The first and second questions
37
By its first and second questions in Cases C‑245/21 and C‑248/21, which must be considered together, the referring court asks, in essence, whether Article 27(4) and Article 29(1) of the Dublin III Regulation are to be interpreted as meaning that the time limit for transfer provided for in the latter provision is interrupted where the competent authorities of a Member State adopt, on the basis of Article 27(4), a revocable decision to suspend the implementation of a transfer decision on the ground that such implementation is materially impossible because of the COVID-19 pandemic.
38
Article 29(1) of the Dublin III Regulation provides that the transfer of the person concerned to the Member State responsible is to take place as soon as practically possible and, at the latest, within six months of the acceptance by another Member State of the request to take charge or take back or of the final decision on the appeal where suspensive effect is granted in accordance with Article 27(3) of that regulation.
39
According to Article 29(2) of that regulation, if the transfer is not carried out within six months, the Member State responsible for examining an application for international protection is released from its obligation to take charge or take back the person concerned and responsibility is transferred to the requesting Member State.
40
While it is clear from those provisions that the EU legislature intended to promote the speedy enforcement of transfer decisions, the fact remains that such enforcement may, in certain cases, be suspended.
41
Article 27(3) of the Dublin III Regulation thus requires Member States to provide the persons concerned with a remedy which may lead to the suspension of the implementation of the transfer decision taken against them.
42
In accordance with that provision, Member States must provide either, first, that an appeal against the transfer decision gives the person concerned the right to remain in the Member State which adopted that decision pending the outcome of his or her appeal or, secondly, that following the lodging of an appeal against the transfer decision the transfer is automatically suspended for a reasonable period of time during which a court is to determine whether to give suspensive effect to that appeal or, thirdly, that the person concerned has the possibility to lodge an appeal to suspend the implementation of the transfer decision pending the outcome of the appeal against that decision.
43
Furthermore, Article 27(4) of the Dublin III Regulation provides that Member States may provide that the competent authorities may decide ex officio to suspend the implementation of the transfer decision pending the outcome of the appeal against that decision.
44
Where the suspension of the implementation of the transfer decision results from the application of Article 27(3) of that regulation, Article 29(1) thereof provides that the time limit for transfer is to run not from the acceptance of the request to take charge or to take back but, by way of derogation, from the final decision on the appeal against the transfer decision.
45
Although Article 29(1) of the Dublin III Regulation does not refer directly to the situation, arising from Article 27(4) of that regulation, in which the suspension of the implementation of the transfer decision is the result of a decision taken by the competent authorities, it is nevertheless clear from the Court’s case-law that, because of the similarity of the terms used in the third subparagraph of Article 28(3) and in the first subparagraph of Article 29(1) of that regulation and the fact that those provisions both have as their object the determination of the period during which the transfer is to be effected, those provisions must be interpreted in the same way (see, to that effect, judgment of
13 September 2017,
Khir Amayry
, C‑60/16, EU:C:2017:675, paragraph 70
).
46
In those circumstances, it should be noted that the Court has already held, with regard to the third subparagraph of Article 28(3) of the Dublin III Regulation, that the postponement of the starting point of the time limit for transfer in cases where suspensive effect is granted in accordance with Article 27(3) of that regulation is explained by the fact that, as long as an appeal against a transfer decision has suspensive effect, it is, by definition, impossible to carry out the transfer, which is why the time limit for doing so may not begin to run until the future implementation of the transfer has in principle been agreed and only the details of the transfer remain to be settled, that is to say, from the date on which that suspensive effect is lifted (see, to that effect, judgment of
13 September 2017,
Khir Amayry
, C‑60/16, EU:C:2017:675, paragraph 55
).
47
Where the suspension of the implementation of a transfer decision pending the outcome of the appeal against it is the result of a decision taken by the competent authorities pursuant to Article 27(4) of the Dublin III Regulation, the person concerned by that decision is in a situation comparable in every respect to that of a person whose appeal is given suspensive effect by the effects of legislation or a judicial decision, pursuant to Article 27(3) of that regulation (see, to that effect, judgment of
13 September 2017,
Khir Amayry
, C‑60/16, EU:C:2017:675, paragraph 68
).
