Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin III Regulation), Articles 17, 27, 29

Charter of Fundamental Rights of the European Union (the Charter), Articles 4, 19(2), 47

Treaty on European Union (TEU), Article 4(3)

Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast)

E.N., S.S., J.Y., C-556/21, 30. 3. 2023, paras. 17, 20, 23, 24, 27-30, 32-34

B, F and K, C-323/21, C-324/21 and C-325/21, 12. 1. 2023, paras. 43, 63

A.S., C-490/16, 26. 7. 2017, paras. 19, 57-58

Ghezelbash, C-63/15, 7. 6. 2016, paras. 36-37, 59

Amayry, C-60/16, 13. 9. 2017, paras. 45, 62-64, 66

Jawo, C-163/17, 19. 3. 2019, paras. 59, 78, 80-84, 87, 90-91

C. K. and others v. Slovenia, C-578/16 PPU, 16. 2. 2017, paras. 59, 67, 76, 85-93

MP, C-353/16, para. 37

Ibrahim, C-297/17, para. 89

M and X.X, C- 391/16, C-77/17, paras. 94

B, C-233/19, 30. 9. 2020, paras. 46, 48-51, 57, 64-66

N.S. in M.E., C-411/10 and C-493/10, paras. 77, 80, 86, 88, 94, 99, 100-106, 112

Torubarov, C-556/17, 29. 7. 2019, paras. 73-74

FMS, C-924/19 PPU and C-925/19 PPU, para. 183

M.M., C-277/11, paras. 65-66

Aranyosi, Cãldãraru, C-404/15 and C-659/15 PPU, paras. 71, 76-78, 83-84, 88-89, 93-95, 98

Karim, C-155/15, 7. 6. 2016, paras. 22

XXXX, C-483/20, paras. 27, 29

Melloni, C-399/11, para. 60

L.G., C-745/21, 16. 2. 2023, paras. 49-54

M.A., S.A., A.Z., C-661/17, 23. 1. 2019, paras. 78-79

Diouf, C-69/10, 28. 7. 2011, para. 69

LH, C-564/18, 19. 3. 2020, paras. 63-64

PG, C-406/18, 19. 3. 2020, paras. 26-27

JP, C-651/19, 9. 9. 2020, paras. 36-39

RS, C-430/21, 22. 2. 2022, paras. 51-53

Simmenthal, C-106/77, 9. 3. 1978, para. 24

The Administrative Court (the AC) annulled the decision of the Ministry of the Interior (the Ministry) and remanded the case to it for a fresh decision.

The deadline for the execution of the Dublin return under Article 29(1) of the Dublin Regulation and the (in)consistent interpretation of Article 70(3) of the International Protection Act

The AC first turned to the question of whether the deadline for the Dublin return has expired thus, precluding Slovenian authorities from transferring the applicant to Bulgaria. The AC invoked the first subparagraph of Article 29(1) of the Dublin Regulation. Under this provision, the Dublin transfer must be carried out "at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3)." Under the national law, namely Article 70(3) of the International Protection Act (IPA), the administrative dispute challenging the decision concerning the Dublin return does not have a suspensive effect, at least based on the plain language of the provision. Article 70(3) of the IPA provides: "An action against a decision rejecting an application in the regular procedure, a decision rejecting an application in the accelerated procedure, a decision refusing the extension of subsidiary protection, a decision issued pursuant to paragraph seven of Article 69 of this Act, a decision terminating international protection status on the grounds referred to in paragraph six of Article 67 of this Act, a procedural decision rejecting an application pursuant to indent three of paragraph one of Article 51 and paragraph four of Article 65 of this Act shall stay the execution of the decision or procedural decision. For all other decisions under this Act, an action shall not stay their execution." The action against the decision on the Dublin return is not explicitly mentioned in the first part of the provision. As a result, the language of the provision suggests that such action does not have a suspensive effect. However, the AC relied on the ECtHR and CJEU jurisprudence (see also relation between the EU Charter and ECHR and vertical judicial interaction patterns, infra.) and ruled that when the applicant has an arguable claim concerning the potential breach of the prohibition of inhuman treatment laid down in Article 4 of the Charter if returned to Bulgaria, a legal remedy must have an automatic suspensive effect. The AC then adopted an interpretation of Article 70(3) of the IPA, consistent with the European standards, namely, that the actions that are not explicitly mentioned in the first part of Article 70(3) of the IPA do not have a suspensive effect unless the applicant has an arguable claim under the right enshrined in Article 4 of the Charter. 
 
