Registered before the CJEU under C-1023/26 PPU [Midsen]

A husband, wife and their 11-month-old baby, who are Libyan nationals, applied for international protection on 7 July 2026. Italy was found to be responsible for examining their application as the Italian government had previously issued them with visas valid from 8 June 2026 to 22 July 2026. The applicants appealed against the decision to transfer them to Italy and applied for suspensive effect. They argued that the transfer would not be in the best interests of their child. The request for suspensive effect was submitted at the same time the appeal was lodged, which automatically suspended the implementation of the transfer decision and allowed them to remain in the Netherlands to await the decision of the court until the request was decided on.

The District Court of the Hague, seated in Roermond, stayed the proceedings and referred three questions to the CJEU with a request for the urgent preliminary ruling procedure to be applied.

Question 1

Is Article 43(1) of Regulation 2024/1351 (AMMR), read in the light of Article 23(1) of Regulation 2024/1351 and Articles 7, 24(2) and 47 of the Charter of Fundamental Rights of the European Union (EU Charter), valid in so far as it provides that the scope of an appeal against a transfer decision is limited to the conditions laid down in Article 43(1) of Regulation 2024/1351(a), (b) and (c) of paragraph 1?

The court proposed that the response should conclude that Article 43(1) is not valid.

The court explained that, by the first question, it is seeking clarification on whether applicants may rely on the best interests of the child, the right to respect for private and family life and other fundamental rights which are not absolute, to challenge the lawfulness of a transfer decision and seek judicial review. It noted that the adoption of a transfer decision constitutes the implementation of EU law, requiring national authorities to ensure compliance with the fundamental rights guaranteed by the EU Charter. Although the CJEU had previously clarified the scope of appeals against transfer decisions under the previous Dublin Regulations ((EC) No 343/2003 and (EU) No 604/2013), Article 43(1) of the AMMR expressly limits the grounds that applicants may invoke. The court considered that this restriction must be interpreted in light of recital 62, which emphasises the need for effective judicial protection of applicants' rights to private and family life, the rights of the child and protection against inhuman or degrading treatment resulting from a transfer, as well as recital 87, which requires the AMMR to be applied in full respect of fundamental rights. It also highlighted Article 23(1), under which the best interests of the child must be a primary consideration in all procedures provided for by the AMMR. In view of these provisions, the court considered it unclear whether Article 43(1) excludes reliance on fundamental rights other than the prohibition of inhuman or degrading treatment under Article 4 of the EU Charter. It therefore asked whether such a restriction on the grounds of appeal is compatible with the right to an effective remedy and a fair hearing guaranteed by Article 47 of the EU Charter.

In the courts opinion, Article 43(1) should not be considered as valid, as the best interests of the child are a right conferred on the child of the applicants by virtue of the 1989 United Nations Convention on the Rights of the Child (UN CRC), the EU Charter, as well as the AMMR, and therefore, applicants must be able to rely on this right when challenging a transfer decision to ensure compliance with that right subject to judicial review and to be able to request the protection of that right by the court.

Question 2

Is Article 23(1) of the AMMR, read in conjunction with Article 24(2) and Article 47 of the EU Charter, to be interpreted as meaning that the judicial authority called upon to review the lawfulness of a transfer decision is required to: if necessary of its own motion, examine the best interests of the child and to take that interest into account as an initial consideration in that judicial review?

The court proposed that this question be answered in the affirmative.

The court noted that even if the CJEU answers the first question by finding that Article 43(1) is valid, the court must still determine how to fulfil its own obligation under Article 23(1) of the AMMR which required the best interests of the child to be a primary consideration in all procedures under the regulation.

The court considered that this obligation applies to judicial authorities as well as administrative authorities, in accordance with Article 24(2) of the EU Charter and Article 3(1) of the UN CRC. It emphasised that the presumption that a child's best interests are served by remaining with their parents does not automatically mean that a transfer is in the child's best interests, since the child may also benefit from remaining with their parents in the requesting Member State. With reference to Recital 46 of the AMMR, the court noted that the assessment must take into account the child's short, medium and long-term well-being and social development, safety, views, age, maturity and background, and applies to all minors, not only to unaccompanied children.

In the case at hand, the competent authority had not individually examined the best interests of the applicants' minor child, instead relying on the fact that the child would remain with the parents and placing the burden on the applicants to demonstrate why the transfer to Italy would be contrary to the child's interests. Although the applicants also failed to substantiate their claims, including their assertions that the child required medical assistance and would not receive adequate care after a transfer, the court questioned whether it was nevertheless required to investigate the child's best interests of its own motion, potentially by obtaining further evidence or appointing an expert. Referring to the CJEU's judgment in K and L v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) (C-646/21, 11 June 2024), the court considered that the best interests of the child must influence not only the substantive assessment but also the procedures leading to a decision. It therefore sought clarification on whether the judicial authority has an independent obligation to conduct a further assessment of the child's best interests where the parties have not adequately addressed the issue.

