Staatssecretaris van Justitie en Veiligheid (Refus de prise en charge d'un mineur egyptien non accompagne) (Border controls, asylum and immigration - Criteria and mechanisms for determining the Member State responsible for examining an application for international protection - Opinion) [2022] EUECJ C-19/21

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Staatssecretaris van Justitie en Veiligheid (Refus de prise en charge d'un mineur egyptien non accompagne) (Border controls, asylum and immigration - Criteria and mechanisms for determining the Member State responsible for examining an application for international protection - Opinion) [2022] EUECJ C-19/21_O (07 April 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C1921_O.html Cite as: ECLI:EU:C:2022:279, [2022] EUECJ C-19/21_O, EU:C:2022:279

(Request for a preliminary ruling from the Rechtbank Den Haag zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem, Netherlands))

(Reference for a preliminary ruling – Border controls, asylum and immigration – Asylum policy – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Regulation (EU) No 604/2013 (Dublin III Regulation) – Article 8(2) – Unaccompanied minor who alleges that he has a relative legally present in the territory of another Member State – Article 27 – Refusal of the competent authorities of that other Member State to take charge of the applicant – Charter of Fundamental Rights of the European Union – Article 47 – Right to an effective remedy)

1. During what is commonly referred to as the ‘refugee crisis of 2015’, more than 95 000 unaccompanied minors applied for international protection, representing 7% of all applications for international protection in the European Union. (2) The arrival of unaccompanied minors is a persisting phenomenon, most felt by Greece, which, in 2020, received over 20% of all asylum seekers considered to be unaccompanied minors across the European Union and faced the highest numbers out of all the EU Member States. (3)

2. The Rechtbank Den Haag zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem, Netherlands) has referred to the Court of Justice questions regarding the interpretation of Article 27(1) of the Dublin III Regulation, (4) which gives asylum seekers the right to an effective remedy against ‘transfer decisions’ taken by the Member States, and of the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which grants ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated’ the right to such a remedy before a tribunal.

3. The main proceedings concern an asylum seeker, I (‘the applicant’), who was, at the time when he lodged his application for international protection in Greece, an unaccompanied minor. Pursuant to Article 8(2) of the Dublin III Regulation, when such a minor has a relative who can take care of him or her and who is legally present in another Member State, that other Member State is responsible for examining the minor’s application for international protection, provided that it is in the minor’s best interests.

4. In the present case, the applicant claims that he has such a relative, namely his alleged uncle, S, residing in the Netherlands. Accordingly, the Greek authorities asked the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’) to take charge of the applicant so that his application for international protection can be examined in the Netherlands and he can live with S throughout the duration of that assessment. The action before the referring court, which was brought by the applicant and S against the State Secretary, focusses on the latter’s refusal of that request.

5. Within that context, the referring court seeks to clarify whether, and if so on what legal basis (Article 27(1) of the Dublin III Regulation or the first paragraph of Article 47 of the Charter, taken separately or together), the applicant and S ought to be granted a remedy against the State Secretary’s refusal.

6. The present case brings to the fore, once again, (5) the question of the delicate balance between two objectives that are inherent to the Dublin III Regulation, namely, on the one hand, that of having a rapid procedure to allocate responsibility among the Member States for the examination of applications for international protection and, on the other hand, that of ensuring, especially when Member States are dealing with unaccompanied minors – who are considered to be a particularly vulnerable group of asylum seekers –, the protection of the fundamental rights of the persons concerned.

7. As I will explain below, it is my opinion that, whereas Article 27(1) of the Dublin III Regulation does not cover the situation at hand, the first paragraph of Article 47 of the Charter requires that an unaccompanied minor be given an opportunity to challenge, in law and in fact, a Member State’s authorities’ refusal to take charge of him or her, on the basis of Article 8(2) of that regulation, before the courts or tribunals of that Member State.

‘(13) In accordance with the 1989 United Nations Convention on the Rights of the Child and with the [Charter], the best interests of the child should be a primary consideration of Member States when applying this Regulation. In assessing the best interests of the child, Member States should, in particular, take due account of the minor’s well-being and social development, safety and security considerations and the views of the minor in accordance with his or her age and maturity, including his or her background. In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their particular vulnerability.

(14) In accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with the [Charter], respect for family life should be a primary consideration of Member States when applying this Regulation.

(16) In order to ensure full respect for the principle of family unity and for the best interests of the child, the existence of a relationship of dependency between an applicant and his or her child, sibling or parent on account of the applicant’s pregnancy or maternity, state of health or old age, should become a binding responsibility criterion. When the applicant is an unaccompanied minor, the presence of a family member or relative on the territory of another Member State who can take care of him or her should also become a binding responsibility criterion.

(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]. …

(39) This Regulation respects the fundamental rights and observes the principles which are acknowledged, in particular, in 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.’

9. Article 8 of that regulation, entitled ‘Minors’, reads, in its second paragraph, as follows:

‘Where the applicant is an unaccompanied minor (6) who has a relative (7) who is legally present in another Member State and where it is established, based on an individual examination, that the relative can take care of him or her, that Member State shall unite the minor with his or her relative and shall be the Member State responsible, provided that it is in the best interests of the minor.’

10. Section II of Chapter VI of the Dublin III Regulation, entitled ‘Procedures for take charge requests’, includes Articles 21 and 22, which lay down the obligations that apply to the Member States when submitting and replying to a take charge request. Article 21(1) states, in relevant parts:

‘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 …, request that other Member State to take charge of the applicant.

11. Article 22(1) provides that ‘the requested Member State shall make the necessary checks, and shall give a decision on the request to take charge of an applicant within two months of receipt of the request’.

12. Section IV of Chapter VI of the Dublin III Regulation, entitled ‘Procedural safeguards’, includes Article 27, which provides, in its first paragraph:

‘The applicant … shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.’

13. The applicant is an Egyptian national who was born in 2002. On 23 December 2019, while he was still under 18 years of age, he lodged an application for international protection in Greece.

14. During the procedure conducted by the Greek authorities to determine, pursuant to the criteria set forth in the Dublin III Regulation, the Member State responsible for examining his application (‘the Dublin Procedure’), the applicant indicated to the Greek authorities that he wished to be united with S, who he claims to be his uncle and who resides in the Netherlands.

15. On 10 March 2020, the Greek authorities submitted, pursuant to Article 21 of the Dublin III Regulation, a take charge request to the competent authorities in the Netherlands, namely the State Secretary. The request was based on the responsibility criterion contained in Article 8(2) of that regulation.

16. By letter of 8 May 2020, the State Secretary refused the take charge request on the ground that the family link between the applicant and S could not be established.

17. On 28 May 2020, the Greek authorities asked the State Secretary to reconsider her decision in accordance with Article 5(2) of Regulation (EC) No 1560/2003 (8) (‘the Implementing Regulation’).

18. By letter of 11 June 2020, the State Secretary reaffirmed her conclusion as to the lack of sufficient proof of a family link between the applicant and S and rejected the request for re-examination.

19. On 24 June 2020, the applicant and S objected to the State Secretary’s refusal to take charge of the applicant. By letter of 26 June 2020, the State Secretary declared that objection manifestly inadmissible after observing that the Dublin III Regulation does not contain any provision designed to enable applicants for international protection to challenge the refusal of a take charge request.

20. That same day, the applicant and S challenged the decision contained in that letter before the referring court. (9)

21. Before that court, the applicant (10) submits that, in refusing to take charge of him, the State Secretary failed to consider his best interests, in breach of Article 8(2) of the Dublin III Regulation. Article 27(1) of that regulation and the first paragraph of Article 47 of the Charter therefore require that he be granted an effective remedy against the State Secretary’s refusal.

22. The applicant also argues that, following the Court’s judgments in Ghezelbash (11) and Karim, (12) the protection of the rights of asylum seekers within the European Union has been reinforced, with the result that such persons should generally be able to challenge the incorrect application of the criteria set out in Chapter III of the Dublin III Regulation for determining the Member State responsible for the examination of their application for international protection.

23. The State Secretary takes the view that the applicant has no right to appeal her refusal to take charge of him before a court or tribunal. In that regard, the State Secretary submits that Article 27(1) of the Dublin III Regulation provides for a legal remedy only where a ‘transfer decision’, within the meaning of that provision, is adopted. The State Secretary points out that the process for determining the Member State responsible takes place exclusively at the level of the competent authorities of the Member States and does not accord any right to asylum seekers to challenge a refusal by the competent authorities of the Member State to take charge of them. (13)

24. The referring court indicates that, according to the information available to it, the Greek authorities have decided to refrain from examining the applicant’s application for international protection so long as the main proceedings are pending.

