Staatssecretaris van Justitie en Veiligheid v S.S. and Others (C-338/21)

Contents

Judgment of the Court (First Chamber)30 March 2023^note(Reference for a preliminary ruling — Regulation (EU) No 604/2013 — Determination of the Member State responsible for examining an application for international protection — Article 27 — Appeal against a transfer decision taken in respect of an asylum seeker — Article 29 — Suspension of implementation of the transfer decision — Transfer time limit — Interruption of the transfer time limit — Directive 2004/81/EC — Residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities — Article 6 — Reflection period — Prohibition on enforcing an expulsion order — Remedies)In Case C‑338/21,REQUEST for a preliminary ruling under Article 267 TFEU from the Raad van State (Council of State, Netherlands), made by decision of 26 May 2021, received at the Court on 31 May 2021, in the proceedingsStaatssecretaris van Justitie en VeiligheidvS.S.,N.Z.,S.S.,THE COURT (First Chamber),composed of A. Arabadjiev, President of the Chamber, K. Lenaerts, President of the Court of Justice, acting as Judge of the First Chamber, L. Bay Larsen (Rapporteur), Vice-President of the Court of Justice, A. Kumin and I. Ziemele, Judges,Advocate General: J. Richard de la Tour,Registrar: R. Stefanova-Kamisheva, Administrator,having regard to the written procedure and further to the hearing on 14 July 2022,after considering the observations submitted on behalf of:– S.S., by A. Khalaf and P.A.J. Mulders, advocaten,– N.Z., by F.M. Holwerda, advocaat,– S.S., by M.H.R. de Boer, advocaat,– the Netherlands Government, by M.K. Bulterman, M.H.S. Gijzen and P. Huurnink, acting as Agents,– the German Government, by J. Möller and A. Hoesch, acting as Agents,– the European Commission, by C. Cattabriga and F. Wilman, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 17 November 2022,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 27(3) and Article 29(1) and (2) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31) (‘the Dublin III Regulation’).

2The request has been made in the course of proceedings between the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’), on the one hand, and, on the other hand, S.S., N.Z. and S.S., third-country nationals, concerning decisions of the State Secretary not to consider their applications for international protection and to order their transfer to Italy.

Legal context

Directive 2004/81/EC

3Article 1 of Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (OJ 2004 L 261, p. 19), provides:‘The purpose of this Directive is to define the conditions for granting residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration.’

4Article 4 of that directive is worded as follows:‘This Directive shall not prevent Member States from adopting or maintaining more favourable provisions for the persons covered by this Directive.’

5Article 6 of that directive provides:1. Member States shall ensure that the third-country nationals concerned are granted a reflection period allowing them to recover and escape the influence of the perpetrators of the offences so that they can take an informed decision as to whether to cooperate with the competent authorities.The duration and starting point of the period referred to in the first subparagraph shall be determined according to national law.2. During the reflection period and while awaiting the decision of the competent authorities, the third-country nationals concerned shall have access to the treatment referred to in Article 7 and it shall not be possible to enforce any expulsion order against them.3. The reflection period shall not create any entitlement to residence under this Directive.4. The Member State may at any time terminate the reflection period … for reasons relating to public policy and to the protection of national security.’

6Article 7 of that directive defines the treatment granted to the third-country nationals concerned before the issue of a residence permit.

7Under Article 8 of Directive 2004/81:1.After the expiry of the reflection period, or earlier if the competent authorities are of the view that the third-country national concerned has already fulfilled the criterion set out in subparagraph (b), Member States shall consider:(a) the opportunity presented by prolonging his/her stay on its territory for the investigations or the judicial proceedings, and(b) whether he/she has shown a clear intention to cooperate and(c) whether he/she has severed all relations with those suspected of acts that might be included among the offences referred to in Article 2(b) and (c).2. For the issue of the residence permit and without prejudice to the reasons relating to public policy and to the protection of national security, the fulfilment of the conditions referred to in paragraph 1 shall be required.3. Without prejudice to the provisions on withdrawal …, the residence permit shall be valid for at least six months. It shall be renewed if the conditions set out in paragraph 2 of this Article continue to be satisfied.’

