delivered on 25 July 2018 (1)

delivered on 25 July 2018 (1)

Joined Cases C‑297/17 and C‑318/17, C‑319/17 and C‑438/17

Joined Cases C‑297/17 and C‑318/17, C‑319/17 and C‑438/17

Bashar Ibrahim (C‑297/17),

Bashar Ibrahim (C‑297/17),

Mahmud Ibrahim (C-318/17),

Fadwa Ibrahim (C-318/17),

Mahmud Ibrahim (C-318/17),

Bushra Ibrahim (C-318/17),

Fadwa Ibrahim (C-318/17),

Mohammad Ibrahim, legally represented by Fadwa and Mahmud Ibrahim (C‑318/17),

Bushra Ibrahim (C-318/17),

Ahmad Ibrahim, legally represented by Fadwa and Mahmud Ibrahim (C‑318/17),

Mohammad Ibrahim, legally represented by Fadwa and Mahmud Ibrahim (C‑318/17),

Nisreen Sharqawi (C-319/17),

Ahmad Ibrahim, legally represented by Fadwa and Mahmud Ibrahim (C‑318/17),

Yazan Fattayrji, legally represented by Nisreen Sharqawi (C-319/17),

Hosam Fattayrji, legally represented by Nisreen Sharqawi (C‑319/17)

Nisreen Sharqawi (C-319/17),

Yazan Fattayrji, legally represented by Nisreen Sharqawi (C-319/17),

Hosam Fattayrji, legally represented by Nisreen Sharqawi (C‑319/17)

Bundesrepubik Deutschland

Taus Magamadov (C‑438/17)

(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Germany))

(Reference for a preliminary ruling — Directive 2013/32/EU — Area of freedom, security and justice — Common procedures for granting and withdrawing international protection — Article 52 — Scope ratione temporis of that directive — Article 33(2)(a) — Rejection of an application for asylum as inadmissible on the ground that subsidiary protection has already been granted in another Member State — Articles 4 and 18 of the Charter of Fundamental Rights of the European Union — Systemic flaws in the asylum procedure in that other Member State — Directive 2011/95/EU — Article 20 et seq. — Living conditions of beneficiaries of subsidiary protection in the latter State — Real and proven risk of inhuman or degrading treatment)

Taus Magamadov (C‑438/17)

The requests for a preliminary ruling in Cases C‑297/17, C‑318/17 and C‑319/17 concern the interpretation of, first, Article 33(2)(a) and the first paragraph of Article 52 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (2) and Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, secondly, Article 20 et seq. of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. (3)

(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Germany))

The requests have been made in three sets of proceedings between Bashar Ibrahim (Case C‑297/17), Mahmud Ibrahim, Fadwa Ibrahim, Bushra Ibrahim, the minor children Mohammad and Ahmad Ibrahim (Case C‑318/17) and Nisreen Sharqawi and her minor children, Yazan and Hosam Fattayrji (Case C‑319/17), Palestinian asylum applicants who were resident in Syria and are stateless, and the Bundesrepublik Deutschland (Federal Republic of Germany), concerning the decisions adopted by the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany, ‘the Office’) refusing them a right to asylum on the ground that they had entered from a safe third country.

(Reference for a preliminary ruling — Directive 2013/32/EU — Area of freedom, security and justice — Common procedures for granting and withdrawing international protection — Article 52 — Scope ratione temporis of that directive — Article 33(2)(a) — Rejection of an application for asylum as inadmissible on the ground that subsidiary protection has already been granted in another Member State — Articles 4 and 18 of the Charter of Fundamental Rights of the European Union — Systemic flaws in the asylum procedure in that other Member State — Directive 2011/95/EU — Article 20 et seq. — Living conditions of beneficiaries of subsidiary protection in the latter State — Real and proven risk of inhuman or degrading treatment)

The request for a preliminary ruling in Case C‑438/17 concerns the interpretation of Article 33(2)(a) and the first paragraph of Article 52 of Directive 2013/32.