48
Furthermore, if Article 29(1) of the Dublin III Regulation were to be interpreted as meaning that, where the competent authority makes use of the option provided for in Article 27(4) of that regulation, the time limit for transfer should still be calculated from the acceptance of the request to take charge or take back, the latter provision would be largely deprived of its useful effect, since it could not be used without the risk of preventing the transfer being carried out within the time limit laid down by that regulation (see, to that effect, judgment of
13 September 2017,
Khir Amayry
, C‑60/16, EU:C:2017:675, paragraph 71
).
49
Therefore, Article 29(1) of the Dublin III Regulation must, like the third subparagraph of Article 28(3) thereof, be interpreted as meaning that, where suspensive effect has been given to an appeal against a transfer decision in accordance with Article 27(4) of that regulation, the time limit for transfer runs from the final decision on that appeal, so that the transfer decision must be enforced no later than six months from the final decision on that appeal.
50
However, such a solution can only be applied if the decision to suspend the implementation of the transfer decision was adopted by the competent authorities within the scope of Article 27(4) of the Dublin III Regulation.
51
In order to determine the limits of that scope, account must be taken of the terms of that provision, its context and the objectives pursued by the legislation of which it forms part (see, to that effect, judgment of
24 March 2022,
Autoriteit Persoonsgegevens
, C‑245/20, EU:C:2022:216, paragraph 28
and the case-law cited).
52
In that regard, it is necessary, in the first place, to emphasise that, as the Advocate General pointed out in points 50 and 51 of his Opinion, it follows from the very wording of Article 27(4) of the Dublin III Regulation that the application of that provision is closely linked to the lodging by the person concerned of an appeal against the transfer decision, since the suspension ordered by those authorities must take place ‘pending the outcome of the appeal’.
53
As regards, in the second place, the context of Article 27(4) of that regulation, it should be noted that that provision forms part of Section IV of Chapter VI of the regulation, which is entitled ‘Procedural safeguards’.
54
Furthermore, that provision is contained in an article entitled ‘Remedies’ and comes after a paragraph dealing with the suspensive effect of the action against the transfer decision, which it complements by authorising Member States to allow the competent authorities to suspend the implementation of the transfer decision in cases where its suspension following the bringing of an action does not result from the effects of legislation or a judicial decision.
55
Moreover, as noted in paragraph 49 of the present judgment, it follows from the link between that provision and Article 29(1) of the Dublin III Regulation that the suspensive effect thus granted necessarily ceases when the final decision on the appeal against the transfer decision is adopted, since Article 29(1) does not contain any rules intended to govern the calculation of the time limit for transfer in the event that the suspension of the implementation of a transfer decision is lifted by the competent authorities before or after the outcome of the appeal against that decision.
56
In the third place, it follows from recitals 4 and 5 of the Dublin III Regulation that its purpose is to establish a clear and workable method, based on objective and fair criteria for both the Member States and the persons concerned, in order to determine rapidly the Member State responsible for examining an application for international protection, so as to guarantee effective access to the procedures for granting such protection and not to compromise the objective of the rapid processing of applications for international protection (judgment of
19 March 2019,
Jawo
, C‑163/17, EU:C:2019:218, paragraph 58
).
57
With a view to achieving that objective of expedition, the EU legislature provided, as a framework for the take-charge and take-back procedures, a set of mandatory time limits intended to ensure that those procedures are implemented without undue delay (see, to that effect, judgment of
13 November 2018,
X and X
, C‑47/17 and C‑48/17, EU:C:2018:900, paragraph 69
and the case-law cited).
58
In particular, the six-month time limit for transfers laid down in Article 29(1) of the Dublin III Regulation is intended to ensure that the person concerned is effectively transferred as soon as possible to the Member State responsible for examining his or her application for international protection, while allowing, having regard to the practical complexity and organisational difficulties involved in implementing the transfer of that person, the necessary time for the two Member States concerned to consult each other with a view to carrying out that transfer and, more specifically, the requesting Member State to determine the details for implementing the transfer (see, to that effect, judgment of
19 March 2019,
Jawo
, C‑163/17, EU:C:2019:218, paragraph 59
).
59
In view of the interruptive effect which the suspension of the implementation of a transfer decision based on Article 27(4) of that regulation has on the time limit for transfer, as explained in paragraph 49 of the present judgment, to interpret that provision as allowing Member States to permit the competent authorities to suspend the implementation of transfer decisions on grounds which have no direct link with the judicial protection of the person concerned would risk rendering ineffective the time limit for transfer set out in Article 29(1) of that regulation, altering the division of responsibilities between Member States resulting from the Dublin III Regulation and prolonging the processing of applications for international protection.
