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AWR-BULLETINVierteljahresschrift für Flüchtlingsfragen

Revue trimestrielle des problèmes des réfugiésQuarterly on Refugee Problems

Rivista trimestrale sul problema dei rifugiati

Offizielles Organ der AWR

50. (59.) Jahrgang/Année/Volume/L`annata Nummer 3-4/2012

Inhalt / Sommaire / Contents / Sommario

Luigino Manca: I diritti politici degli stranieri nel diritto internazionale ................... 122

Chiara Pelaia e Gianfranco Gabriele Nucera: Recenti sviluppi in tema di cittadinanza, tra diritto internazionale e diritto interno......................................... 135

Ralf Roßkopf: Opening Address and Introduction into Subject:“The Present State of the European Asylum Directives” ..................................... 153

Daniel Fröhlich: The Development of a Federal European Asylum System.............. 159

Albrecht Weber: The Impact of the Charter of Fundamental Rights andFreedoms of the European Union for the Asylum and Refugee Lawof the European Union.......................................................................................... 169

Francesco Cherubini: The Relationship between the EU Legal System andthe Geneva Convention on the Status of Refugees............................................... 176

Daniela Vitiello: The Jurisprudence of the European Court of Justice on RefugeeLaw. Analysis and Perspectives ........................................................................... 183

Peter van Krieken: Remedy-Shopping: A Case for Review ...................................... 208

Reinhard Marx: The Refugee Definition of the European Union withSpecific Regard to Persecution on Religious Grounds ......................................... 220

Ralf Roßkopf: Human Dignity and Asylum Reception Conditions: A German Perspective with a European Dimension? ............................................................ 226

Holger Hoffmann: The Amended Proposal for a Reception Directive Provisionsfor Vulnerable Persons – a weak compromise...................................................... 239

Martina Sochin D’Elia: Specific Challenges for Small States in the Protectionof Refugees using the Example of Liechtenstein.................................................. 249

Andrzej Sakson: The German Minority in Silesia in Light of the NationalCensus 2011 ......................................................................................................... 257

Materialien und Berichte:Resolution at its 62nd International Congress, Freising 2012 .............................. 260

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Daniela Vitiello:

The Jurisprudence of the European Court of Justice on Refugee Law Analysis and Perspectives

1. Introduction

Efforts to harmonize EU legislation on asylum are relatively recent developments in European integration. In fact, since the beginning of the integration process, States which were part of the European Communities attached great relevance to the custom-ary norm, universally considered the quintessence of sovereignty, which establishes the State’s prerogative to regulate aliens’ entry in and expulsion from its territory.1 As a result, they have long resisted the temptation to transfer to the supranational entity shares of their sovereign power in this sensitive domain.2

However, since the Yugoslavia crisis created a significant influx of asylum appli-cants headed to the European Union, mounting concerns over the potentially negative impact of their movement from one country to another within the Schengen area3 in-duced Member States to seek a soft harmonization of their immigration and asylum law. Indeed, without internal border controls on individuals the stability of the area would have been endangered by the so-called “asylum shopping” practice,4 so that a form of integration of domestic regulations in the field of asylum appeared necessary in order to curb “secondary movements” of asylum applicants throughout Europe.

Therefore, at the Treaty of Amsterdam,5 Member States made a commitment to “establish progressively an area of freedom, security and justice”6 through the adoption of “measures on asylum, in accordance with the Geneva Convention of 1951 and the Protocol of 1967 relating to the Status of Refugees and other relevant treaties”.7

The first phase of the integration of European policy on asylum was initiated fol-lowing the political guidance provided by the Tampere European Council.8 It led to the adoption of a sophisticated framework of primary legislation concerning both criteria and mechanisms for enhancing interstate cooperation in allocation of asylum applica-tions submitted by third country nationals (TCNs) in any Member State – namely Euro-dac9 and Dublin II Regulation.10 It also brought about the implementation of directives containing minimum standards with respect to qualification and definition issues,11 asylum procedures,12 reception conditions,13 temporary protection14 and family reunifi-cation.15

In this framework, the European Court of Justice’s jurisdiction on asylum and ref-ugee-related issues remained extremely limited.16

The 2008 European Pact on Immigration and Asylum17 and the 2010 Stockholm Programme18 inaugurated a new phase of EU asylum policy, calling on the Union to adopt – by 2012 at the latest – new measures establishing a single asylum procedure comprising common guarantees and creating a uniform status for refugees and the bene-ficiaries of subsidiary protection, in an attempt to re-launch the ambitious goal of ren-dering Europe an “area of freedom, security and justice”19 and creating a Common Eu-ropean Asylum System.20 These goals were further buttressed by the entry into force of the Treaty of Lisbon,21 expanding both the legal basis of the applicable law and the

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competences of the Court of Luxembourg in the domain of international protection.22 Starting from these premises, this paper attempts to outline the evolution of the

ECJ’s jurisprudence during the first decade of EU integration in the domain of asylum and refugee law, taking as a turning point the entry into force of the Lisbon Treaty. Apart from the foreseeable interplay between the ECJ and the European Court of Hu-man Rights, this paper attempts to assess how the Court of Luxembourg perceives the relation between the EU system of asylum and the international framework for the pro-tection of refugee and in which direction the CEAS is headed based on the present state of the ECJ’s jurisprudence.

2. Assessing the interplay between the Strasbourg Court’s case-law on Article 3 ECHR and the ECJ’s jurisprudence on asylum prior to the Lisbon Treaty:

the Elgafaji case.

Following the Amsterdam treaty, the ECJ became the first supranational court ever to be directly entrusted with a specific competence to provide a mandatory interpreta-tion of refugee law provisions. Nevertheless, as set out in Article 68 of the Amsterdam Treaty, the judicial body of the Communities was entitled to provide preliminary rulings on the interpretation and validity of EU legislation on asylum only when asked by a national court of last instance, which did not have a formal duty to send the case to Luxembourg. Because of these legal limitations to the ECJ’s empowerment, its authori-tative interpretation of EU asylum and refugee law could only minimally impact both the implementation of EU regulations and the transposition of EU directives into Mem-ber States’ legal systems.

Such limitations notwithstanding, some rulings, like the one in the Elgafaji case,23 played a crucial role in clarifying the interpretation of the conditions for granting and withdrawing refugee status and complementary protection as set forth in the Qualifica-tion Directive.24

In the Elgafaji case, the issue at stake was the scope of Article 15 of the abovemen-tioned directive and its interplay with the protection afforded by Article 3 of the Con-vention for the Protection of Human Rights and Fundamental Freedoms25 in the juris-prudence of the European Court of Human Rights.26 Indeed, according to the well-established case-law of the ECtHR on the prohibition of torture, Article 3 of the Euro-pean Convention has served as a fence against the risk faced by aliens of deportation to a country were they may be exposed to torture or inhuman or degrading treatments, in other words against the risk of refoulement..27

At the EU level, the legal status of aliens who cannot be qualified as refugees but who, nonetheless, would face a real risk of suffering serious harm as a consequence of their deportation, was codified in the Qualification Directive, whose Article 2 (e) de-fines them as “person[s] eligible for subsidiary protection”. In order to match the threshold established by EU asylum law to obtain subsidiary protection status, TCNs have to prove that, if deported, they would face “serious harm”. The definition of “seri-ous harm” is provided in Article 15 of the Qualification Directive, stating that it can consist of: “(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in

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situations of international or internal armed conflict”. Provided that letters (a) and (b) of Article 15 foresee situations in which the applicant is exposed to a well-qualified risk, stemming from his personal situation, the difficulty national authorities faced in reviewing applications for subsidiary protection was in correctly interpreting letter (c) of the norm.

In the Elgafaji case, the Dutch Council of State asked the Court to clarify the rela-tion between Article 15 (c) of the Qualification Directive and the ECtHR’s case-law on Article 3 of the European Convention. On this point, the ECJ found that the scope of the two provisions was different28 and that a coincidence with Article 3 ECHR could be assessed only with reference to Article 15 (b) of the Directive. Provided that letter (c) of the provision in question offers a supplementary form of protection, the Court turned to the second question posed by the Dutch Court, concerning the grounds on which an alien can prove the existence of a serious and individual threat caused by an indiscrimi-nate violence in the context of international or internal conflicts.

In particular, the problem was how to qualify the notion of an “individual” threat arising from an “indiscriminate” violence. In fact, common sense might suggest that an indiscriminate violence would lead to general threats to individuals, whereas the provi-sion in question seems to imply that the threat derives from the personal circumstances in which the applicant finds himself. And, indeed, the provision under scrutiny is clearly the result of a tough political compromise,29 resulting in an interpretative hiatus allow-ing the coexistence of diverging national practices.30

In the attempt to solve this contradiction, the Court concluded that a civilian oppos-ing his deportation due to the fear of a real risk of being subjected to a threat deriving from a situation of indiscriminate violence in his country of origin may be eligible for subsidiary protection, even without adducing evidence of a specific and personal target-ing against him,31 whenever the conflict taking place in his country reaches such an exceptional degree of indiscriminate violence that the mere presence of the applicant on the “battle ground” would expose him to serious harm.32

In other words, the ECJ said that the more violent the conflict, the less the appli-cant has to struggle to prove his individual risk.33 Nevertheless, it did not indicate the set of conditions that has to be in place in order to generate a situation of “indiscrimi-nate violence” within the meaning of Article 15 (c), indirectly granting domestic courts a certain margin of discretion during examination of applications for subsidiary protec-tion.

In spite of its practical weaknesses, this ruling is of peculiar interest with regards to the ECJ’s understanding and use – if not “exploitation” – of the ECtHR’s case-law on non-refoulement. In fact, initially the ECJ declared the non-assimilability of the protec-tion provided by the ECtHR under Article 3 of the European Convention to that granted by Article 15 (c) of the Qualification Directive, elaborating an autonomous reasoning in order to interpret this core norm of the EU subsidiary protection regime. Following the remarks of Advocate General Maduro on the exigency of an “independent interpreta-tion” of EU dispositions,34 the ECJ seemed to uphold the idea that its interpretation of EU provisions, designed to transpose into EU law norms belonging to other internation-al corpus juris, can differ from that of the judicial body entrusted with the authoritative interpretation of such norms.

