On 31 May 2018, the Court of Justice of the European Union ruled on case C-647/16 Hassan. The main proceedings concern Mr Hassan, an Iraqi national who was arrested in France on 26 November 2016. A search on Eurodac indicated that he had previously applied for international protection in Germany. On the same day of his arrest, the Prefect of Pas-de-Calais sent a take charge request to Germany under the Dublin III Regulation (DRIII), decided to transfer him to Germany and placed him in detention, even before Germany had implicitly or explicitly replied to that request.

On appeal, the Administrative Tribunal of Lille decided to refer a preliminary question to the CJEU regarding, in essence, whether Article 26(1) DRIII precludes a Member State from adopting a transfer decision and notifying it to the person concerned before the requested Member States has given its explicit or implicit agreement to that request.

The CJEU ruled that it follows from the actual wording of Article 26(1) DRIII that the notification of a transfer decision to the person concerned may take place only if, and therefore after, the requested Member State has agreed to the take charge or take back request. It is also clear from the wording of that article that the EU legislature established a specific procedural order between acceptance of the request and, only after, the notification of the transfer decision.

Moreover, the national practice in question would likely restrict the scope of the right to an effective remedy under Article 27(1) DRIII since a transfer decision adopted and notified to the person concerned before a reply from the requested Member State is based only on evidence and information gathered by the requesting Member State, and not from the requested Member State, which could be of particular importance in appeals against a transfer decision. In addition, if such practice is adopted in legal systems which do not provide for the suspension of a decision before a reply from the requested Member State, the person would be exposed to the risk of being transferred to that Member State even before it had given its consent.

Finally, the fact that French law does not allow the person concerned to be placed in administrative detention before he or she is notified of the transfer decision cannot call into question this interpretation of Article 26(1) of the Dublin III Regulation. The CJEU recalled that detention prior to the submission of a take charge or take back request is authorised subject to the conditions laid down in Article 28(2) and (3) DRIII.


ELENA Weekly Legal Update, 01 June 2018, available here.

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