The Dublin III Regulation

8Recitals 4 and 5 of the Dublin III Regulation are worded as follows:(4) The Tampere conclusions [of the European Council at its special meeting at Tampere on 15 and 16 October 1999] also stated that the [Common European Asylum System (CEAS)] should include, in the short-term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.(5) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection.’

9Chapter VI of that regulation, entitled ‘Procedures for taking charge and taking back’, includes in Section IV, entitled ‘Procedural safeguards’, Article 27, entitled ‘Remedies’, which provides in paragraphs 1, 3 and 4 thereof:1. The applicant … shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.…3.For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:(a) the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or(b) the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or(c) the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.4. Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.’

10In Section VI of Chapter VI of that regulation, entitled ‘Transfers’, Article 29, entitled ‘Modalities and time limits’, provides in paragraphs 1 and 2 thereof:1. The transfer of the applicant … from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3).…2. Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.’

The disputes in the main proceedings and the question referred for a preliminary ruling

11The respondents in the main proceedings successively submitted two types of application for residence permits in the Netherlands.

12In the first place, on 19 April, 5 September and 7 October 2019 respectively, they lodged applications for international protection in the Netherlands. The State Secretary submitted to the Italian authorities requests to take charge or to take back the respondents in the main proceedings. On 12 June, 20 November and 28 November 2019, those authorities accepted those requests, either explicitly or implicitly.

13On 1 August 2019, 17 January 2020 and 8 February 2020, the State Secretary decided not to consider the applications for international protection lodged by the respondents in the main proceedings and to order their transfer to Italy.

14The respondents in the main proceedings brought actions for annulment of those decisions before courts of first instance.

15On 21 November 2019, 1 September 2020 and 16 September 2020, those courts annulled those decisions on the ground, inter alia, that the transfer time limit laid down in Article 29(1) of the Dublin III Regulation had expired and that the Kingdom of the Netherlands had therefore become responsible for examining the applications for international protection lodged by the respondents in the main proceedings. Those courts also ordered the State Secretary to take fresh decisions on those applications for international protection.

16The State Secretary appealed against the judgments delivered by those courts before the Raad van State (Council of State, Netherlands), which is the referring court. He attached to his appeals applications for interim measures seeking an order, first, that he not be required to take a fresh decision before decisions had been taken on the appeals and, second, that the transfer time limit be suspended. The referring court granted those applications for interim measures on 22 April, 21 September and 16 November 2020.

17In the second place, on 1 October 2019, 21 February 2020 and 4 March 2020, the respondents in the main proceedings reported trafficking in human beings which they claimed to have suffered in the Netherlands or in Italy. Those complaints were regarded by the State Secretary as constituting applications for a residence permit relating to temporary humanitarian grounds.

18Those applications were rejected by the State Secretary by decisions of 7 October 2019, 3 March 2020 and 6 April 2020.

19On 4 November 2019, 30 March 2020 and 6 April 2020, the respondents in the main proceedings sought review of those decisions. The requests for review of those decisions were rejected by the State Secretary or withdrawn on 16 December 2019, 22 April 2020 and 28 August 2020.

20The State Secretary submits, in support of the appeals brought against the judgments annulling the transfer decisions, that the transfer time limit laid down in Article 29 of the Dublin III Regulation is, under the applicable national legislation, suspended by the submission of a request for review of a decision refusing to grant a third-country national a residence permit as a victim of trafficking in human beings.

21The referring court considers that a literal reading of Article 27(3) and Article 29 of the Dublin III Regulation would mean that those provisions preclude legislation which provides that the submission of such a request for review entails the suspension of implementation of a previously adopted transfer decision and the interruption of the transfer time limit.

22That court considers nevertheless that there are four arguments in favour of a contrary solution.

