CYIL 2012

THE DUBLIN SYSTEM FROM A EUROPEAN HUMAN RIGHTS PERSPECTIVE From the perspective of the mutual trust principle it seems that the judgments of the ECtHR and, in particular, of the EU Court of Justice seem to undermine that principle. Both current judgments might be understood as a legalization of mistrust between Member States. Of course, the approaches of both courts, which apply different legal norms, differ in a number of aspects. As for the ECtHR, it has repeatedly addressed the question of whether and to what extent Member States are responsible for a violation of the ECHR which relates to the fulfillment of obligations under EU law. Since 2005, the ECtHR has been solving this problem by using the “equivalent protection” formula, which was explained in the Bosphorus case. In the instant case, however, the ECtHR relied on the fact that Belgium had sufficient margin of appreciation when applying the Dublin Regulation and, thus, it could not invoke the limited responsibility rule which according to the Bosphorus ruling refers to acts of EU members which fall within the scope of EU law. This conclusion is surprising to a certain degree, because the interpretation of Article 3, paragraph 2 of the Dublin Regulation, on which the ECtHR based its reasoning, was not clear to the British and the Irish court, which with respect to this issue requested a preliminary ruling by the EU Court of Justice. 39 In the proceedings before the Court of Appeal the Secretary of State had maintained that the scheme of the Dublin Regulation entitled her to rely on the conclusive presumption that Greece (or any other Member State) would comply with its obligations under EU law. With regard to the question of whether Article 3, paragraph 2 of the Dublin Regulation offers sufficient margin of appreciation, the ECtHR simply quoted from the provision and found that Belgium could have examined the application for asylum submitted by the complainant. The Court did not carry out any detailed analysis of the provision in light of the principle of mutual trust and the concept of a common European asylum policy. It is possible that the ECtHR wanted to avoid the application of the Bosphorus ruling in the instant case because the formula as such is not entirely convincing as it creates different human rights standards in Europe. In my opinion it would have been more consequential if the Court had refused to apply the Bosphorus formula in the case with the argument that the application of the formula would lead to an unacceptable conclusion. This conclusion would be that even in cases of a violation of the non-refoulement principle no EU Member State could be held responsible as it applied an EU Regulation. to increase reliance on, and mutual understanding between, the different legal systems in the Member States will thus be one of the main challenges for the future”. 39 On the other hand, we have to keep in mind that in some participating states of the Dublin system (e.g. the Netherlands, Belgium and Norway) national courts suspended the transfer of asylum seekers to Greece under the Regulation. Also the German Ministry of the Interior stopped transfers to Greece in January 2011 after the practice of the Dublin system had been criticized by the German Constitutional Court (2 BvR 2015/09). This state practice can be considered to be a reaction to a note by the ECtHR in which it asked members states to suspend transfers under the Dublin Regulation pending a decision in the M.S.S. case.

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