25. It also notes that the Member States (and, more specifically, Germany, Austria, Sweden and, formerly, the United Kingdom) have all approached very differently the issue of whether a remedy should be provided in a case where an asylum seeker wishes to challenge the refusal of a Member State to take charge of him or her.

26. The referring court further considers that the words ‘transfer decision’ in Article 27(1) of the Dublin III Regulation ought to be interpreted broadly, irrespective of whether or not they are read in conjunction with the first paragraph of Article 47 of the Charter. A restrictive interpretation of Article 27(1) of that regulation would, in its view, be arbitrary and unjustified. Moreover, since only the competent authorities of the Member States are able to initiate the ‘conciliation procedure’, within the meaning of Article 37(2) of the Dublin III Regulation, it would be impossible to conclude that that provision already grants asylum seekers an effective remedy within the meaning of the first paragraph of Article 47 of the Charter.

27. Lastly, that court raises doubts as to whether the ‘relative’ of an unaccompanied minor has a right of his or her own to challenge a refusal of the Member State in which he or she legally resides to take charge of such a minor on the basis of Article 8(2) of the Dublin III Regulation.

28. In that context, the Rechtbank Den Haag, zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 27 of the [Dublin III Regulation] be interpreted as requiring the requested Member State, whether or not in conjunction with Article 47 of the Charter, to provide the applicant residing in the requesting Member State and seeking transfer pursuant to [Article 8(2) of the Dublin III Regulation], or the applicant’s [relative] referred to in [that provision], with an effective remedy before a court or tribunal against the refusal of the request to take charge?

(2) If the answer to the first question is in the negative and Article 27 of the [Dublin III Regulation] does not provide a basis for an effective remedy, must Article 47 of the Charter – read in conjunction with the fundamental right to family unity and the best interests of the child (as laid down in Articles 8 to 10 and recital 19 of the [Dublin III Regulation]) – be interpreted as requiring the requested Member State to provide the applicant residing in the requesting Member State and seeking transfer pursuant to [Article8(2)] of the [Dublin III Regulation] or the [relative] of the applicant referred to in [that provision], with an effective remedy before a court or tribunal against the refusal of the request to take charge?

(3) If Question [1] or Question [2] is answered in the affirmative, in what way and by which Member State should the requested Member State’s decision to refuse the request and the right to appeal against it … be communicated to the applicant or the applicant’s [relative]?’

29. The request for a preliminary ruling, dated 12 January 2021, was registered on 13 January 2021. The applicant and S, and the Greek, French, Netherlands and Swiss Governments, as well as the European Commission submitted written observations. The applicant and S, and the Greek, Netherlands and Belgian Governments, as well as the Commission were represented at the hearing, which took place on 11 January 2021.

30. The Dublin III Regulation establishes the criteria and mechanisms for determining which Member State is responsible for examining an application for international protection lodged in the European Union by a third-country national or a stateless person. As Article 3(1) of that regulation makes clear, it aims at ensuring that any such application is examined, but also that only one Member State (the one designated by the criteria set out in Chapter III of the Dublin III Regulation) bears that responsibility. If a Member State in which an application for international protection is lodged considers, on the basis of those criteria, that another Member State is responsible for examining it, the first Member State (‘the requesting Member State’) requests the second Member State (‘the requested Member State’) to take charge of the asylum seeker (by submitting a take charge request). (14)

31. In the present case, such a request was sent to the Netherlands authorities by their Greek counterparts. The request was based on Article 8(2) of the Dublin III Regulation, which contains a ‘binding responsibility criterion’ (15) aimed at protecting unaccompanied minors by reuniting them with their ‘relatives’. (16) The State Secretary rejected the request on the ground that the family link between the applicant and his alleged uncle, S, could not be established. Both of them wish to challenge that refusal before the Netherlands’ courts, with the hope that the applicant will be transferred to that Member State and be reunited with S.

32. Against that background, the referring court has referred three questions to the Court. The first two questions relate to the existence of an effective remedy against that refusal and to the legal basis for such a remedy. The third one, which depends on the answer to the first two questions, concerns its practical modalities.

33. In the following sections, I will examine each of those questions in turn. First, I will explain why, in my view, the scope of Article 27(1) of the Dublin III Regulation cannot be extended so as to include a remedy in a case where an asylum seeker challenges the requested Member State’s refusal (here, the Netherlands’ refusal) to take charge of him or her (A). Next, I will establish that, where that refusal concerns a take charge request based on Article 8(2) of that regulation, that Member State is nevertheless required, pursuant to the first paragraph of Article 47 of the Charter, read in combination with Article 7 and Article 24(2) thereof (the rights to respect for private and family life and protection of the best interests of the child, respectively), to provide an effective remedy to the unaccompanied minor (B). Finally, I will consider the practical consequences of that obligation with regard to the overall design of the Dublin III Regulation (C).

34. By its first question, the referring court asks, in essence, whether Article 27(1) of the Dublin III Regulation ought to be interpreted as imposing, on the Member State to which a take charge request is addressed on the basis of Article 8(2) of that regulation and which refuses such a request, an obligation to provide the unaccompanied minor concerned and/or his or her alleged relative an effective remedy before a court or tribunal.

35. Like all of the intervening parties, and contrary to the applicant and S, I consider that Article 27(1) of the Dublin III Regulation does not impose any such obligation on that Member State.

36. I note that that provision states that ‘the applicant’ or ‘another person as referred to in Article 18(1)(c) or (d)’ (that is, in essence, also an applicant for international protection) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.

37. It stems from that wording, first, that the relative of an applicant for international protection is not among the addressees of that provision; only the applicant himself or herself benefits from such a right.

38. Second, Article 27(1) of the Dublin III Regulation targets a specific situation. The concept of ‘transfer decision’ within the meaning of that provision, read in the light of Article 26(1) and Article 29(1) of the Dublin III Regulation, (17) refers to a decision (i) taken by the Member State where an asylum seeker is present and (ii) the object of which is that that person is to be ‘transferred’ to the Member State which the criteria contained in that regulation designate as the one responsible for examining his or her application for international protection. (18) Such a decision is adopted once the authorities of the former (the requesting Member State) have sent a take charge request (or, as the case may be, a take back request) (19) to their counterparts of the latter Member State (the requested Member State), and such a request has been accepted by those authorities. (20)

39. It follows that Article 27(1) of the Dublin III Regulation cannot be interpreted so as to provide a remedy, before a court or tribunal of the requested Member State (here, the Netherlands), against a decision of the authorities of that Member State to refuse a take charge request – the effect of which is that the applicant is not to be transferred to the second Member State. Situations in which an asylum seeker claims that he or she ought to be transferred to a given Member State but that Member State refuses to take charge of him or her (or to take him or her back) simply do not come within the scope of that provision.

40. Although the Court has embraced a broad interpretation of Article 27(1) of the Dublin III Regulation, (21) and even though that provision must be read in the light of the first paragraph of Article 47 of the Charter, (22) it is clear to me that interpreting Article 27(1) of that regulation to the effect that a refusal of the requested Member State to take charge of a minor such as the applicant should be open to judicial review would be tantamount to stretching the scope of that provision beyond what its wording permits. (23)

41. My view in that regard is reinforced by the fact that, in an attempt to reform the Dublin III Regulation, the Commission had proposed to insert a new provision providing for an effective remedy before a court or tribunal in cases where an applicant is not to be transferred but claims that he or she has a ‘family member’ or, in the case of unaccompanied minors, a ‘relative’ legally present in another Member State. (24)

42. That proposal has since been withdrawn. (25) Nonetheless, it indicated, in my view, that Article 27(1) of the Dublin III Regulation, in its present form, does not contain, either expressly or impliedly, any right to an effective remedy in such a case. (26)

43. I shall now turn to the issue of whether such a right can be derived from the first paragraph of Article 47 of the Charter, read in combination with Article 7 and Article 24(2) thereof, alone.

44. By its second question, the referring court asks, in essence, whether the first paragraph of Article 47 of the Charter, read in combination with Article 7 and Article 24(2) thereof, ought to be interpreted as imposing on the Member State to which a take charge request is addressed, on the basis of Article 8(2) of the Dublin III Regulation, an obligation to provide an effective remedy to an asylum seeker who is an unaccompanied minor and/or to his or her alleged relative, before a court or tribunal, against its refusal to accept such a request.