However, later on, in an obiter dictum,35 the Court declared that the jurisprudential path just inaugurated was perfectly compatible with the case-law of the ECtHR on Arti-

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cle 3 of the European Convention, essentially “exhuming” the ECtHR reasoning merely to reinforce its autonomous results reached on the exclusive basis of the EU asylum law.36 More precisely, it made reference to the ECtHR ruling in the case NA. v. United Kingdom.37 In this ruling, the Strasbourg Court, having recalled that “[i]t is not the Court’s task to apply directly the level of protection offered in other international in-struments”,38 affirmed that a breach of Article 3 ECHR could be declared “in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return”.39

It is noteworthy that the ECJ’s obiter dictum in the Elgafaji case received a long echo in a recent pronouncement by the ECtHR in the case Sufi and Elmi v. United Kingdom,40 in which the European Court was asked to investigate whether or not the ambit of protection against refoulement provided by its jurisprudence on Article 3 ECHR could overcome that afforded by the Luxembourg Court under Article 15 (c) of the Qualification Directive. Here, the European Court seemed to find in the aforemen-tioned obiter dictum sufficient evidence to support its view that the two provisions in question (Article 3 ECHR and Article 15 EU Qualification Directive) offer comparable protection against the risk of refoulement. In other words, the ECtHR used the ECJ’s argument to reverse the potential conclusion of the Elgafaji case as to the higher level of protection granted by the EU asylum acquis.41

Hence, both Courts appeared to have played the same game: on the one hand, they tried to retain a privileged position in their respective spheres of competence; on the other hand, they attempted to minimize the risk of conflict between their different her-meneutic approaches to refugee-related issues. The practical effect of their dialogue was to leave the scope of Article 15 (c) of the Qualification Directive undetermined and to show that a higher degree of integration between their jurisprudence was needed.

3. Interpreting the Qualification Directive in light of the international framework for the protection of refugees: Abdulla, Bolbol, B and D.

The Elgafaji case provided an interesting instance of jurisprudential interaction and contamination in the human rights domain between the two major supranational Courts operating in Europe. The subsequent referrals concerning the interpretation of the Quali-fication Directive in the cases Abdulla,42 Bolbol,43 B and D44 shed light on the manner in which the ECJ perceives the relation between the EU acquis on asylum and the interna-tional framework for the protection of refugees, established for the implementation of the 1951 Refugee Convention. In addition, those preliminary references – lodged prior to the entry into force of the Lisbon Treaty and decided after it – gave the Court an opportunity to start addressing the potential impact of the new legal status of the Charter of Fundamental Rights of the European Union45 on the interpretation of the Qualifica-tion Directive.46

In the Abdulla case,47 the ECJ was asked to interpret Article 11 (1) (e) of the Quali-fication Directive, concerning the cessation of refugee status when the circumstances engendering a risk of persecution are no longer in place. The referral induced the ECJ to clarify whether – when reassessing the genuineness of a refugee’s well-founded fear of persecution after a fundamental change in circumstances in the country of origin – do-mestic courts must rely exclusively on Article 11 (1) (e), read in conjunction with Arti-

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cle 2 (c) of the said Directive, or are they also bound to take into due consideration the relevant dispositions in the 1951 Refugee Convention, in particular its Article 1 C (5).48

In answer to this question, the ECJ started by recalling that when implementing the Qualification Directive, Member States have to pay close attention to its object and purpose, as well as interpret its dispositions in light of three essential parameters: the Refugee Convention, “other relevant treaties”49 and the Charter of Fundamental Rights of the EU.50

More precisely, the Luxembourg judges declared that the Qualification Directive had been adopted in order to provide EU Member States with some guidance in the implementation of the Geneva Convention, acknowledged as “the cornerstone of the international legal regime for the protection of refugees”.51 In addition, following the Opinion of AG Mazák,52 they held that the Qualification Directive “must be interpreted in a manner which respects the fundamental rights and the principles recognized in particular in the Charter”.53

It is noteworthy that while the AG referred first to the Charter and then to the Geneva Convention,54 the Court reversed this order and chose to comment only on the importance of the latter in the case under scrutiny, renouncing any attempt to clarify the material scope of the relevant dispositions of the EU Charter. Hence, it maintained that the circumstances in which the refugee status could be considered to have ceased had to be in line with the Geneva Convention. The ECJ also added that the standard of proba-bility which competent authorities must refer to in the evaluation of the genuineness of the alleged new threats of persecution stemming from the changed environment had to be analogous to the one applied when the refugee status was initially granted.55

Although the ECJ showed a clear volition to emphasize the role of the Geneva Convention in shaping the EU asylum acquis, in this case it did not refrain from intro-ducing some distinguishing elements. The reference is to the notion of “actor of protec-tion” for the purpose of the revocation of refugee status. While the Refugee Convention has been traditionally interpreted as assigning this responsibility to States Parties, bas-ing its reasoning on Article 7 (1) (b) of the Qualification Directive,56 the ECJ recalled that the revocation of the status by a EU Member State can also follow an international organization taking on the responsibility of actor of protection with regards to a specific refugee.

The endorsement of the provision contained in Article 7 of the Directive by the ECJ has been criticised by the UN High Commissioner for Refugees, who considered “it inappropriate to equate the protection provided by States with the exercise of a cer-tain administrative authority and control over territory by other parties or organiza-tions, including international organizations”.57 The latest version of Article 7 contained in the recently reformed Qualification Directive appears to take into account some of this criticism, since it clarifies that international organizations can be regarded as “ac-tors of protection” for the purposes of the cessation of refugee status only in the case that they “are willing and able to offer protection”, their willingness and capability to be assessed by Member States taking into account “any guidance which may be provid-ed in relevant Union acts”.58

The other two cases mentioned above – Bolbol and B and D – both concerning the interpretation of Article 12 of the Qualification Directive on the conditions for the ex-clusion from refugee status, add some further evidence of the Court’s intention to chan-nel the EU acquis on asylum into the international framework for the protection of refu-

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gees. In the Bolbol case,59 the referring court asked the ECJ to comment on the meaning

of Article 12 (1) (a) of the Qualification Directive, and more precisely to elucidate whether an asylum seeker can be excluded from the enjoyment of the guarantees grant-ed by the Directive on the mere account of his eligibility for protection by another UN agency different from the UNHCR.60 As a matter of fact, this disposition was intro-duced in Article 1 D of the Geneva Convention in order to avoid a duplication of protec-tion with regards to a particular category of refugees – those Palestinians who were refugees as a result of the 1948 or 1967 Arab-Israeli conflicts – to whom protection by a specific UN agency was devoted: the UN Relief and Works Agency for Palestine Refu-gees in the Near East (UNRWA).61

In dealing with this delicate issue, the ECJ ruled that a Palestinian asylum seeker who, even if potentially entitled, has not actually availed himself of the protection or assistance of the UNRWA, might still seek asylum within the EU asylum system, meet-ing the criteria set out in Article 2 (c) of the Qualification Directive.62 Including the potential beneficiaries of the UNRWA’s protection in the scope of the Qualification Directive, the Court substantially restricted the ambit of application of the exclusion clause. It chose to uphold the Opinion of AG Sharpstone,63 which had disagreed with the interpretation of Article 1 D offered by the UNHCR,64 grounding its view on the “clear text”65 of the relevant disposition of the Geneva Convention.

The insistence on the relevance of the wording of the Geneva Convention by both the AG and the Court appeared instrumental to the development of progressive stand-ards of refugee protection in the EU asylum system. With respect to this remark, it might be arguable that the Court has been influenced in this hermeneutical approach by the new juridical status of the EU Charter. This hypothesis might be upheld by the opin-ion expressed by AG Mengozzi with reference to the B and D case,66 where he main-tained that: “[t]he fundamentally humanitarian nature of the law on refugees and the fact that it is so closely tied in with the development of human rights must accordingly provide the backdrop whenever the instruments for securing that protection are being interpreted and applied. [T]he Court recently took that approach when, in […] its judgment in Aydin Salahadin Abdulla and Others, […] it held that ‘Directive 2004/83 must be interpreted in a manner consistent with the fundamental rights and principles recognised, in particular, by the Charter [of Fundamental Rights of the European Un-ion]’”.67

In the B and D case, the ECJ was asked to provide guidance on the meaning of pa-ra. 2 (b) and (c) of Article 12, reproducing Article 1 F of the Geneva Convention; thus excluding an alien from refugee status due to “serious reasons for considering that” he has committed a severe non-political crime outside the country of refuge prior to his admission as a refugee; or he has been guilty of acts contrary to the purposes and prin-ciples of the United Nations. More precisely, the ECJ had to assess the consequences – in terms of exclusion from refugee status under the Directive’s provisions – of the ap-plicant’s membership in an organization included on the EU list of terrorist group and entities. In answering this question, the Court stressed that membership in a terrorist organization did not constitute an automatic ground for exclusion from refugee status pursuant to Article 12 (2) of the Directive, a case-by-case assessment being needed in order to investigate the role played by the applicant in the perpetration of the acts in question and to demonstrate his individual responsibility.68

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The third question referred to another critical issue: namely, the need for domestic authorities to undertake an ad hoc proportionality test, in order to weigh the opportunity to exclude an applicant from refugee status on his overall situation. In ruling on this point, the Court firmly denied the necessity of undertaking a proportionality test, on the account of the fact that the wording of Article 12 (2) linked the exclusion clause merely to the gravity of the acts perpetrated by the applicant.69

Finally, the Luxembourg Court had to assess whether the decision to grant asylum (pursuant to the domestic constitutional law) to a person excluded from refugee status on the ground of Article 12 (2) was compatible with Article 3 of the Qualification Di-rective, allowing Member States to “introduce or retain more favourable standards for determining the content of international protection, in so far as those standards are compatible with this Directive”. On this point, the ECJ did not exclude the possibility for Member States to refer to Article 3 of the Directive in order to assure the prevalence of their domestic law, granting asylum to an applicant who would otherwise be exclud-ed from refugee status, provided that the domestic protection “does not entail a risk of confusion with refugee status within the meaning of the directive”.70

This conclusion has been criticized.71 Indeed, some commentators have pointed out that the Court limited itself by maintaining that States “may grant a right of asylum”72 under their national law to aliens who were otherwise excluded from refugee status. It seems, therefore, that the Court missed the occasion to clarify the scope of Article 18 of the EU Charter. In addition, in contrast to the position expressed by AG Mengozzi, who recalled that: “the right to seek asylum from persecution is recognised as a fundamental right within the European Union and is listed as a fundamental freedom under that Charter”,73 the Court stressed that its priority was “to maintain the credibility of the protection system provided for in that directive”.74 This statement was only timidly tempered by para. 110, stating that: “It is important to note that the exclusion of a per-son from refugee status pursuant to Article 12(2) of Directive 2004/83 does not imply the adoption of a position on the separate question of whether that person can be de-ported to his country of origin”. By this assertion, the Court attempted to introduce a safeguard of the principle of non-refoulement enshrined in Article 19 of the EU Charter. Nevertheless, given the importance of the principle, the Court would have been ex-pected to be more incisive on the point, at least by saying that, beyond having the facul-ty of granting other forms of protection to aliens excluded from refugee status under Article 12 (2), Member States have the legal duty to protect them from refoulement in any case. On the contrary, leaving it unsaid, the ECJ appeared unready to use the EU Charter as a tool to enhance human rights of asylum seekers in the EU. Previous re-marks on the conservative nature of the Court’s approach to the present case can be extended to the analysis of its answer to the third preliminary question. Indeed, by vir-tue of a literal reading of the Directive, the ECJ concluded that it followed from the textual premises of Article 12 (2) (reproducing Article 1 F of the Geneva Convention) that it was unnecessary for national authorities to undertake a proportionality test to determine the application of the exclusion clause.75

Hence, although appearing more aware of its new constitutional function as a hu-man rights court, in the previous cases the ECJ found it more comfortable to continue referring prevalently and literally to the Geneva Convention when dealing with the interpretation of the EU asylum acquis.