23First, such a solution is necessary to guarantee the effectiveness of the Dublin III Regulation and of Directive 2004/81, while preventing abuse of rights. It would be difficult in practice to examine an application for a residence permit and then a request for review before the expiry of the transfer time limit where a transfer decision has previously been adopted with regard to the applicant. Therefore, failing to suspend the transfer time limit in the event of a request for review of a decision refusing to grant a third-country national a residence permit as a victim of trafficking in human beings would facilitate forum shopping and would encourage national authorities not to handle reports of acts of trafficking in human beings with sufficient attention.

24Secondly, it is possible to interpret the concept of a ‘transfer decision’ in Article 27(3) of the Dublin III Regulation as also referring to ‘the effective implementation of the transfer’. The bringing of an action preventing such implementation would then fall within the scope of that provision and would therefore entail suspension of the transfer time limit.

25Thirdly, a Member State may opt to suspend the transfer time limit on the basis of its procedural autonomy.

26Fourthly, the three options set out in Article 27(3) of the Dublin III Regulation are not mutually exclusive. Consequently, the fact that the Kingdom of the Netherlands has chosen to transpose the option described in Article 27(3)(c) of that regulation does not prevent a request for review such as those at issue in the main proceedings from being considered to fall within the option referred to in Article 27(3)(a) of that regulation.

27In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Must [Article 27(3) and Article 29] of [the Dublin III Regulation] be interpreted as not precluding national legislation such as that at issue here, in which a Member State has opted to implement Article 27(3)(c) [of that regulation], but has also granted the suspensive effect that can be applied to the implementation of a transfer decision, to a review or appeal against a decision in proceedings concerning an application for a residence permit on the grounds of trafficking in human beings, which, while not being a transfer decision, does nevertheless temporarily prevent the actual transfer?’

Consideration of the question referred

28By its question, the referring court asks, in essence, whether Article 29(1) and (2) of the Dublin III Regulation, read in conjunction with Article 27(3) of that regulation, must be interpreted as precluding national legislation which provides that the submission of a request for review of a decision refusing to grant a third-country national a residence permit as a victim of trafficking in human beings entails, first, suspension of the implementation of a previously adopted transfer decision concerning that third-country national and, secondly, the suspension or interruption of the period for the transfer of that third-country national.

29Article 29(1) of the Dublin III Regulation provides that the transfer of the person concerned to the Member State responsible is to be carried out in accordance with the national law of the requesting Member State, as soon as practically possible and, at the latest, within six months of the acceptance by another Member State of the request to take charge or to take back that person or of the final decision on an appeal where there is suspensive effect in accordance with Article 27(3) of that regulation.

30According to Article 29(2) of that regulation, where the transfer does not take place within the six months’ time limit, the Member State responsible for examining an application for international protection is to be relieved of its obligations to take charge or to take back the person concerned and responsibility is then to be transferred to the requesting Member State.

31In order to determine the effects of Article 29 of that regulation in a situation such as those at issue in the main proceedings, in which the applicable national legislation is intended to facilitate the application of Directive 2004/81, it is necessary, in the first place, to ascertain whether that directive requires or, at the very least, allows the implementation of a previously adopted transfer decision to be suspended pending the outcome of an appeal against a decision rejecting an application for a residence permit as a victim of trafficking in human beings.

32According to Article 1 of Directive 2004/81, the purpose of that directive is to define the conditions for granting residence permits of limited duration to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration.

33Article 6(1) of that directive provides that Member States are to ensure that any third-country national who can reasonably be considered to be or to have been the victim of offences related to trafficking in human beings is given a reflection period allowing him or her to recover and to escape the influence of the perpetrators of the offences, so that he or she can take an informed decision as to whether or not to cooperate with the competent authorities (see, to this effect, judgment of 20 October 2022, Staatssecretaris van Justitie en Veiligheid (Removal of a victim of trafficking in human beings), C‑66/21, EU:C:2022:809, paragraphs 47 and 49).

