ON 21 January 2011, the European Court of Human Rights (ECtHR) held, among other things, that by returning an asylum seeker to Greece in application of Council Regulation (EC) No. 323/2003 (O.J. 2003 L50/1) (the “Dublin Regulation”), Belgium infringed Article 3 of the European Convention on Human Rights on the prohibition of torture and inhuman and degrading treatment (M.S.S. v Belgium and Greece (2011) 53 E.H.R.R. 2). Greece has been experiencing a massive influx of illegal migrants and continues to face huge difficulties in coping with the problem. It was only a matter of time before the issue came for consideration before the Court of Justice of the EU (CJEU). In Joined Cases C-411/10 N.S. v Secretary of State for the Home Department et M. E. and Case C-493/11 Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform. (Judgment of 21 December 2011, not yet reported), the CJEU delivered a judgment that is bound to have serious ramifications for the EU concept of mutual trust and the operation of the EU's common system for asylum. This important ruling also sheds further light on the scope of application of the EU Charter of Fundamental Rights (the Charter) and, for the first time, the effects of Protocol (30) on the application of the Charter to the United Kingdom (UK) and Poland, the so-called “opt-out”.
The Dublin Regulation is part of a broader legal framework aimed at establishing a Common European Asylum System. It creates a mechanism for determining the Member State responsible for the examination of an asylum application. Pursuant to Article 3(1), responsibility for a claim shall in principle fall on a single Member State, to be identified on the basis of the criteria laid down in the Regulation. Under Article 3(2), however, a Member State can choose to examine an asylum claim even though this would not be its responsibility within the meaning of the Regulation.
The applicants in the main proceedings entered Union territory through Greece, and eventually made their way to the UK and Ireland, where they applied for asylum. Their applications were rejected, and the competent authorities sought to transfer them to Greece, which was identified as the responsible Member State within the meaning of Article 3(1). The applicants argued that their return to Greece would violate their rights under EU law and that the UK and Ireland should therefore accept responsibility for their applications under Article 3(2). The relevant UK and Irish courts referred several questions to the CJEU on the relationship between the Common Asylum System and EU fundamental rights.
The CJEU first confirmed that the Charter applies to a decision taken under Article 3(2) of the Regulation. The issue arose because Article 51(1) of the Charter states that its provisions apply to the Member States only when they are implementing EU law, whereas Article 3(2) involves the exercise of discretion. The court had no trouble overcoming that hurdle: since the exercise of the discretionary power under Article 3(2) is an integral part of the mechanism for determining the responsible Member State, this constituted an instance of “implementation” within the meaning of Article 51(1) of the Charter.
The CJEU then turned to the implications this may have for the transfer of asylum seekers to a Member State that is alleged to be in breach of EU fundamental rights. The Common Asylum System is based on the principle of mutual trust, which establishes a presumption that EU Member States respect EU law and other relevant international instruments. According to the court, however, that presumption cannot be conclusive. Whilst it would go against the very raison d'être of the EU if any breach of EU fundamental rights or other applicable rule were to suspend the system established by the Dublin Regulation, things are different when systematic flaws in the responsible Member State may lead to a breach of Article 4 of the Charter on inhuman and degrading treatment. The CJEU thus concluded that “Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter” (at [94]). In addition, if identifying another responsible Member State within the meaning of the Regulation would result in unreasonable delays in the processing of the applicant's claim, the Member State concerned must take responsibility for the asylum application itself.
On the facts of the case, there was ample evidence to suggest that there are very serious shortcomings in the Greek asylum system. The CJEU borrowed directly from the judgment of the ECtHR in M.S.S., which had relied on various official reports on the situation in Greece. According to the court, this kind of information made it possible for the Member States to assess the risk of ill-treatment to which an asylum seeker might be exposed in the responsible State.
Finally, the UK court asked whether the UK's opt-out would have any bearing on the conclusions reached by the CJEU. The court's answer was a resounding “no”. Quoting from the opinion of Advocate General Trstenjak in Case C-411/10, it stated that “Protocol (30) does not call into question the applicability of the Charter in the United Kingdom or in Poland” (at [119]). Article 1(1) of Protocol (30) – which provides that the Charter does not extend the ability of the CJEU or any national court to find that national rules are inconsistent with the Charter – was held to be a simple reiteration of Article 51 of the Charter. However, the court left unanswered the question of the effects of Article 1(2) – which states that the social rights enshrined in Title IV of the Charter only create justiciable rights if these are provided for in national law – given that no such right was at stake in the proceedings.
From the perspective of fundamental rights protection, the judgment is to be welcomed. First, it appears to endorse an interpretation of the Charter that maximises its effet utile. This was achieved through a broad interpretation of the Charter's scope of application and a narrow reading of the UK's (and Poland's) “opt-out”. This also promotes coherence in the EU's overall system of fundamental rights protection. Article 6(3) TEU preserves the continuous existence of fundamental rights as general principles of law. It is established case law that these apply not only when Member States implement EU law, but also when they derogate from it and more broadly when their actions fall within the scope of EU law (see for example Case C-308/96 Annibaldi ECR I -7493, at [13]). Moreover, the “opt-out” in no way affects the binding character of the court's case law on the UK and Poland. It would therefore be rather odd if fundamental rights applied to a particular situation when framed in terms of the general principles of EU law, but not when invoked through the medium of the Charter. This trend towards convergence has continued in later cases. In Åklagaren v Hans Åkerberg Fransson (Case C-617/10, Judgment 26 February 2013, not yet reported), the CJEU stated that Article 51 of the Charter “confirms the court's case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the EU” (at [18]). Finally, the recognition of a rebuttable presumption gives a clear signal that the effectiveness of EU law cannot come at the cost of fundamental rights protection.
At the same time, the judgment may have serious implications for the EU's common asylum system and, more broadly, the Area of Freedom, Security and Justice. Indeed, the principle of mutual trust underpins a number of other instruments pertaining to the area of justice and home affairs, most notably the European Arrest Warrant. Fears may be somewhat over-stated. The CJEU placed the threshold for rebutting the presumption of compliance with fundamental rights very high, and seems to have limited its scope to cases involving inhuman or degrading treatment. In practice, however, this might reinforce mistrust between the Member States and open the gate to capricious litigation, when the purpose of many of these instruments is precisely to streamline procedures and increase efficiency. Further clarification on the effects of the ruling on other similar instruments will therefore be much awaited, particularly at a time when the UK is considering whether to opt out from measures concerning police and judicial cooperation in criminal matters which were adopted before the Treaty of Lisbon.
Overall, the court's decision leads to a paradoxical outcome: in the same judgment, the court may have both undermined the Member States' confidence in each others' systems and reinforced their confidence in the EU's apparatus for fundamental rights protection. The balance between the effectiveness of EU law and fundamental rights is inherently difficult to achieve. However, Member States can put their minds at rest that the CJEU is taking this task very seriously.