The requests for a preliminary ruling in Cases C‑297/17, C‑318/17 and C‑319/17 concern the interpretation of, first, Article 33(2)(a) and the first paragraph of Article 52 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (2) and Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, secondly, Article 20 et seq. of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. (3)

That request was made in the course of proceedings between the Federal Republic of Germany and Taus Magamadov, an asylum applicant of Russian nationality, who claims to be Chechen and who was resident in Poland, concerning a decision adopted by the Office refusing him a right to asylum on the ground that he had entered from a safe third country.

The requests have been made in three sets of proceedings between Bashar Ibrahim (Case C‑297/17), Mahmud Ibrahim, Fadwa Ibrahim, Bushra Ibrahim, the minor children Mohammad and Ahmad Ibrahim (Case C‑318/17) and Nisreen Sharqawi and her minor children, Yazan and Hosam Fattayrji (Case C‑319/17), Palestinian asylum applicants who were resident in Syria and are stateless, and the Bundesrepublik Deutschland (Federal Republic of Germany), concerning the decisions adopted by the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany, ‘the Office’) refusing them a right to asylum on the ground that they had entered from a safe third country.

The request for a preliminary ruling in Case C‑438/17 concerns the interpretation of Article 33(2)(a) and the first paragraph of Article 52 of Directive 2013/32.

Article 21 of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, (4) which entered into force on 22 April 1954, as supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967, (‘the Geneva Convention’), entitled ‘Housing’, provides:

That request was made in the course of proceedings between the Federal Republic of Germany and Taus Magamadov, an asylum applicant of Russian nationality, who claims to be Chechen and who was resident in Poland, concerning a decision adopted by the Office refusing him a right to asylum on the ground that he had entered from a safe third country.

‘As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.’

Under the heading ‘Prohibition of torture’, Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), provides:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

‘As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.’

Under Article 1 of the Charter, entitled ‘Human dignity’:

6. Under the heading ‘Prohibition of torture’, Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), provides:

‘Human dignity is inviolable. It must be respected and protected.’

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

Article 4 of the Charter, entitled ‘Prohibition of torture and inhuman or degrading treatment or punishment’, states:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

Article 18 of the Charter, entitled ‘Right to asylum’, provides:

‘The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union …’

‘Human dignity is inviolable. It must be respected and protected.’

Article 51 of the Charter, entitled ‘Field of application’, provides in paragraph 1:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.’

Article 18 of the Charter, entitled ‘Right to asylum’, provides:

Article 52 of the Charter, entitled ‘Scope and interpretation of rights and principles’, provides in paragraph 3:

‘The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union …’

‘In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.’

10. Article 52 of the Charter, entitled ‘Scope and interpretation of rights and principles’, provides in paragraph 3:

Article 33 of Directive 2013/32, entitled ‘Inadmissible applications’, provides:

‘1. In addition to cases in which an application is not examined in accordance with Regulation (EU) No 604/2013, Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive 2011/95/EU where an application is considered inadmissible pursuant to this Article.

‘In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

(a) another Member State has granted international protection;

11. Article 33 of Directive 2013/32, entitled ‘Inadmissible applications’, provides:

…’

‘1. In addition to cases in which an application is not examined in accordance with Regulation (EU) No 604/2013, Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive 2011/95/EU where an application is considered inadmissible pursuant to this Article.

Article 40 of that directive, entitled ‘Subsequent application’, provides:

‘…

(a) another Member State has granted international protection;

…’

12. Article 40 of that directive, entitled ‘Subsequent application’, provides:

‘…

…’

Article 51(1) of that directive states:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 1 to 30, Article 31(1), (2) and (6) to (9), Articles 32 to 46, Articles 49 and 50 and Annex I by 20 July 2015 at the latest. They shall forthwith communicate the text of those measures to the Commission.’