45. It is appropriate to recall, as a preliminary point, that Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, codified the general principle of effective legal protection previously established by the Court. (27) The right to an effective remedy, guaranteed in the first paragraph of that provision, corresponds to that provided for in Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR). (28)

46. According to the first paragraph of Article 47 of the Charter, everyone whose ‘rights and freedoms guaranteed by [EU law] are violated has the right to an effective remedy before a tribunal’. As can be seen from the Court’s settled case-law, the right to an effective remedy may be invoked on the basis of that provision alone, without there being a need for the content thereof to be made more specific by other provisions of EU law or by provisions of the domestic law of each Member State. (29)

47. That being said, whether or not such a right exists, in a given case, presupposes, as is apparent from the first paragraph of Article 47 of the Charter, that the person invoking it is relying on one or several ‘rights or freedoms guaranteed by EU law’. (30) It means that not only must the situation at hand fall within the scope of EU law – otherwise the Charter, as a whole, would not be applicable at all – (31) but there must also be a concrete right or freedom, protected by EU law, which benefits the specific litigant. (32)

48. Coming now to the application of the first paragraph of Article 47 of the Charter in a situation such as the one in the main proceedings, I will first explain that, when a Member State refuses to accept a take charge request addressed to it on the basis of Article 8(2) of the Dublin III Regulation, that refusal not only obviously falls within the scope of EU law, since the authorities of the requested Member State, when adopting such a decision, are applying the rules of the Dublin III Regulation, (33) it also affects (and may effectively infringe) a number of concrete ‘rights … guaranteed by EU law’ in favour of the unaccompanied minor concerned. Thus, the minor (but not his or her alleged relative) must have, pursuant to the first paragraph of Article 47 of the Charter, an effective remedy against that refusal before the courts or tribunals of the requested Member State (1). I will then detail the reasons why I consider that the Dublin III Regulation as a whole does not go against the recognition of such a remedy (34) and how there is no conflict between that regulation and the first paragraph of Article 47 of the Charter (2). Finally, I will explain why, contrary to the concerns expressed by the intervening parties before the Court, I consider that such an interpretation will not result in an overhaul of the Dublin system (3).

1. The ‘rights … guaranteed by EU law’ calling for an effective remedy

49. As I indicated in point 31 above, Article 8(2) of the Dublin III Regulation introduces a ‘binding responsibility criterion’ aimed at establishing which Member State shall examine an application for international protection lodged by an unaccompanied minor who has an adult relative lawfully residing in the European Union. That criterion prevails over all other criteria contained in that regulation. (35) Provided the requirements listed in Article 8(2) are fulfilled, that provision entails two clear, precise and unconditional obligations for the Member State where the relative lives: it ‘shall unite the minor with his or her relative’ and it ‘shall be … responsible’ for the examination of the minor’s asylum claim. (36)

50. To my mind, those two obligations are a corollary to certain ‘rights … guaranteed by EU law’, within the meaning of the first paragraph of Article 47 of the Charter, that benefit unaccompanied minors applying for international protection within the European Union.

51. The idea that asylum seekers benefit from certain individual substantive rights is inherent to the Dublin III Regulation. Notably, that regulation seeks to ensure ‘full observance’ of certain Charter-based rights which are of particular importance in the context of its application. (37) Those rights are protected by various procedural safeguards (38) designed to ensure the involvement of asylum seekers in the process of the determination of the Member State responsible for examining their asylum claim. (39) They are also reflected in the very design of (at least some of) the rules which the EU legislature has included in that legal instrument. (40)

52. Within that context, Article 8(2) of the Dublin III Regulation was adopted with the explicit aim of ‘ensur[ing] full respect for the principle of family unity and for the best interests of the child’ (41) and, thus, of giving effect to the fundamental rights contained in Article 7 and Article 24(2) of the Charter, both of which should be ‘primary considerations’ of the Member States when applying the rules set out in the Dublin III Regulation. (42)

53. In that regard, I recall, first, that Article 7 of the Charter guarantees the fundamental right to respect for family life. That right corresponds to the one provided by Article 8(1) ECHR. Accordingly, it should be interpreted in the light of the relevant case-law of the European Court of Human Rights (‘the ECtHR’). (43) Pursuant to that case-law, whether ‘family life’ exists is a factual question. That concept is rooted in the protection of the family nucleus (or immediate family). However, it has been recognised that close ‘relatives’ outside of that nucleus may also play a role and contribute to family life. (44) In the light of this, the concept of ‘family life’ may include the relationship between a child and his or her ‘relative’ that provides the basis for the responsibility criterion contained in Article 8(2) of the Dublin III Regulation (for example, the relationship between a child and his or her uncle).

54. Secondly, Article 24(2) of the Charter recognises that, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. That second fundamental right should be read in conjunction with the first one. (45) Indeed, the Court has held that it follows from recitals 14 to 16 of the Dublin III Regulation and, inter alia, Article 6(3)(a) (46) and Article 6(4), (47) as well as Article 8(2) thereof, that respect for family life and, more specifically, for preserving the unity of the family group is, as a general rule, in the best interests of the child. (48) In other words, the principle of the ‘best interests’ of the child often requires Member States to give full effect to the minor’s right to family life by maintaining the unity of his or her family and, in certain circumstances, reuniting him or her with family members or relatives.

55. By adopting Article 8(2) of the Dublin III Regulation, the EU legislature thus seems to me to have acknowledged, in line with the ECtHR’s case-law, (49) that unaccompanied minors are particularly vulnerable persons, (50) whose well-being depends on the necessary protection and care of adults and adequate reception conditions. Notwithstanding the guarantees laid down in the Reception Directive, (51) it is evident that the needs of unaccompanied minors will, in general, best be served and their ‘social development’, ‘safety’ and ‘security’ (52) safeguarded if they are cared for, in the absence of a ‘family member’ within the territory of the European Union, (53) by an adult ‘relative’ (54) rather than left in a foster family or (worse) in an accommodation centre in a Member State other than the one where such a ‘relative’ is located, during the period of time that their application for international protection is under examination.

56. It follows that, contrary to what the Commission and the G overnments of the Member States that participated in the present proceedings have submitted, Article 8(2) of the Dublin III Regulation is not merely an organisational rule governing the allocation of responsibility between the Member States. The obligations it imposes on the Member States to unite unaccompanied minors with their relatives is designed to ensure full respect of those minors’ fundamental rights to ‘family life’ (Article 7 of the Charter) and to have their ‘best interests’ protected (Article 24(2) of the Charter). In accordance with the precise conditions listed in that provision, those obligations therefore translate, in my view, into concrete rights for such persons.

57. For th e sake of completeness, I would add that I am not persuaded by, first, the argument of the Commission and the Belgian and Netherlands Governments that, because the EU legislature has already made provision for family unity in other EU legal instruments such as the Family Reunification Directive, (55)it did not intend to encourage family reunification of unaccompanied minors with their relatives under the Dublin III Regulation. In their view, that regulation would aim, above all, to guarantee the rapid processing of applications for international protection, not to bring families together. Furthermore, and in any event, if an unaccompanied minor were successful in his or her claim and obtained the ‘refugee’ status, he or she would be free, pursuant to the Qualification Directive, (56) to move to other Member States and, thus, to join his or her relatives.

58. I must admit that I fail to see why the fact that an unaccompanied minor derives certain rights from the Family Reunification Directive and the Qualification Directive, respectively, would preclude him or her from invoking the protection of his or her Charter-based rights to ‘family life’ and to have his or her ‘best interests’ protected in the context of the application of the Dublin III Regulation.

59. Indeed, t hose various instruments come into play at different times. In the main proceedings, the applicant may be able to rely on the Qualification Directive or the Family Reunification Directive to join his uncle in the Netherlands, or to have other members of his family (for example, his mother or father) (57) join him in Greece, after (and if) he obtained the ‘refugee’ status. However, during the time that his application for international protection is being examined by the Greek authorities, those two directives would be of no help to him and only Article 8(2) of the Dublin III Regulation could ensure that he does not remain, against his best interests, isolated from a relative who is able to take care of him. (58)

60. In that regard, I would like to emphasise that the negative impact for an unaccompanied minor of being separated from his or her ‘family members’ or ‘relatives’ during the time that his or her claim is being examined cannot be overlooked. To my knowledge, that examination can, in theory, take up to six months after the lodging of the application for the examination procedure (59) and, in practice, sometimes much more. (60) From a minor’s point of view, that may be seen, depending on his or her age, as a very long time and even as a never-ending situation. (61)

61. I also fail to see, secondly, how that interpretation amounts to granting unaccompanied minors a right to have their applications examined in the Member State of their choosing – which would be at odds with the general logic of the Dublin III Regulation and which would favour forum shopping. It merely means that, where it is in his or her best interests, (62) he or she has a right, pursuant to the very rule adopted by the EU legislature, to be united with a relative that is able to take care of him or her in another Member State and have his or her asylum claim examined there so that his or her well-being is ensured in the best possible way.

62. Thirdly , I am not convinced by the argument that no substantive rights in favour of unaccompanied minors can be derived from Article 8(2) of the Dublin III Regulation given that Article 17(1) of that regulation (the so-called sovereignty clause) in any case affords the Member State, where an application for international protection is lodged, the option of derogating from the criteria laid down in that regulation and of declaring itself responsible for examining the application.