34Under Article 6(2) of that directive, during the reflection period and while awaiting the decision of the competent authorities, the third-country nationals concerned are to have access to the treatment referred to in Article 7 and it is not to be possible to enforce any expulsion order against them.

35The prohibition on enforcing an expulsion order, laid down in Article 6(2) of Directive 2004/81, inter alia precludes, during the reflection period granted in accordance with Article 6(1) thereof, and pending the decision by the competent authorities, any implementation of a transfer decision adopted pursuant to the Dublin III Regulation in respect of third-country nationals falling within the scope of that directive (see, to that effect, judgment of 20 October 2022, Staatssecretaris van Justitie en Veiligheid (Removal of a victim of trafficking in human beings) C‑66/21, EU:C:2022:809, paragraph 70).

36By contrast, first, no provision of Directive 2004/81 prohibits the enforcement of an expulsion order after the expiry of that reflection period or after the competent authorities have taken a decision.

37In addition, it is apparent from Article 6(3) and (4) of that directive, on the one hand, that the reflection period does not, as such, create any entitlement to residence under that directive and, on the other hand, that the Member State concerned may terminate the reflection period at any time, in particular for reasons relating to public policy and to the protection of internal security.

38Secondly, that directive does not contain any provision relating to the remedies, administrative or judicial, which may be exercised against a decision rejecting an application for a residence permit as a victim of trafficking in human beings.

39However, since Article 8 of Directive 2004/81 allows, under the conditions set out in paragraph 1 of that article, the third-country nationals concerned to obtain a residence permit, it follows from Article 47 of the Charter of Fundamental Rights of the European Union that third-country nationals whose application for a residence permit based on that directive has been rejected must have an effective remedy against the decision rejecting that application, in particular in order to enable them to claim that the competent authority misapplied Article 8(1) of that directive (see, to that effect, judgment of 2 June 2022, Skeyes, C‑353/20, EU:C:2022:423, paragraphs 49 and 50).

40In the absence of EU rules on the matter, it is, in accordance with the principle of procedural autonomy, for the national legal order of each Member State to establish procedural rules for that remedy, on condition, however, that those rules are not, in situations governed by EU law, less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgments of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N., C‑949/19, EU:C:2021:186, paragraph 43, and of 2 June 2022, Skeyes, C‑353/20, EU:C:2022:423, paragraph 52).

41It is therefore necessary to determine whether, in that context, the Member States are required to provide that the bringing of an appeal against a decision rejecting an application for a residence permit as a victim of trafficking in human beings, as the case may be in the form of a preliminary administrative appeal, entails the suspension of the enforcement of an expulsion order previously adopted, in order to ensure that the third-country national concerned can remain on the territory of the Member State concerned pending the outcome of that appeal.

42In that regard, first of all, it is apparent from Directive 2004/81 that protection against any expulsion order, including the implementation of a transfer decision, conferred by that directive is intended to ensure (i) that the persons concerned may receive the treatment which must be granted to them, in accordance with Article 7 of that directive, during the reflection period and (ii) that those persons are not compelled to leave the territory of the Member State where they reported acts of trafficking in human beings before they have even been able, during that period, to comment on their willingness to cooperate in the criminal investigation into those acts (see, to that effect, judgment of 20 October 2022, Staatssecretaris van Justitie en Veiligheid (Removal of a victim of trafficking in human beings) C‑66/21, EU:C:2022:809, paragraphs 61 and 62).

43In those circumstances, the extension of that protection to the period between the expiry of the reflection period or the decision rejecting an application for a residence permit as a victim of trafficking in human beings and the outcome of the appeal against that decision cannot be regarded as necessary in order to ensure the effectiveness of the obligations as to provisional protection imposed on the Member States by Directive 2004/81.

44Next, it must be borne in mind that the implementation of a transfer decision does not entail the expulsion of the person concerned to a third country, but his or her transfer to a Member State which is required to comply, inter alia, with the Charter of Fundamental Rights and all the obligations resulting from Directive 2004/81.

