Case C-19/08, Migrationsverket v Petrosian

This case concerned the question whether arts 20(1)(d) and 20(2) of Regulation 343/2003 (the Dublin II Regulation) were to be interpreted as meaning that responsibility for the examination of an application for asylum passed to the Member State where the application was lodged if the transfer was not carried out within six months after a temporary decision had been made to suspend the transfer and irrespective of when the final decision was made on whether the transfer was to be carried out.

The defendants in the present case were members of an Armenian family who had applied for asylum in Sweden while there. The Migrationsverket (Swedish Immigration Board) found that the family had earlier applied for asylum in, inter alia, France, and therefore ordered the transfer of the family to France. This decision was eventually annulled by a Swedish Court by reference to a leading judgment of the referring Court in which it had been held that article 20(1)(d) of Regulation 343/2003 was to be interpreted as meaning that the period for implementing the transfer was to run from the day of the decision provisionally to suspend execution. Since execution of the decision was suspended by a Swedish Court on August 23, 2006, it was now found that the time-limit for execution of the transfer expired on February 24, 2007, from which date (i) responsibility for examining the applications for asylum of the members of the family laid once more with Sweden pursuant to article 20(2) of Regulation No 343/2003; and (ii) the persons concerned could no longer be transferred to France. The Migrationsverket appealed against this judgment, arguing that, following the adoption of a suspensive decision, the period for implementation of the transfer was suspended, with the result that it would run for six months as from the date the suspended decision would once again be enforceable.

The Court held that it was not evident from the actual wording of arts 20(1)(d) and 20(2) of Regulation 343/2003 whether the period for implementation of the transfer began to run as from the time of the provisional judicial decision suspending the implementation of the transfer procedure, or only as from the time of the judicial decision ruling on the merits of that procedure. In interpreting a provision of Community law it was necessary to consider not only its wording, but also the context in which it occurred and the objective pursued by the rules of which it was part.

Distinction between two situations under art. 20(1)(d)
The Court held that a distinction must be drawn between two situations. In the first situation, it followed from the wording of art. 20(1)(d) of Regulation 343/2003 that, where there was no provision for an appeal to have suspensive effect, the period for implementation of the transfer started to run as from the time of the decision, explicit or presumed, by which the requested Member State agreed to take back the person concerned, irrespective of the uncertainties surrounding the appeal against the decision ordering his transfer which the asylum seeker might have lodged before the courts of the requesting Member State. In that case only the practical details of the implementation of the transfer remained to be determined, including setting the date thereof. It was in that context that article 20(1)(d) of Regulation 343/2003 allowed the requesting Member State six months in which to carry out the transfer.

In the second situation, where the requesting Member State provided for an appeal which might have suspensive effect and the court of that Member State gave its decision such effect, art. 20(1)(d) of Regulation 343/2003 provided that the period for transfer started to run as from the time of the “decision on an appeal or review”. In that situation, the start of that period should be determined in such a manner as to allow the Member States, as in the first situation, a six-month period which they were deemed to require in full in order to determine the practical details for carrying out the transfer. In order to ensure the effectiveness of art. 20(1)(d) of Regulation 343/2003 laying down the period for implementation of the transfer, that period must begin to run not as from the time of the provisional judicial decision suspending the implementation of the transfer procedure, but only as from the time of the judicial decision which ruled on the merits of the procedure and which was no longer such as to prevent its implementation.

An interpretation of art. 20(1)(d) of Regulation 343/2003, laying down the starting point for calculating the period granted to the requesting Member State for proceeding with the transfer of an asylum applicant, could not lead to a finding that, for the sake of observing Community law, the requesting State must disregard the suspensive effect of a provisional judicial decision taken in the context of an appeal capable of having such effect, which it nevertheless wished to introduce into its domestic law.

Principle of procedural autonomy of Member States
(a) If the interpretation of art. 20(1)(d) of Regulation 343/2003 to the effect that the period for implementation of the transfer began to run as from the time of the provisional decision having suspensive effect were to prevail, a national court wishing to reconcile compliance with the time-limit with compliance with a provisional judicial decision having suspensive effect would be placed in the position of having to rule on the merits of the transfer procedure before expiry of that time-limit by a decision which might, owing to lack of sufficient time granted to the courts, had been unable to take satisfactory account of the complex nature of the proceedings. Such an interpretation would run counter to the principle of procedural autonomy of the Member States (see
Case C-13/01 Safalero [2003] and Case C-432/05 Unibet [2007], on which I wrote here).

It followed that arts 20(1)(d) and 20(2) of Regulation 343/2003 were to be interpreted as meaning that, where the legislation of the requesting Member State provided for suspensive effect of an appeal, the period for implementation of the transfer began to run, not as from the time of the provisional judicial decision suspending the implementation of the transfer procedure, but only as from the time of the judicial decision which ruled on the merits of the procedure and which was no longer such as to prevent its implementation.

Text of Judgment