Germany, Federal Constitutional Court, 17 January 2017 2 BvR 2013/16

Identification of the case

• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Article 19(4) Basic Law (Grundgesetz)
• Paragraph 46 Administrative Procedure Act

• Article 5 Dublin III Regulation

Summary of the case

The applicant is an Afghan national who requested asylum in Germany on 12 January 2016. A personal interview was not held. Due to a ‘hit’ from EURODAC, the Federal Agency of Migration and Refugees (Federal Agency) made a request to take charge to Bulgaria on 9 March 2016. Bulgaria accepted the request and informed Germany that due to the applicant leaving after his request for asylum and his request was subsequently denied. The Federal Agency rejected the applicant’s request for asylum as inadmissible, holding that Bulgaria was the competent Member State according to Article 18(1)(b) Dublin III Regulation. The applicant brought an action against the Federal Agency’s decision before the Administrative Court Frankfurt (Oder) and asked for suspensive effect of the transfer decision. The Administrative Court dismissed his claim. The Federal Constitutional Court repealed the decision of the Administrative Court and referred it back.

• Other

annulment of the administrative decision, suspensive effect of the appeal

The Federal Constitutional Court held that the decision of the Administrative Court Frankfurt (Oder) violated the applicant’s fundamental right to effective judicial protection. The Administrative Court’s decision was based on the reasoning that the violation of Article 5 Dublin III Regulation (Personal Interview) does not give the applicant the right to have the Federal Agency’s decision reversed. This reasoning of the Administrative Court was based on Paragraph 46 of the Administrative Procedure Act. According to this provision, there is no entitlement to have a court reverse the decision of the agency if it is “evident that the infringement of regulations governing procedure has not influenced the decision on the matter.” The Federal Constitutional Court argued that this question has not been clarified by jurisprudence of the CJEU and was neither an acte claire nor an acte éclairé. There would be some indications following from former jurisprudence of the CJEU, that the personal interview provided for by Article 5 Dublin III Regulation would indeed be substantial for the lawfulness of the agency’s decision. Thus, in the main proceeding before the Administrative Court, a preliminary reference to the CJEU would have been the obvious choice. Consequently, the Administrative Court could not reject the applicant’s request for suspensive effect based merely on a preliminary assessment of the chances of success of the claim in the main proceeding. The Administrative Court must balance the interests at stake and consider also the applicant’s situation upon return to Bulgaria.

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

The Federal Constitutional Court did not refer to the Charter

• Right to an effective remedy before a tribunal

Article 19(4) Basic Law

Art. 13 ECHR or functionally equivalent rights, even though the ECHR articles were not cited. The Administrative Court’s denial to grant suspensive effect to the applicant’s request to annul the Federal Agency’s decision violated his right to an effective judicial remedy. If there is a legal question that suggests clarification by means of a preliminary reference to the CJEU in the course of the main proceedings, the denial of suspensive effect may not be based merely on a preliminary assessment of the chances of success of the claim in the main proceeding. The Court needs to balance the interests at stake.

• Effectiveness

Elements of judicial dialogue

• Dialogue between high court - lower instance court at national level

The court of first instance has to reexamine the case

Additional notes on the decision