The case

After arriving in Greece, the applicant travelled on to Germany, where he lodged an application for asylum. During the procedure to determine which Member State is responsible to examine the application under the Dublin Regulation, applicant was detained. Following the Dublin criteria, Greece was considered the responsible State to examine the case, but in the light of the N.S. case, transfer to Greece was impossible. Applicant claimed that Germany had the duty under Article 3(2) Dublin Regulation, to examine the application itself.

The judgment

On 14 November 2013, the European Court of Justice answered the following preliminary question posed by Germany:

"Does an enforceable personal right on the part of the asylum seeker to force a Member State to assume responsibility result from the duty of the Member States to exercise their right under the first sentence of Article 3(2) of [the] Regulation?"

The Court considered:

• that no premiss can be derived from Article 3(2) of the Regulation, since it is solely an exception to Article 3(1);
   
• that, in case the Member State, where the applicant is located, cannot carry out the transfer of the asylum seeker to the Member State initially held responsible following the criteria of the Regulation, that Member State has the duty to determine which Member State, subsequently must be held responsible.
   
• that, in case the procedure for determining the responsible Member State itself would infringe the fundamental rights of the applicant, the Member State where the applicant is located, must itself examine the application, on the basis of Article 3(2)
   
• but, that, the finding that is impossible to transfer an asylum seeker to the Member State, initially held responsible, does not in itself mean that the determining Member State is required, under Article 3(2) to examine the application for asylum.

The entire judgment can be read here.

N.S. et alia: C-411/10, 21 December 2011