On the 30th of March 2023, the Court of Justice of the European Union (CJEU) delivered its judgment in the case Staatssecretaris van Justitie en Veiligheid, C556/21. The case concerned three third-country nationals who submitted applications for international protection in the Netherlands. The State Secretary submitted take back requests to other Member States (MS) which were accepted hence the Secretary decided to not consider the applications. The first-instance courts annulled those decisions and ordered the Secretary to take fresh decisions on the applications. The Secretary appealed before the Council of State and requested interim measures seeking to suspend the transfer time limit. The Council granted the interim measures but submitted a preliminary question to the CJEU.

The CJEU ruled that MS may introduce a second level of jurisdiction against a judgment ruling on an appeal against a transfer decision and to lay down procedural rules, including interim measures, as the matter is not governed by EU legislation. A second instance court may therefore adopt, at the request of the authorities, interim measures enabling those authorities to refrain from taking a fresh decision and suspending the transfer time limit. However, the CJEU declared that this is only possible provided that the implementation of the transfer decision was also suspended pursuant to Article 27(3) or (4) of that Dublin Regulation III during the appeal at first instance.

In the present case, the implementation of the transfer decision was not suspended at first instance hence the possibility of requesting an interim measure at second instance level would allow the authorities to postpone the transfer time limit and so prevent responsibility for processing the applications hence improperly delaying the progress of the protection procedure which would undermine the objectives of the Regulation.