On 22 September 2022, the Court of Justice of the European Union (CJEU) ruled on the joined cases C-245/21 and C‑248/21. In both cases, the German authorities had made a transfer request to Italy, but the execution of the transfer had to be suspended due to the material impossibility to carry it during the COVID-19 pandemic. The preliminary ruling concerned the interpretation of Article 27(4) of the Dublin III Regulation 604/2013 and whether this article covers the situation in which, while a judicial appeal procedure is pending, the requesting Member State (MS) decides to suspend the execution of the transfer decision exclusively based on the temporary material impossibility of carrying out the transfers due to the COVID-19 pandemic. The referring court also questioned whether this would interrupt the transfer period established by the Regulation.
The Court of Justice noted that Article 29(1) of the Dublin Regulation establishes that the transfer to the MS responsible shall take place as soon as it is materially possible and, at the latest, within six months from the acceptance by another Member State of the take charge or take back request or of the final decision on the appeal, where a suspensive effect is granted. If this time limit is not respected, the requested MS is released from its obligation to take charge or take back and the responsibility is then transferred to the requesting Member State.
The suspension of the execution of the transfer that runs from the final decision on the appeal against the transfer decision is linked to the exercise of an appeal against the transfer decision by the person concerned. Nonetheless, the Court held that a decision suspending the execution of a transfer decision on the ground that that execution is materially impossible due to the COVID-19 pandemic cannot be considered to have a direct link with this judicial protection.
Additionally, the Court pointed out that the EU legislation did not consider that the material impossibility of executing the transfer decision was a justification for the interruption or suspension of the transfer period. In this line, the Court held that the provisions of the Dublin III Regulation do not envisage the interruption or suspension of the transfer period, with only an exceptional possibility of extension that requires a strict interpretation and excludes the application to other cases of impossibility of execution of the transfer decision.
As a consequence, the Court concluded that the transfer period provided in the Dublin III Regulation is not interrupted when the competent authorities of a Member State adopt a revocable decision to suspend the execution of a transfer decision, on the grounds that such execution is materially impossible due to the COVID-19 pandemic.
Based on an unofficial translation from within the EWLU team.