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4. Assessing the impact of the Lisbon Treaty on the interpretation of the Dublin II Regulation: the N.S. and M.E. cases.

Through the entry into force of the Lisbon Treaty, the entire Fifth Title of the Third Part of the Treaty on the Functioning of the European Union was dedicated to the aim of creating the AFSJ. Under the provisions set forth in this title, the Union is required to implement a common policy regarding border checks, visas, immigration and asylum,76 inspired by the principle of solidarity and burden-sharing responsibility among Member States77 and superseded by the strategic guidelines of the European Council.78 In addi-tion, Article 6 of the Treaty on European Union as reformed by the Lisbon Treaty, con-ferred to the EU Charter of Fundamental Rights the same legal status as the Treaties, bringing forth potentially relevant developments in the field of asylum. After all, it rendered legally binding for Member States provisions specifically designated for TCNs in need of international protection, which are contained in Articles 18 and 19 of the EUCFR, respectively establishing the right to seek asylum, in accordance with the Ref-ugee Convention, and the principle of non-refoulement.

As far as the legal competences of the ECJ are concerned, in the renewed legal context the Court has been afforded more comprehensive powers with regards to the AFSJ. First of all, as set forth in Article 68 TFEU, the EU Institutions can currently challenge before the Court the conformity to the treaties of political addresses of the European Council. Moreover, a new preliminary ruling procedure has been introduced in order to deal with cases requiring urgent decisions by the ECJ, such as those that may arise in situations where a person is deprived of his liberty.79 In addition, any domestic court, in conformity with Article 267 TFEU, is currently entitled to formulate and sub-mit to the ECJ references for preliminary rulings on the interpretation of EU asylum-related provisions. As a consequence, lower domestic jurisdictions, which are those in charge of reviewing on appeal the majority of negative first-instance asylum decisions, have been eventually allowed to ask the ECJ for a preliminary assessment on the inter-pretation/application of the relevant EU law when deemed necessary to decide on a domestic controversy.

This novelty has impacted the ECJ’s jurisprudence on asylum and, in particular, its interpretation of the Dublin II Regulation, enacted in order to automatically determine the Member State responsible for examining an asylum application lodged in one of the Member States. This regulation proved to be highly unsatisfactory in terms of procedur-al fairness, non-discrimination and parity of treatment well before the entry into force of the Lisbon Treaty. Indeed, since the automatism of the determination of the country competent for processing an asylum application was established without any previous harmonization of Member States’ asylum systems, the destiny of asylum demands dif-fered sharply depending on the EU country examining it. As a result, during the first phase of EU involvement in asylum management, a number of controversies challenged the automatism laying at the heart of the mechanism for the lodgement of asylum re-quests in the framework of the Dublin II Regulation. However, none of them could be dealt with by the ECJ through the preliminary ruling procedure, due to the fact that only the inner circle of highest national courts was entitled to submit references for prelimi-nary rulings to the ECJ, while the great majority of the controversies arising from the implementation of the Dublin II Regulation were unlikely to succeed in reaching the last instance.80

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The question of the “inherent incoherence” of the Dublin II Regulation was raised with success after the entry into force of the Lisbon Treaty, in the cases N.S. and M.E.,81 adjudicated by the ECJ in December 2011. These cases concerned Iranian and Algerian asylum seekers who, having lodged their asylum applications in the United Kingdom and in Ireland, according to Articles 17 and 18 (7) of the Regulation,82 had been re-turned to Greece without any assessment of their claims, since Greece was identified as the competent State for processing their requests on the basis of the hierarchical criteria set forth in the Dublin II. The applicants opposed this decision before domestic courts, claiming that their return to Greece would amount to a violation of their fundamental human rights, given the deficiencies of the Greek asylum system.

It must be premised that the said Regulation leaves a margin of discretion (as to the decision to transfer an applicant to the competent State) to Member States willing to take on their own the direct responsibility for an asylum request in relation to which they are not competent within the remit of the Dublin II. However, this hypothesis – laid down in the so-called “sovereignty clause” contained in Article 3 (2) – is formulated in exceptional terms, as a derogation to the general principle, since it is capable of endan-gering the entire structure of the Dublin mechanism as founded upon mutual trust.

Taking into account this background and the renewed legal status of the EUCFR, the referring court asked the ECJ to clarify whether a Member State’s obligations to respect the fundamental rights of an asylum seeker persist after his transfer to the State responsible for reviewing his asylum application according to the Dublin II Regulation and whether the former State is obliged to implement the sovereignty clause contained in Article 3 (2) when, as a consequence of the transfer, the applicant could be exposed to a risk of violation of his fundamental rights in the latter State.

Having established that a decision by a EU Member State on the basis of Article 3 (2) of the Regulation fell within the scope of EU law for the purposes of Article 6 TEU, the ECJ argued that the CEAS was based on the presumption of compliance by EU Member States with EU law and fundamental rights. Therefore, it spelled out that it would not be compatible with the aims of the Dublin II Regulation where “the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 [would be] sufficient to prevent the transfer of an asylum seeker”.83 However, while “saving” the Dublin mechanism, it did not fail to sanction its unsatisfactory results in the Greek case. In fact, it maintained that the EU asylum system cannot operate on the basis of a “conclusive presumption” that all EU Member States “observe the fundamental rights of the European Union”,84 and that this presumption must be deemed rebuttable when there are “substantial grounds for believing that there are systemic flaws in the asylum procedure and recep-tion conditions for asylum applicants […] resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter”.85

In other words, the Court ruled against a “blind” mutual trust, meanwhile being careful to preserve the functionality of the Dublin II Regulation. Probably, in deciding so, the ECJ took into account the fact that in 2010, Greece had represented the gateway for ninety percent of mixed influx of migrants directed to Europe,86 which meant – through the lens of the Dublin II Regulation – that the Hellenic Republic was elected as competent State for the examination of the majority of asylum application lodged in EU Member States. As a consequence, its already precarious asylum system was put under exceptional pressure, which led to the multiplication of abuses and of discriminatory and arbitrary procedures. This result was partially due to the lack of solidarity and bur-

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den-sharing among EU Member States, which has recently characterized the coopera-tion in the field of AFSJ87 and which the Court intended to sanction.

At any rate, the Court did not indicate what kind of “systemic flaw” could be con-sidered capable of violating the fundamental rights of the applicant. It limited itself to maintain that the transfer of an asylum seeker to the Member State responsible cannot be upheld by national courts “where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Mem-ber State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter”.88

Again, the Court did not qualify the expression “cannot be unaware”,89 limiting it-self to emphasize that Member States cannot circumvent their obligation to guarantee fundamental rights to asylum seekers, blindly relying on the automatism of the Dublin mechanism, especially when the awareness of risk in the transfer can be gathered from the reports of international organisations, the UNHCR and the European Commission. Recognizing the information reported in these studies as a highly valuable source for EU Member States in the assessment of the opportunity to transfer an asylum seeker to the competent State according to the Dublin II Regulation, the ECJ posed itself on the same wavelength of the ECtHR. As a matter of fact, in recent times the Court of Stras-bourg has attached increasing importance to reports on States’ asylum practice delivered by international agencies and non-governmental organizations in the risk assessment of a violation of Article 3 ECHR. Exemplary, in this sense, is the case M.S.S. v. Belgium and Greece, 90 ruled in January 2011 and concerning the decision by the Belgian author-ities to return an Afghan asylum applicant to Greece under the provisions of the Dublin II. In this case, the Strasbourg Court emphasized the relevance of reports on the overall situation of the asylum system in the receiving State to such an extent that it came to a significant adoucissement of the burden of proof on applicants, practically deriving a risk of ill-treatment from the mere weakness of reception conditions in the receiving State.91 This line of reasoning led the Court of Strasbourg to conclude in the M.S.S. case that it was “freely ascertainable from a wide number of sources”92 that the applicant’s conditions of detention and living in the receiving State would have been degrading and, therefore, the sending State’s authorities “knew or ought to have known”93 that his transfer could amount to a violation of Article 3 ECHR; a conclusion that is not very different from saying – as the Luxembourg Court did in the N.S. and M.E. cases – that national courts have to impede any transfer of asylum seekers “where they cannot be unaware that systemic deficiencies in the asylum procedure” are present in the EU Member State competent according to the Dublin II Regulation.

