interpretation of article 38 of 2013/32/EU Directive, since Türkiye has not accepted any readmissions from
Greece since March 2020. In particular, the majority opinion of the Council considered that it is not
possible to designate a country as a safe third country if the readmission of the applicant to that country
does not appear to be possible. This possibility should be assessed both in terms of legal provisions and
obligations of the third country to accept readmissions as well as the actual compliance to those legal
provisions. Readmissions to Türkiye are not implemented and the competent authority did not adequately
explore the possibility of Türkiye changing its stance. Thus, in view of ensuring a quick examination of
asylum applications,482 the national list established by the JMD should be annulled.
The decision includes two dissenting opinions on whether the non-implementation of returns should be
taken into consideration either at the time of issuance of an individual decision on the asylum application
assessing whether Türkiye is a safe third country or at the time of executing the decision of return and not
before including this country in the national list of safe third countries.
According to the majority opinion: “[…] Article 38(4) [Asylum Procedures Directive] does not provide the
possibility of entry or readmission of a foreigner to the third country as a condition for the application of
the safe third country concept. However, according to constant CJEU case law, the interpretation of a
provision of European Union law shall take into consideration not only its letter but also the context in
which it is introduced, as well as the objectives pursued by the measure of which it forms part (see
indicatively ECJ, C-232/82, Merck, 17 November 1983, paragraph 18, and CJEU, C-202/18 και C-238/18,
Rimšēvičs and ECB v Latvia, 26 March 2019, paragraph 45). In the present case, in view of Article 18 of
the Charter (aforementioned paragraph 8), the provisions of [the Asylum Procedures Directive] relating to
inadmissible applications for international protection must be interpreted in such a way as to serve the
purported objective of the Directive to safeguard rapid examination of applications for international
protection insofar as possible (see CJEU, C-556/17 Torubarov, 29 July 2019, paragraph 53). This
objective is set out in recital 18 of the Directive […]
Under that reading, Article 38 of the Directive (and corresponding Article 86 [IPA]) must be interpreted as
precluding the designation of a third country as safe where it is not established that entry or readmission
of the applicant protection thereto will not be feasible. A contrary reading would merely prolong the
duration of examination of the submitted application for international protection and uncertainty on the
applicant as regards the status of their stay in the country where they submitted an application, without
excluding the risk of their refoulement to a country where they risk facing persecution (mutatis mutandis
European Commission on Human Rights, A.H. [Harabi] v. the Netherlands, App No 10798/84, 5 March
1986) and the possibility of disruption in international relations of states. The view that the possibility of
entry or readmission of a foreign applicant for protection to a third country constitutes a condition for the
designation of a third country as safe has, besides, been set out in soft law texts of the Council of Europe
(Committee of Ministers Recommendation R(97)22 and Guidelines of 1 July 2009) and has been
supported by part of the international law doctrine (in particular Stephen H. Legomsky, Secondary
Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective
Protection, International Journal of Refugee Law, 2003, p. 567 et seq.), while it has been adopted by
courts of other European Union Member States (see Dutch Council of State, decision 201609584/1/V3 of
13 December 2017). Furthermore, the assessment of fulfilment of the possibility of entry or readmission
of the foreigner to the safe third country encompasses an examination of both the legal framework in said
country (i.e. potential undertaking of a related legal obligation on the part of the third country) and
compliance of the third country with its undertaken legal obligations in practice. The above observations
lead to the conclusion that, where a Member State establishes a national list of generally safe third
countries by making use of the discretion afforded by Article 38(2) of the Directive, it may not, for reasons
of rapid conclusion of the examination of applications for international protection as mentioned above,
make a regulatory designation of a third country as safe where the fulfilment of the aforementioned
condition – the possibility of entry or readmission to said country – is not assessed on both its
aforementioned limbs.[…]
482
As provided by Article 18 of the Charter of Fundamental Rights and Article 38 of EU Directive 2013/32/EU.
102
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