CYIL 2012

Harald Christian Scheu CYIL 3 ȍ2012Ȏ However, the EU Court of Justice could have certainly caused great embarrassment if, in answer to the request for a preliminary ruling, it ruled that there was no discretionary power in the interpretation of Article 3 of the Dublin Regulation. Luckily, the EU Court of Justice avoided such conflict and refused to accept the argument that the Dublin system contains a conclusive presumption that all Member States observe fundamental rights. Although the progressive interpretation of the Dublin system in the view of European human rights protection shall be unequivocally welcomed, it is necessary to deal with the impact of the judgments of both the ECtHR and the EU Court of Justice on the principle of mutual trust more thoroughly. Under what conditions and according to which rules shall a national court in one Member State examine the situation of human rights in another Member State, both in general and in relation to an individual case of an asylum seeker? In this context one shall recall the judgment of the EU Court of Justice in the matter of Hedley Lomas. 40 In this case, the British Ministry of Agriculture, Fisheries and Food had doubts as to whether a number of Spanish slaughterhouses were complying with Council Directive 74/577/EEC of 18 November 1974 on stunning of animals before slaughter. 41 This Directive was intended to protect animals and avoid all forms of cruelty to animals. According to information provided by a local NGO (Spanish Society of the Protection of Animals) some Spanish slaughterhouses did not have the necessary equipment for stunning animals or did not use the equipment correctly. The British Ministry argued that in this situation there was substantial risk that animals exported to Spain would suffer treatment contrary to the Directive. Only after a mediating procedure between the United Kingdom and Spain had taken place, the British Ministry lifted its general ban on exports of living animals to Spain. However, in the particular case of Hedley Lomas Ltd., which applied for an export licence in 1992, the licence was not issued. Regarding the issue relevant for this study, it is interesting that the British Ministry applied the information obtained from the Spanish NGO specializing in the protection of animals. The EU Court of Justice, however, reached the conclusion that a Member State may not unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by another Member State of rules of Community law (EU law). The Member State cannot justify a limitation of exports of goods to another Member State on the sole grounds that, according to the first state, the second state is not complying with the requirements of a EU Directive (not even in the case that such Directive does not lay down any particular procedures for monitoring or penalizing breaches). In certain aspects the cases concerning the Dublin Regulation differ from the case related to the Animal Protection Directive and this might have been crucial for 40 Case C-5/94, The Queen v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd. (European Court of Justice, 23 May 1996). 41 OJ L 316, 26 November 1974, p. 10-11.

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