…’

Under the first paragraph of Article 52 of Directive 2013/32:

‘Member States shall apply the laws, regulations and administrative provisions referred to in Article 51(1) to applications for international protection lodged and to procedures for the withdrawal of international protection started after 20 July 2015 or an earlier date. Applications lodged before 20 July 2015 and procedures for the withdrawal of refugee status started before that date shall be governed by the laws, regulations and administrative provisions adopted pursuant to [Council] Directive 2005/85/EC [of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (5)].’

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 1 to 30, Article 31(1), (2) and (6) to (9), Articles 32 to 46, Articles 49 and 50 and Annex I by 20 July 2015 at the latest. They shall forthwith communicate the text of those measures to the Commission.’

14. Under the first paragraph of Article 52 of Directive 2013/32:

Paragraph 29 of the Asylgesetz (Law on asylum, ‘the AsylG’), of 2 September 2008, as amended by the Integrationsgesetz (Law on integration) of 31 July 2016 (BGBl. I S., p. 1939), provides:

‘Member States shall apply the laws, regulations and administrative provisions referred to in Article 51(1) to applications for international protection lodged and to procedures for the withdrawal of international protection started after 20 July 2015 or an earlier date. Applications lodged before 20 July 2015 and procedures for the withdrawal of refugee status started before that date shall be governed by the laws, regulations and administrative provisions adopted pursuant to [Council] Directive 2005/85/EC [of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (5)].’

‘(1) An application for asylum is inadmissible if

15. Paragraph 29 of the Asylgesetz (Law on asylum, ‘the AsylG’), of 2 September 2008, as amended by the Integrationsgesetz (Law on integration) of 31 July 2016 (BGBl. I S., p. 1939), provides:

(a) under [the Dublin III (6)] Regulation … or

(b) under other European Union rules or an international agreement

‘(1) An application for asylum is inadmissible if

(a) under [the Dublin III (6)] Regulation … or

Paragraph 77(1) of the AsylG provides:

(b) under other European Union rules or an international agreement

‘In disputes falling within the scope of this law, the court shall rely on the situation of fact and of law obtaining at the time of the last hearing; if a judgment is given without a hearing, the relevant point in time shall be that at which the judgment is given. ...’

II. The disputes in the main proceedings and the questions referred for a preliminary ruling

16. Paragraph 77(1) of the AsylG provides:

‘In disputes falling within the scope of this law, the court shall rely on the situation of fact and of law obtaining at the time of the last hearing; if a judgment is given without a hearing, the relevant point in time shall be that at which the judgment is given. ...’

The applicant in Case C‑297/17, (7) Bashar Ibrahim, is the son of Mahmud Ibrahim and Fadwa Ibrahim and the brother of the three other applicants, (8) who, like their parents, are the applicants in Case C‑318/17.

II. The disputes in the main proceedings and the questions referred for a preliminary ruling

The applicants in the main proceedings in those cases left Syria in 2012 to enter Bulgaria, where, by decisions of 26 February and 7 May 2013, they were granted subsidiary protection. In November 2013, they continued their journey through Romania, Hungary and Austria to enter Germany, where, on 29 November 2013, they lodged a new application for asylum.

On 22 January 2014, the Office sent the Bulgarian national authorities requests to take back the persons concerned. Those authorities rejected the requests by letters of 28 January and 10 February 2014 on the ground that the subsidiary protection already granted to the applicants in the main proceedings in Cases C‑297/17 and C‑318/17 in Bulgaria rendered the system for taking back provided for in the Dublin III Regulation inapplicable in the present case. Moreover, the competent Bulgarian authority was the local border police.

By decisions of 27 February and 19 March 2014, the Office refused the applicants in the main proceedings in Cases C‑297/17 and C‑318/17 a right to asylum without examining the substance of their applications, on the ground that they had entered from a safe third country and ordered that they be deported to Bulgaria.

21. By judgments of 20 May and 22 July 2014, the Verwaltungsgericht (Administrative Court, Germany) dismissed the actions brought against those decisions.

By judgments of 20 May and 22 July 2014, the Verwaltungsgericht (Administrative Court, Germany) dismissed the actions brought against those decisions.

