Netherlands, Administrative Jurisdiction Division of the Council of State , 8 April 2020 201907322/1, 201907435/1, and 202001915/1

Identification of the case

• Prohibition of torture and inhuman or degrading treatment or punishment (art. 4 CFREU)

• Article 8:68 of the General Administrative Law Act and Article 94 Aliens Law 2000

• Article 18(1)(b) Regulation 604/2013/EU (Dublin III Regulation)
• Article 21 Directive 2013/33/EU (Reception Directive)

Summary of the case

The three abovementioned judgments of the Administrative Jurisdiction Division of the Council of State (Division) all concern the transfer of foreign nationals to Italy. In the first two judgments, the Division has assessed the situation in Italy prior to the outbreak of the corona virus in order to decide whether it was possible to transfer vulnerable foreign nationals to Italy. The Division has ruled that those transfers were indeed still possible up until the outbreak of the corona virus.

Ever since the outbreak of the corona virus, it has been impossible in practice to transfer foreign nationals (both vulnerable and invulnerable) to Italy. The question is whether this also means that Italy cannot be qualified as the responsible Member State anymore for examining the asylum applications. In the third judgment, the Division rules that this is not the case, as the crisis is a temporary obstacle only. This means that Italy remains the responsible Member State for examination of the asylum applications, even though transfers are impossible in practice for the time being. The State Secretary must assess whether and when the transfer of the appellants can actually take place.

• Administrative judicial enforcement

(Request for) annulment of the administrative decision.

The Division firstly considers that it has ruled in its previous judgments of 19 December 2018, ECLI:NL:RVS:2018: 4131, and of 12 June 2019, ECLI:NL:RVS:2019:1861that the Salvini Legislative decree does not result in Dublin claimants no longer receiving childcare, and that the Secretary of State - regarding Italy - rightly relies on the principle of the mutual interstate trust, also in the case of families or parents with minor children. The Division subsequently rules that, although reception conditions in Italy have been cut back systematically in recent years, this does not mean that foreigners in Italy can no longer be accommodated adequately. In the first case, the State Secretary informed the Italian authorities that the foreigner was a mother with a baby, and in the second case, the man who had to be transferred to a medical practitioner. According to the Division, the Secretary of State can assume that the Italian authorities will provide suitable reception and that they will inform the Netherlands in case there is no suitable reception available. The Division takes into account that the Italian authorities have not only ensured in the circular letter of 8 January 2019 that they receive all foreign nationals entitled to reception, and provide for this reception in accordance with the foreigner nationals’ fundamental rights. In extensively explained answers to the ECtHR in December 2019 the Italian authorities confirmed once again that the reception conditions in Italy comply with the requirements laid down in the EU Reception Directive. In their answers, the Italian authorities explain that there are special reception facilities for particularly vulnerable people, such as single women with children and people suffering from serious mental disorders. Finally, the Division considers that the January 2020 SFH / OSAR report did not provide a substantially different picture of the situation in Italy for Dublin claimants than was already known at the time of the Divisions’ judgment of 12 June 2019.

Because of the corona crisis, it is temporarily impossible to transfer foreign nationals to Italy. The question is whether this means that Italy can no longer be deemed the responsible state for examining asylum applications. It follows from the third judgment of 8 April 2020 (ECLI: NL: RVS: 2020: 1032) that this is not the case. The State Secretary has rightly decided to transfer foreign nationals to Italy. The fact that a transfer is temporarily impossible is an ‘actual obstacle’, however. This does not change Italy's responsibility for examining the asylum application. The Division rules that the State Secretary must assess whether and when in the future the transfer of the foreign nationals can actually take place.

Role of the Charter and role of the general principles on enforcement

The cases deal with the application of EU-law. Pursuant to Article 51(1) of the Charter, the Charter is applicable.

Elements of judicial dialogue

• Dialogue between high court - lower instance court at national level

• CJEU C-578/16 PPU, C.K.

• judgment of 4 November 2014, 29217/12, Tarakhel v. Switzerland, ECLI:CE:ECHR:2014:1104JUD002921712
• judgment of 28 June 2016, 15636/16, N.A. and others against Denmark, ECLI:CE:ECHR:2016:0628DEC001563616

Conform interpretation with EU law as interpreted by the CJEU.

The purpose is to clarify the juridical problem which has arisen because of (one of) the exceptional measures regarding the COVID-19 crisis, namely the temporary stop of the transfer of foreign nationals to Italy.

Additional notes on the decision

The lower (District) Courts will have to abide to the outcome of these cases.