63. It is true that the sovereignty clause leaves to Member States a certain leeway with regard to the application of the rules of the Dublin III Regulation. Nevertheless, as recital 17 of that regulation makes clear, that clause ought principally to be used on humanitarian grounds and as a safeguard against potential infringements of the fundamental rights of applicants, for example, in order to bring a family together – not to keep them apart.

64. In any event, the use of that clause, which is contained in an instrument of secondary law, is necessarily circumscribed by the fundamental rights guaranteed in the Charter. (63)The (hypothetical) interests that a Member State may (exceptionally) invoke to derogate from Article 8(2) of the Dublin III Regulation cannot, therefore, outweigh the best interests of an unaccompanied minor to be united with his or her relative pursuant to that provision. (64) It follows that, whereas the Court has ruled that the principle of the ‘best interests’ of the child may not oblige Member States to use the sovereignty clause, (65) it may very well, in many circumstances, preclude them from doing so. (66)

65. Finally, I would observe that, in my view, in a situation such as the one in the main proceedings, there is another right guaranteed by EU law, within the meaning of the first paragraph of Article 47 of the Charter, at stake, namely the right for an unaccompanied minor to have the take charge request that concerns him or her properly, impartially and fairly processed.

66. Indeed, the Dublin III Regulation (and the Implementing Regulation) imposes certain duties upon the authorities of the Member States with regard, notably, to the application of Article 8(2) of the former regulation. In particular, a Member State that receives a take charge request based on that provision is under a duty to make the ‘necessary checks’ before it responds to it. That Member State ‘shall … check exhaustively and objectively, on the basis of all information directly or indirectly available to it’, (67)whether the requirements of that provision are satisfied (68) and, in doing so, it must respect a host of other substantive, (69) procedural (70) and evidentiary rules (71) listed in both those instruments.

67. In my view, those obligations – together with the obligations inherent to Article 7 (right to family life) and Article 24(2) (‘best interests of the child’) of the Charter – not only require the competent authorities of the requested Member State dealing with an unaccompanied minor to be proactive in identifying his or her best interests and examining whether or not the requirements of Article 8(2) of the Dublin III Regulation are met; they also translate into a corresponding right for such a minor to have the take charge request handled impartially and fairly, in line with those best interests. (72)

68. It follows from the explanation provided in the previous section that, when a Member State refuses, on whatever ground, to accept a take charge request formulated on the basis of Article 8(2) of the Dublin III Regulation, it may – if that refusal is unsubstantiated, unfounded or, more generally, unlawful – prejudice the rights of an unaccompanied minor which are protected by EU law. The concrete effect of that decision is that the applicant will not be transferred and, thus, reunited with his or her relative. Therefore, that minor must have an effective legal remedy, before a court or tribunal, in accordance with the first paragraph of Article 47 of the Charter, against such a decision. (73)

69. By contrast, the alleged uncle of an unaccompanied minor does not, in my view, derive any actual right from the application of Article 8(2) of the Dublin III Regulation. That provision focusses on the unaccompanied minor and the protection of his or her right to have his or her ‘best interests’ (Article 24(2) of the Charter) and ‘family life’ (Article 7 of the Charter) protected. It does not focus on, nor does it grant, any right to his or her ‘family members’ or ‘relatives’.

70. I would underline that, in a situation such as the one in the main proceedings, if an unaccompanied minor were not allowed to challenge the refusal of the authorities of the requested Member State to ‘take charge’ of him or her, there would be no opportunity for him or her to defend his or her rights before a court of law – since, in any event, no ‘transfer decision’ within the meaning of Article 27(1) of the Dublin III Regulation would be adopted by the authorities of the requesting Member State. (74)

71. Furthermore , it seems clear to me that such a remedy must be granted by the requested Member State (here, the Netherlands) before a court or tribunal of that Member State (such as the referring court). Indeed, it could not possibly be granted by the requesting Member State before its own national courts or tribunals. Although the Dublin system rests on mutual trust, (75) it is not, at present, a fully integrated system where the courts or tribunals of Member State A could review a decision adopted by the administrative authorities of Member State B and deliver judgments that are binding on those authorities.

2. The absence of any conflict between the first paragraph of Article 47 of the Charter and the Dublin III Regulation

72. Having established that, in a situation such as the one in the main proceedings, an applicant for international protection has a right to an effective remedy pursuant to the first paragraph of Article 47 of the Charter, read in conjunction with Article 7 and Article 24(2) thereof, I shall now consider whether the text of Article 27(1) of the Dublin III Regulation, as well as the general system and objectives of that regulation, go against the granting of that remedy.

73. If that were to be the case, there would be a conflict between the Dublin III Regulation and the first paragraph of Article 47 of the Charter. The former would place a limitation on the right guaranteed in the latter. (76) That limitation would only be permissible if it complied with the strict requirements listed in Article 52(1) of the Charter, which are, first, that it be ‘provided for by law’, second, that it respect the ‘essence’ of the right and, third, that it respect the principle of proportionality. In my view, in a situation such as that in the main proceedings, depriving an unaccompanied minor of an effective remedy altogether would infringe the ‘essence’ of his or her right to such a remedy. The Court would have no other choice but to declare Article 27(1) of the Dublin III Regulation (or, as the case may be, that regulation as a whole) invalid.

74. There are, however, s everal reasons which prompt me to dismiss such a drastic outcome and to conclude that there is, in fact, no conflict between the Dublin III Regulation and the first paragraph of Article 47 of the Charter.

75. First, n othing in the wording of Article 27(1) of the Dublin III Regulation indicates, in my view, that, because that provision only provides for a remedy against ‘transfer decisions’, (77) it excludes the possibility that an effective remedy be granted in the present case. That provision was expressly adopted by the EU legislature with a view to reinforce judicial protection for asylum seekers, (78)and not so that it could be used as a ‘trump card’ to deprive them of an effective remedy in other cases not falling within its scope. Even if one were to consider the wording of Article 27(1) ambiguous on that matter, it would not be possible, in my opinion, to construct that provision as having such an exhaustive character. Indeed, it is settled case-law that when a provision of secondary EU law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with primary law (including Charter-based rights and freedoms), rather than to the interpretation which leads to it being incompatible with that law. (79)

76. Second, turning now to the general system and objectives of the Dublin III Regulation, I observe that most of the arguments put forward by the Commission and the Governments of the Member States, both at the hearing and in their written submissions, were based on the (in my view incorrect) premiss that granting a remedy would be incompatible with the objective inherent to that regulation of ensuring the ‘rapid processing of applications for international protection’ and of ‘[determining] rapidly the Member State responsible’ as well as with the strict time limits laid down to that effect. In particular, the French Government argues that the exercise of a remedy would be impossible in practice given that those time limits would continue to run and possibly have an impact on the determination of the Member State responsible for examining the application. (80)

77. To my mind, that reasoning overlooks the fact that those time limits were introduced by the EU legislature in order to, above all, ‘guarantee effective access to the procedures for granting international protection’ (81) and protect the rights of asylum seekers set out in the EU asylum acquis and in the Charter. (82)

78. If one accepts, as the Court did in its judgment in Shiri, (83) that the time limits set out in the Dublin III Regulation are expressly designed to protect asylum seekers, one must also acknowledge that those time limits cannot then be flaunted in the face of asylum seekers so as to prevent them from seeking an effective remedy, especially where their (other) Charter-based rights have allegedly been breached (in the present case, the right to ‘family life’ and the right for minors to have their ‘best interests’ protected, pursuant to Article 7 and Article 24(2) of the Charter).

79. The opposite conclusion would lead to the rather absurd situation where an asylum seeker would be denied an effective remedy because it is presumably in his or her own interest that the procedures set out in the Dublin III Regulation be undertaken quickly and, as a result, that the Member States’ competent authorities have an unfettered discretion in that regard. Surely the better view here would be to heed the fact that if an asylum seeker decides to exercise his or her right to an effective remedy, it is because he or she believes that judicial protection of his or her rights and interests is more important than a prompt determination of the Member State responsible for examining his or her application for international protection. (84)

80. The Court has acknowledged, in the context of the interpretation of Article 27(1) of the Dublin III Regulation, that delays in the determination of the Member State responsible are an inevitable consequence of the obligation placed upon the Member States to make an effective remedy available. (85) That did not prevent it from concluding that the EU legislature did not intend, when adopting that regulation, the ‘judicial protection enjoyed by asylum seekers [to] be sacrificed to the requirement of expedition in processing asylum applications’. (86)I do not see why it would be impossible, in the present case, to adopt a similar interpretation. (87)

81. Furthermore , I note that Article 12(2) of the Implementing Regulation states that failure to observe the time limits which apply to the adoption of a response to a take charge request or to the carrying out of a transfer of an unaccompanied minor will not necessarily be an obstacle to the continuation of the procedure or the carrying out of such a transfer. As I understand it, that provision confirms that, when it comes to unaccompanied minors, the objective of complying with the strict time limits listed in the Dublin III Regulation provisions or the Implementing Regulation is secondary to that of ensuring the correct application of the rules contained in those instruments and the adequate protection of the persons concerned. In short, one cannot readily rely on those time limits in order to prevent an unaccompanied minor from challenging a refusal of the authorities of the requested Member State to take charge of him or her after the requesting Member State has concluded that the ‘responsibility criterion’ in Article 8(2) of the Dublin III Regulation designates the requested Member State as the Member State responsible.