By judgments of 18 February 2016, the Oberverwaltungsgericht (Higher Administrative Court, Germany) annulled the orders for deportation to Bulgaria, but rejected the remaining requests. According to that court, the applicants in the main proceedings in Cases C‑297/17 and C‑318/17 had rightly been refused the right to asylum since they had arrived from a safe third country. The orders for deportation to Bulgaria were unlawful, however, since it had not been established that the Republic of Bulgaria was still willing to take charge of the applicants in the main proceedings in Cases C‑297/17 and C‑318/17.

Those applicants brought an appeal on a point of law before the Bundesverwaltungsgericht (Federal Administrative Court, Germany) against those decisions which partially rejected their applications. They submit, inter alia, that the system introduced by the Dublin III Regulation continues to apply after subsidiary protection has been granted. By contrast, the Office considers that the asylum applications are now inadmissible under Paragraph 29(1), point 2 of the AsylG, the content of which corresponds to that of Article 33(2)(a) of Directive 2013/32.

In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32 preclude the application of national legislation which, in transposition of the power conferred in Article 33(2)(a) of Directive 2013/32, which is more extensive than that conferred in the directive that preceded it, provides that an application for international protection is inadmissible if the applicant has been granted subsidiary protection in another Member State, in so far as the national legislation, in the absence of any national transitional provisions, is applicable even to applications lodged before 20 July 2015?

In particular, does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32 allow the Member States, in particular, to transpose the extended power conferred in Article 33(2)(a) of Directive 2013/32 retroactively, with the result that even applications which were lodged before that extended power was transposed into national law but which were not yet the subject of a final decision at the time of transposition are inadmissible?

(2) Does Article 33 of Directive 2013/32 confer on the Member States a right to choose whether to reject an application for asylum as inadmissible either on the ground that responsibility lies with another Member State (the Dublin Regulation) or under Article 33(2)(a) of Directive 2013/32?

(3) If the answer to Question 2 is in the affirmative, does EU law prevent a Member State from rejecting an application for international protection as inadmissible on the ground that subsidiary protection has been granted in another Member State, in transposition of Article 33(2)(a) of Directive 2013/32, where

(a) the applicant seeks to have the subsidiary protection granted to him in another Member State enhanced (by the award of refugee status) and the asylum procedure in the other Member State was (and continues to be) vitiated by systemic flaws, or

(b) the form which the international protection takes, that is to say the living conditions of those benefiting from subsidiary protection, in the other Member State which has already granted the applicant subsidiary protection,

– infringes Article 4 of the Charter and Article 3 ECHR or

– does not satisfy the requirements of Article 20 et seq. of Directive 2011/95/EU but does not in and of itself infringe Article 4 of the Charter or Article 3 ECHR?

(4) If Question 3b is to be answered in the affirmative, is this also the case where, although the persons benefiting from subsidiary protection do not receive any subsistence benefits at all or those which they do receive are very limited by comparison with those available in other Member States, they are to this extent not treated any differently from nationals of that Member State?

(5) If Question 2 is answered in the negative:

(a) Is the Dublin III Regulation applicable in a procedure for the grant of international protection if the asylum application was lodged before 1 January 2014 but the take back request was not lodged until after 1 January 2014 and the applicant had previously (in February 2013) been granted subsidiary protection in the requested Member State itself?

(b) Do the Dublin provisions support the inference of an — unwritten — transfer of responsibility to the Member State which has requested that an applicant be taken back, where the requested responsible Member State has refused to grant a take back request made, within the prescribed time limit, under the Dublin provisions and has instead referred to an international readmission agreement?’

On 2007, Mr Magamadov lodged an application for asylum in Poland, where, by decision of 13 October 2008, he was granted subsidiary protection. In June 2012, with his wife and his child, he entered Germany, where, on 19 June 2012, he lodged an application for asylum.