45Therefore, the situation of a person who is the subject of both a decision rejecting an application for a residence permit as a victim of trafficking in human beings and a transfer decision cannot be treated in the same way, in general terms, as that of a person in respect of whom there are substantial grounds for believing that removal to a third country would be contrary to the principle of non-refoulement, who must be entitled to an appeal with automatic suspensive effect against the enforcement of the decision permitting that expulsion, in order to avoid serious and irreparable harm pending the outcome of that appeal (see, to that effect, judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraphs 50 and 52, and of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 54).

46Finally, even if the implementation of a transfer decision were such as to entail, exceptionally, harm of that kind, that complaint can be examined in the context of an appeal brought against that decision or against its implementation and not in the context of an appeal against a decision on residence as a victim of trafficking in human beings (see, to that effect, judgments of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraphs 56 to 58, and of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraphs 55 and 56).

47Accordingly, the effectiveness of any annulment of the decision rejecting an application for a residence permit as a victim of trafficking in human beings must normally be capable of being sufficiently ensured by authorising the return of the person concerned to the Member State in question after such an annulment, without that Member State being required to refrain, pending the outcome of the appeal against that decision, from implementing a transfer decision based on the Dublin III Regulation.

48It follows that it cannot be held that the guarantee of the effectiveness of an appeal brought against a decision rejecting an application for a residence permit as a victim of trafficking in human beings requires that the implementation of a previously adopted transfer decision be ruled out before a decision has been delivered on that appeal.

49However, Article 4 of Directive 2004/81 provides that that directive is not to prevent Member States from adopting or maintaining more favourable provisions for the persons covered by that directive.

50It follows that Directive 2004/81 does not preclude a Member State from deciding, in the exercise of its procedural autonomy, to strengthen the protection afforded to third-country nationals covered by that directive, conferring on an appeal, administrative or judicial, brought against a decision rejecting an application for a residence permit based on that directive, suspensive effect that can be applied to a previously adopted transfer decision, in order to enable those third-country nationals to remain in its territory pending the outcome of that appeal.

51Consequently, it is necessary, in the second place, to determine whether the Dublin III Regulation precludes Member States from making use of the discretion they enjoy with a view to implementing Directive 2004/81 by providing that an appeal against a decision taken under that directive entails such suspensive effect and the suspension or interruption of the transfer time limit.

52In that regard, although it is apparent from Article 29(1) and (2) of the Dublin III Regulation that the EU legislature intended to promote the rapid implementation of transfer decisions, the fact remains that it did not intend to sacrifice the judicial protection of applicants for international protection to the requirement of expedition in the processing of their application, and that it provided, in order to guarantee that protection, that the implementation of those decisions may, in certain cases, be suspended (see, to that effect, judgments of 14 January 2021, The International Protection Appeals Tribunal and Others, C‑322/19 and C‑385/19, EU:C:2021:11, paragraph 88, and of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision), C‑245/21 and C‑248/21, EU:C:2022:709, paragraphs 40 and 60).

53Article 27(3) of the that regulation thus requires Member States to provide the persons concerned with a remedy which may lead to the suspension of the implementation of the transfer decision taken against them (judgment of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision), C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 41).

54In accordance with that provision, Member States must provide either, first, that an appeal against the transfer decision gives the person concerned the right to remain in the Member State which adopted that decision pending the outcome of his or her appeal or, secondly, that following the lodging of an appeal against the transfer decision the transfer is automatically suspended for a reasonable period of time during which a court is to determine whether to give suspensive effect to that appeal or, thirdly, that the person concerned has the possibility to lodge an appeal to suspend the implementation of the transfer decision pending the outcome of the appeal against that decision (judgment of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision), C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 42).