82. There is, in any case, an easy solution to the problem that court or tribunal proceedings delay the determination of the Member State responsible. Indeed, in my view, the objective of the rapid processing of applications, which is inherent to the Dublin III Regulation, requires, in the interest both of unaccompanied minors and of the proper general functioning of the system established by that regulation, that the remedy granted pursuant to the first paragraph of Article 47 of the Charter to such unaccompanied minors itself be rapid. (88)

83. In that regard, it is also obvious to me that the exercise of that remedy must have a suspensory effect with regard to the procedure relating to the determination of the Member State responsible. If the courts or tribunals of the requested Member State were to ultimately decide that that State’s competent authorities erred in refusing to take charge of an unaccompanied minor such as the applicant, their decision would be annulled (if not reformed) and those authorities would then have to submit a new reply within the time limits granted, which would apply de novo. (89) The consequences that would ensue in cases of non-compliance with those time limits would thus be fully preserved.

84. Third , I consider that the obligation for the Member States to provide an effective remedy in the present case is consistent with the EU legislature’s objective of involving unaccompanied minors in the process leading to the determination of the Member State responsible for examining their application. That objective is perhaps best captured by Article 6(2) of the Dublin III Regulation and Article 12(3) of the Implementing Regulation and in the specific obligations, for the Member States, contained therein. (90)

85. In my view, those same obligations could contribute to ensuring that, in the present case, the unaccompanied minor’s remedy is effective, and not merely illusory. For example, it is perfectly possible to conclude that, given that those provisions are worded in sufficiently general and broad terms, they include a concrete and precise obligation, in practice, for the requesting Member State to keep the representative of the unaccompanied minor informed of the fact that its authorities have submitted a take charge request on the basis of Article 8(2) of that regulation to another Member State (the requested Member State) and, then, of that other Member State’s authorities’ negative response to that request. Such an obligation would make it possible for the unaccompanied minor to be informed of the content of the decision of the requested Member State and, if he or she so wished, to appeal it.

86. Fourth , and most importantly, the Member States’ obligation to make an effective remedy available in the present case may actually be conducive to the correct and effective application of the rules contained in the Dublin III Regulation and the Implementing Regulation. It is clear that the ‘responsibility criteria’ and the whole host of other substantive, procedural and evidentiary rules listed in both those instruments (91)to protect unaccompanied minors would become, to some extent, pointless and/or deprived of their practical effect if the Member States’ authorities, when assessing take charge requests, were to have an unfettered discretion in applying them and escaped judicial control in all cases except those where the minor is to be transferred to a different Member State (cases which are covered by Article 27(1) of the Dublin III Regulation). Overall, the objective of ensuring that the determination of the Member State responsible is made pursuant to ‘objective, fair criteria’ (92)could be undermined; disparities in the application of those rules and criteria could jeopardise the smooth functioning of the Dublin III Regulation, which rests on the principles of administrative cooperation, (93)solidarity (94) and mutual trust, (95)and a ‘deadlock’ situation may even result from irreconcilable differences between Member States, which the conciliation procedure in Article 37(2) of that regulation may not be able to dispel. (96) At the extreme end of the spectrum, a Member State could – if it wanted – systematically refuse any take charge request that is addressed to it. (97)

87. In the light of all those considerations, I doubt that maintaining a distinction between the situation where an unaccompanied minor is to be transferred (and has a remedy pursuant to Article 27(1) of the Dublin III Regulation) and where the requested Member State refuses to take charge of him or her, on the basis of Article 8(2) of that regulation, so that he or she stays in the Member State in which he or she is (and would, according to the intervening parties, have no remedy) continues to make much sense. One could easily imagine a case where an unaccompanied minor arrives in Greece and, thereafter, somehow manages to make his or her way to the Netherlands where his or her alleged uncle resides. Such a minor would precisely engage in what that regulation seeks to discourage, namely a ‘secondary movement’ (making successive applications for international protection in different Member States). Yet, if the Netherlands then addressed a take back request to Greece and eventually adopted a decision to transfer the unaccompanied minor back to Greece, such a decision would fall within the scope of Article 27(1) of the Dublin III Regulation and the minor would get a chance to defend himself or herself before the courts in the Netherlands. The same minor would, according to those parties, have no such remedy if, as the applicant did, he or she observed the rules and remained in Greece, with the Netherlands simply refusing to take charge of him or her. (98)

88. I, for one, believe that such an approach would actually reward those who, contrary to the rules, engage in an unauthorised secondary movement, and that it would create an additional ‘pull factor’ for unaccompanied minors to travel illegally – at the risk of their safety, security and well-being – towards the Member State where their ‘family member’ or ‘relative’ resides.

89. To conclude th is section, I would like to emphasise that it would not be the first time that the Court rules that the first paragraph of Article 47 of the Charter requires Member States to make an effective remedy available in a situation where it is not expressly provided for by the applicable EU legislation. To provide but one example, it recently did just that in its judgment in Minister van Buitenlandse Zaken, (99) which concerned the interpretation of the Visa Code.

90. A great deal of the concerns expressed by the Governments of the Member States in the course of the present proceedings appear to me to have stemmed, at least partly, from the fact that if the Court were to conclude that an effective remedy must be provided in the present case, it would have to also do the same in a host of other cases, which could ultimately result in an overhaul of the Dublin system.

91. However, in my view, the solution that I propose would not lead to such a result, for three principal reasons.

92. First, one must not lose sight of the fact that a significant share, if not a majority, of take back or take charge requests actually involve asylum seekers who are physically present in the Member State in which they would like their application for international protection to be examined and who are trying to avoid being transferred to another Member State (in application of Article 13 or Article 18(1)(c) to (d) of the Dublin III Regulation). For such situations, Article 27(1) of that regulation already provides for a legal remedy and exhaustively deals with the question of whether, and if so when, that remedy ought to be granted. (100) As the Court stressed in M.A. and Others, (101) so long as an effective remedy is available at some point during the Dublin Procedure, then that is sufficient to protect the individual rights of the applicant for international protection.

93. Secondly, the solution that I propose is limited to certain scenarios. It concerns the application of a very specific provision of the Dublin III Regulation (Article 8(2)), relating to a particular category of asylum seekers (unaccompanied minors) designed to ensure full respect of certain fundamental rights (Article 7 and Article 24(2) of the Charter). Such a remedy would not have to be granted to all asylum seekers in relation to all criteria set out in that regulation.

94. It is true that the findings which have led me to conclude that an effective remedy must be granted in the present case could, in my view, equally apply in a case where an unaccompanied minor who wishes to be transferred on the basis of Article 8(2) of the Dublin III Regulation claims that his or her fundamental rights (Article 7 and Article 24(2) of the Charter) are affected not by a decision of the requested Member State (here, the Netherlands), but by an act, or a failure to act, of the authorities of the Member State where that applicant is present (here, Greece). (102)

95. To be clear, an unaccompanied minor may have various reasons for such a challenge: he or she could be arguing that the authorities of that Member State have failed to address a take charge request on the basis of Article 8(2) of the Dublin III Regulation, or have failed to respect time limits (either for submitting that request or for transferring the minor), or even that they have applied the sovereignty clause in Article 17(1) of that regulation incorrectly. Whatever the reason, that Member State ends up being responsible for examining the minor’s application. Such a decision naturally has a substantive consequence for him or her, as he or she is not transferred to another Member State, but must stay where he or she is during the time that his or her application for international protection is being processed and examined.

96. However, thirdly, it is clear that even if a right to an effective remedy had to be recognised in such a case as well as in the present case, any decision of either Member State, be it the requested or the requesting Member State, would not become open to challenge unless and until it is final.

97. In that regard, it is clear that successive take charge requests may only be submitted by the requesting Member State so long as the mandatory time limit laid down for that purpose in Article 21(1) of the Dublin III Regulation has not been exceeded. (103) After that time limit expires, any failure of that Member State to make a take charge request on the basis of Article 8(2) of the Dublin III Regulation becomes final and, thus, in my view, potentially subject to appeal. However, no challenge should be possible before then. Similarly, once the time limit for responding to the final take charge request made by the requesting Member State expires (104) (or, as the case may be, once the two-week window for answering a request for re-examination closes), (105) the refusal of the requested Member State also becomes final and therefore open to review. Yet any refusal communicated prior to that time should not be challengeable unless and until it merges with, or converts into, such a final decision.