On 13 February 2013, the Office sent a take back request to the Polish authorities, which, on 18 February 2013, declared that they were willing to take charge of Mr Magamadov and his family.

By decision of 13 March 2013, the Office took the view, without examining the substance, that the asylum applications by Mr Magamadov and his family were inadmissible since the Republic of Poland was the Member State responsible for examining those applications and ordered that they be transferred to Poland. As the transfer did not take place within the prescribed period on account of medical issues experienced by Mr Magamadov’s wife, by decision of 24 September 2013, the Office withdrew its decision of 13 March 2013 on the ground that the Federal Republic of Germany had become the Member State responsible because that period had expired.

By decision of 23 June 2014, the Office refused to grant the applicant international protection and the right to asylum on the ground that he had entered from Poland and ordered that he be deported to that Member State.

By judgment of 19 May 2015, the Verwaltungsgericht (Administrative Court, Germany) dismissed the action brought against that decision.

By judgment of 21 April 2016, the Oberverwaltungsgericht (Higher Administrative Court) annulled the Office’s decision of 23 June 2014.

The Oberverwaltungsgericht (Higher Administrative Court) held that the rule in the first sentence of Paragraph 16a(2) of the Grundgesetz (German Basic Law), in accordance with which the right to asylum is not to be granted to a foreign national who has come from a safe country, did not apply in the case in the main proceedings on account of the derogation provided for in the third sentence of Paragraph 26a(1), point 2 of the AsylG, in accordance with which the safe third country rule does not apply where, as in the present case, the Federal Republic of Germany has become the Member State responsible under EU law. As the asylum application at issue in the case in the main proceedings was lodged before 20 July 2015, Directive 2005/85 applies. However, Article 25(2) of that directive allows an application for asylum to be rejected without an examination of the substance only if another Member State has granted the person concerned refugee status.

The Federal Republic of Germany appealed on a point of law against that judgment before Bundesverwaltungsgericht (Federal Administrative Court). It submits, inter alia, that the asylum application at issue in the case in the main proceedings is inadmissible pursuant to Paragraph 29(1), point 2 of the AsylG, the content of which corresponds to that of Article 33(2)(a) of Directive 2013/32, since the applicant was granted international protection in Poland.

Mr Magamadov considers that his application for asylum, lodged on 19 June 2012, is not inadmissible since the Republic of Poland did not grant him refugee status, but merely subsidiary protection.

The referring court states that the Office’s decision of 23 June 2014 was adopted before the entry into force of Directive 2013/32 and that the Dublin II, and not the Dublin III, Regulation applies to the facts at issue in the case in the main proceedings.

In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

Does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32 preclude the application of national legislation which, in transposition of the power conferred in Article 33(2)(a) of Directive 2013/32, which is more extensive than that conferred in the directive that preceded it, provides that an application for international protection is inadmissible if the applicant has been granted subsidiary protection in another Member State, in so far as the national legislation, in the absence of any national transitional provisions, is applicable even to applications lodged before 20 July 2015?

Is that in any event the case if, in accordance with Article 49 of [the Dublin III] Regulation …, the asylum application still falls entirely within the scope of [the Dublin II] Regulation …?

In particular, does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32 allow the Member States, in particular, to transpose the extended power conferred in Article 33(2)(a) of Directive 2013/32 retroactively, with the result that even applications that were lodged before the entry into force of Directive 2013/32 and before that extended power was transposed into national law, but that were not yet the subject of a final decision at the time of transposition, are inadmissible?

It should be noted that, under Article 33(2)(a) of Directive 2013/32, Member States may consider an application for international protection, namely an application seeking refugee status or subsidiary protection status, as inadmissible if another Member State has granted international protection. (10)

By contrast, in accordance with Article 25(2)(a) of Directive 2005/85, (11) Member States were able to consider an application for international protection as inadmissible if another Member State had granted *refugee status*. Therefore, in accordance with that provision, an application for refugee status could not be regarded as inadmissible if subsidiary protection status had been granted by another Member State. (12)

It follows that there is a clear distinction between the scope of those two provisions, as the Member States have more extensive powers to declare an application for international protection inadmissible under Article 33(2)(a) of Directive 2013/32 than under Article 25(2)(a) of Directive 2005/85. (13) Therefore, with regard to the admissibility of applications for international protection, it is important to know which of those two directives is applicable in the cases in the main proceedings.

