Although the EU asylum law provides for a detailed legal framework regarding the protection of procedural rights, many aspects of the exercise of these rights are not fully harmonised at the EU level. Consequently, the European Court of Justice (the ‘Court’ / ‘ECJ’) has been regularly solicited by Member States’ jurisdictions to clarify the meaning and scope of different provisions of secondary legislation fleshing out procedural guarantees.

In the recent Joined Cases Ministero dell’Interno (Joined Cases C‑228/21, C‑254/21, C‑297/21, C‑315/21 and C‑328/21), the ECJ was called by several Italian jurisdictions to provide guidelines on the scope of protection of procedural rights enshrined in the Dublin III Regulation which aims at the determination of the Member State responsible for the examination of an application for international protection. More precisely, the Court was asked to interpret Articles 4, 5 and 27 of the Dublin III Regulation which guarantee, respectively, the right to information, the right to an interview and the right to an effective remedy against a transfer decision. In addition, the cases raised several questions on the possibility of assessing the risk of ‘indirect refoulement’ by the court examining the lawfulness of a transfer decision (these questions will not be analysed in the present case note – for a comment on this issue, see here).

The requests for a preliminary ruling in Ministero dell’Interno were made in the context of different disputes relating to the lawfulness of transfer decisions adopted by the Italian Ministry of the Interior. All the transfer decisions in question were adopted in the context of ‘take back’ procedures (Article 18(1)(b) or (d), Article 23 and Article 24 of the Dublin III Regulation). This means that all the asylum seekers concerned had previously applied for international protection in a Member State other than Italy. Before adopting the transfer decisions in question, Italian authorities failed to provide the asylum seekers concerned with the required information about the conduct of Dublin proceedings. The domestic legislation did not specify whether such a failure should lead to the annulment of transfer decisions.  In their preliminary questions, Italian courts asked the ECJ, in particular, what consequences should be drawn from the failure to provide the common leaflet referred to in Article 4(2) of the Dublin III Regulation and Article 29(3) of the Eurodac Regulation (infringement of the right to information) and from the failure to conduct the personal interview foreseen in Article 5 of the Dublin III Regulation (infringement of the right to interview/right to be heard).

The ruling deserves particular attention for two reasons. Firstly, it strengthens the procedural protection of persons subject to Dublin proceedings and underscores its paramount importance for the effective functioning of the Dublin system. Secondly, it provides precious insights on the application of the principle of Rewe-effectiveness (see cases Rewe and Comet) in the context of the Dublin proceedings.

Enhanced protection of procedural rights in the context of Dublin proceedings

In this ruling, the ECJ first made clear that the guarantees foreseen in Articles 4 and 5 of the Dublin III Regulation are applicable not solely in the context of take charge procedures but also with regard to take back procedures. Both the right to information and the right to be heard shall be ensured in the proceedings concerning subsequent applications for international protection. Such a broad application of procedural rights resulted from the literal interpretation of the provisions as well as the legislative context. The application of procedural guarantees with regard to take back procedures contributes, overall, to the correct application of the Dublin criteria. Article 5(1) of the Dublin III Regulation highlights that the conduct of the interview aims at facilitating the process of determining the Member State responsible. The quest for enhanced protection of procedural rights does not thus constitute, as it has been sometimes alleged, an obstacle to the effective functioning of the Dublin system. On the contrary, the respect of procedural rights of the persons concerned favours a more insightful decision-making and an adequate application of the Dublin rules.

 Secondly, the Court examined the question of consequences regarding the infringement of the right to information and the right to interview. At the outset, it pointed out that the Dublin III Regulation did not provide any details with regard to such consequences. Reiterating the findings from Addis, which concerned the consequences of the breach of the right to be heard explicitly guaranteed by the Asylum Procedures Directive,  the Court observed that in the absence of EU rules on this matter, it is for each domestic legal order to establish procedural rules to safeguard the rights of individuals on the condition of respecting the principles of equivalence and effectiveness (doctrine of national procedural autonomy). In Addis, the Court put a strong emphasis on the ‘paramount importance’ of the interview in the procedure of examination of the application for international protection. It ruled that the breach of the right to an interview shall lead to the annulment of the administrative decision unless an interview may be conducted before a court or tribunal in accordance with the conditions foreseen in the Asylum Procedures Directive. In a similar vein, in Ministero dell’Interno, the Court held that the infringement of the right to an interview under the Dublin III Regulation shall lead to the annulment of the transfer decision unless such an interview may be conducted in the framework of appeal proceedings. By contrast, the failure to provide a common leaflet where the interview has effectively taken place shall not lead to the annulment of the administrative decision unless the infringement in question actually deprived the person concerned of ‘the possibility of putting forward his or her arguments, to the extent that the outcome of the administrative procedure in respect of that person could have been different’.

