On 20 April 2023, AG Kokott delivered her Opinion concerning the joined cases C-228/21, C-254/21, C-297/21 and C-328/21. The cases concerned applicants who claimed asylum in a MS and then travelled to Italy where they were subject to take back requests under the Dublin III Regulation. The referred questions asked whether the obligation to provide information in Article 4 Dublin III Regulation and Article 29 Eurodac Regulation and the obligation to conduct a personal interview under Article 5 Dublin Regulation apply in take back procedures. The referring court furthermore questioned whether courts of the requesting MS are able to examine the risk that the requested MS may infringe the principle of non-refoulement in the situation where the asylum and judicial systems exhibits no systemic deficiencies.
AG Kokott noted that the failure to issue the common information leaflet cannot ipso jure render the transfer decision invalid, but that it is relevant whether the failure made it impossible to raise a consideration which could preclude the transfer and if that defect could not be remedied in the procedure for judicial review provided for under Article 27.
Regarding Article 29 of the Eurodac Regulation, AG Kokott outlined that it seemed unlikely that a failure to provide the information set out in Article 29 would be such as to make it impossible to raise a consideration that would be relevant to the transfer decision, however if such a failure would make it impossible to raise a consideration to preclude a transfer and if this could not be remedied in the judicial procedure, it could lead to an annulment of the transfer decision.
AG Kokott subsequently opined that the failure to fulfil the obligation to conduct a personal interview is a serious procedural infringement which could be relied on in an action against a transfer decision under Article 26. However, a transfer decision could become final in the absence of a personal interview, in the circumstance that the applicant has been provided with information on the remedies available and has not brought an action against the transfer decision.
Finally, AG Kokott determined that deficiencies must be of a general and systemic nature and that differences of opinion concerning the interpretation of material conditions of international protection are not systemic deficiencies. The AG concluded that when reviewing a transfer decision under Article 27 of the Dublin III Regulation in a situation where there is an absence of systemic deficiencies, courts of the requesting MS may not examine whether there is a risk that the principle of non-refoulement may be infringed, as this examines the application for international protection which is specifically not provided for as part of the review of a transfer decision under Article 27.