Turning to the facts of the case, the AC found that the applicant had such a claim (arguable), at least as to the living conditions of potential applicants for asylum in Bulgaria. The AC based that finding on a great deal of information on the situation in Bulgaria adduced by both parties. It, therefore, found that the legal action initiating administrative dispute proceedings had the automatic suspensive effect which stayed the running of the time limit for transfer and that, consequently, the action based on the expiry of the deadline under Article 29(2) of the Dublin Regulation should not have been granted.

Absolute fundamental breach of rules of the administrative procedure

As to the reasons for the illegality of the contested decision, the AC held that there had been an absolute fundamental breach of rules of the administrative procedure since the contested decision could not have been examined on account of a deficient statement of grounds in the sense of internal contradictions or lack of clarity, and a failure to establish = facts.

The AC pointed to these internal contradictions. In the very first section of the reasoning of its judgment, where it dealt with the running of the six-month time limit, it found that the applicant had an arguable claim concerning the protection of the right not to be subjected to inhuman treatment in relation to the risks involved in the asylum procedure in Bulgaria. The AC explained that, under EU law and ECtHR case law, when the applicant has an arguable claim, the assessment of the facts regarding the risk of violations of human rights must be strict (thorough examination), taking into account the principle of mutual trust. It stated that a thorough examination does not allow for an approach according to which it would be acceptable to draw a complete distinction between the police procedure prior to the formal acceptance of an application for asylum and the reception of an applicant under the Dublin Regulation. It found that the Ministry had drawn that complete distinction, despite the fact that it was apparent from the very reasoning of the contested decision that it had perceived the existence of substandard conditions in the asylum centres in Bulgaria. It also found that the Ministry had dismissed several of the applicant's allegations without obtaining reliable, complementary and up-to-date information, despite the fact that it had itself found that the practice of the courts of the Member States on return to Bulgaria was versatile. According to the view of the AC, although the Ministry referred to a document of the EU Asylum Agency (EUAA) and the AIDA report and argued that persons who are transferred to Bulgaria under the Dublin Regulation have access to the asylum procedure, the references were not sufficiently specific. The AC held that, by proposing various pieces of information, the applicant fulfilled her part of the burden of proof, which then shifted to the Ministry.

The AC concluded that the errors or ambiguities in the statement of grounds were such that they made the decision in question impossible to examine and constituted a misapplication of the procedural aspect of Article 4 of the Charter, relating to the principle of mutual trust and, therefore a violation of the second subparagraph of Article 3(2) of the Dublin Regulation.

Correct application of the standard of systemic deficiencies in the light of the principle of mutual trust

The AC then ruled on the existence of systemic deficiencies as a condition for the protection of the right not to be subjected to inhuman treatment by a Dublin return (see vertical judicial interaction patterns, infra.).

