The obligation of a State under Article 17 of the Dublin III Regulation does not imply an obligation on the State to decide on the applicant's request or request for the use of a discretionary clause. It is the right of a country based on its sovereignty to decide to treat an applicant, even if it is not its obligation under the provisions of the Dublin III Regulation. Such a claim by the plaintiff cannot be (substantively) decided in the administrative procedure, since it is not an administrative matter and the administrative decision would be rendered null and void. It is therefore logical that in this case the administrative dispute is also inadmissible.
The decision to surrender Article 26 of the Dublin III Regulation in the present case, when it was decided that the Republic of Slovenia would not consider the request for international protection of an applicant for transfer to another Member State, has essentially the same legal consequences as it would have had a decision by which the competent authority would reject an application for international protection if it found that another Member State was competent to deal with it (fourth indent of Article 51 of the ZMZ-1).
The appeal is upheld, the judgment of the Administrative Court of the Republic of Slovenia IU 2707 / 2017-7 of 15 December 2017 (point I of the operative part of the judgment and order) is quashed and the action dismissed.
For more information please consult our