By Cecilia Rizcallah, Research Fellow at the Belgian National Fund for Scientific Research affiliated to the Centre of Interdisciplinary Research in Constitutional Law of Saint-Louis University (USL-B) and the Centre of European Law of the Free University Brussels (ULB). The author wishes to thank the Professors E. Bribosia and S. Van Drooghenbroeck for their valuable advice.
Introduction
On February 16th, the European Court of Justice (ECJ) issued a significant judgment in the case of C.K. and others (C-578/16 PPU). This ruling came from a request by the Supreme Court of Slovenia, asking if an asylum seeker’s risk of experiencing inhumane treatment due to their individual circumstances should prevent their transfer to another Member State under the Dublin system.
The Dublin System: Member State Cooperation Built on Mutual Trust
Established by a Convention signed in 1990, the Dublin system manages asylum applications from third-country nationals (TCNs) within the EU. Its goal is to ensure each request is processed by a single Member State, ideally the first point of entry. To harmonize asylum policies, the Treaty of Amsterdam allowed the European Community (Article 63 EC; now Article 78 TFEU) to implement measures for a Common European Asylum System (CEAS). This led to the Dublin Convention being replaced by the “Dublin II” Regulation (Regulation n°343/2003) and then “Dublin III” Regulation (Regulation 604/2013). Additionally, directives were adopted to set minimum standards for refugee status and protection (Directive 2011/95/UE), asylum procedures (currently Directive 2013/32/UE), and reception conditions (currently Directive 2013/33/UE).
The Dublin system, a key part of the CEAS, aims to guarantee TCNs access to the asylum process and streamline application handling. It establishes criteria to determine which Member State is responsible for each asylum seeker, usually the first point of entry. While the system allows for an automatic transfer to the responsible state, Member States retain the sovereign right to process applications themselves (Article 17, Dublin III Regulation: the “sovereignty-clause”).
Crucially, the Dublin system operates on the principle of equivalence among Member States’ asylum systems. It assumes asylum seekers don’t gain an advantage by having their applications processed in a particular country.
Previous ECJ Case Law: Prioritizing EU Cooperation Over Fundamental Rights
The automatic transfer of asylum seekers, based on the equivalence assumption, quickly presented challenges regarding fundamental rights. Some Member States, due to their location, saw a large influx of arrivals, straining their asylum systems and impacting reception conditions.
Challenges to transfer decisions arose, citing risks to asylum seekers’ fundamental rights in the responsible Member States. A landmark ruling by the European Court of Human Rights (ECtHR) found Belgium at fault for returning an asylum seeker to Greece under the Dublin system, where Greece’s asylum process fell short of ECHR obligations. In M.S.S c. Belgium and Greece (application n° 30696/09), the ECtHR determined that Belgium, knowing the poor conditions in Greece, should have used the “sovereignty-clause” to avoid transferring the individual to a country where they faced potential inhumane treatment under Article 3 ECHR.
The ECJ addressed this issue shortly after, facing the challenge of balancing fundamental rights with the Dublin system’s effectiveness. In the N.S. case (C-411/10), the question arose whether a transferring state was obligated to assess the receiving state’s compliance with fundamental rights. The ECJ, invoking the principle of mutual trust and presuming all participating states uphold fundamental rights, concluded that a fundamental rights violation by the receiving state shouldn’t impact other states’ obligations under the Dublin Regulation (§82).
To balance the Dublin Regulation’s effectiveness with national system shortcomings, the ECJ introduced the “systemic deficiencies test.” This meant prohibiting transfers only if “systemic flaws” in the receiving state’s asylum processes and reception conditions could lead to inhumane treatment under Article 4 of the EU Charter of Fundamental Rights (mirroring Article 3 ECHR) (§86).
The ECJ opted for a presumption of fundamental rights compliance by Dublin states, rebuttable only in cases of “systemic deficiency,” compelling states to prevent transfers in such instances (§89). This presumption was applied in subsequent judgments (C-4/11, Puid, and C-394/12, Abdullahi). The Abdullahi judgment specifically limited the grounds for challenging a Dublin transfer.
This approach, facing criticism, was challenged in the ECtHR’s Tarakhel case (application n°29217/12) in 2014. The ECtHR reiterated its MSS stance, ruling that the Dublin system doesn’t exempt national authorities from thoroughly examining individual situations and halting transfers if there’s a risk of inhumane treatment.
The ECJ, in its Opinion 2/13 regarding the EU’s accession to the ECHR, used the ECHR’s requirement of checking other Member States’ fundamental rights compliance as an argument against the agreement, citing the EU law’s principle of mutual trust (Opinion 2/13, §194). The ECJ’s “systemic deficiencies” test was incorporated into the recast Dublin Regulation (Regulation 604/2013, Dublin III). Article 3(2) states that if transfer is impossible due to “substantial grounds for believing” in systemic flaws within the designated Member State’s asylum procedures and reception conditions, posing a risk of inhuman or degrading treatment under Article 4 of the Charter, the determining Member State must continue assessing responsibility based on criteria in Chapter III.
A shift from this approach appeared in EU criminal law, concerning detention conditions conflicting with Article 4 of the Charter. The question arose whether such conditions in a Member State issuing a European Arrest Warrant (EAW) would allow or oblige the executing Member State to refuse its execution. Again, the ECJ faced balancing mutual trust with human rights. In Aranyosi and Căldăraru (C-404/15), the ECJ decided that “systemic or generalised” deficiencies, potentially affecting groups or specific detention centers, could lead to postponing the EAW execution. This applied if there were “substantial grounds” to believe that surrendering the person would expose them to a real risk of inhumane treatment under Article 4 (§94).
