H, an Afghan national, applied for international protection in Denmark on 25 April 2021. A Eurodac search revealed that he had already applied for asylum in Romania on 5 March 2021. Romania accepted a take back request on 7 July 2021. On 19 July 2021, the applicant appealed before the Refugee Appeals Board the decision to transfer him to Romania. The appeal held suspensive effect. Following a decision by the Romanian authorities to suspend all inbound Dublin transfers due to the large influx of refugees to Romania, as a result of the Russian invasion of Ukraine, the case was remitted to the Immigration Service for reevaluation. Once more, the Immigration Service decided to transfer the applicant to Romania, and this decision was appealed by the applicant on 8 April 2022. On 24 May 2022, the suspension of inbound transfers by the Romanian authorities was lifted and the board confirmed the legality of the transfer on 2 December 2022.

On 2 February 2023, the applicant requested the reopening of the case, as he argued that the six-month time limit for carrying out the transfer according to Article 29(1) of the Dublin III Regulation had elapsed by the time the Immigration Service made the second transfer decision on 8 April 2022. Nevertheless, after reopening the proceedings, the board once more confirmed the validity of the transfer as it considered that the six-month limit only started to run from the final decision on 2 December 2022.

Upon request from the Danish Refugee Council, the board decided to reopen the case in order to re-examine the interpretation of the rules on time limits provided for in Articles 29(1) and (2), read in conjunction with Article 27 of the Dublin III Regulation. The board stayed the proceedings and referred questions to the CJEU for a preliminary ruling.

The referring tribunal asked whether Articles 29(1) and (2) of the Dublin III Regulation must be interpreted as meaning that, where a national court or tribunal hearing an action for annulment with suspensive effect makes a final decision on the substantive legality of a second transfer decision, adopted after a first transfer decision concerning the same person has been annulled solely on the ground of a change in circumstances that is decisive for the correct application of that regulation, resulting in a remittal of the case to the competent administrative authority for re-examination, the six-month transfer time limit laid down in Article 29(1) starts to run

– on the date of the final decision on the legality of the second transfer, or

– on the date on which the first transfer decision was annulled.

The CJEU ruled that the six-month time limit only starts to run on the date of the final decision on the substantive legality of the second decision and, to ensure that the duration of the procedure is reasonable, that second transfer decision and the final decision on the action for annulment brought against that decision must be adopted within a short period of time.

In reaching this conclusion, the CJEU firstly recalled the wording of the first subparagraph of Article 29(1) of the Dublin III Regulation, which provides that the transfer of the person concerned must be carried out as soon as practically possible and, in any event, within six months either of the acceptance by another Member State of the request to take charge or to take back the person concerned, or of the final decision on an appeal or review where that appeal has suspensive effect in accordance with Article 27(3). It held that the use of the conjunction “or” makes clear that these two reference points are alternatives and that these two situations are mutually exclusive.

With regard to the second situation, the CJEU emphasized that Article 29(1) refers simply to the moment when the decision on an appeal against a transfer decision becomes final, without drawing any distinction based on the outcome of that appeal. The provision does not suggest that this situation ceases to apply where the judicial authority annuls the transfer decision. Consequently, the fact that a transfer decision is set aside by a court does not, in itself, remove the applicability of the rule that the six-month period runs from the final judicial decision where the appeal has suspensive effect.

The CJEU therefore found that where a transfer decision is subject to an appeal with suspensive effect under Article 27(3) of the Dublin III Regulation, the six-month transfer time limit runs, by way of derogation from the general rule, not from the acceptance of the take-charge or take-back request by another Member State, but from the date on which the judicial decision on that appeal becomes final. In such circumstances, the time limit does not begin to run until all legal remedies provided for under national law have been exhausted and the judicial decision has acquired finality, irrespective of whether that decision confirms or annuls the transfer decision.

The CJEU asserted that postponing the start of the six-month transfer time limit until the appeal against a transfer decision has been finally resolved preserves equality of arms and ensures the effectiveness of appeal proceedings. This approach prevents the time limit from expiring while the execution of the transfer decision is legally impossible because an appeal with suspensive effect is pending.