While on this point the two Courts appeared to have reached an implicit concord-ance of views, the ECJ also made an explicit reference to the M.S.S. case in the N.S. and M.E. cases. It did so when determining the type of systematic deficiencies in asylum procedures and reception conditions for asylum seekers resulting in inhuman or degrad-ing treatments capable of rebutting the presumption of equivalent protection that lays at the foundation of the Dublin II Regulation. Indeed, it said that “the extent of the in-fringement of fundamental rights described in [M.S.S. v. Belgium and Greece] shows that there existed in [the responsible country], at the time of the transfer of the appli-cant M.S.S., a systemic deficiency in the asylum procedure and in the reception condi-tions of asylum seekers”.94 It is remarkable that the ECJ made reference to the Stras-

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bourg Court’s judgment but did not draw directly upon its reasoning.95 It is also note-worthy that the only question the ECJ left unanswered referred to whether the protection afforded an individual by the general principles of EU law and the rights set out in Arti-cles 1 (human dignity), 18 (right to asylum) and 47 (right to an effective remedy) of the EUCFR was wider than that afforded by the ECtHR under Article 3 ECHR. On this point, the ECJ spelled out that “the Charter reaffirms the rights, freedoms and princi-ples recognised in the Union”;96 nevertheless, distinguishing its view from the Opinion of AG Trstenjak,97 it did not consider the incidence of breaches of the abovementioned articles of the EUCFR in the decision to prevent the transfer.98

Ultimately, what is noteworthy about the case under scrutiny is the reluctance of the ECJ to allow TCNs the opportunity to influence the selection of a certain State for asylum. However, it must be said that this possibility, expressly foreseen in Article 3, para. 4 of the 1990 Dublin Convention,99 which was the juridical “ancestor” of the Dub-lin II Regulation, was removed from the proposal for the adoption of the Dublin II Reg-ulation, due to the robust opposition of many Member States.100

Hence, in the N.S. and M.E. cases, the ECJ ruled that when an asylum seeker can-not be transferred to the responsible State, the EU Member State hosting him should consider the possibility of sending him to any other State that could be held “responsi-ble” according to the hierarchical criteria of the Dublin II Regulation and, only in the extreme circumstances in which this second transfer was not possible, the concerned Member State had an obligation to take direct responsibility for reviewing his asylum application under Article 3 (2) of the Dublin II Regulation. Mutatis mutandis, in the case Hirsi and Others v. Italy,101 the ECtHR reached a similar conclusion on the impos-sibility to frame the right to asylum as an individual perfect right. In this case, after having condemned the Italian practice of push-back of migrants at sea as a flagrant violation of the non-refoulement obligation, it did not draw from these premises the conclusion that Italy was obliged to admit to its territory the TCNs previously pushed back in order to allow them to submit their asylum applications.102

5. Assessing the impact of the binding nature of the EU Charter on the protection of asylum seekers in Europe

The conferral of the same legal status as the Treaties to the EU Charter of Funda-mental Rights through the new formulation of Article 6 TEU might produce conse-quences in light of the recasting of the EU asylum system. Apart from dispositions spe-cifically related to international protection, it must be emphasized that the entitlement ratione personarum of the majority of the fundamental human rights recognized in the Charter is not restricted to EU citizens, but extends to “everyone” and thus also to aliens falling under the jurisdiction of EU Member States. Even in Chapter V of the Charter, containing mostly dispositions specifically destined for citizens, there are rights which all are entitled to enjoy. This is the case of the right to an effective remedy and to a fair trial, granted by Article 47, whose interpretation has been given by the ECJ in the Diouf case.103

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In deciding this case, the Court had to explore the notion of “accelerated proce-dure” under Article 39 of the Procedures Directive; more precisely, it had to clarify whether, in conformity to the said act and to the right to an effective remedy enshrined in Article 47 EUCFR and in Articles 6 and 13 ECHR, Member States had to provide asylum seekers with judicial means to act on appeal against a competent domestic au-thority’s decision to process their asylum request by means of accelerated procedures. On this point, the ECJ upheld that the absence, in the domestic legal environment, of any appeal action to oppose a national authority’s decision to make recourse to the ac-celerated procedures when dealing with an application for asylum did not constitute in itself a violation of the right to an effective remedy as entrenched in EU law, “provided that the reasons which led that authority to examine the merits of the application under such a procedure can in fact be subject to judicial review in the action which may be brought against the final decision rejecting the application”.104 Coming to this conclu-sion, the ECJ apparently seemed to share the hermeneutic viewpoint of the Strasbourg Court on Article 6 and 13 ECHR and, more precisely, to endorse its reasoning in the earlier case Jabari v. Turkey.105

However, the path it chose to reach this conclusion is peculiar and clearly shows the ECJ’s intention to distinguish its interpretation from Strasbourg’s. Indeed, it as-sessed the conformity of the Directive Procedures with Article 47 of the EUCFR and only “indirectly, with the minimum content of the European Convention on Human Rights”.106 On this point, the Court matched the opinion of AG Villalon, who stressed that “European Union law, […] as a system of law, has given rise to the development of its own set of defining principles”, so that “the right to effective judicial protection […] has, through being recognised as part of European Union law by virtue of Article 47, acquired a separate identity and substance […] which are not the mere sum of the pro-visions of Articles 6 and 13 of the ECHR”.107

The same line of reasoning seems to characterize the recent pronunciation of the ECJ in the joined cases Y and Z.108 Here the Luxembourg judges were asked to interpret the notion of “act of persecution” contained in Article 9 (1) (a) of the Qualification Directive and in particular to explore if this notion could cover a restriction of the free-dom of religion disciplined in Article 10 (1) of the EUCFR. After having recalled that “[t]he right to religious freedom enshrined in Article 10(1) of the Charter corresponds to the right guaranteed by Article 9 of the ECHR”,109 the Court made its adjudication without any mention of the ECtHR jurisprudence on the issue, eventually concluding in line with it110 and with the conclusion of AG Bot111 on the relevance of the general situ-ation of the country of destination in the risk assessment.112 The attitude of the ECJ towards Strasbourg might have another chance to be tested in the Puid case,113 in which the Court has been asked to clarify whether the risk for an asylum seeker – related to the legal or administrative environment in a Member State that should have assumed the responsibly for processing its asylum application pursuant to the criteria set forth in the Dublin II Regulation – could constitute a ground for an obligation on the Member State in which the application has been submitted to enforce the sovereignty clause of Article 3 (2). Indeed, a positive answer would represent another evidence of the convergence of the ECJ on the view of the Strasbourg Court on the increasing importance of the overall situation of the country of destination in the assessment of the risk of refoulement.

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Even in this case, it would not be surprising if the ECJ decides to follow a different route to reach the same destination. In fact, the cases under scrutiny show the increasing relevance attached by the ECJ to its interpretative autonomy in the human rights field, following the entry into force of the Lisbon treaty and the new binding nature of the EU Charter. The Court has started to become more aware of its role as a human rights tribu-nal and of the fact that, in the renewed legal framework, the interpretation/ application of the rights enshrined in the EU Charter is subject to the conditions estab-lished by the legal system of belonging.114 However, what is peculiar, both in the cases under scrutiny and in the other cases previously analysed, is that the discrepancy be-tween the jurisprudences of Strasbourg and Luxembourg on analogous issues appears to be more in form than in substance.

This back and forth movement by the ECJ is understandable. Indeed, in dealing with its new role as a human right court, the ECJ is bound to refer to Strasbourg’s juris-prudence, since the last paragraph of Article 6 TEU expressly states that the rights guar-anteed by the ECHR “shall constitute general principles of the Union’s law” and Article 52 (3) EUCFR adds that the said Convention represents a minimum standard of protec-tion non-derogable in pejus by EU Member States.115

In addition, the EU Charter does not contain an autonomous definition of the right to asylum (Article 18) or the obligation of non-refoulement (Article 19), but their scope and content is outlined on the legal basis of external juridical sources, such as the Gene-va Convention and the Strasbourg jurisprudence. Thus, an autonomous reconstruction of the material content of the said dispositions in future Luxembourg case-law might be complicated. It is particularly true for the right to asylum since, to be enforceable by individuals, it requires Member States to enact domestic legislation detailing its content by reference to the Geneva Convention or to the EU secondary legislation on asylum.116 In light of the foregoing, the authoritative interpretation of Article 18 EUCFR by the ECJ might acquire certain relevance, since only it could speak the last word on the con-tent of the guaranteed right.

Presently, three pending preliminary references, relating to the interpretation of the “sovereignty clause” in the Dublin II Regulation, may offer the Court another chance to explore the scope and content of the right to asylum in the EU legal context. One is the Halaf case,117 in which the referring court has asked the ECJ to clarify the content of the rights set forth in Article 18 EUCFR. Another interesting preliminary reference is the K case,118 in which the Court has been asked to rule on the possibility of configuring the mere faculty of a Member State to examine an asylum request under Article 3 (2) of the Dublin II Regulation as a legal duty when the applicant’s transfer to the responsible Member State may result in a breach of Article 3 or Article 8 ECHR. In addition, the referring court has wondered if the notion of “inhuman treatment” or “family”, devel-oped to this end by Luxembourg, might be broader than the one entrenched in the Stras-bourg jurisprudence.119 Finally, in the M and Others case,120 the Court has been asked to rule on the configurability of an asylum seeker’s right to choose which Member State he desires to take charge of his asylum application ex Article 3 (2) of the Dublin II Regula-tion. By this preliminary reference, the national judge has raised the issue of the mani-festation of a “double will” to allocate an application for asylum: that of the State (who intends to take charge of the examination of the application under Article 3 (2)) and that of the applicant (who has to agree to the fact that the procedures are carried out in the State which intends to activate the sovereignty clause). This possibility, as we said, was

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foreseen in the previous 1990 Dublin Convention at Article 3 (4).121 Over and above, similar remarks can be related to Article 19 EUCFR. Indeed,

while para. 1 of the said disposition reproduces Article 4 of the Protocol No. 4 to the ECHR, prohibiting collective expulsion,122 para. 2, establishing the principle of non-refoulement in absolute terms, constitutes an attempt to codify the relevant case-law from the ECtHR regarding Article 3 ECHR.123 It follows that its interpretation shall take into due account the evolving jurisprudence of Strasbourg on the protection of aliens in case of expulsion.124 In any case, without intervention by the ECJ, it might be difficult to say if the codification in absolute terms of Article 19 (2) of the EUCFR represents a remarkable step forward in the enforcement of the protection against refoulement in the EU legal space. In fact, on the one hand, the absence of any exception to the principle of non-refoulement in the Charter could conceivably influence the development of the principle within the remit of EU law by providing for an interesting spill over in contro-versies regarding the application of the exclusion and revocation clauses. On the other hand, EU Member States practices and, sometimes, even EU legislation aimed at water-ing down the effectiveness of this prohibition,125 risk compromising its uniform imple-mentation at the EU level.

6. Final remarks

The new binding nature of the EUCFR and the empowerment of the ECJ in the field of asylum and refugee law have placed the judges of Luxembourg in a better posi-tion to effectively impact the ongoing process of creation of a CEAS by means of their binding interpretation of Council Directives and Regulations and by the sanction on Member States in case of non-transposition in the prescribed terms of non self-executing EU law into domestic legal systems.