In that regard, the first sentence of the first paragraph of Article 52 of Directive 2013/32 provides that Member States are to apply the national provisions transposing inter alia Article 33 of that directive to applications for international protection lodged and to procedures for the withdrawal of international protection started *after* 20 July 2015 (14)‘*or an earlier date*’.

It is apparent from the travaux préparatoires for Directive 2013/32 that the terms ‘*or an earlier date*’, which were not contained in the text of the Commission’s proposal (COM(2009) 554), were added to the end of the first sentence of the first paragraph of Article 52 of Directive 2013/32 by the Council at first reading. (15)

That inclusion has given rise to the present requests for preliminary rulings. It must be stated that that provision is a classic example of poor legislative drafting or indecisiveness which is behind several actions before the courts, thus leading to a considerable waste of resources at both national and European level, not to mention the hardship caused, if only in terms of time limits, to the persons concerned who have also already experienced other difficulties.

Without those terms, the first sentence of the first paragraph of Article 52 of Directive 2013/32 would be perfectly clear and 20 July 2015 would be the only relevant date in order to decide which directive is applicable. Moreover, what is the point in retaining the words ‘*after 20 July 2015*’ if it is also to refer to applications lodged before that date?

To determine whether 20 July 2015 remains relevant for the purposes of determining the application *ratione temporis* of Directive 2013/32, in line with the observations of the Polish Government and the Commission, I consider that the first paragraph of Article 52 of Directive 2013/32 must be read as a whole.

Under the second sentence of the first paragraph of Article 52 of Directive 2013/32, applications lodged *before* 20 July 2015 and procedures for the withdrawal of refugee status started *before* that date are to be governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85.

It follows from that provision, which is perfectly clear and prescriptive, that the asylum applications by the applicants in the main proceedings, which were all lodged before 20 July 2015, are governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85. (16) If the words ‘*or an earlier date*’ at the end of the first sentence of the first paragraph of Article 52 of Directive 2013/32 were to be interpreted as allowing Member States to apply the national provisions transposing Directive 2013/32 to applications lodged before 20 July 2015, that interpretation would be the diametrical opposite of the second sentence of the first paragraph of Article 52 of Directive 2013/32 and distort its clear meaning.

However, I see no reason why the clear meaning of the second sentence of the first paragraph of Article 52 of Directive 2013/32 should be ‘sacrificed’ to give a meaning to the words ‘*or an earlier date*’, which have introduced an ambiguity or even a contradiction to the first sentence of that paragraph. As with regard to the issue debated, Directive 2013/32 is more restrictive than Directive 2005/85, the Commission’s argument that the first sentence of the first paragraph of Article 52 of Directive 2013/32 allows the provisions of that directive which are more favourable to the asylum applicant to be applied retroactively (17) does not require examination either.

Therefore, the only logical interpretation of the first sentence of the first paragraph of Article 52 of Directive 2013/32 is that applications lodged *after* 20 July 2015 and procedures for the withdrawal of refugee status started *after* that date are governed by the laws, regulations and administrative provisions adopted to transpose Directive 2013/32.

By its first question in Case C‑438/17, the referring court also asks whether the fact that the asylum application by the applicant in the main proceedings in that case, lodged in June 2012, still falls entirely under the Dublin II Regulation (18) is relevant for the purposes of interpreting the first sentence of the first paragraph of Article 52 of Directive 2013/32. The referring court considers that the applicability of the Dublin II Regulation in the present case may preclude the retroactive application of the national rule (19) adopted for the purposes of implementing the extended power conferred by Article 33(2)(a) of that directive. (20)

Since my response in point 54 of this Opinion states that Article 33(2)(a) of Directive 2013/32 does not apply before 20 July 2015, a date on which the Dublin III Regulation was already in force, the question whether the Dublin II Regulation precludes the retroactive application of the national rule adopted for the purposes of implementing the extended power conferred by Article 33(2)(a) of that directive does not arise.