This led to a two-step assessment by national judges, first evaluating systemic deficiencies in the requesting state’s detention system, then examining if the individual faced a real risk of inhumane treatment. However, it remained unclear if the Aranyosi and Căldăraru exception to mutual trust offered more or less protection for fundamental rights. Although a second condition was added, the deficiency requirement seemed less strict.
The ECJ’s C.K. and others Ruling: Towards Reconciliation Between the Dublin System and Human Rights?
Facts and Questions Referred to the ECJ
A couple with a newborn sought asylum in Slovenia, but based on Dublin criteria, Croatia was responsible. Although Slovenia found no systemic issues with Croatia’s asylum system, the mother’s health was concerning. The Slovene court asked the ECJ if invoking the sovereignty clause (Article 17 of Dublin III) was mandatory to protect the family from potential inhumane treatment. In essence, the court questioned whether transfers were prohibited only in cases of systemic deficiencies in the receiving state, or if individual risks also applied.
Advocate General’s Opinion
Advocate General Tanchev, aligning with NS and Abdullahi, argued that only systemic flaws justified preventing a Dublin transfer. He cited mutual trust and the need for a functioning CEAS (§51), acknowledging that his stance differed from the ECtHR’s but emphasizing that the EU wasn’t bound by it (§52). He stressed that Article 17’s “discretionary” nature didn’t impose obligations on Member States (§ 67).
The Court’s Judgment
The ECJ’s Fifth Chamber, unusually, diverged from the Advocate General. It stated that beyond systemic deficiencies, any transfer posing a real risk of inhumane treatment under Article 4 of the Charter must be stopped. Citing Article 52§3 of the Charter, the ECJ reiterated that corresponding rights in the Charter and ECHR should have the same scope.
It referenced the ECtHR’s Paposhvili v. Belgium ruling (application n° 41738/10, § 175) stating that illness exacerbated by detention conditions or other authority-controlled measures falls under Article 3 ECHR. Therefore, despite no systemic deficiencies in Croatia (§7), Slovenia had to halt the transfer because the migrant’s medical condition presented a real risk of serious and irreversible health decline (§84). This suspension, as per the judgment, should remain until the risk subsides. Citing Aranyosi, the Court stressed the need for national authorities to assess risks before transfer (§76).
The Court added that if the migrant’s health wasn’t expected to improve, the Member State could process the asylum application under Article 17§1’s sovereignty clause (§96). However, this didn’t oblige them to do so, even considering Article 4 of the Charter.
The ECJ concluded that this upheld mutual trust. Instead of undermining the presumption of fundamental rights respect, it ensures Member States consider exceptional circumstances. Transferring an asylum seeker in such situations would make the first Member State, not the receiving one, responsible for the inhumane treatment.
Comments
This Fifth Chamber ruling signifies a potential shift in ECJ case law regarding the interplay between mutual trust and protection against inhumane treatment. Instead of pitting these principles against each other, the Court acknowledges their interdependence. It recognizes that mutual trust is strengthened by upholding Article 4 of the Charter, highlighting that this principle rests on shared EU values, including human dignity (Article 2 TEU), which is closely tied to prohibiting inhumane treatment.
Therefore, transfers can be stopped not only due to systemic flaws in the receiving state’s asylum system. Individual asylum seekers’ circumstances must be factored in to assess potential violations of Article 4 of the Charter. The Court reinforces this by stating that failing to address this risk makes the first Member State liable for Charter breaches.
However, while earlier judgments prioritizing mutual trust were Grand Chamber decisions, this ruling comes from a five-judge Chamber, potentially carrying less weight. Nevertheless, it aligns with recent ECJ case law emphasizing that changes to the Dublin system aimed to improve effectiveness and applicant protection (C-63/15, Ghezelbash, §52). This June 2016 judgment already overturned procedural aspects of Abdullahi; CK now addresses its substantive aspects.
This positive step for asylum seekers’ rights raises practical questions. Firstly, should violations of fundamental rights beyond inhumane treatment also allow exceptions to the Dublin system and mutual trust? The Court’s focus on exceptional circumstances suggests that not all fundamental rights violations would preclude reliance on mutual trust for transfers. Only serious risks of violating absolute fundamental rights (Charter Chapter I) would justify a mandatory suspension.
Secondly, what happens after a suspension? The Court states that Member States aren’t obligated to process applications falling under another state’s responsibility, even with the sovereignty clause (Article 17.1 Dublin III). If individual circumstances necessitate a long-term suspension, this could result in “refugees in orbit”—asylum seekers left in limbo without a Member State processing their application. This contradicts the Dublin system’s aim and could itself be considered inhumane treatment.
Finally, how does this apply to EU criminal cooperation? Until Aranyosi, the ECJ seemed hesitant to allow exceptions to mutual trust regarding EAWs (see cases C-396/11 Radu and C-399/11, Melloni). Given the C.K. ruling’s reliance on Aranyosi and the absolute nature of Article 4’s prohibition, this approach should apply to criminal cooperation in exceptional cases. Now that the two lines of case law are intertwined, they raise parallel questions about their long-term implications. The ECJ is already tasked with elaborating on the Aranyosi ruling in the upcoming Aranyosi II case. The ruling in that case may hold relevance for Dublin cases as well.
The ECJ’s shift aligns with the ECHR and some national legal systems. The German Constitutional Court, in its judgment of December 15, 2015, made an exception to mutual trust within the EAW framework to protect human dignity, a core principle in German law.
This begs the question: do the C.K. and Aranyosi rulings invalidate the mutual trust argument used by the ECJ against the EU’s accession to the ECHR in Opinion 2/13? This new context will undoubtedly impact present and future relations between EU law, the ECHR, and national legal orders.
Barnard & Peers: chapter 9, chapter 26
JHA4: chapter I:5
Photo credit: Handelsblatt