CYIL 2012

THE DUBLIN SYSTEM FROM A EUROPEAN HUMAN RIGHTS PERSPECTIVE asylum seekers who entered into the EU through its territory. Any contrary solution would be against the spirit of the Dublin Regulation. Therefore, only systematic deficiencies in the asylum procedure and reception conditions for asylum seekers can be a sufficient reason for the suspension of the Dublin system. With regard to this definition, a rebuttable presumption, the EU Court of Justice had to assess the specific situation in Greece. According to materials that were available to the Court, Greece was in 2010 the point of entry into the EU for approximately 90% of illegal migrants. Thus it was impossible to overlook the fact that Greece bore a much higher burden in the field of migration policy than any other EU Member State. Following the good tradition according to which the EU Court of Justice applies ECHR standards, including ECtHR case-law, as general principles of EU law, the Court then quoted from the Grand Chamber judgment in the M.S.S. case, according to which Belgium had infringed Article 3 of the ECHR by exposing the applicant to risks arising from the deficiencies in the asylum procedure in Greece, since the Belgian authorities knew or ought to have known that the applicant had no guarantee that his asylum application would be seriously examined by the Greek authorities. As the ECtHR had considered regular and unanimous reports of international NGOs and the UNHCR, the EU Court of Justice also took this evidence into account and concluded that already in 2009 there had been systematic shortcomings in asylum procedures carried out in Greece. In the proceedings before the EU Court of Justice some countries (Belgium, Italy and Poland) noted that EU Member States do not have the appropriate tools to assess the situation of human rights in another Member State. Thus they cannot reliably evaluate the true risk for a particular asylum seeker after his transfer to that Member State. The EU Court of Justice did not accept this objection and called the information provided by NGOs, the UNHCR and the European Commission sufficiently reliable. 6.3 The role of Protocol No 30 in the application of the Charter of Fundamental Rights to Poland and the United Kingdom Finally, the EU Court of Justice dealt with the applicability of Protocol No 30, which has been sporadically interpreted as an exemption from obligations under the EU Charter of Fundamental Rights. Indeed, the British Ministry of the Interior before the national court of first instance considered Protocol No 30. According to the Ministry of Interior the provisions of the Charter did not apply in the United Kingdom. Although such position was not maintained before the national Court of Appeal, the EU Court of Justice used the questions formulated by the national court in order to clarify the effect of Protocol No 30. The EU Court of Justice held that with respect to Article 1 of Protocol No 30 and Article 51 of the Charter, Poland and the United Kingdom are not exempted from the obligation to comply with the provisions of the Charter and that national courts in those Member States have to ensure compliance with the Charter provisions. In

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