98. In the light of th ose considerations, I believe that if the Court were to follow the solution that I propose and find that an effective remedy must, pursuant to the first paragraph of Article 47 of the Charter, be provided in the present case, it would not cause the overhaul feared by the Governments of the Member States.

C. A few considerations on the practical modalities of the legal remedy (Question 3)

99. By its third question, the referring court enquires about the practical modalities of the remedy that, in my view, must, pursuant to the first paragraph of Article 47 of the Charter, be granted to an asylum seeker such as the applicant. It wants to know, more specifically, in what way and by which Member State the requested Member State’s decision and the right to appeal against it should be communicated to that person. My observations in response to that question will be rather brief, given that I have already indicated that (i) that remedy should be exercised before the courts or tribunals of the requested Member State, and (ii) that Member State must ensure that a rapid remedy is made available to such an asylum seeker. (106)

100. I would add that it is well-established case-law that, in the absence of harmonisation of national procedures, the detailed rules establishing the right of appeal are matters falling within the legal order of each Member State, in accordance with the principle of procedural autonomy, subject only to the requirement that those rules should be no less favourable than those governing similar domestic situations (principle of equivalence) and, crucially, that they should not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). (107)

101. Those requirements of equivalence and effectiveness capture the general obligation of the Member States to ensure the judicial protection of the rights that individuals derive from EU law. They apply both as regards the designation of the courts and tribunals having jurisdiction to hear and determine the actions based on such rights and as regards the definition of detailed procedural rules. (108)

102. It is clear to me that, in the present case, it is for the referring court, which alone has jurisdiction to interpret its national law, to determine whether and to what extent the review system in the Netherlands satisfies those requirements and whether it is competent to review a decision of the State Secretary to refuse a take charge request. (109) That being said, I would like to underline the fact that, in order to provide for a truly effective remedy, the competent court must, in my view, proceed to a full review, in law and in fact, of such a decision, so as to evaluate whether the rights (110) of the applicant have been breached or not – and, as the case may be, annul or reform the decision at issue.

103. Furthermore, it is also settled case-law that in order for his or her remedy to be effective (pursuant to the first paragraph of Article 47 of the Charter), the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, either by reading the decision itself or by requesting and obtaining notification of those reasons. (111)

104. In that regard, I believe that it is ultimately for the competent authorities of the requesting Member State (here, the Greek authorities), which alone interact with the unaccompanied minor, to inform him or her of the refusal of the authorities of the requested Member State and of his or her right to appeal or review that decision. (112)

105. In my view, that must be so for two reasons. First, in adopting the Dublin III Regulation, the EU legislature has stressed the importance of administrative cooperation (113) and appears to have been in favour of creating a ‘one stop’ mechanism, which permits asylum seekers to deal with the authorities of a single Member State and to complete all the administrative formalities in a single place. Secondly, it seems to me that, in the present case, that obligation would spare an unaccompanied minor, such as the applicant, the trouble of having to deal with the competent authorities of both the requesting and the requested Member State (each operating according to different rules) at least up until he or she decides to exercise his or her right to an effective remedy. Overall, he or she would therefore benefit from greater protection, in line with the objectives of the Dublin system. (114)

106. Furthermore, the principle of administrative cooperation necessarily entails, in my view, that, if an appeal is made by an unaccompanied minor such as the applicant before the courts or tribunals of the requested Member State (here, the Netherlands) against a refusal to take charge adopted by the competent authorities of that Member State, those authorities must inform the authorities of the requesting Member State (here, Greece) that such an appeal has been lodged. (115)

107. To my mind, that must be done in order to enable the authorities of the requesting Member State to suspend the procedure relating to the determination of the Member State responsible while the appeal is pending (116) – such suspensory effect being necessary to ensure that those authorities refrain from concluding that they are responsible for examining the unaccompanied minor’s application for international protection and, as a result, from proceeding to assess the merits of his or her asylum claim.

108. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Rechtbank Den Haag zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem, Netherlands) as follows:

(1) Article 27(1) 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 cannot be interpreted as obliging the Member States to provide an effective remedy against a refusal of their competent authorities to accept a take charge request, within the meaning of Article 22(1) thereof, read in conjunction with Article 8(2) thereof.

(2) In such a situation, the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 7 and Article 24(2) thereof, requires, however, that such an effective remedy be made available to the unaccompanied minor concerned (but not to his or her alleged relative) by the Member States whose competent authorities have refused to accept the take charge request, before the national courts or tribunals of that Member State.

(3) The detailed rules establishing the practical modalities of such a remedy are matters for the legal order of each Member State, in accordance with the principle of procedural autonomy and subject to the principles of effectiveness and equivalence and to the obligation, for the authorities of the Member State that have sent the take charge request, (i) to inform the unaccompanied minor concerned of the response given by their counterparts in the requested Member State and (ii) to suspend the procedure for the determination of the Member State responsible for examining the minor’s application for international protection for such time as his or her appeal is pending.

2 See European Asylum Support Office (EASO), Annual report on the situation of asylum in the European Union 2015, 2016, p. 109.

3 See https://ec.europa.eu/eurostat/web/products-eurostat-news/-/ddn-20210423-1.

4 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’).

5 See, inter alia, judgments of 7 June 2016, Ghezelbash (C‑63/15, EU:C:2016:409); of 23 January 2019, M.A. and Others (C‑661/17, EU:C:2019:53); and of 19 March 2019, Jawo (C‑163/17, EU:C:2019:218).

6 Pursuant to Article 2(i) and (j) of the Dublin III Regulation, for the purposes of that regulation a ‘minor’ is ‘a third-country national or a stateless person below the age of 18 years’ while an ‘unaccompanied minor’ is ‘a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her … and for as long as he or she is not effectively taken into the care of such an adult’, respectively.

7 Pursuant to Article 2(h) of the Dublin III Regulation, a ‘relative’ is ‘the applicant’s adult aunt or uncle or grandparent who is present in the territory of a Member State …’.

8 Commission Regulation of 2 September 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 (OJ 2003 L 222, p. 3), as modified by Commission Implementing Regulation (EU) No 118/2014 of 30 January 2014 (OJ 2014 L 39, p. 1).

9 In its request for a preliminary ruling, the referring court further indicates that, on 2 July 2020, the Greek authorities again requested the State Secretary to take charge of the applicant. The State Secretary rejected that request on 9 July 2020. That rejection does not form part of the appeal before the referring court.

10 As I indicated in point 20 above, both the applicant and S are parties to the proceedings before the referring court. However, in its request for a preliminary ruling, the referring court reproduced the applicant’s arguments only.

13 The State Secretary indicates that, whereas asylum seekers have no right to a remedy except in the cases expressly covered by Article 27(1) of the Dublin III Regulation, the authorities of the requesting Member State are entitled in all cases, where their counterparts in the requested Member State refuse to take charge of an asylum seeker, to ask for a re-examination of the take charge request (pursuant to Article 5(2) of the Implementing Regulation) or to initiate the conciliation procedure detailed in Article 37(2) of the Dublin III Regulation.

14 See Articles 21(1) and 22(1) of the Dublin III Regulation (reproduced in points 10 and 11 above).

16 I would like to stress that only the date on which the application for international protection is submitted is relevant in order to assess whether the applicant is a ‘minor’ (see, by analogy, judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraphs 39 to 64)). Accordingly, the fact that, in the main proceedings, the applicant has now reached the age of 18, after having lodged his application for international protection in Greece, is irrelevant.

17 Article 26(1) of the Dublin III Regulation states that ‘where the requested Member State accepts to take charge of or to take back an applicant or other person as referred to in Article 18(1)(c) or (d), the requesting Member State shall notify the person concerned of the decision to transfer him or her to the Member State responsible and, where applicable, of not examining his or her application for international protection’ (my emphasis). Article 29(1) thereof indicates that the transfer of the person concerned shall be carried out ‘at the latest within six months of acceptance of the request … to take charge or to take back’ that person (my emphasis).

18 See also, in that regard, recital 19 of the Dublin III Regulation, which explains that the remedy provided for in Article 27(1) of that regulation covers ‘the examination … of the legal and factual situation in the Member State to which the applicant is to be transferred’ (my emphasis).

19 Articles 23 and 24 of the Dublin III Regulation detail the procedure that applies to take back requests (which can only be made in the cases covered by Article 18(1)(b) to (d) of the Dublin III Regulation). The present case concerns a take charge request, not a take back request.

20 See, to that effect, judgments of 31 May 2018, Hassan (C‑647/16, EU:C:2018:368, paragraph 60), and of 4 October 2018, Fathi (C‑56/17, EU:C:2018:803, paragraph 54).

