation, the personal interview is intended in particular to facilitate the process of determining the Member State responsible. That interview must take place in a timely manner and, in any event, before any transfer decision is taken.

71      Next, it is apparent from Article 5(2) of the Dublin III Regulation that the applicant must have the opportunity to ‘present all … information which is relevant to correctly determine the Member State responsible’.

72      Accordingly the applicant must be able to provide any relevant elements of proof or any circumstantial evidence, within the meaning of Article 22(2) and (3) of that regulation, relating to the determination of the Member State responsible.

73      Furthermore, Article 21(3) of the Dublin III Regulation refers to those elements of proof or that circumstantial evidence, but also to relevant elements from the applicant’s statement, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in that regulation.

74      Lastly, Article 22(4) and (5) of the Dublin III Regulation makes clear that the requirement of proof should not exceed what is necessary for the proper application of that regulation and that, if there is no formal proof, the requested Member State is to acknowledge its responsibility if the circumstantial evidence is coherent, verifiable and sufficiently detailed to establish responsibility.

75      It follows from the matters referred to in paragraphs 68 to 74 of the present judgment that the EU legislature did not impose any requirement as to the nature and evidentiary value of the information which the applicant may present in the context of his or her involvement in the process of determining the Member State responsible, including with respect to establishing whether there might be substantial grounds for believing that the applicant will face a real risk as referred to in the second subparagraph of Article 3(2) of that regulation in the event of transfer to a Member State responsible.

76      Consequently, any evidence provided by the applicant to establish the existence of a risk of treatment contrary to Article 4 of the Charter must be taken into consideration, albeit that it is for the judicial authorities of the Member State required to carry out the process of determining the Member State responsible to assess, 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, whether the deficiencies relied on do exist (see, to that effect, judgments of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 90, and of 30 November 2023, Ministero dell’Interno and Others (Common leaflet – Indirect refoulement), C‑228/21, C‑254/21, C‑297/21, C‑315/21 and C‑328/21, EU:C:2023:934, paragraph 136).

77      In addition, it should be noted that, irrespective of the account taken of information provided by the applicant, Member States are required not to transfer an applicant to the Member State responsible where they cannot be unaware that systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection in that Member State give rise to substantial grounds for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter (see, to that effect, judgments of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 94, and of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 85). Thus, it is not inconceivable that the Member State required to carry out the process of determining the Member State responsible may find it necessary to take into consideration, on its own initiative, relevant information of which it is aware in order to decide on the application of the second subparagraph of Article 3(2) of the Dublin III Regulation.

78      It follows that the Member State required to carry out the process of determining the Member State responsible for examining a third-country national’s application for international protection must take into consideration all of the information provided to it by that third-country national, in particular as regards the possible existence of a risk of treatment contrary to Article 4 of the Charter in the event of his or her transfer. That first Member State must, moreover, cooperate in establishing the facts by assessing whether that risk is real, 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, if necessary by taking into account, on its own initiative, relevant information of which it cannot be unaware concerning any systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection in the Member State responsible.

79      Should such flaws be established and constitute substantial grounds for believing that, in the event of transfer, the applicant for international protection would face a real risk of treatment contrary to Article 4 of the Charter, the Member State required to carry out the process of determining the Member State responsible must, in accordance with the second subparagraph of Article 3(2) of the Dublin III Regulation, examine the criteria set out in Chapter III of that regulation in order to establish whether another Member State may be designated as responsible.

80      However, before concluding that there is a real risk of inhuman or degrading treatment in the event of transfer to the Member State responsible, the Member State wishing to carry out the transfer may seek to obtain individual guarantees that are sufficient to exclude that risk (see, to that effect, judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraphs 83 and 84).

81      In the light of all of the foregoing considerations, the answer to the third question is that the Dublin III Regulation, read in the light of Article 4 of the Charter, must be interpreted as meaning that:

–        the Member State which has sought to have an applicant for international protection taken back by the Member State responsible and wishes to transfer that applicant to the latter Member State must, before it can carry out that transfer, take into consideration all of the information provided to it by that applicant, in particular as regards the possible existence of a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, at the time of that transfer or thereafter;

–        the Member State wishing to carry out the transfer must cooperate in establishing the facts and/or verify the truth of those facts;

–        that Member State must refrain from carrying out that transfer if there are substantial grounds for believing that there is a real risk of such treatment in the event of transfer;

–        that Member State may nevertheless seek to obtain individual guarantees from the Member State responsible and, if such guarantees are provided and appear to be both credible and sufficient to rule out any real risk of inhuman or degrading treatment, may carry out that transfer.