These developments have legitimized the ECJ to be more active in the field of asy-lum and refugee law and have represented a stimulus in the arduous research of com-promise among Member States on the recasting of the existing key legal instrument, eventually ended in the adoption of a new legislative act on definitions and qualifica-tions.126 This result might constitute a step forward in the ongoing process of reform of the EU asylum system.127 Anyhow, some ambiguities and inconsistencies still dominate the ECJ’s approach to refugee-related issues. In addition, notwithstanding the new ac-tivism of the ECJ in the field of asylum, the few cases examined to date have not en-tailed fundamental issues surrounding refugee law.

In light of the foregoing and of the new formulation of Article 6 (2) TEU, foresee-ing the accession of the Union to the ECHR, it would probably be productive for the two Courts to adjust their respective functions in order to strengthen the protection of human rights in Europe instead of disputing over the primacy on the European human rights’ stage. As Ms. Malmström recognized short after the entry into force of the Lis-bon Treaty: “We must take into account the case-law of the European Courts, both in Strasbourg and in Luxembourg and the Charter on Fundamental rights. I know that for Member States, it does sometimes represent a real challenge as practice and legislation must be modified in certain cases. But it is the choice also made by the EU, in particu-lar with the Lisbon Treaty. It is particularly relevant for all matters related to the con-cepts of effective remedies, non-discrimination and protection against refoulement”.128

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Notes 1 The international opinio juris offers many instances of this viewpoint. See, among others,

the interpretation of the expression “to enjoy asylum”, contained in Article 14 (1) of the Universal Declaration on Human Rights (UN General Assembly, Res. 217 A (III) of 10 December 1948, Doc. A/810), defined by the British delegate during the travaux préparatoires as “the right of every State to offer refuge and to resist all demands for extradition”. See also Iran-United States Claims Tribunal, Yeager v. Islamic Republic of Iran, n. AWD 324-10199-1, jud. 2 November 1987. On this topic refer to F. Lenzerini, Asilo e diritti umani. L’evoluzione del diritto d’asilo nel diritto internazionale, Milano, Giuffrè, 2009, p. 83 ff.

2 See K. Groenendijk, Introduction: Migration and Law in Europe, in E. Guild, P. Minder-houd (eds.), The First Decade of EU Migration and Asylum Law, Leiden-Boston, Martinus Nijhoff Pub., 2012, pp. 1-22.

3 On the Schengen acquis, refer to S. Carrera, E. Guild, M. Melino, J. Parkin, A Race against Solidarity. The Schengen Regime and the Franco-Italian Affair, in CEPS Paper in Liberty and Security in Europe, Bruxelles, CEPS, April 2011, at 3-4. The article is retrieved from: http://aei.pitt.edu/31639/1/The_Franco-Italian_Affair.pdf.

4 The practice of “asylum shopping” describes the phenomenon where an asylum applicant applies for asylum in more than one Member State or chooses one Member State in preference to others on the basis of a perceived higher standard of reception conditions or social security assis-tance. This definition has no legal value, but it has been often used by the European Commission to point out ad abuse of the asylum procedure. See, for instance, Communication COM(2000)755 final Commission Staff Working Document (SEC(2008)2029).

5 Treaty of Amsterdam amending the Treaty on European Union (TEU), the Treaty establish-ing the European Community and related acts (TEC), Amsterdam, 2 October 1997, OJ C 340/1, 10.11.1997.

6 Hereinafter referred to as “AFSJ”. See Article 61 TEC and Article 2 TEU. 7 Article 63 (1) TEC. For the “Refugee Convention” or “Geneva Convention” refer to UN

General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, Vol. 189, p. 137. See also, UN General Assembly, Protocol Relating to the Status of Refugees, 30 January 1967, United Nations, Treaty Series, vol. 606, p. 267. References in EU primary law to the Refugee Convention and to other relevant treaties have had a crucial relevance for the development of the ECJ’s jurisprudence in this field. This aspect will be further discussed at para. 3 and ff. On the connexion established by Article 63 of the Amsterdam Treaty between the EU asylum law and the international framework for the protection of refugees refer to M.G. Garlick, The Common European Asylum System and the European Court of Justice – New Juris-prudence and New Challenges, in E. Guild, S. Carrera, A. Eggenschwiler (eds.), The Area of Freedom, Security and Justice Ten Years on – Successes and Future Challenges Under the Stock-holm Programme, Bruxelles, CEPS, 2010, pp. 49-62, at 52 ff.

8 See Council of the European Union, Presidency Conclusions of the Tampere European Council of 15-16 October 1999, SN 200/1/99, Brussels, 16 October 1999, retrieved from http://www.unhcr.org/refworld/docid/3ef2d2264.html.

9 Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Con-vention, OJ L 316/1, 15/12/2000.

10 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 50/1, 25.2.2003.

11 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304, 30/09/2004, pp. 12-23. Hereinafter referred to as the “Qualification Directive”. This directive has been recently replaced by 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 benefi-

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ciaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast.), entered into force on 9 January 2012, to be fully transposed into domestic law at the latest by 21 December 2013.

12 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326, 13.12.2005, pp. 13-34. Hereinafter referred to as the “Procedures Directive”.

13 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L 31, 6.2.2003, pp. 18-25. Hereinafter referred to as the “Recep-tion Conditions Directive”.

14 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a bal-ance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ L 212, 7.8.2001, pp. 12-23. Hereinafter referred to as the “Temporary Protection Directive”.

15 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3.10.2003, pp. 12-18.

16 Hereinafter referred to as “ECJ”, “the Court of Luxembourg” or simply “the Court”. 17 European Council, European Pact on Immigration and Asylum, Brussels, 24 September

2008, Doc. No. 13440/08, ASIM 72. 18 European Council, The Stockholm Programme — An Open and Secure Europe Serving and

Protecting Citizens, (OJ C 115/01, 4.5.2010). The Stockholm Programme, at p. 69, also recom-mended the EU to “seek accession to the 1951 Geneva Convention and its 1967 Protocol”.

19 The expression “area of freedom, security and justice” is also contained in Article 3 (2) of the Treaty on European Union (OJ C 306, 17.12.2007, hereinafter referred to as TEU), where it is qualified as one of the objectives of the Union.

20 The expression “Common European Asylum System” – hereinafter referred to as “CEAS” – was introduced by the Tampere Conclusions, cit., at endnote no. 8, at para. 13. This goal was further enhanced in the Hague Programme, adopted by the European Council of 4 November 2004 in order to set the objectives to be achieved in the AFSJ in the period 2005-2010. For a commentary, see European Parliament, Setting Up a Common European Asylum System – Report on the Application of Existing Instruments and Proposals for the New System, Bruxelles, Europe-an Parliament, 2010. This document is available at: http://www.europarl.europa.eu/studies. More generally, see L. Buono, From Tampere to The Hague and Beyond: Towards the Stockholm Pro-gramme in the Area of Freedom, Security and Justice, in ERA Forum, 2009/10, pp. 333-342.

21 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, 13 December 2007, OJ C 306, 17.12.2007. On the impact of the integra-tion of immigration and asylum law in the general framework of EU integration by the Treaty of Lisbon see S. Peers, Mission Accomplished? EU Justice and Home Affairs Law After the Treaty of Lisbon, in Common Market Review, 2011/48, pp. 661-693, at 671 ff.

22 See further para. 4. 23 ECJ, Elgafaji v. Staatssecretaris van Justitie, Case C-465/07, Judgment of the Court (Grand

Chamber) of 17 February 2009, [2009] ECR I-921. The case concerned a Shiite Iraqi national who, before fleeing and applying for a temporary residence permit in The Netherlands, worked in Bagdad for a British security company. His uncle, working for the same security company, was killed in a terrorist attack and he received a letter threatening him and his wife of Sunni origin to death. Dutch authorities, on the basis that the couple couldn’t prove a real and individual risk incumbent on them in case of removal, rejected their request of temporary admission in The Netherlands. In particular they moved from the idea that – as far as the individualization of the risk is concerned – the same standard of prove had to be applied both to the hypothesis of torture (Article 15 (b)) and to the one of a threat arising from the general situation of violence created by a conflict (Article 15 (c)).

24 This asylum-related referral to the ECJ entailed more substantive aspects of the matter, while the Petrosian case [ECJ, Migrationsverket v. Petrosian and Others, Case C-19/08, Judg-ment of the Court (Fourth Chamber) of 29 January 2009, [2009] ECR I-495] dealt exclusively

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with procedural aspect of the Dublin II Regulation, namely with the notion of “time limits” for the transfer of asylum seekers in the State responsible for examining their application under the Dub-lin II Regulation. For a general commentary on the role of the ECJ in the development of the right to seek asylum and the principle of non-refoulement in EU Member States, see L.E. Bacaian, The Protection of Refugees and their Right to Seek Asylum in the European Union, Institut Européen de l’Université de Genève, Collection Euryopa, 2011/70, pp. 48-62.

25 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222. Hereinafter referred to as “the European Convention on Human Rights” or “ECHR” or simp-ly “the European Convention”.

26 Hereinafter referred to as “the ECtHR” or “the Court of Strasbourg”. 27 The Court of Strasbourg has further developed the concept originally codified in Article 33

(1) of the Refugee Convention, enlarging the scope of the protection both ratione personarum and materiae. On the jurisprudence of the ECtHR on Article 3 see, ex plurimis, O. Delas, Le principe de non-refoulement dans la jurisprudence internationale des droits de l’homme, Bruxelles, Bruylant, 2011, at 35 ff.

28 ECJ, Elgafaji v. Staatssecretaris van Justitie, cit., para. 28. 29 For bitter critics of this compromise, see UN High Commissioner for Refugees, Safe at

Least? Law and Practice in Selected EU Member States with Respect to Asylum-Seekers Fleeing Indiscriminate Violence, 27 July 2011, p. 29.

30 On the national practices, see G. Gyulai, The Luxembourg Court: Conductor for Disharmo-nious Orchestra? Mapping the National Impact of the Four Initial Asylum-Related Judgments of the EU Court of Justice, Hungarian Helsinki Committee, 2012, at 13 ff. For instance, at footnote 29, the Author reports that, due to the “overt contradiction” embedded in Article 15 (c), Austria, Belgium, Hungary and Czech Republic, felt free not to transpose the term “individual” into their national legislation.

