European Court of Justice (ECJ) Advocate General Maciej Szpunar presented a legal opinion highlighting what procedures need to be performed in cases where EU member states that are responsible for processing the case of an asylum seeker do not accept Dublin returnees. However, the opinion by the Luxembourg judge is not legally binding, as a final decision in the case is yet to be made.
The legal opinion express by Judge Szpunar refers to a case presented by the administrative court in Sigmaringen in the southern German state of Baden-Württemberg, in which the German court sought clarification from the top EU court.
The case concerns a Syrian national who applied for asylum in Germany in 2023 — however, only after first registering in Italy.
Under the EU's Dublin regulation, EU member states must take back asylum seekers who have traveled onward to other member states; this would mean that in this case, the Syrian asylum seeker would have to be taken back by Italy and have his application processed there.
However for some time now, Italy has generally not accepted any Dublin returnees from another EU member state — in apparent defiance of the Dublin rules, leaving the asylum applicant in limbo.
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A case passed from pillar to post
In concrete terms, the German administrative court sought clarification from the ECJ on whether Italy's stance means that there can be such exceptions to the Dublin procedure, and what this would mean for German authorities in this particular case of the Syrian applicant.
If Italy's decision to reject asylum cases were deemed to be legitimate or even just permissible, the question of what country should carry the responsibility for examining the asylum application in this scenario would automatically arise.
In concrete terms, the German administrative court sought to learn whether Italy's refusal to take back the Syrian asylum seeker meant that this responsibility would then have to pass over to Germany.
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ECJ judge: 'Punish Italy, not the applicant'
Judge Szpunar expressed in his opinion that from a legal point of view, the responsibility for examining the asylum application in the present case can be transferred to Germany, in the absence of any other direct resolution.
According to his interpretation of the existing regulations, Szpunar emphasized in his legal opinion that violations by an EU member state of its obligations under EU law -- in this case Italy -- should not result in negative repercussions for the asylum seeker.
He stressed that instead there are “appropriate means” for punishing a country that defies the Dublin regulation within EU law, adding that a solution to problems arising from a member state's open “disregard” of the Dublin rules cannot be found in a direct interpretation of the regulation itself.
Szpunar instead explained his opinion by referring to another set of rules in the Dublin system, according to which another EU member state does actually have to take over the responsibility for an asylum case if the Dublin transfer to the initial EU arrival state does not take place within a period of usually six months.
Szpunar opinion is not yet a judgment; ECJ judges are not bound by such legal opinions, but often take them as a guide for the time when a decision is actually made.
A date for such a final judgment to be handed down at the ECJ has not yet been announced.
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with AFP