Interestingly, in the present case, the Court drew attention to the seriousness of consequences that ensue from the application of Articles 23(1) and Article 24(1) of the Dublin III which expose persons without international protection to take back and, ultimately, to risk of being sent to their country of origin. By contrast, in Addis, the Court did not delve into the analysis of the consequences faced by the applicant for international protection (the risk of being sent to the Member State in which the person is already a beneficiary of international protection). Nor did the Court refer to the seriousness of the consequences of implementing the administrative decision in G. and R., a case concerning the protection of the right to be heard under the Return directive. In G. and R., the Court did not analyse the consequences of the decision on the extension of the detention measure even though the measure in question amounted to a clear interference with the fundamental right to liberty of the persons concerned. It held that the infringement of the right to be heard in the context of return proceedings shall lead to the annulment of the decision on the extension of detention measure only if the outcome of the procedure might have been different in the absence of such an infringement (for a short comment on Addis and G. and R., see here).

In Ministero dell’Interno, the seriousness of the consequences of the implementation of the transfer decision supported the finding that the infringement of the right to be heard shall generally lead to the annulment of the administrative decision in question. Yet, arguably, the main factor which justified increased protection of this right (in comparison with G. and R. and other cases concerning the application of the Return directive, see e.g. Mukarubega and Boudjlida) was the fact that the right was explicitly guaranteed by the applicable secondary legislation (this was also the case in Addis concerning the application of the Asylum Procedures Directive but not in G. and R. relating to return proceedings where the source of the right has been found in the general principle of respect for the rights of the defence).

Continuing relevance of theRewe-effectiveness in the determination of EU procedural standards

As observed above, before delving into the analysis of the consequences which shall be drawn from the infringement of the right to be informed and interviewed, the Court underlined that this specific question was not regulated by the Dublin III Regulation. In the absence of EU rules on the matter, it was the Rewe-effectiveness which served as a benchmark for establishing the EU standards of protection. Noteworthily, the use of this tool in the context of the application of the Dublin rules has been overall quite limited. Yet, in more recent case law the Court has confirmed that the Rewe-effectiveness continues to play a considerable role in shaping national procedural rules in asylum (see e.g. cases État belge or E.N., S.S., J.Y.)

Nonetheless, the ECJ rarely specifies requirements stemming from the principle of Rewe-effectiveness in abstracto, i.e. without drawing an explicit link with a concrete domestic procedural rule at issue and verifying whether the rule satisfies these requirements. In Ministero dell’Interno, the Italian legislation did not, in itself, enable the consequences of the breach of the right to be informed/heard to be determined with certainty. It did not thus seem to pose any concrete obstacle to the correct application of EU law. Yet, this did not dissuade the Court from determining in detail what consequences ensued from the principle of (Rewe-)effectiveness. Ministero dell’Interno constitutes, therefore, one of the rare cases in which the Rewe-effectiveness is applied by the Court somehow in isolation from the national legislative context.

In many cases on the interpretation of procedural guarantees during the Dublin proceedings, the ECJ has relied in its argumentation on recital 19 of the Dublin III Regulation which itself refers directly to Article 47 of the EU Charter of Fundamental Rights guaranteeing the right to an effective remedy before a court of law. The present ruling contains a short reference to this recital, yet overall, the reasoning is based on the application of the Rewe-effectiveness. A stronger reliance on recital 19 or Article 47 of the Charter could have been justified given the close links between the right to an effective remedy and the respect of procedural guarantees such as the right to be heard. Yet, in the present ruling, the Court decided to conduct the reasoning on the basis of secondary legislation, without making additional references to the Charter or other sources of primary law.In her Opinion in the cases at hand, AG Kokott invoked on several occasions the rights of the defence which constitute a general principle of EU law. The absence of similar references in the ruling indicates that the enhanced standard of protection of the right to information and the right to be heard could be possibly lowered in the wake of future legislative reforms.

Conclusion

The ruling in Ministero dell’Interno constitutes an important step forward in developing the judge-made acquis in the field of procedural protection of migrants and asylum seekers (for other examples see e.g. cases El Hassani, Torubarov, I, S). One more time, the Court did not hesitate to fill in the gaps in procedural protection in situations where the relevant legislation did not explicitly impose an EU-wide standard. The judgment recalls that the reliance on the sources of primary law (such as general principles or the Charter) does not constitute the only means for strengthening the protection of procedural rights guaranteed within the secondary law instruments. The principle of Rewe-effectiveness continues to serve as a handy tool for determining the standards of protection in situations where neither EU secondary legislation nor domestic legal framework provide for sufficient clarity on the enforcement of procedural safeguards.

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Posted by Alicja Słowik (Joint PhD Candidate in European Union Law at the University of Geneva and the University of Leuven)