21 See, notably, judgment of 7 June 2016, Ghezelbash (C‑63/15, EU:C:2016:409, paragraph 53).

22 That is so because, as recital 19 of the Dublin III Regulation makes clear, Article 27(1) thereof was adopted in order to ensure full respect with Article 47 of the Charter.

23 Such an interpretation would, in other words, be contra legem and, thus, unacceptable. See, by analogy, judgment of 24 January 2012, Dominguez (C‑282/10, EU:C:2012:33, paragraphs 24 and 25 and the case-law cited).

24 See Article 28(5) of the ‘Proposal for a Regulation of the European Parliament and of the Council 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 (recast)’ (COM(2016) 270 final).

26 I note that the Commission’s most recent proposal does not contain any equivalent provision (see Article 33 of the ‘Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund]’ (COM(2020) 610 final)).

27 See, on the general principle of effective judicial protection, judgment of 15 May 1986, Johnston (222/84, EU:C:1986:206, paragraph 18). Later, in connection with Article 47 of the Charter, see, inter alia, judgments of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163, paragraph 37), and of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453, paragraph 45).

28 Pursuant to Article 52(3) of the Charter, the former right therefore has the same meaning and scope as the latter, although EU law may provide protection that is more extensive.

29 See judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters) (C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 54 and the case-law cited).

31 See Article 51(1) of the Charter, as interpreted, in particular, in judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 17 to 23).

32 See Opinion of Advocate General Bobek in El Hassani (C‑403/16, EU:C:2017:659, point 76). Nevertheless, that last requirement has been interpreted rather broadly in the Court’s case-law. The Court has held, for example, that a person may rely on the general principle of protection against arbitrary or disproportionate intervention by public authorities in the sphere of that person’s private activities (see, inter alia, judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters) (C‑245/19 and C‑246/19, EU:C:2020:795, paragraphs 57 and 58) or the rights of freedom to provide services and of freedom of establishment deriving from Articles 56 and 49 TFEU (see judgment of 14 June 2017, Online Games and Others (C‑685/15, EU:C:2017:452, paragraph 58)).

33 Those authorities are thus ‘implementing Union law’ within the meaning of Article 51(1) of the Charter.

34 Although Article 27(1) of the Dublin III Regulation does not provide for such a remedy (see my analysis of the first question).

35 Except for the one provided for in Article 8(1) in the Dublin III Regulation, concerning the presence of a ‘family member’ in another Member State.

36 My emphasis. Those obligations must be contrasted with the discretion which the Member States have, under Article 17(1) of the Dublin III Regulation, to derogate from the responsibility criteria, in particular on humanitarian and compassionate grounds, in order to bring together family members, relatives or any other family relations and examine an application for international protection lodged with it or with another Member State (see recital 17 of that regulation).

37 See recital 39 of the Dublin III Regulation, which mentions, more specifically, the fundamental rights guaranteed under Articles 1, 4, 7, 18, 24 and 47 of the Charter.

38 Aside from recognising a right to an effective legal remedy in certain circumstances in its Article 27(1), the Dublin III Regulation contains rules relating to the right of access to the asylum procedure (Article 3), the right to be informed (Article 4), the right to be heard (Article 5), rules relating to detention (Article 28) and rules on the storage of personal data (Article 38).

39 See judgments of 7 June 2016, Ghezelbash (C‑63/15, EU:C:2016:409); of 7 June 2016, Karim (C‑155/15, EU:C:2016:410); and of 25 October 2017, Shiri (C‑201/16, EU:C:2017:805).

40 See, to that effect, recitals 9, 13, 14, 16 and 19 of the Dublin III Regulation.

44 See, in that regard, ECtHR, 13 June 1979, Marckx v. Belgium, (CE:ECHR:1979:0613JUD000683374, § 45). The ECtHR has also confirmed that ‘family life’ is not limited to the relationship between ‘family members’ as they were defined under Article 2 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) (see ECtHR, 7 May 2013, L.H. and V.S. v. Belgium, CE:ECHR:2013:0507DEC006742910, § 73).

45 See, by analogy, judgment of 16 July 2020, État belge (Family reunification – Minor child) (C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 34).

46 Pursuant to that provision, Member States must, in assessing the best interests of the child, take due account of, inter alia, family reunification possibilities.

47 That provision indicates that, for the purposes of applying Article 8 of the Dublin III Regulation, the Member State where an unaccompanied minor lodges an application for international protection must, as soon as possible, take appropriate action to identify the family members, siblings or relatives of the unaccompanied minor on the territory of the Member States whilst protecting the best interests of the minor.

48 See judgment of 23 January 2019, M.A. and Others (C‑661/17, EU:C:2019:53 paragraph 89).

49 The ECtHR has ruled that minors, ‘in view of their specific needs and their extreme vulnerability’, deserve more protection than other asylum seekers. Public authorities have a duty to protect them and to take appropriate measures as part of their positive obligations under Article 3 ECHR. See, notably, ECtHR, 19 January 2012, Popov v. France (CE:ECHR:2012:0119JUD003947207, § 91), and ECtHR, 4 November 2014, Tarakhel v. Switzerland (CE:ECHR:2014:1104JUD002921712, §§ 118 and 119).

50 See recital 13 of the Dublin III Regulation. See, similarly, 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) (‘the Reception Directive’). Pursuant to that directive, which applies to applicants for international protection also during the Dublin Procedure (see recital 11 of the Dublin III Regulation and Article 3 thereof), Member States ‘shall take into account the specific situation of vulnerable persons’, including minors and unaccompanied minors (Article 21), notably by ‘ensur[ing] a standard of living adequate for [a] minor’s physical, mental, spiritual, moral and social development’ (Article 23).

51 In particular, pursuant to Article 24(2) of the Reception Directive, an unaccompanied minor must, in principle, only be placed with a foster family, in an accommodation centre with special provisions for minors or in another accommodation suitable for minors if he or she does not have an adult relative.

53 When an unaccompanied minor has a family member in another Member State, then Article 8(1) of the Dublin III Regulation provides that such persons shall, as a rule, be united. Similarly, Article 23(5) of the Reception Directive states, notably, that applicants who are minors should be with their parents or with the adult responsible for them – provided it is in their best interests.

54 In the same way, it follows from Article 24(2) of the Reception Directive that, when an asylum seeker who is an unaccompanied minor has an adult relative in the same Member State, he or she shall be placed with such a relative – provided, of course, that is in his or her best interests.

55 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12) (‘the Family Reunification Directive’).

56 See Article 33 (‘Freedom of movement within the Member State’) 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 (recast) (OJ 2011 L 337, p. 9) (‘the Qualification Directive’).

58 Besides, it seems unlikely that the applicant’s uncle (who lawfully resides in the Netherlands) would be able to invoke the provisions of the Family Reunification Directive to have the applicant (his nephew) come and live with him. Indeed, pursuant to that directive, legally residing non-EU nationals only benefit from a right to be reunited with their spouse, under-age children and the children of their spouse in the Member State in which they are residing. Member States may also (but do not have to) authorise reunification with an unmarried partner, adult dependent children or dependent older relatives.

59 See Article 31(3) 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 overall period may even last up to 21 months (see Article 31(5) of that directive). Member States can of course give priority to the treatment of applications lodged by unaccompanied minors (see Article 31(7)(2) of the same directive), but they are not obliged to do so.

60 In that respect, I do not share the view of the Greek Government that the Dublin Procedure is merely an intermediary procedure and just one of the steps in the overall process through which asylum seekers go through, from the moment they apply for international protection until their asylum claim is determined. As I see it, the consequences of that procedure may indeed be very real for unaccompanied minors, especially when of a particularly young age.

61 See, by analogy, ECtHR, 19 January 2012, Popov v. France(CE:ECHR:2012:0119JUD003947207, § 100). That would be even more true if the Member State in which the unaccompanied minor is physically present is faced with a particularly high number of applications for international protection and finds it difficult to provide him or her with all the care that his or her best interests would require.

62 As Article 6(3) of the Dublin III Regulation makes clear, the competent authorities of the Member States must, in ascertaining the minor’s best interests, take due account of a range of factors, of which the views of the minor (in accordance with his or her age and maturity) is only one.

63 See, notably, judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 64 to 69 and 108).

64 The ECtHR has recognised that, in immigration matters, ‘the child’s extreme vulnerability is the decisive factor and takes precedence over [other] considerations’ (see ECtHR, 19 January 2012, Popov v. France, CE:ECHR:2012:0119JUD003947207, § 91).

66 In any case, that provision may only be relied upon by a Member State in which an asylum seeker has lodged an application for international protection. It is therefore rather unrelated to the question of whether an asylum seeker may have a remedy against a decision of the requested Member State (before which no asylum claim has been made and registered).

