CYIL 2012

Harald Christian Scheu CYIL 3 ȍ2012Ȏ before sending back asylum seekers. In other words, does there apply a conclusive presumption that the Member State which is responsible under the Dublin system will respect the claimant’s fundamental rights under EU law and the relevant secondary EU legislation on asylum and asylum procedure? In the context of these issues the EU Court of Justice clarified a number of interesting aspects. 6.1 The applicability of the EU Charter of Fundamental Rights Under Article 51, paragraph 1 of the Charter its provisions are addressed to the institutions and bodies of the EU and to the Member States only when they are implementing EU law. As for the instant case, Article 3, paragraph 2 of Dublin (the so-called derogation clause) allows a Member State to examine an application for asylum even if according to the criteria contained in the Dublin Regulation it does not have jurisdiction. This clause seems to provide a considerable scope of discretion to the Member States. Given that the use of the clause leads to additional responsibilities of the Member State under the Dublin Regulation (such as the obligation to, where appropriate, inform the previously responsible Member State or the Member State which has been requested to take charge of or take back the applicant), the EU Court of Justice found that the clause is part of the Dublin system. From that it follows that a Member State which examines the application of Article 3, paragraph 2 of the Dublin Regulation is implementing EU law within the meaning of Article 51, paragraph 1 of the Charter. 6.2 The Applicability of the Dublin Regulation in cases of serious human rights violations In the first place, the EU Court of Justice based its considerations on the applicability of the Dublin Regulation in relation to Greece on the principle of mutual trust between Member States and the presumption of compliance. The common European asylum system, including the Dublin Regulation, provides that all participating states respect the basic human rights as contained, for example, in the Geneva Convention and in the ECHR. This presumption is, however, rebuttable, if in a particular Member State there are serious operational problems and a risk that the application of the Dublin Regulation might lead to the inhuman treatment of asylum seekers. In another part of its argument the EU Court of Justice suggested that not every infringement of a fundamental right by the Member State responsible will affect the obligations of the other Member States to comply with the provisions of the Dublin Regulation. According to the EU Court of Justice “slight infringements” of the relevant EU legislation on asylum will not prevent the transfer of asylum seekers to the Member State which is primarily responsible. Such suspension of the Dublin system would be incompatible with the aims of the Regulation as it could mean some sort of reward for that state. The Member State violating the standards of EU secondary legislation, in general, shall not be exempt from the obligation to take back

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