The court further highlighted that H brought two actions for annulment of the two transfer decisions, both with suspensive effect, which ruled out the first situation provided for in the first subparagraph of Article 29(1) of the Dublin III Regulation. Thus, the CJEU considered it necessary to examine the question referred relating to the application of the second situation provided for in the first subparagraph of Article 29(1) of the Dublin III Regulation (“the final decision on an appeal or review where there is a suspensive effect”), which does not lay down specific rules on the calculation of that time limit where the judicial authority rules on the legality of the second transfer decision adopted in respect of the same person.

Considering that applicants have the right to an effective remedy in fact and in law, against a transfer decision, before a court or tribunal, the court further observed that according to recital 19 of the Dublin III Regulation, an effective remedy against the transfer decisions must cover both the examination of the application of that regulation and of the legal and factual situation in the Member State to which the applicant is transferred. In addition, the CJEU had already held that the transfer time limit must run from the date of the judicial decision ruling on the merits of that procedure (Petrosian and Others, C‑19/08, 29 January 2009), which in some national systems may lead to the existence of two transfer decisions and two separate appeals that form part of the same procedure.

The CJEU observed that in the context of such a single procedure, the decision which annuls the first transfer decision due to a change in circumstances must be regarded as an interim decision which does not terminate the procedure.

Furthermore, the court noted that Article 27 of the Dublin III Regulation did not specify whether and according to what procedures the court or tribunal hearing that action is required to take account of circumstances arising after the adoption of that decision. Thus, it follows that each Member State must organise its national law in such a way as to enable applicants to exercise their right to an effective remedy and where there are new circumstances, the judicial authority must annul the transfer decision and remit the case to the competent administrative authority for re-examination in order for that authority to take that information into account. The court concluded that in such circumstances, this decision to annul the transfer and remit the case for re-examination does not constitute a final decision on the appeal, within the meaning of the first subparagraph of Article 29(1) of the Dublin III Regulation.

Furthermore, the court highlighted that the applicant must have an effective and rapid remedy available to rely on circumstances subsequent to the adoption of the transfer decision and the fact that national legislation provides that, in case of a remittal to the administrative authority, it is for that administrative authority to re-examine the transfer does not, in principle, preclude compliance with the obligation to provide for a rapid and effective remedy. Nonetheless, national law must be adapted so that the competent administrative authority carries out the re-examination without undue delay and that the judicial authority hearing the case again rules in a short period of time. Moreover, such national legislation cannot allow the authorities of the requesting Member State to repeatedly remit the case to the administrative authority without ever examining the request for international protection, which would compromise an effective access to the international protection procedure and the effectiveness of judicial protection.

In the present case, the Immigration Service adopted the second transfer decision on 8 April 2022, less than four weeks after the annulment of the initial transfer decision and the remittal of the case for re-examination on 15 March 2022, which, according to the CJEU, was thus done without undue delay.

The CJEU further noted that it is for the Refugee Appeals Board to ascertain whether it may be considered that, by dismissing the action for annulment of the second transfer decision on 8 December 2022, it ruled on that appeal within a short period of time, even though the appeal was lodged before it almost eight months earlier and Romania informed all the Member States of the lifting of the suspension of incoming transfers under the Dublin III Regulation on 24 May 2022. Second, the CJEU also held that it is for the Refugee Appeals Board to ascertain whether the duration of the procedure relating to H’s transfer (almost 17 months since Romania’s acceptance) went beyond what was necessary. 

Lastly, if the court that the take back procedures were not carried out without undue delay, the application for international protection should be examined by a Member State other than the one designated as responsible under the criteria set out in Chapter III of the Dublin III Regulation.

Thus, the CJEU held that Article 29(1) and (2) of the Dublin III Regulation must be interpreted as meaning that, where a national court or tribunal hearing an action for annulment with suspensive effect makes a final decision on the substantive legality of a second transfer decision, adopted after a first transfer decision concerning the same person has been annulled on the ground of a change in circumstances that is decisive, resulting in the remittal of the case to the competent administrative authority for re-examination, the six-month transfer time limit laid down in Article 29(1) starts to run on the date of the final decision on the substantive legality of that second decision. In addition, in order to ensure that the duration of the procedure relating to the transfer of the person concerned does not go beyond what is necessary, that second transfer decision and the final decision on the action for annulment brought against that decision must be adopted within a short period of time.