NS [2010] EUECJ C-411/10 (01 October 2010)

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Amnesty International Ltd and The AIRE Centre (Advice on Individual Rights in Europe),

1 This reference for a preliminary ruling concerns the interpretation of Article 3 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 (OJ 2003 L 50, p. 1), in the light of the Charter of Fundamental Rights of the European Union, of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, and of various international agreements.

2 The reference has been made in proceedings between N.S., an Afghan national who has lodged an asylum application in the United Kingdom, and the Secretary of State for the Home Department, who is responsible for asylum and immigration matters in the United Kingdom. Amnesty International Ltd and The AIRE Centre (Advice on Individual Rights in Europe), as well as the United Nations High Commissioner for Refugees, were granted leave to intervene in the proceedings before the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court). The Equality and Human Rights Commission was granted leave to intervene in the proceedings before the Court of Appeal (England and Wales) (Civil Division).

3 The referring court seeks to ascertain, inter alia, whether a Member State is required under European Union law to exercise the power, provided for in Article 3(2) of Regulation No 343/2003, to examine an asylum application and take responsibility for the examination of such an application, where transfer of the applicant to the Member State responsible for examining the asylum application within the meaning of that regulation, in the present case the Hellenic Republic, would expose that applicant to a risk of breach of his fundamental rights. If so, the court raises the question of the circumstances in which that power must be exercised.

4 The referring court requests the Court to apply an accelerated procedure to the case pursuant to the first paragraph of Article 104a of the Rules of Procedure of the Court. It cites as justification, inter alia, the large number of cases pending before the courts of the United Kingdom, those of other Member States and the European Court of Human Rights, uncertainty about the lawfulness of the return of asylum seekers to the Hellenic Republic and other Member States, the objective of the rapid processing of asylum applications referred to in recital 4 in the preamble to Regulation No 343/2003, a lack of consistency between the practices of the various Member States, and the risk that asylum seekers will be returned to the Hellenic Republic when the referring court assumes that they would not obtain, in that Member State, meaningful access to the asylum application procedure.

5 It is apparent from the first paragraph of Article 104a of the Rules of Procedure and from Article 23a of the Statute of the Court of Justice of the European Union that, at the request of the national court, the President of the Court may exceptionally decide, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to apply an accelerated procedure derogating from the provisions of those Rules of Procedure to a reference for a preliminary ruling, where the circumstances referred to establish that a ruling on the question put to the Court is a matter of exceptional urgency.

6 In the present case, although the referring court has demonstrated the importance of the outcome of the main proceedings, it has not established that a ruling on those proceedings is a matter of exceptional urgency.

7 Settled case-law shows that the large number of persons or legal situations potentially concerned by the decision to be made by the referring court after making a reference to the Court for a preliminary ruling is not capable as such of constituting an exceptional circumstance that could justify the application of an accelerated procedure (see, to that effect, inter alia, the orders of the President of 21 September 2006 in Cases C-283/06 and C-312/06 KÖGAZ and Others, paragraph 9; of 3 July 2008 in Case C-201/08 Plantanol, paragraph 10; of 3 December 2008 in Cases C-403/08 and C-429/08 Football Association Premier League and Others and Murphy, paragraph 9; of 23 October 2009 in Case C-240/09 Lesoochranárske zoskupenie, paragraph 11; and of 16 March 2010 in Case C-3/10 Affatato, paragraph 14).

8 Furthermore, it does not appear that the referring court is required to give a ruling within a prescribed period or that the asylum application lodged by N.S. on 12 January 2009 and the claim for judicial review that he was granted permission to bring on 14 October 2009 have been dealt with as a matter of urgency.

9 It should also be borne in mind that it is clear from the case-law of the Court that the sole interest of individuals, whilst admittedly legitimate, in determining as rapidly as possible the scope of their rights under European Union law is not such as to demonstrate exceptional urgency within the meaning of the first paragraph of Article 104a of the Rules of Procedure (see, to that effect, the orders of the President of 7 May 2004 in Cases C-154/04 and C-155/04 Alliance for Natural Health and Others, paragraph 8; of 24 September 2004 in Case C-344/04 IATA and ELFAA, paragraph 9; of 3 April 2007 in Case C-33/07 Jipa, paragraph 6; and of 16 March 2010 in Affatato, paragraph 13).

10 Lastly, it does not appear that, for the duration of the preliminary ruling proceedings, the applicant must be made the subject of a detention measure or a removal order.

11 In those circumstances, the request of the Court of Appeal (Civil Division) (England & Wales) to have an accelerated procedure applied to this case cannot be granted.

The request of the Court of Appeal (Civil Division) (England & Wales) (United Kingdom) to have the accelerated procedure provided for in the first paragraph of Article 104a of the Rules of Procedure of the Court applied to Case C-411/10 is rejected.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> NS [2010] EUECJ C-411/10 (01 October 2010) URL: http://www.bailii.org/eu/cases/EUECJ/2011/C41110_Order.html Cite as: [2010] EUECJ C-411/10

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