The request for a preliminary ruling concerned the interpretation of Article 27(3) and Article 29(1) and (2) of the Dublin III Regulation and was made by the Dutch Council of State in proceedings between the State Secretary for Justice and Security and three third-country nationals, concerning decisions of the State Secretary not to consider their applications for international protection and to order their transfer to other Member States.

The three applicants, E.N., S.S. and J.Y., requested international protection in the Netherlands on 12 July 2019, 7 October 2019 and 22 November 2020 respectively. The State Secretary submitted to the authorities of other Member States requests to take charge or to take back and on 27 October 2019, 20 November 2019 and 19 January 2021, those requests were accepted, either explicitly or implicitly. On 9 January 2020, 8 February 2020 and 16 February 2021, the State Secretary decided not to consider the applications and to transfer them to the other Member States. The three applicants requested the annulment of those decisions before courts of first instance, which annulled those decisions on 25 February 2020, 16 September 2020 and 1 April 2021, and ordered the State Secretary to take new decisions on those applications for international protection. The State Secretary appealed before the Council of State, and requested interim orders so that it would not be required to take a new decision before decisions would be taken on the appeals and, second, that the transfer time limit be suspended. The judge hearing the applications for interim measures granted them on 3 March 2020, 18 September 2020 and 8 April 2021.

The Council of State suspended the proceedings and referred one question to the CJEU for a preliminary ruling: ‘Must [Article 27(3) and Article 29] of [the Dublin III Regulation] be interpreted as not precluding, where the legal system of the Member State provides for [a second level of jurisdiction] in cases such as that at issue here, the appellate court, during the hearing of the case, from granting, at the request of the competent authority of the Member State, an interim measure suspending the transfer time limit?’

The CJEU noted that Article 29(1) of the Dublin III Regulation provides that a transfer is to be carried out as soon as practically possible and, at the latest, within six months of the acceptance of a take charge or take back request or of the final decision on an appeal where there is suspensive effect in accordance with Article 27(3) of the Dublin III Regulation. If the transfer is not carried out within six months, responsibility is transferred to the requesting Member State.

However, the court noted that EU law does not intend to prioritise an expedited processing of an application for international protection over judicial protection of applicants, and in that sense Article 27(3) provides the person concerned with a remedy that may suspend the implementation of a transfer decision. Thus, Member States must provide either, that an appeal against the transfer gives the right to remain pending the outcome of the appeal or an automatic suspension when lodging the appeal so that the court may determine whether to give suspensive effect to that appeal or, thirdly, the possibility to lodge an appeal to suspend the implementation of the transfer pending the outcome of the appeal against the transfer decision. The court further added that Article 27(4) gives the national authorities the possibility to act ex officio to suspend the implementation of the transfer decision.

The CJEU added that where the suspension of the implementation of the transfer decision results from Article 27(3) or (4), the transfer time limit runs from the final decision on the appeal against the transfer decision and not from the acceptance of the take charge or take back requests.

The CJEU further added that Article 27(3) governs exclusively interim measures which may result, automatically or based on the application of the person concerned, from the lodging of an appeal or a request for review brought at first instance against a transfer decision and not interim measures in the context of an appeal at second instance brought by the national competent authorities.

The court concluded that Article 27(4) cannot be applied to the situation presented in the case referred by the Council of State, as the transfer decision was annulled at first instance and thus, at second instance there is no longer a transfer decision that could be suspended. It further added that in accordance with the principle of procedural autonomy, national legislation may provide that a court hearing an appeal at second instance may order interim measures at the request of competent authorities without derogating from Article 29(1).

The court also noted that the 6 months transfer time limit can begin to run from the final decision on the appeal brought against the transfer decision only in so far as the implementation of that decision was suspended during the examination of the appeal at first instance, pursuant to Article 27(3) or (4) and an interim measure suspending the transfer time limit pending the outcome of an appeal at second instance can be adopted only if the implementation of the transfer decision has been suspended pending the outcome of the appeal at first instance.

Thus, the CJEU held that Article 29(1) and (2) read in conjunction with Article 27(3) of the Dublin III Regulation do not preclude national legislation which allows a national court hearing an appeal at second instance against a judgment annulling a transfer decision to adopt an interim measure at the request of the competent authorities, enabling the authorities to refrain from taking a new decision pending the outcome of the appeal and suspending the transfer time limit until that outcome, provided that the implementation of the transfer decision has been suspended pursuant to Article 27(3) or (4) during the appeal at first instance.