31 ECJ, Elgafaji v. Staatssecretaris van Justitie, cit., para. 35. 32 Ibid., para. 43. 33 Ibid., para. 39. 34 Opinion of Advocate General (AG) Poiares Maduro, delivered on 9 September 2008, Case

C-465/07, para. 19: “Community provisions, irrespective of which provisions are concerned, are given an independent interpretation which cannot therefore vary according to and/or be depend-ent on developments in the case-law of the European Court of Human Rights”. Retrieved from: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007CC0465:EN:HTML.

35 ECJ, Elgafaji v. Staatssecretaris van Justitie, cit., para. 44. 36 See – mutatis mutandis – E. Cannizzaro, L’incidenza della giurisprudenza della Corte eu-

ropea sul contenuto della tutela dei diritti umani nell’Unione europea, in M. Fragola (ed.), La cooperazione fra corti in Europa nella tutela dei diritti dell’uomo. Atti del Convegno interinale SIDI, Università della Calabria, 12 aprile 2010, Napoli, Editoriale Scientifica, 2012, pp. 39-50, at 40 ff.

37 ECtHR, NA. v. United Kingdom, Application No. 25904/07, Judgment of the Court (Fourth Section) of 17 July 2008.

38 Ibid., para. 107. 39 Ibid., para. 115. 40 ECtHR, Sufi and Elmi v. United Kingdom, Applications Nos. 8319/07 and 11449/07, Judg-

ment of the Court (Fourth Section) of 28 June 2011, paras. 225-226. 41 Ibid., para. 226: “based on the ECJ’s interpretation in Elgafaji, the Court is not persuaded

that Article 3 of the Convention, as interpreted in NA, does not offer comparable protection to that afforded under the Directive. In particular, it notes that the threshold set by both provi-sions may, in exceptional circumstances, be attained in consequence of a situation of general violence of such intensity that any person being returned to the region in question would be at risk simply on account of their presence there”.

42 ECJ, Salahadin Abdulla and Others v. Bundesrepublik Deutschland, Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, Judgment of the Court (Grand Chamber) of 2 March 2010, [2010] ECR I-1493.

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43 ECJ, Nawras Bolbol v. Bevándorlási és Állampolgársági Hivatal, Case C-31/09, Judgment of the Court (Grand Chamber) of 17 June 2010, [2010] ECR I-5539. For a commentary of the Bolbol case see Closing Protection Gap: A Handbook on Protection of Palestinian Refugees in States Signatories of the 1951 Refugee Convention. Jurisprudence Regarding Article 1 D (2005-2010), BADIL Resource Center for Palestinian Residency and Refugee Rights, Revised Second Ed., August 2011, at pp. 18-21.

44 ECJ, Bundesrepublik Deutschland v. B and D, Joined Cases C-57/09 and C-101/09, Judg-ment of the Court (Grand Chamber) of 9 November 2010, [2010] ECR I-10979.

45 Charter of Fundamental Rights of the European Union, OJ C 364/1, 18 December 2000. Hereinafter referred to as “the EUCFR”.

46 On this topic see further para. 5. 47 See endnote no. 42. The case concerned two Iraqi asylum-seekers who were granted refu-

gee status in Germany in 2001 and 2002, because of their well-founded fear of persecution in Iraq by the Baath Party of Saddam Hussein. After the dictator’s overthrow, in 2004 and 2005, the German authorities revoked the applicants’ refugee status on the account of the fundamental change in the political situation in Iraq. Against this decision, they brought actions for annulment before the competent administrative courts and obtained its revocation in 2005, justified by the risks they might face upon removal due to the still instable situation in Iraq. One year later, the decisions for annulment were overturned by a second-instance pronouncement, stating that the fundamental change in circumstances in Iraq eliminated any significant threat of persecution against the applicants. The controversies reached the German Federal Administrative Court that submitted a reference for preliminary ruling to the ECJ asking to clarify the condition for the implementation of Article 11 (1) (e) of the Qualification Directive.

48 The question was significant because the two dispositions are formulated in slightly differ-ent terms, since the second clause of Article 1 C (5) of the Geneva Convention appears to extend the guarantee against the decision of revocation of refugee status beyond Article 11 (1) (e) of the Qualification Directive. See UN High Commissioner for Refugees, Guidelines on International Protection. Cessation of Refugee Status in the context of Article 1 C (5) and (6) of the 1951 Con-vention, HCR/GIP/03/03, 10 February 2003.

49 Other relevant treaties in the domain of asylum, to whom all EU Member States are indi-vidually parties are: the UN Convention against torture and other cruel, inhuman or degrading treatments and punishment (Art. 3), 10 December 1984, UNTS, Vol. 1465, p. 85; the International Covenant of Civil and Political Rights (Art. 7), 16 December 1966, UNTS, Vol. 999, p. 171; the European Convention on Human Rights, cit., (Art. 3). For the reference to the Geneva Convention and to the other relevant treaties in the primary law of the Union, refer to Article 63 (1) TEC, quoted at endnote no. 6, and to Article 78 (1) of the Treaty on the Functioning of the European Union (hereinafter referred to as TFEU). Moreover, since the Tampere Conclusions, the set up of the CEAS has been intended to be “based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement”. See endnote no. 8. See also the Second Recital of the Qualification Di-rective, reproducing the same commitment by using the same wording of the Tampere Conclu-sions.

50 ECJ, Salahadin Abdulla and Others v. Bundesrepublik Deutschland, cit., paras. 53-54. 51 Ibid., para. 52. This definition of the Geneva Convention is contained in the Third Recital

of the Preamble of the Qualification Directive, transposed into the Fourth Recital of Directive 2011/95/EU, cited at endnote no. 11.

52 Opinion of Advocate General Mazák, delivered on 15 September 2009, Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, para. 42, retrieved from: http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=CELEX:62008CC0175:EN:HTML.

53 ECJ, Salahadin Abdulla and Others v. Bundesrepublik Deutschland, cit., para. 54. 54 Opinion of Advocate General Mazák, delivered on 15 September 2009, cit., para. 43. 55 ECJ, Salahadin Abdulla and Others v. Bundesrepublik Deutschland, cit., paras. 83 and 95. 56 See Article 7 (1) (b) of the Qualification Directive, cit.: “Protection can be provided not

only by the State but also by parties or organisations, including international organisations,

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meeting the conditions of this Directive, which control a region or a larger area within the terri-tory of the State”. See also Recital 19 of the Preamble.

57 UN High Commissioner for Refugees, UNHCR Statement on the “Ceased Circumstances” Clause of the EC Qualification Directive, August 2008, p. 16. It is worth recalling that the UNHCR is not entitled to stand before the ECJ, since, pursuant to Article 23 of the Court’s Stat-ute, only EU Institutions and Member States can intervene as third party in a proceeding before the Court. Nevertheless, since the Amsterdam Treaty, the EU has recognized the UNHCR as the agency entrusted with the supervision of the Refugee Convention throughout Declaration 17 of the Amsterdam Treaty. For UNHCR’s general remarks on the Qualification Directive, see: UNHCR, Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection granted (OJ L 304/12 of 30.9.2004), 28 January 2005, retrieved from: http://www.unhcr.org/refworld/docid/4200d8354.html. See also: M.T. Gil-Bazo, Refugee Status and Subsidiary Protection under EC Law. The EC Qualification Directive and the Right to be Granted Asylum, in A. Baldaccini, E. Guild, H. Toner (eds.), Whose Freedom, Security and Jus-tice?: EU Immigration and Asylum Law and Policy, Oxford, Hart Pub., 2007, pp. 229-264.

58 Refer to Directive 2011/95/EU, cited at endnote no. 11, Article 7 (1), last clause and Article 7 (3), last clause.

59 See endnote no. 43. In this case, the Budapest Metropolitan Court had to rule on the admis-sibility of an asylum application by a displaced Palestinian from the Gaza Strip, who resided in Hungary and so outside the area in which the UNRWA operates. For this reason, the applicant did not avail herself of the protection granted by the UN agency, even though she maintained to be entitled to be registered with it. Ms Bolbol applied to the Hungarian Office of Immigration and Nationality to have recognized automatically her refugee status. The relevant national authorities accepted that, pursuant to Article 1 D of the Geneva Convention, also Palestinian refugees can apply to have recognized its benefits, but they refused the idea that Palestinians have to be granted refugee status automatically, asking them to meet the conditions set forth in Article 1 A of the Convention. As a consequence, in the case in comment, they denied Ms Bolbol’s refugee status on the account of the fact that she could not demonstrate a well-found fear of being persecuted in the Gaza Strip, but did not send her back due to the precarious situation in the country of origin.

60 ECJ, Nawras Bolbol v. Bevándorlási és Állampolgársági Hivatal, cit., para. 49. 61 See Revised Note on the Applicability of Article 1 D of the 1951 Convention relating to the

Status of Refugees to Palestinian Refugees, in Refugee Survey Quarterly, 2009/28, pp. 657-661. 62 ECJ, Nawras Bolbol v. Bevándorlási és Állampolgársági Hivatal, cit., paras. 51-53. 63 Opinion of Advocate General Sharpston, delivered on 4 March 2010, Case C-31/09, re-

trieved from: http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30db880 cfeaa98be41c5a843ec5b552aaf86.e34KaxiLc3qMb40Rch0SaxuKbx10?text=&docid=79353& pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2372529#Footnote64.

64 UN High Commissioner for Refugees, UNHCR Revised Statement on Article 1D of the 1951 Convention issued in the context of the preliminary ruling reference to the Court of Justice of the European Communities from the Budapest Municipal Court regarding the interpretation of Article 12(1)(a) of the Qualification Directive, para. 2.1, at 6-7, accessible at: http://www.unhcr. org/cgi-bin/texis/vtx/refworld/rwmain?docid=4add79a82.

65 Opinion of Advocate General Sharpston, cit., para. 76. Advocate Sharpstone pointed out a number of reasons why Article 1 D of the Convention cannot be read in a way of excluding from the scope ratione personarum of the Geneva Convention Palestinian refugees who, even being potential addresses of the UNRWA’s protection, have not actually availed themselves of it. In particular, he maintained that “the wording of the first sentence uses the expression ‘receiving’ rather than ‘is entitled to receive’” (at para. 73) and that “the first sentence of Article 1 D is a derogation from the general principle that the protection ratione personae given by the Conven-tion is universal, [and therefore] it should presumably be interpreted strictly rather than expan-sively” (at para. 74).

