The applicant had lodged an application for international protection in Belgium on 29 August 2025. The Belgian authorities determined that Sweden was responsible for examining his application under the Dublin III Regulation, and the decision became final. The applicant was subsequently transferred to Sweden by the Belgian authorities on 30 October 2025. He then travelled to the Netherlands, where he lodged a new application for international protection on 30 January 2026. By decision of 25 June 2026, the Minister for Asylum and Migration decided not to examine his application, considering Sweden responsible for examining it under the Dublin III Regulation.

The applicant challenged the decision, arguing that Sweden had been incorrectly determined as the responsible Member State. He submitted that the Belgian authorities had relied on incorrect information, as his Swedish residence permit had been revoked with effect from 17 February 2023. He further argued that, pursuant to the transitional provision under Article 84(2) of the AMMR, the scope of judicial review should continue to be determined in accordance with Article 27 of the Dublin III Regulation for applications registered before 12 June 2026, irrespective of whether the administrative decision had been adopted before or after that date. He also contended that applying Article 43(1) of the AMMR would undermine the effectiveness of the transitional arrangements and deprive him of an effective remedy, as he could no longer challenge the determination of Sweden as the responsible Member State in the Belgian proceedings. In addition, he argued that the restriction of the scope of judicial review would result in unequal treatment of applicants whose applications had been registered around the same time but on which decisions had been adopted before 12 June 2026.

On 30 July 2026, the District Court of The Hague, sitting in Utrecht, dismissed the appeal. It considered that the applicant's argument concerning the incorrect determination of Sweden as the responsible Member State fell outside the scope of judicial review provided for under Article 43(1) of the AMMR and that this interpretation was not contrary to Article 47 of the EU Charter of Fundamental Rights of the European Union (EU Charter). The applicant subsequently appealed to the Council of State. The minister maintained that Article 43(1) of the  AMMR governed the scope of judicial review in transfer decisions adopted after 12 June 2026, including where the determination of the responsible Member State had been made in accordance with the Dublin III Regulation pursuant to Article 84(2) of the AMMR.

The Council of State expressed the preliminary view that the principles of legal certainty and the right to an effective remedy under Article 47 of the EU Charter, read in conjunction with Article 84(2) of the AMMR, preclude the immediate application of the restricted appeal grounds under Article 43(1) of the AMMR in proceedings concerning applications for international protection registered before 12 June 2026, where the responsible Member State had been determined in accordance with the Dublin III Regulation. It considered that Article 84(2)of the AMMR should not be interpreted as concerning only the determination of the responsible Member State by the competent authority, but should also retain relevance for ongoing judicial proceedings concerning transfer decisions adopted after 12 June 2026. In the Council of State's preliminary view, the Dublin III Regulation should therefore continue to govern judicial review of the determination of the responsible Member State in such cases. It referred in this regard to the CJEU judgments in Mehrdad Ghezelbash v Secretary of State for Security and Justice (C-63/15, 7 June 2016) and George Karim v Swedish Migration Board (C-155/15, 7 June 2016), which established that applicants must be able to challenge the incorrect application of the criteria for determining the Member State responsible.

The Council of State further considered that the transitional provision in Article 84(2) of the AMMR should encompass not only the substantive responsibility criteria in Chapter III of the Dublin III Regulation, but also other provisions on the basis of which responsibility may be determined, including take-back provisions, discretionary clauses such as Article 17, and procedural provisions such as Article 29. It also expressed the preliminary view that the scope of judicial review in cases involving applications registered before 12 June 2026 should not depend on whether the administrative decision was adopted before or after that date, or on the date on which the appeal was lodged or the court closed the investigation. It considered that such distinctions could result in unequal treatment of applicants in comparable situations.

Nevertheless, the Council of State acknowledged that its preliminary interpretation could be at odds with the principle under EU law that procedural rules generally apply immediately from the date on which they enter into force, including to ongoing proceedings. It noted that the AMMR does not expressly provide for a specific transitional arrangement excluding the immediate application of Article 43(1) of the AMMR. It also observed that, in the present case, the applicant had initiated the appeal proceedings after 12 June 2026, meaning that the immediate application of the provision did not strictly entail prohibited retroactive effect. The Council of State therefore referred the matter to the CJEU for clarification.

In addition, the Council of State provisionally considered that, if Article 43(1) of the AMMR was applicable, the applicant's argument that Sweden had been incorrectly determined as the responsible Member State would fall outside the scope of Article 43(1)(b) of the AMMR. The provision refers to circumstances arising after the transfer decision that determine the correct application of the AMMR. In the Council of State's preliminary view, the revocation of the applicant's Swedish residence permit had occurred before the transfer decision, and the fact that the incorrect information only came to light during the Dutch proceedings did not bring the applicant's argument within the scope of that provision. The Council of State therefore also raised the question of whether the relevant provisions of the AMMR would be valid in light of Article 47 of the EU Charter if their application prevented the applicant from challenging the determination of the responsible Member State.

The Council of State referred three questions to the CJEU:

“(1) Is Article 84(2) of Regulation (EU) 2024/1351 on Asylum and Migration Management, as corrected by 2025/90929, to be interpreted as meaning that the term "according to the criteria laid down in Regulation (EU) No 604/2013" refers only to the substantive criteria laid down in Chapter III of that regulation? If not, what other provisions of Regulation (EU) No 604/2013 are meant by this?

2a) Are Articles 84(2) and 85 of Regulation (EU) 2024/1351 on asylum and migration management, read in the light of the principle of legal certainty and the right to an effective remedy enshrined in Article 47 of the EU Charter, to be interpreted as meaning that Article 43(1) of Regulation (EU) 2024/1351 applies to an appeal procedure against a transfer decision in which the Minister has informed the Member State responsible in accordance with Article 84(1) of the second paragraph of Regulation (EU) 2024/1351 on the basis of the criteria laid down in Regulation (EU) No 604/2013?

(2b) In answering this question, is it relevant, also in the light of the principle of equality, whether the Minister took a decision on the application for international protection before or after 12 June 2026, or is a decisive moment in the appeal procedure, such as the date on which the appeal was lodged or the court closed the investigation at the hearing?

(3) If the answer to Question 2(a) is in the affirmative, are Articles 84, 85(2) and 43(1) of Regulation (EU) 2024/1351 valid in the light of the right to effective judicial protection enshrined in Article 47 of the EU Charter if Article 43(1) of Regulation (EU) 2024/1351 has the effect that the limitation of the scope of the appeal laid down in that paragraph prevents an applicant from refusing the determination of the challenge of the Member State responsible if the application for international protection was registered before 12 June 2026?”

The Council of State requested that the reference be dealt with under an expedited procedure, noting that the questions were relevant to numerous pending transfer cases in the Netherlands and other Member States and that the interpretation of the transitional arrangements was important for the uniform application of the AMMR and the functioning of the Common European Asylum System. It also referred to the short deadlines applicable to transfer procedures and the consequences of the expiry of the transfer period, following which responsibility for examining the application shifts to the requesting Member State. The Council of State stayed the proceedings pending the CJEU's preliminary ruling.