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Brussels, 21 December 2011

Statement by Cecilia Malmström, EU Commissioner for Home Affairs, following the preliminary ruling of the European Court of Justice on the transfer of asylum seekers under the EU Dublin Regulation

"Today's ruling by the Court of Justice of the European Union (CJEU) bears major significance for the development of the Common European Asylum System (CEAS): the Court clarifies the role of fundamental rights in the establishment of responsibility for examining an asylum application.

In its first preliminary ruling on the interpretation of the sovereignty clause of the Dublin Regulation, the Court confirms that a Member State is obliged to examine an asylum application if the transfer to the otherwise responsible Member State would expose the applicant to a serious risk of a violation of fundamental rights. This does not imply that a systematic doubt is cast on Member States' ability to respect the fundamental rights of asylum seekers. But, as the Commission has said many times in the past, Member States should not lose sight of the imperative to respect fundamental rights when implementing EU legislation.

Today's ruling once again proves that the EU needs a solid and efficient Common European Asylum System to support Member States and guarantee a fair and effective system of providing international protection to people in need.

This objective has been a common goal within the EU for more than a decade. Nowadays, the need for common rules and stronger solidarity is even more pressing. The EU needs common high standards and stronger cooperation to ensure that asylum seekers are treated equally wherever they apply, and that people in need of protection have the right to an individual assessment of their case, in an open and fair system. As part of this effort, the Dublin system needs to be complemented with provisions addressing root causes of crises and ensuring that deficiencies in one or other Member State do not affect the entire system or lead to human rights violations.

I call on the Member States and the European Parliament to reach a compromise on the proposals presented by the Commission so that we can reach a decision on the completion of a Common European Asylum System by 2012, a deadline which all EU countries have committed to."

Background information

In 2010, the UK Court of Appeal and the High Court of Ireland requested preliminary rulings from the Court of Justice of the European Union concerning the interpretation of Article 3(2) (the so called sovereignty clause) of Regulation (EC) No 343/2003 (the Dublin Regulation) allowing a Member State to take responsibility for an asylum application for which another Member State would normally be responsible, the interactions between the protection conferred by the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights and Fundamental Freedoms as well as the interpretation to be given to Protocol (No. 30) on the application of the Charter to Poland and to the United Kingdom in this particular case.

The preliminary questions were raised in the context of some cases concerning third country nationals who entered the EU through Greece and later lodged asylum applications in the UK and Ireland respectively. In the application of normal Dublin responsibility criteria, Greece should have been the responsible Member State for examining their asylum applications. Nevertheless, the applicants claimed that their transfer to Greece would amount to a violation of their fundamental rights, mainly due to the situation of reception conditions and access to the asylum procedure in this country. Consequently, the applicants requested that the UK and Ireland examine their applications, on the basis of the sovereignty clause.

On 21 December 2011 CJEU issued its preliminary ruling on the joint cases brought by the UK and Ireland. This preliminary ruling concerns the matter of principle regarding the application of Art. 3 (2) of the Dublin Regulation; as such it becomes part of the EU acquis and is to be taken into account by all Member States in the implementation of the asylum rules.

In January 2011 the European Court of Human Rights (ECtHR) issued a judgment on a related matter, but focusing specifically on the respect of human rights in Greece and when carrying out a Dublin transfer to that country. Greece was found in violation of Articles 3 and 13 of the European Convention of Human Rights due to an improper system of reception conditions and inadequate access to the asylum procedure.

Greece has committed to carrying out a comprehensive reform of its asylum system and to improving the handling of asylum claims. The Commission is closely monitoring the implementation of this crucial reform and continues to assist Greece in reforming national policies and ensuring a well-functioning asylum and migration system. The Commission has coordinated assistance by experts from Member States and provided targeted EU financial support including emergency funding.

In June, the Commission presented revised proposals on Asylum Procedures and on Reception Conditions with a view to setting up the Common European Asylum System (CEAS) by 2012 (IP/11/665 and MEMO/11/365).

For more information on the 2008 proposal of the European Commission amending the current Dublin II Regulation (see IP/08/1875).

For more information

The CJEU judgement of 21 December:

Homepage of Cecilia Malmström, Commissioner for Home Affairs:

Justice and Home Affairs Newsroom:

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