Question 3

Is Article 46(1) of Regulation 2024/1351, read in conjunction with Article 43(3) of Regulation 2024/1351, to be interpreted as meaning that the transfer time limit starts to run only from the final decision on the appeal or objection to a transfer decision if the suspensive effect has been conferred by a court decision on the first application for suspension in accordance with Article 43(3), or is it sufficient for that purpose that suspensive effect has been requested?

By the third question, the court sought clarification on the start of the transfer period if the judicial authority has not made a decision on the first request for suspensive effect within six months of the date on which the readmission has been accepted.

The court first noted that the suspensive effect does not mean that the period within which the transfer must be carried out is extended. Article 43(3) of the AMMR lists the time limits for a decision on appeal. In this regard, a decision on a request for suspensive effect must be taken within one month. If it is granted, the judicial authority must endeavour to issue a decision on the merits of the appeal within one month of that decision. However, the court noted that there is no provision regarding the consequences for non-compliance by courts with such time limits, and that both parties have no possibility to enforce a decision on the first request for suspension or appeal or objection, or to expedite the adoption of such a decision.

Non-compliance with these time limits also does not lead to the extension of the transfer time limit, even if a decision has not yet been taken and the six month period for effecting the transfer has expired. The start of the transfer period is regulated by Article 46(1) of the AMMR. The court considered how the regulation should be applied if suspensive effect was obtained by a request for suspension submitted in good time. It noted that it appears that the EU legislature has provided that only in the case where a court decides on the first request and grants suspensive effect does the transfer period start to run from the final decision on the objection and appeal.

In the present case, the court noted that the applicants requested suspensive effect on 26 August 2026, and that by referring questions to the CJEU before resolving the dispute, it failed to fulfil its obligation to take a decision on the application of suspensive effect within one month. Additionally, it highlighted that if the CJEU does not address the questions in the urgent preliminary ruling procedure, it is likely that the six-month period will elapse before the court decides on the first request for suspension and the appeal. It stressed that it cannot take a decision before the CJEU rules on whether the applicant can invoke the best interest of the child and how the court should fulfil its own obligations in this regard. Additionally, it found that the applicants no longer have an interest in a decision of the court granting suspensive effect because they have already obtained it.

The court sought clarification on how the phrase stipulated in Article 46(1) of the AMMR which concerns the implementation of a transfer as soon as practically possible and within six months “from the final decision on the appeal or objection to a transfer decision with suspensive effect in accordance with Article 43(3)" is to be understood.

The court highlighted that if suspensive effect was obtained solely by applying for suspension in good time, the transfer period starts to run at the time when the court rules on the appeal, that means that the starting point is uncertain and that the procedure for determining the Member State responsible and carrying out the transfer will, in any event, be considerable. Based on the CJEU's previous court rulings interpreting the Dublin III Regulation, as well as Paragraph 37 and 64 of the AMMR, the court understood that the EU legislature intended for the rapid determination of the responsible Member State but in a way that does not prejudice the fundamental rights of the applicants.

The court noted that the AMMR does not specify the consequences of a court failing to decide on a request for suspension within the prescribed time limits. It therefore questions whether, if six months elapse after Italy accepts responsibility without the court ruling on the first suspension request, the Netherlands becomes responsible for examining the applications under Article 46(2), or whether the transfer period begins only when the court decides on the appeal.

The court considered that interpreting Article 46(1) as meaning that a timely request for suspensive effect postpones the start of the transfer period until the final decision on the appeal would create uncertainty, as the proceedings would have no clearly enforceable maximum duration. This would undermine the objectives of the AMMR, including the rapid determination of the responsible Member State and the reduction of secondary migration. It could also create unjustified disparities between applicants depending on judicial workloads and delays in different Member States, while leaving applicants uncertain about which Member State will examine their applications.

The court further considered that making the Netherlands responsible solely because of judicial delays would undermine the regulation's system for determining responsibility, particularly since the authorities cannot control the timing of judicial decisions or prevent the transfer period from expiring.

Accordingly, the court asked the CJEU to clarify whether Article 46(1) of the AMMR applies only where a court has actually granted suspensive effect, rather than where suspensive effect arises automatically from a timely request for suspension. Although the six-month period has not yet expired in the main proceedings, the court considers the question necessary because it anticipates being unable to decide on the suspension request and appeal before that deadline.