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66 See endnote no. 44. The cases concerned two Turkish nationals of Kurdish origin who re-sided in Germany. In the case of B, the applicant was excluded from refugee status pursuant to Article 12 (2) (b) by the BAMF – the German asylum authority. Both the local court on first instance and the Higher Administrative Court of North Rhine-Westphalia on appeal overturned this decision, the latter pursuant to the new Article 16 A of the German Constitution, pursuant to whose paragraph 1 “Anybody persecuted on political grounds shall enjoy the right of asylum”. In the case of D, the applicant was a prominent exponent of the PKK – the Kurdistan Worker Party – who, after being granted asylum, saw it’s refugee status revoked both on the exclusion grounds of para. 2 (b) and (c) of Article 12 of the Qualification Directive. As for Mr. B, the revocation deci-sion was annulated by both the local administrative court and the Administrative Court of North Rhine-Westphalia. At this point, the BAMF challenged the decision in both cases before the Federal Administrative Court, who referred the cases to the ECJ.

67 Opinion of Advocate General Mengozzi, delivered delivered on 1 June 2010, Joined Cases C-57/09 and C-101/09, para. 44, retrieved from: http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=CELEX:62009CC0057:EN:HTML.

68 ECJ, Bundesrepublik Deutschland v. B and D, cit., para. 99. 69 Ibid., para. 109. 70 Ibid., para. 121. 71 See F. Lenzerini, Diritto d’asilo e esclusione dallo status di rifugiato. Luci e ombre

nell’approccio della Corte di giustizia dell’Unione europea, in Rivista di diritto internazionale, 2011/1, pp. 103-135.

72 ECJ, Bundesrepublik Deutschland v. B and D, cit., para. 121. 73 Opinion of Advocate General Mengozzi, cit., para. 45. 74 ECJ, Bundesrepublik Deutschland v. B and D, cit., para. 115. 75 According to some authors, with its answer the Court introduced a form of rigidity in its

refugee case-law on the exclusion clauses, practically enlarging the gap between its jurisprudence and Strasbourg case-law on Article 3 ECHR. See, e.g., F. Lenzerini, Diritto d’asilo e esclusione dallo status di rifugiato, cit., passim.

76 See Article 67, para. 2 TFEU. 77 See Article 80 TFUE. 78 See Article 68 TFEU. Before the entry into force of the Lisbon Treaty, the European Coun-

cil enjoyed this function de facto, without any available control of legitimacy by the ECJ. See P. Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform, Oxford, Oxford University Press, 2011, at 344.

79 Council Decision of 20 December 2007 amending the Protocol on the Statute of the Court of Justice and amendments to the Rules of Procedure of the Court of Justice adopted by the Court on 15 January 2008 (OJEU 2008 L 24, p. 39). This procedure has been already implemented several times, especially in the case of detention of TCNs for irregular staying under the Directive 2008/115/EC, as for instance in the cases Kadzoev and El Dridi. See ECJ, Said Shamilovich Kad-zoev (Huchbarov), Case C-357/09 PPU, Judgment of the Court (Grand Chamber) of 30 November 2009, [2009] ECR I-11189; Hassen El Dridi, alias Soufi Karim, Case C-61/11 PPU, Judgment of the Court (Second Chamber) of 28 April 2011 (not yet published). See D. Vitiello, Sui profili di contrasto tra la direttiva rimpatri e la procedura italiana di espulsione dei migranti irregolari. Considerazioni a margine del caso El Dridi, in Federalismi.it, 2011/14, pp. 1-22.

80 For further remarks on this issue, see M.G. Garlick, The Common European Asylum System and the European Court of Justice, cit., at p. 56.

81 ECJ, N.S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, Joint Cases C-411/10 and C-493/10, Judgment of the Court (Grand Chamber) of 21 December 2011 (not yet published).

82 Under these articles, if a Member State believes that another is responsible for processing an asylum application, it can request that the asylum seeker is transferred to the “responsible State”. The “responsible Member State”, pursuant to Article 3 (1) of the Regulation, is determined by various factors outlined in Chapter III including family, age and residence. The default posi-

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tion is settled in Article 13, stating that the country with which the application for asylum was first lodged will be responsible. Finally, Article 10 (1) stipulates that: “Where it is established […] that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for asylum”.

83 ECJ, N.S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, cit., para. 84.

84 Ibid., para. 105. 85 Ibid., para. 86 and 94. 86 Ibid., para. 87. 87 The problem of “burden-sharing” arisen in the ambit of free circulation of persons in the

EU as a consequence of the influx of Tunisian immigrants towards Italian coasts in the aftermath of the “Arab spring”. See D. Vitiello, The ‘Lampedusa Case’ from a Domestic and European Standpoint, in AWR Bulletin – Quarterly on Refugee Problems, 2011/49, pp. 282-300.

88 ECJ, N.S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v. Refugee Applications Commissioner, cit., para. 94.

89 An assistance on the meaning of the expression “cannot be unaware” within the remit of the EU legal system might be provided by the recent proposal of the Meijers Committee, according to which Member States should be obliged, on a quarterly basis, to submit to the European Asylum Support Office (EASO) and to the Commission statistical data referring on the length of the pro-cedures, the detention conditions and the reception capacity. See Meijers Committee, The recast of the Dublin regulation (2008/0243 COD) and the proposal for a process for early warning, preparedness and management of asylum crisis, Letter of 26 March 2012 from the Meijers Com-mittee to the European Parliament, retrieved from: http://www.statewatch.org/news/ 2012/mar/meijers-cttee-letter-EP-dublin.pdf.

90 ECtHR, M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgement of the Court (Grand Chamber) of 21 January 2011. The ECtHR held that both Belgium and Greece had violat-ed Article 3 of the ECHR (and that Greece had violated Article 13 of the ECHR). See in particular para. 352 of the ruling in the case M.S.S. See also ECtHR, Hirsi Jamaa and Others v. Italy, Ap-plication no. 27765/09, Judgement of the Court (Grand Chamber) of 23 February 2012, para. 352. For an interesting insight on this ruling, refer to G.S. Goodwin-Gill, The Right to Seek Asylum: Interception at the Sea and the Principle of Non-Refoulement, in International Journal of Refugee Law, 23(3), 2011, p. 443-457.

91 ECtHR, M.S.S. v. Belgium and Greece, cit., para. 349. The relevance acquired by the re-ports of the UNHCR in the Strasbourg’s risk assessment on Article 3 is showed also from the circumstance that the delegates of this agency have been invited to present their observations during the public hearing that took place on Sept 1st, 2010 in Strasbourg. On this point, refer to C. Raux, La politique d’asile de l’union européenne dans le viseur de la Cour européenne des droits de l’homme, in Revue Trimestrielle des droits de l’homme, 2011/88, pp. 1023-1044, at 1032.

92 ECtHR, M.S.S. v. Belgium and Greece, cit., para. 366. 93 Ibid., para. 358. 94 ECJ, N.S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E.

H. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, cit., para. 89.

95 See, on the contrary, the Opinion of Advocate General Trstenjak, cit., para. 146 (N.S.) and para. 56 (M.E.).

96 ECJ, N.S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, cit., para. 119.

97 Opinion of Advocate General Trstenjak, delivered on 22 September 2011, Case C-411/10 N.S. and Case C-493/10 M.E. See, e.g., para. 65 (M.E.).

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98 ECJ, N.S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, cit., para. 116.

99 European Union, Convention Determining the State Responsible for Examining Applica-tions for Asylum lodged in one of the Member States of the European Communities (“Dublin Convention”), 15 June 1990, Official Journal C 254, 19/08/1997, pp. 1-12.

100 European Commission, COM(2001)447 def., cit., p. 15. See, amplius, H. Lambert, F. Messineo, P. Tiedemann, Comparative Perspectives of Constitutional Asylum in France, Italy, and Germany: Requiescat In Pace?, in Refugee Survey Quarterly, 2008/27, pp. 16-32, at 20; K. Hailbronner, C. Thiery, Schengen II and Dublin: Responsibility for Asylum Applications in Eu-rope, in Common Market Law Review, 1997/34, pp. 957-989, at 965; C. Marinho, M. Heinonen, Dublin after Schengen: Allocating Responsibility for Examining Asylum Applications in Practice, EIPASCOPE, 1998/3, pp. 1-12, at 6.

101 ECtHR, Hirsi Jamaa and Others v. Italy, Application no. 27765/09, Judgement of the Court (Grand Chamber) of 23 February 2012, para. 211.

102 On this point, see the concurring opinion of Justice Pinto de Albuquerque, ibid. See also M.-B. Dembour, Hirsi (Part II): Another Side to the Judgment, in Strasbourg Observers, 02.03.2012, retrieved from: http://strasbourgobservers.com/2012/03/02/hirsi-part-ii-another-side-to-the-judgment.

103 For the final judgment, refer to ECJ, Brahim Samba Diouf v. Ministre du travail, de l’emploi et de l’immigration, Case C-69/10, Judgment of the Court (Second Chamber) of 28 July 2011 (not yet published). On the Diouf case, see E. Zaniboni, L’interpretazione del diritto ad un ricorso effettivo e del principio dell’autonomia procedurale degli Stati nella recente giurispru-denza della Corte di giustizia in materia di diritto di asilo, in Europeanrights.eu, 29/05/2012, retrieved from: http://www.europeanrights.eu/index.php?funzione=S&op=5&id=723. On the interpretation of the right to effective judicial review by the ECJ see M. Taborowski, Case C-432/05 UNIBET – Some Practical Remarks on Effective Judicial Protection, in Columbia Journal of European Law, 2008/14, pp. 621 ff.; M. Reneman, Access to an Effective Remedy in European Asylum Procedures, in Amsterdam Law Forum, 2008/1, p. 65-98.

104 Ibid., para. 70. 105 ECtHR, Jabari v. Turkey, Application No. 40035/98, Judgement of the Court (Fourth Sec-

tion) of 11 July 2000, para. 49. 106 ECJ, Brahim Samba Diouf v. Ministre du travail, de l’emploi et de l’immigration, cit., pa-

ra. 34. 107 Opinion of Advocate General Villalon, delivered on 1 March 2011, Case C-69/10, para.

