Germany, Baden-Württemberg Higher Administrative Court, 15 March 2017 A 11 S 2151/16 / C-163/17

Identification of the case

• Prohibition of torture and inhuman or degrading treatment or punishment (art. 4 CFREU)

• Paragraph 29 Asylum Act

• Article 4 CFREU

Summary of the case

The applicant is a Gambian national who applied for asylum in Germany. The Federal Agency of Migration and Refugees (Federal Agency) requested his transfer to Italy, as a Eurodac request revealed that the applicant had previously applied for asylum in Italy. The Federal Agency denied the applicant’s request for asylum as inadmissible. The applicant was supposed to be transferred to Italy on 8 July 2015 but this was not possible because the applicant was not found at his apartment. The Federal Agency informed the Italian government that a transfer was not possible as the applicant had absconded and set a deadline for the transfer for 10 August 2016 (Art. 29 (2) Dublin-Regulation). Another transfer attempt failed when the applicant refused to board the aeroplane. The claim against the transfer was denied by the Administrative Court Karlsruhe. The Baden-Württemberg Higher Administrative Court as court of appeal stayed the proceedings and made a reference to the CJEU.

• Other

annulment of the administrative decision, suspensive effect of the appeal.

The Baden-Württemberg Higher Administrative Court made a reference for a preliminary ruling of the CJEU, addressing several questions on the interpretation of the Dublin III Regulation. It asked inter alia under which conditions an applicant for asylum is considered to “abscond” according to Article 29(2), in particular if it is sufficient that the person is not present in the flat assigned to him by the agency or if he has to intentionally impede his transfer to another Member State. The Court also asked whether the transfer of an applicant is excluded if he would run a real risk to be subject to a treatment in the sense of Article 4 CFREU if he was granted international protection in the Member State he is supposed to be transferred to.

Role of the Charter and role of the general principles on enforcement

The Court referred to Article 4 CFREU and asked the CJEU whether the transfer of an applicant is excluded if he would run a real risk to be subject to a treatment in the sense of Article 4 CFREU if he was granted international protection in the Member State he is supposed to be transferred to.

The Court made a reference to an effective protection of refugees, stating that even the best conditions upon reception would not ensure an effective protection if the applicant runs a real risk of being subject to a treatment in the sense of Article 4 CFREU after the recognition of international protection.

• Effectiveness

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

The Baden-Württemberg Higher Administrative Court made a reference for a preliminary ruling of the CJEU, posing several questions on the interpretation of the Dublin III Regulation.

Clarification on the interpretation of the Dublin III Regulation.