67 Article 3(2) of the Implementing Regulation (my emphasis). See also Article 22(1) of the Dublin III Regulation.

68 In particular the existence of proven family links between the minor and his or her alleged relative, the presence of that relative on that Member State’s territory, their capacity to take care of the minor, and whether reunification would be in the latter’s best interests.

69 See, for example, Article 6(3) of the Dublin III Regulation, which details all of the relevant factors that must be taken into account in order to evaluate an unaccompanied minor’s best interests, or Article 3(2) and Article 5(1) of the Implementing Regulation, which provide that it is only ‘after checks are carried out’ and the requested Member State considers that the evidence submitted does not establish its responsibility that that Member State can refuse a take charge request. See, also, Article 12 of the Implementing Regulation.

70 For example, the rules relating to the time limit within which a Member State must reply to a take charge request (in Article 22(1) of the Dublin III Regulation or Article 5(2) of the Implementing Regulation).

71 See the rules contained in, inter alia, Annex II, List A.I.1, to the Implementing Regulation, which detail the various means of proof that may be relied upon to establish the presence of a ‘family member’, ‘relative’ or ‘relation’ of an applicant who is an unaccompanied minor.

72 See, in that respect, the general principal of EU law of good administration, mentioned notably in the judgment of 8 May 2014, N. (C‑604/12, EU:C:2014:302, paragraph 50).

73 It is obvious to me, as it was to the referring court (see point 26 above), that the conciliation procedure provided for in Article 37(2) of the Dublin III Regulation is not an effective remedy within the meaning of Article 47 of the Charter. Although that procedure is undeniably ‘important, both for the Member States and the applicants concerned’ (see recital 37 of that regulation), I would observe that (i) that procedure takes place solely at the initiative of the Member States and is not open to (nor does it involve in any way) applicants and (ii) it does not take place before an impartial ‘tribunal’ sanctioning the incorrect application of the law. It is a mere dialogue between different administrations.

74 See, by analogy, 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 290).

76 The Court has yet to deal with that question, given that in its judgment of 4 October 2018, Fathi (C‑56/17, EU:C:2018:803, paragraph 54), it simply noted that the Dublin III Regulation ‘does not contain specific procedural safeguards … where … the determining Member State concludes that there is no need to transfer the applicant to another Member State’ (that is, where no ‘transfer decision’ within the meaning of Article 27(1) of that regulation is adopted).

78 That much is obvious from recital 19 of the Dublin III Regulation, which states that Article 27(1) of that regulation was adopted ‘in order to guarantee effective protection of the rights of the persons concerned’.

79 See judgment of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 77 and the case-law cited).

80 Indeed, in the context of the application of the Dublin III Regulation, time limits constitute more than a mere set of procedural safeguards. If a Member State fails to respect the applicable time limits, responsibility for examining an application for international protection may end up switching to it, rather than fall onto the Member State which is otherwise designated by that instrument (see, for example, in that regard, the third paragraph of Article 21(1) and Article 22(7) of the Dublin III Regulation).

84 I note that, as currently drafted, the Dublin III Regulation in any case allows delays in the determination of the Member State responsible in situations where the requesting Member State’s decides to initiate the conciliation procedure pursuant to Article 37 of the Dublin III Regulation. However, unlike in the case where the asylum seeker introduces an appeal before a court or tribunal, he or she has absolutely no say in the context of that procedure.

85 See judgment of 7 June 2016, Ghezelbash (C‑63/15, EU:C:2016:409, paragraph 56).

87 It is true that, in its judgment of 23 January 2019, M.A. and Others (C‑661/17, EU:C:2019:53), the Court refused to recognise the existence of a remedy against a decision of a Member State not to rely on the discretionary clause contained in Article 17(1) of the Dublin III Regulation (ibid., paragraph 79), notably on the ground that the objective of the rapid processing of applications ‘discourages multiple remedies’ (ibid., paragraph 76). However, the Court also insisted on the fact that such a decision may, in any case, be challenged, in application of Article 27(1) of that regulation, at the time of an appeal against the transfer decision that would ultimately be taken (ibid., paragraphs 78 and 79). Therefore, I doubt that the Court meant, in that judgment, that the granting of a legal remedy should be discouraged in all situations, including those where – as is the case here (see point 70 above) – there would otherwise be no opportunity to challenge before a court the findings made at any stage of the Dublin Procedure.

88 See, by analogy, judgment of 25 October 2017, Shiri (C‑201/16, EU:C:2017:805, paragraph 44).

89 That is, within the two-month period provided in Article 22 of the Dublin III Regulation.

90 Such obligations include that of appointing a personal representative to represent and/or assist the unaccompanied minor with respect to all procedures provided for in that regulation, of giving such representative access to the minor’s file and of involving such a representative in the process of determining the Member State responsible ‘to the greatest extent possible’ (see, in that regard, Article 12(3) of the Implementing Regulation).

93 See Chapter VII, entitled ‘Administrative cooperation’, of the Dublin III Regulation.

95 See recital 22 of the Dublin III Regulation. See, also, den Heijer, M., ‘Remedies in the Dublin Regulation: Ghezelbash and Karim’, Common Market Law Review, Vol. 54, 2017, p. 869.

96 Pursuant to that provision, the conciliation procedure can be initiated at the request of a single Member State. However, it is clear that the members of the committee appointed to resolve the dispute, which represent Member States not connected with the matter, are not subject to the same standards of conduct as an impartial judge would be if the asylum seeker himself or herself had a remedy.

97 I fully agree with the Commission and the Greek Government that the rules relating to ‘administrative cooperation’ contain a number of safeguards designed to ensure the protection of the rights of asylum seekers. However, I do not think that those safeguards exclude that an effective remedy be made available in parallel to an unaccompanied minor such as the applicant.

98 It is true that the remedy in the case of a take back request is more restrictive in scope than the remedy in the case of a take charge request, given that the former can only be formulated in the situations which are expressly covered by Article 18(1)(b) to (d) of the Dublin III Regulation and the national courts will not look into whether the ‘responsibility criteria’ in Chapter III of the Dublin III Regulation have been correctly applied by the Member State in which the first application for international protection was lodged (see, in that sense, judgment of 2 April 2019, H. and R. (C‑582/17 and C‑583/17, EU:C:2019:280, paragraph 68)). However, in my view, that does not change the fact that a ‘mischievous’ unaccompanied minor (who illegally travels from Member State A to Member State B and requests international protection in both those Member States) still gets to have his or her day in court in Member State B, whereas an ‘obedient’ one (who, like the applicant, stays in Member State A) does not.

99 Judgment of 24 November 2020 (C‑225/19 and C‑226/19, EU:C:2020:951, paragraph 52). The Court held that an applicant who is refused a visa because of an objection raised by a Member State on one of the applicable grounds of refusal ought to be able to ascertain that specific ground before that Member State. See also, for another example, judgment of 25 October 2017, Shiri (C‑201/16, EU:C:2017:805, paragraph 44), where the Court found that both Article 27(1) of the Dublin III Regulation (read in the light of recital 19 of that regulation) and the first paragraph of Article 47 of the Charter required that an effective and rapid remedy be made available to an asylum seeker whose transfer to another Member State occurred in breach of the six-month period defined in Article 29(1) of the Dublin III Regulation.

100 See, inter alia, judgments of 7 June 2016, Ghezelbash (C‑63/15, EU:C:2016:409); of 7 June 2016, Karim (C‑155/15, EU:C:2016:410); and of 25 October 2017, Shiri (C‑201/16, EU:C:2017:805).

101 Judgment of 23 January 2019 (C‑661/17, EU:C:2019:53, paragraphs 76 to 79).

102 In my view, the interpretation suggested in this Opinion could also be applied, by analogy, to the situation where an unaccompanied minor wishes to be transferred on the ground that he or she has a ‘family member’ (Article 8(1) of the Dublin III Regulation) in another Member State.

103 See judgment of 13 November 2018, X and X (C‑47/17 and C‑48/17, EU:C:2018:900, in particular the operative part).

104 Pursuant to Article 22(1) of the Dublin III Regulation, that must be done within two months of receipt of the take charge request.

105 In the present case, I consider that the refusal of the State Secretary to take charge of the applicant became final at exactly that point in time.

107 See judgment of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraph 26 and the case-law cited).

109 See, by analogy, judgment of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraph 31).

111 See judgment of 24 November 2020, Minister van Buitenlandse Zaken (C‑225/19 and C‑226/19, EU:C:2020:951, paragraph 43 and the case-law cited).

115 It seems to me that the Netherlands authorities have done just that here, given that the Greek authorities have decided to refrain from examining the applicant’s application for international protection so long as the main proceedings are pending (see point 24 above).

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