By its second question in Case C‑438/17, the referring court asks whether the first paragraph of Article 52 of Directive 2013/32 allows the extended power conferred in Article 33(2)(a) of Directive 2013/32 to be transposed retroactively in respect of applications for asylum which have not yet been decided at the time of that transposition and have already been lodged before Directive 2013/32 entered into force. (21)

Since my response in point 54 of this Opinion states that Article 33(2)(a) of Directive 2013/32 does not apply before 20 July 2015, the question whether the first sentence of the first paragraph of Article 52 of Directive 2013/32 allows the extended power conferred in Article 33(2)(a) of Directive 2013/32 to be transposed retroactively in respect of applications for asylum which have not yet been decided at the time of that transposition and have already been lodged before Directive 2013/32 entered into force no longer arises.

The Common European Asylum System was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard. In those circumstances, the Court held that it had to be assumed that the treatment of asylum seekers in all Member States complied with the requirements of the Charter, the Geneva Convention and the ECHR. (26)

Notwithstanding that presumption of conformity, the Court also ruled that it is not inconceivable that the Common European Asylum System may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights. (27)

In paragraph 99 of the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), the Court clearly states that ‘an application of [the Dublin III] Regulation … on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the duty of the Member States to interpret and apply [the Dublin III] Regulation … in a manner consistent with fundamental rights’. It is therefore a presumption of conformity which is rebuttable.

The Court also noted in paragraphs 86 to 94 and 106 of its judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), that the transfer of asylum seekers within the framework of the Dublin system could, in certain circumstances, be incompatible with the prohibition laid down in Article 4 of the Charter. It thus held that an asylum seeker faced a real risk of being subjected to inhuman or degrading treatment, within the meaning of that article, in the event of a transfer to a Member State in which it was possible for there to be substantial grounds for believing that there are *systemic flaws in the asylum procedure and reception conditions for applicants*. Consequently, in accordance with the prohibition laid down in that article, within the framework of the Dublin system, the Member States may not carry out transfers to a Member State where they cannot be unaware that such flaws exist in that Member State. (28)

The judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), was given in a situation similar to that referred to in the judgment of the European Court of Human Rights of 21 January 2011, *M.S.S. v. Belgium and Greece* (29) and relating to Article 3 of the ECHR, that is to say the transfer by the Belgian authorities of an asylum applicant to Greece, which was the Member State responsible for examining his application. (30) In paragraph 88 of the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), the Court found that the European Court of Human Rights had held, inter alia, that the Kingdom of Belgium had infringed Article 3 of the ECHR, first, by exposing the applicant to the risks arising from the deficiencies in the asylum procedure in Greece, since the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities and, second, by knowingly exposing him to conditions of detention and living conditions that amounted to degrading treatment. (31)

While the case-law arising from the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865) regarding the existence in the requested Member State of systemic flaws in the asylum procedure and reception conditions for applicants was codified in 2013 in the second subparagraph of Article 3(2) of the Dublin III Regulation, the Court held, however, that, it could not be concluded from the above that any infringement of a fundamental right by the Member State responsible would affect the obligations of the other Member States to comply with the provisions of the Dublin III Regulation. (32) It would not be compatible with the aims of the Dublin III Regulation were the slightest infringement of rules governing the common asylum system to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible. (33)

As regards the risks associated with the *actual transfer* of an applicant for international protection, the Court held in paragraph 65 of the judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127), that it could take place only in conditions which preclude that transfer from resulting in a real risk of the person concerned suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter. In that regard, the Court took account of the particularly serious state of health of the person concerned, (34) which could have led to him not being able to be transferred to another Member State even where there are no systemic flaws in the asylum procedure and the conditions for the reception of asylum seekers in the responsible Member State.