 The fourth question

82      By its fourth question, the referring court asks, in essence, whether the answer to the third question would be affected by the fact, assuming it is established, that the applicant for international protection would not, or would not effectively, be able to complain to the authorities and have recourse to legal remedies in the Member State responsible.

83      It must be recalled that the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court and the national courts by means of which the Court provides national courts with the criteria of interpretation of EU law which they need in order to decide the disputes before them. In the context of that cooperation, it is for the national court before which the dispute in the main proceedings has been brought, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 7 December 2023, mBank (Consumer declaration), C‑140/22, EU:C:2023:965, paragraph 47 and the case-law cited).

84      However, the Court cannot rule on a question referred for a preliminary ruling where it is quite obvious that the interpretation of a rule of EU law that is sought by a national court bears no relation to the actual facts or purpose of the dispute before that national court, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgment of 7 September 2022, Cilevičs and Others, C‑391/20, EU:C:2022:638, paragraph 42 and the case-law cited).

85      In that last regard, it is appropriate to stress the importance of the national court setting out the precise reasons why it is unsure as to the interpretation of EU law and why it considers it necessary to refer questions to the Court for a preliminary ruling (judgment of 6 December 2005, ABNA and Others, C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741, paragraph 46, and order of 15 April 2011, Debiasi, C‑613/10, EU:C:2011:266, paragraph 22).

86      In the present case, it must be noted that the referring court does not set out with the requisite degree of clarity and precision the difficulties with which the applicant in the main proceedings might be confronted if he were to be transferred to the Member State responsible.

87      Nor, moreover, does it explain clearly the reasons why it establishes a link between the difficulties of bringing an effective action in that Member State following an applicant’s transfer, and the standard of proof required of that applicant in the procedure for determining the Member State responsible for examining his application, with regard to the facts on which he relies in support of his claim to be at risk of treatment contrary to Article 4 of the Charter, in the event of his transfer to that Member State, because of systemic or generalised flaws in the asylum procedure or in the reception conditions.

88      It follows that the fourth question is inadmissible.

 Costs

89      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

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

1.      The second subparagraph of Article 3(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 the fact that the Member State responsible for examining a third-country national’s application for international protection has carried out pushbacks with respect to third-country nationals seeking to make such applications at its border and has detained them at its border control posts does not in itself preclude the transfer of that third-country national to that Member State. The transfer of that third-country national to that Member State must, however, be ruled out if there are substantial grounds for believing that he or she would, during his or her transfer or thereafter, face a real risk of being subjected to such practices, and that those practices are, depending on the circumstances, which it is for the competent authorities and any court or tribunal which may be seised of an action against the transfer decision to assess, capable of placing that third-country national in so grave a situation of extreme material poverty that it may be equated with the inhuman or degrading treatment prohibited by Article 4 of the Charter.

2.      Regulation No 604/2013, read in the light of Article 4 of the Charter of Fundamental Rights,

must be interpreted as meaning that:

–        the Member State which has sought to have an applicant for international protection taken back by the Member State responsible and wishes to transfer that applicant to the latter Member State must, before it can carry out that transfer, take into consideration all of the information provided to it by that applicant, in particular as regards the possible existence of a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, at the time of that transfer or thereafter;

–        the Member State wishing to carry out the transfer must cooperate in establishing the facts and/or verify the truth of those facts;

–        that Member State must refrain from carrying out that transfer if there are substantial grounds for believing that there is a real risk of such treatment in the event of transfer;

–        that Member State may nevertheless seek to obtain individual guarantees from the Member State responsible and, if such guarantees are provided and appear to be both credible and sufficient to rule out any real risk of inhuman or degrading treatment, may carry out that transfer.

[Signatures]

*      Language of the case: Dutch.

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