39. 108 ECJ, Federal Republic of Germany v. Y (C-71/11), Z (C-99/11), Joined Cases C-71-11 and

C-99/11, Judgement of the Court (Grand Chamber) of 5 September 2012. 109 ECJ, Federal Republic of Germany v. Y (C-71/11), Z (C-99/11), cit., para. 53. 110 ECtHR, Z & T v. United Kingdom, Application No. 27034/05, Judgment of the Court of 28

February 2006. 111 Opinion of Advocate General Bot, delivered on 23 April 2012, Joined Cases C-71-11 and

C-99/11, para. 86. 112 ECJ, Federal Republic of Germany v. Y (C-71/11), Z (C-99/11), cit., para. 72. 113 Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany)

lodged on 5 January 2011, Federal Republic of Germany v. Kaveh Puid, Case C-4/11, OJ C 95 Volume 54, 26.3.2011, pp. 3-4.

114 See Article 51 of the EUCFR. As a consequence, national courts shall refer their interpre-tative doubts on the EU Charter to it, even when they could alternatively be dealt with by Strasbourg.

115 This clause was introduced in the Charter in order to minimize the risk of divergent inter-pretations of the same rights between Strasbourg and Luxembourg and to avoid a lessening of the ECtHR’s standards of protection. However, it does not indicate the guaranteed rights that can be considered equivalent to the ones recognized under the ECHR. See O. De Schutter, V. Van

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Goethem (eds.), Commentary of the Charter of Fundamental Rights of the European Union, EU Network of Independent Experts on Fundamental Rights, June 2006, retrieved from: http://ec.europa.eu/justice/fundamental-rights/files/networkcommentaryfinal_en.pdf. See also Explanations Relating to the Charter of Fundamental Rights, cit., at 33-34. See also the following Article 53, containing a so-called “non-regression clause” similar to that foresees in Article 53 ECHR. On the role of this clause in the relation between the two system of law under scrutiny, see J. Bering Liisberg, Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? Article 53 of the Charter: a fountain of law or just an inkblot?, Jean Monnet Working Paper 4/01, accessible online at: http://www.google.com/search?q=article+ 52%2C+para.+3+of+the+EU+charter+of+funamental+rights+the+horizontal+clause&sugexp=chrome,mod=16&sourceid=chrome&ie=UTF-8.

116 On the contrary, according to some authors, the right to asylum in the EU is a perfect sub-jective right. These authors maintain that both the travaux préparatoires and the explanations drafted by the Praesidium show the clear intention of Member States to establish the right to asylum in unconditional terms. See M.T. Gil Bazo, The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law, in Refugee Survey Quarterly, 2008/27, pp. 33-52; S. Peers, EU Justice and Home Affairs Law, Oxford, Oxford University Press, 2011, p. 98.

117 Reference for a preliminary ruling from the Administrativen Sad Sofia (Bulgaria) lodged on 18 October 2011, Zuheyr Freyeh Halaf v. Darzhavna agentsia za bezhantsite pri Ministerski savet, Case C-528/11, OJ C 370, 17.12.2011, pp. 18-19.

118 Reference for a preliminary ruling from the Asylgerichtshofs (Austria) lodged on 23 May 2011, K, Case C-245/11, OJ C 269, 10.09.2011, pp. 21-21.

119 It is worth mentioning that the AG gave a negative answer to this question. He maintained that: “the concept of ‘inhuman or degrading treatment’ within the meaning of Article 4 of the Charter essentially corresponds to the same term in Article 3 of the ECHR” and, with regard to the interpretation of the notion of “family life”, he stated that the ECtHR’s jurisprudence on the matter “can be transposed directly to the right to respect for family life guaranteed by Article 7 of the Charter”. See the Opinion of Advocate General Trstenjak, delivered on 27 June 2012, Case C-245/11, paras. 83 and 92.

120 Reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nord-rhein-Westfalen (Germany) lodged on 30 December 2011, M and Others v. Federal Republic of Germany, Case C-666/11, OJ C 73, 10.03.2012, pp. 19-20.

121 See para. 4, endnote no. 100. 122 See Explanations Relating to the Charter of Fundamental Rights, (2007/C 303/02), OJ C

303/17, 14.12.2007, at. 24. These explanations were originally prepared under the authority of the Praesidium of the Convention which drafted the Charter of Fundamental Rights of the European Union.

123 Ibid. 124 ECtHR, Tyrer v. United Kingdom, Application No. 5856/72, Judgement of the Court of 25

April 1978, para. 31: “The Court must also recall that the Convention is a living instru-ment which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions”.

125 Think to the practice of interception at sea and, in general, to the externalisation of migra-tion control. See G.S. Goodwin-Gill, The Right to Seek Asylum: Interception at the Sea and the Principle of Non-Refoulement, in International Journal of Refugee Law, 2011, 3, pp. 443-457; B. Hayes, M. Vermeulen, Borderline. The EU’s New Border Surveillance Initiatives. Assessing the Costs and Fundamental Rights Implications of EUROSUR and the “Smart Borders” Pro-posals, Heinrich-Böll-Stiftung, Berlin, 2012; T. Gammeltoft-Hansen, The Externalisation of European Migration Control and the Reach of International Refugee Law, in European Journal of Migration and Law, 2010, retrieved from: http://www.diis.dk/graphics/Events/2011/ Thomas%20Gammeltoft%20Paper%20asylseminar.pdf.

126 Directive 2011/95/EU, cited at endnote no. 11.

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127 Asylum Procedures Directive (2009/0165(COD)); Reception Directive (2008/0244 (COD)); Dublin II Regulation (2008/0243(COD)); Eurodac Regulation (2008/0242(COD)).

128 C. Malmström, Establishing the Common European Asylum System by 2010 – An Ambi-tious but Feasible Target, Ministerial Conference “Quality and Efficiency in the Asylum Pro-cess”, Brussels, 14 September 2010, available at: http://europa.eu/rapid/pressReleasesAction. do?reference=SPEECH/10/425&type=HTML.

Selected Bibliography L.E. Bacaian, The Protection of Refugees and their Right to Seek Asylum in the European Un-

ion, Institut Européen de l’Université de Genève, Collection Euryopa, 2011/70, pp. 48-62. J. Bering Liisberg, Does the EU Charter of Fundamental Rights Threaten the Supremacy of

Community Law? Article 53 of the Charter: a fountain of law or just an inkblot?, Jean Monnet Working Paper 4/01.

L. Buono, From Tampere to The Hague and Beyond: Towards the Stockholm Programme in the Area of Freedom, Security and Justice, in ERA Forum, 2009/10, pp. 333-342.

E. Cannizzaro, L’incidenza della giurisprudenza della Corte europea sul contenuto della tute-la dei diritti umani nell’Unione europea, in M. Fragola (ed.), La cooperazione fra corti in Europa nella tutela dei diritti dell’uomo. Atti del Convegno interinale SIDI, Università della Calabria, 12 aprile 2010, Napoli, Editoriale Scientifica, 2012, pp. 39-50.

S. Carrera, M. De Somer, B. Petkova, The Court of Justice of the European Union as a Fun-damental Rights Tribunal. Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice, in CEPS Paper in Liberty and Security in Europe, No. 49, Bruxelles, CEPS, August 2012.

P. Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform, Oxford, Oxford University Press, 2011.

O. De Schutter, V. Van Goethem (eds.), Commentary of the Charter of Fundamental Rights of the European Union, EU Network of Independent Experts on Fundamental Rights, June 2006.

M. De Somer, Enhanced Competences for the European Court of Justice: “Re-Shuffling” the Dynamics of EU Migration Policy-Making?, in Migration Studies Unit Working Papers, No. 2012/01, London, London School of Economics and Political Science, 2012.

O. Delas, Le principe de non-refoulement dans la jurisprudence internationale des droits de l’homme, Bruxelles, Bruylant, 2011.

M.-B. Dembour, Hirsi (Part II): Another Side to the Judgment, in Strasbourg Observers, 02.03.2012.

M.T. Gil-Bazo, Refugee Status and Subsidiary Protection under EC Law. The EC Qualifica-tion Directive and the Right to be Granted Asylum, in A. Baldaccini, E. Guild, H. Toner (eds.), Whose Freedom, Security and Justice?: EU Immigration and Asylum Law and Policy, Oxford, Hart Pub., 2007, pp. 229-264.

M.T. Gil Bazo, The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law, in Refugee Survey Quarterly, 2008/27, pp. 33-52.

M.G. Garlick, The Common European Asylum System and the European Court of Justice – New Jurisprudence and New Challenges, in E. Guild, S. Carrera, A. Eggenschwiler (eds.), The Area of Freedom, Security and Justice Ten Years on – Successes and Future Challenges Under the Stockholm Programme, Centre for European Policy Studies, 2010, pp. 49-62.

G.S. Goodwin-Gill, The Right to Seek Asylum: Interception at the Sea and the Principle of Non-Refoulement, in International Journal of Refugee Law, 2011/23, p. 443-457.

E. Guild, P. Minderhoud (eds.), The First Decade of EU Migration and Asylum Law, Leiden-Boston, Martinus Nijhoff Pub., 2012.

G. Gyulai, The Luxembourg Court: Conductor for a Disharmonious Orchestra? – Mapping the National Impact of the Four Initial Asylum-Related Judgments of the EU Court of Justice, Hungarian Helsinki Committee, 2012.

207

K. Hailbronner, C. Thiery, Schengen II and Dublin: Responsibility for Asylum Applications in Europe, in Common Market Law Review, 1997/34, pp. 957-989.

H. Lambert, F. Messineo, P. Tiedemann, Comparative Perspectives of Constitutional Asylum in France, Italy, and Germany: Requiescat In Pace?, in Refugee Survey Quarterly, 2008/27, pp. 16-32.

C. Malmström, Establishing the Common European Asylum System by 2010 – An Ambitious but Feasible Target, Ministerial Conference “Quality and Efficiency in the Asylum Process”, Brussels, 14 September 2010.

C. Marinho, M. Heinonen, Dublin after Schengen: Allocating Responsibility for Examining Asylum Applications in Practice, EIPASCOPE, 1998/3, pp. 1-12.

S. Peers, EU Justice and Home Affairs Law, Oxford, Oxford University Press, 2011. S. Peers, Mission Accomplished? EU Justice and Home Affairs Law After the Treaty of Lis-

bon, in Common Market Review, 2011/48, pp. 661-693. C. Raux, La politique d’asile de l’union européenne dans le viseur de la Cour européenne des

droits de l’homme, in Revue Trimestrielle des droits de l’homme, 2011/88, pp. 1023-1044. M. Reneman, Access to an Effective Remedy in European Asylum Procedures, in Amsterdam

Law Forum, 2008/1, p. 65-98.