In paragraph 91 of the judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127), the Court explicitly rejected the Commission’s argument that it follows from the second subparagraph Article 3(2) of the Dublin III Regulation that only the existence of systemic flaws in the Member State responsible is capable of affecting the obligation to transfer an asylum seeker to the Member State responsible. (35)

In that regard, the Court emphasised the general character of Article 4 of the Charter, which prohibits inhuman or degrading treatment in all its forms, and the fact that it would be manifestly incompatible with the absolute character of that prohibition if the Member States could disregard a real and proven risk of inhuman or degrading treatment affecting an asylum seeker under the pretext that it does not result from a systemic flaw in the Member State responsible. (36)

Paragraph 95 of the judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127), states that the impossibility of proceeding with a transfer in the circumstances at issue in that case ‘*fully respects the principle of mutual trust* since, far from affecting the existence of a presumption that fundamental rights are respected in each Member State, it ensures that the exceptional situations referred to in the present judgment are duly taken into account by the Member States. *Moreover, if a Member State were to proceed with the transfer of an asylum seeker in such situations, the resulting inhuman and degrading treatment would not be attributable, directly or indirectly, to the authorities of the Member State responsible, but to the first Member State alone*’. (37)

That cautious approach, which focuses on protecting fundamental principles and human rights, also reflects the case-law of the European Court of Human Rights. In § 126 of its judgment of 4 November 2014, *Tarakhel v. Switzerland*, CE:ECHR:2014:1104JUD002921712, the European Court of Human Rights reiterates ‘that an applicant’s complaint alleging that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the [ECHR] must imperatively be subject to close scrutiny by a national authority’.

Unlike the circumstances set out in the cases giving rise to the judgments of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865) and of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127), which concerned, in the first case, systemic deficiencies in the asylum procedure and the reception conditions of applicants and, in the second case, the transfer, as such, of an applicant for international protection, the Cases C‑297/17, C‑318/17 and C‑319/17, are concerned with taking into account the situation that may arise *after* international protection has been granted in the Member State responsible.

Moreover, the questions referred for a preliminary ruling in the present case do not concern the Dublin III Regulation, but the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32.

The Court has not yet dealt with these new circumstances.

Article 51(1) of the Charter provides that its provisions are addressed to the Member States only when they are implementing EU law.

In my opinion, compliance with Article 4 of the Charter, concerning the prohibition of inhuman or degrading treatment or punishment, which is absolute in nature, is binding on the Member States when applying the ground for inadmissibility provided for in Article 33(2)(a) of Directive 2013/32. (38)

In accordance with the principle of mutual trust, it must be presumed that the treatment of beneficiaries of international protection in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR. (39) That presumption of conformity is strengthened if the Member State transposes *de jure* (40)*but also de facto* the provisions of Chapter VII (‘Content of international protection’) of Directive 2011/95, which provides for a level of social welfare for the beneficiary in question which is equivalent or superior to that provided for by the Geneva Convention.

However, as I have already stated in point 73 of this Opinion, that presumption of conformity, in particular with Article 4 of the Charter, is not irrebuttable.

I consider that it is apparent by analogy from § 253 and 254 of the judgment of the European Court of Human Rights of 21 January 2011, *M.S.S v. Belgium and Greece*, CE:ECHR:2011:0121JUD003069609 and from paragraph 80 of the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865) that a Member State would infringe Article 4 of the Charter if beneficiaries of international protection, who are wholly dependent on public aid, were faced with indifference from the authorities such that they found themselves in a situation of serious deprivation or want incompatible with human dignity.

In other words, in order to consider that there are substantial grounds for believing that the beneficiaries of international protection would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, on account of their living conditions in the Member State responsible under the Dublin III Regulation, they must find themselves in *a situation that is particularly serious* (41) resulting from systemic flaws in their regard in that Member State.