60
That being so, it should also be noted that the EU legislature did not intend to sacrifice the judicial protection of the persons concerned to the requirement of expedition in the processing of applications for international protection and, on the contrary, significantly enhanced, by that regulation, the procedural safeguards offered to those persons in the context of the system for determining the Member State responsible devised by the EU legislature (the Dublin system) (see, to that effect, judgment of
7 June 2016,
Ghezelbash
, C‑63/15, EU:C:2016:409, paragraph 57
).
61
Accordingly, it must be held that a suspension of the implementation of a transfer decision may be ordered by the competent authorities, in accordance with Article 27(4) of the Dublin III Regulation, only where the circumstances surrounding that implementation imply that the person concerned must, in order to ensure his or her effective judicial protection, be allowed to remain in the territory of the Member State which adopted that decision until a final decision on the appeal has been taken.
62
It follows that a revocable decision to suspend the implementation of a transfer decision on the ground that such implementation is materially impossible because of the COVID-19 pandemic cannot be considered to be adoptable under Article 27(4) of the Dublin III Regulation, in so far as that ground does not have a direct link with the judicial protection of the person concerned.
63
The fact, put forward by the referring court and the German Government, that it follows from German law that the material impossibility of enforcing a transfer decision implies that that decision is unlawful cannot call that conclusion into question.
64
First, the revocable nature of a decision to suspend the implementation of a transfer decision rules out the possibility that that suspension was ordered pending the outcome of the appeal against the transfer decision and with the aim of guaranteeing the judicial protection of the person concerned, since it cannot be ruled out that the suspension may be revoked before the outcome of that appeal.
65
Secondly, it must be emphasised that the EU legislature did not consider that the fact that it was materially impossible to implement the transfer decision should be regarded as justifying the interruption or suspension of the time limit for transfer laid down in Article 29(1) of the Dublin III Regulation.
66
That legislature did not include in that regulation any general provision for such interruption or suspension.
67
Furthermore, as regards certain frequent cases where it is materially impossible to implement the transfer decision, that legislature has confined itself, in Article 29(2) of that regulation, to providing that the time limit for transfer may be extended to a maximum of one year if it has not been possible to carry out the transfer because the person concerned has been imprisoned, or to a maximum of 18 months if the person concerned absconds.
68
In addition to the fact that that provision envisages not the interruption or suspension of the time limit for transfer but its extension, it should be noted that that extension is of an exceptional nature and must therefore be interpreted strictly, which precludes its application by analogy to other cases in which it is impossible to implement the transfer decision (see, to that effect, judgments of
19 March 2019,
Jawo
, C‑163/17, EU:C:2019:218, paragraph 60
, and of
31 March 2022,
Bundesamt für Fremdenwesen und Asyl and Others (Committal of an asylum seeker to a psychiatric hospital)
, C‑231/21, EU:C:2022:237, paragraphs 54 and 56
).
69
The Court has moreover held that the six-month time limit for transfer provided for in Article 29(1) of the Dublin III Regulation must be applied in situations where the person concerned cannot be transferred because of his or her state of health (see, to that effect, judgment of
16 February 2017,
C. K. and Others
, C‑578/16 PPU, EU:C:2017:127, paragraph 89
) or because of his or her compulsory placement in a hospital psychiatric department (see, to that effect, judgment of
31 March 2022,
Bundesamt für Fremdenwesen und Asyl and Others (Committal of an asylum seeker to a psychiatric hospital)
, C‑231/21, EU:C:2022:237, paragraph 62
).
70
Consequently, the competent authorities cannot validly rely on the regime applicable under national law in cases where it is materially impossible to implement a transfer decision in order to justify the application of Article 27(4) of the Dublin III Regulation and thus prevent the application of the time limit for transfer laid down, with a view to ensuring speediness in the processing of applications for international protection, in Article 29(1) of that regulation.
71
In the light of the foregoing, the answer to the first and second questions in Joined Cases C‑245/21 and C‑248/21 is that Article 27(4) and Article 29(1) of the Dublin III Regulation must be interpreted as meaning that the time limit for transfer provided for in the latter provision is not interrupted where the competent authorities of a Member State adopt, on the basis of Article 27(4), a revocable decision to suspend the implementation of a transfer decision on the ground that such implementation is materially impossible because of the COVID-19 pandemic.