The AC explained that, according to the CJEU and the ECtHR case law, within the context of a thorough examination of facts certain obligations are triggered, including the obligation to examine certain information ex officio. It explained that the competent authority must verify whether, in the circumstances of a particular case, there are substantial grounds to believe that the person concerned would be subject to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter after being transferred to another Member State, despite the absence of systemic deficiencies. It further explained that the competent authority must request the other Member State to provide it with the necessary additional information concerning the conditions in which the person concerned will be treated in that Member State and that, if, on the basis of the information obtained, it is not possible to "rule out any real risk" of inhuman treatment, this does not mean that the Member State must definitively refuse the return, but that the competent authority must obtain specific guarantees from the other Member State to exclude any real risk of inhuman treatment. These obligations are the result of the absolute nature of Article 4 of the Charter and follow from the jurisprudence of the ECtHR, the CJEU (C.K. v Slovenia, Ghezelbash, Jawo), the case law of the AC, the Supreme Court and the Constitutional Court. The principle of mutual trust is applied differently in cases concerning Dublin transfer in comparison to cases under the Framework decision on the European Arrest Warrant, where there is no discretionary clause as in the case of Dublin Regulation.

The AC found that the Ministry failed to fulfil those obligations as it treated the existence of systemic deficiencies as a sine qua non condition for refusal to execute a Dublin transfer and is required to remedy those errors and shortcomings in the renewed proceedings.

Interpretation of the discretionary clause set out in Article 17(1) of the Dublin Regulation

The AC rejected the position of the Ministry that the discretionary clause set out in Article 17(1) of the Dublin Regulation can in no way be interpreted as a right of the applicant and that the Ministry is not required to determine or assess the application of the discretionary clause in an individual case, as this position is inconsistent with the interpretation of the provision in question by the CJEU (L.G., C.K and others v Slovenia, M.A., S.A., A.Z.).

The AC pointed out that, in the L. G. case, which concerns the best interest of the child (Article 24 of the Charter), Article 17(1) of the Dublin Regulation was interpreted as not precluding the legislation of a Member State from imposing on the competent national authorities the obligation to examine an application for asylum in certain cases, even though the criteria set out in the Dublin Regulation designate another Member State as responsible for that application, which implies that this obligation under national law may also be imposed by a right other than that arising under Article 4 of the Charter. Additionally, the AC pointed out that the view of the CJEU in C.K. and others v Slovenia case, that a Member State has no obligation to apply the discretionary clause in a certain situation, must be understood in the context of that case. Where, the competent authority has not yet taken any preventive measure, in communication with the competent authority of the other Member State, to establish safeguards to ensure that a violation of Article 4 of the Charter does not occur as a result of the transfer. As a result, the application of the discretionary clause would have been premature in such a situation.

With regard to the Member State's refusal to apply the discretionary clause, the AC pointed out that, according to M.A., S.A., A.Z. (para. 78), the refusal can be challenged by lodging an appeal against the transfer decision and that, consequently, a specific remedy does not need to be provided for.

Regarding the interpretation of the discretionary clause, see also the last paragraph of part Relation between the EU Charter and ECHR, infra.

The possibility of appeal of the Ministry of the Interior  

The AC explained that following the judgment of the CJEU in E.N., S.S., J.Y., the legal situation in Slovenia regarding legal remedies had changed, establishing the position that the Ministry could not appeal against a judgment annulling a decision regarding the return of an applicant under the Dublin Regulation. It pointed out that Article 27 of the Dublin Regulation, Article 47 of the Charter and the EU principles of procedural autonomy, equivalence and effectiveness dictate that the national authorities do not have a right to appeal in such cases, which led to the conclusion that Article 70(4) of the IPA could not be interpreted as referring to the Ministry (and its right to appeal). The AC dismissed the application for an interim injunction on the ground that the Ministry was not entitled to appeal against the AC's judgment since the AC can only grant an interim injunction pending the final decision in the administrative dispute in question, which becomes final when it is issued and served on the parties (see also vertical judicial interaction patterns, infra; for a more detailed analysis of this aspect, see: Administrative Court of the Republic of Slovenia, Judgment and order I U 443/2023-17 of 26 April 2023 - the analysis is available at: cjc.eui.eu

Administrative Court of the Republic of Slovenia, Judgment and order I U 443/2023-17 of 26 April 2023 - the analysis is available in the CJC database.

Constitutional Court of the Republic of Slovenia, Decision no. Up-919/23 of 23 November 2023 – the analysis is available in the CJC database.

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