55In addition, Article 27(4) of the Dublin III Regulation complements that provision by authorising the Member States to provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision, in cases where suspension does not result from either the effects of legislation or of a judicial decision, where the circumstances surrounding that implementation imply that the person concerned must, in order to ensure his or her effective judicial protection, be allowed to remain in the territory of the Member State which adopted the transfer decision until a final decision on the appeal brought against that decision has been taken (see, to that effect, judgment of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision), C‑245/21 and C‑248/21, EU:C:2022:709, paragraphs 54 and 61).

56Where the suspension of the implementation of the transfer decision results from the application of Article 27(3) or (4) of the Dublin III Regulation, it is apparent from Article 29(1) thereof that the transfer time limit is to run not from the acceptance of the request to take charge or to take back but, by way of derogation, from the final decision on the appeal against the transfer decision (see, to that effect, judgment of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision), C‑245/21 and C‑248/21, EU:C:2022:709, paragraphs 44 and 49).

57An administrative or judicial appeal brought against a decision other than a transfer decision, such as a decision rejecting an application for a residence permit as a victim of trafficking in human beings, cannot, however, be regarded as constituting an appeal or review under Article 27(3) or (4) of the Dublin III Regulation.

58It is apparent from the very wording of that provision that it covers procedures ‘for the purposes of appeals against, or reviews of, transfer decisions’. Therefore, the references to the ‘appeal’ and the ‘request for review’ in that provision must be understood as referring only to appeals and reviews against a transfer decision as referred to in Article 27(1) of that regulation.

59That interpretation is, moreover, consistent with the purpose of Article 27 of that regulation, which does not govern the detailed rules for implementing transfer decisions, but the remedies available against those decisions.

60Therefore, given that Article 29(1) of the Dublin III Regulation provides for the application of a derogation from the principle that the transfer time limit starts to run from the acceptance of the request to take charge or to take back solely pending a final decision on an appeal or review where suspensive effect is granted in accordance with Article 27(3) or (4) of that regulation, that derogation cannot be applied in the event of a request for a review or an appeal being lodged against a decision rejecting an application for a residence permit as a victim of trafficking in human beings, even if the bringing of such an appeal entails, under national law, a right to remain on the territory of the Member State concerned.

61In particular, the solution reached by the Court in the judgments of 13 September 2017, Khir Amayry (C‑60/16, EU:C:2017:675), and of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision) (C‑245/21 and C‑248/21, EU:C:2022:709), as regards the effects of a suspension of the implementation of a transfer decision pursuant to Article 27(4) of that regulation, cannot be extended to such an appeal.

62That solution is based on taking into account the attribution of suspensive effect of the transfer decision to an appeal brought against that decision which has been expressly provided for by the EU legislature and the objective of which is to ensure effective judicial protection for the persons concerned by such a decision within the framework defined by that regulation (see, to that effect, judgment of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision), C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 61).

63However, the fact that the derogation referred to in paragraph 60 of the present judgment is not applicable in a situation such as those at issue in the main proceedings in no way means that the Dublin III Regulation precludes national legislation which provides that the submission of an request for review of a decision refusing to grant a third-country national a residence permit based on Directive 2004/81 entails the suspension of the implementation of a previously adopted transfer decision in respect of that third-country national.

64As is apparent from paragraph 35 of the present judgment, it cannot be ruled out, in general terms, that the implementation of a transfer decision may be validly suspended outside the cases referred to in Article 27(3) and (4) of the Dublin III Regulation.

65Furthermore, it must be recalled that, as follows from recitals 4 and 5 of the Dublin III Regulation, its objective is to establish a clear and workable method based on objective, fair criteria both for the Member States and for the persons concerned, with a view to rapidly determining the Member State responsible for examining an application for international protection, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of rapid processing of applications for international protection (see, to that effect, judgments of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 58, and of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision), C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 56).

66The mandatory time limits by which the EU legislature has regulated the take charge and take back procedures contribute, in a decisive manner, to achieving the objective of rapidly processing applications for international protection, by ensuring that those procedures will be implemented without undue delay. They also testify to the particular importance which that legislature attached to the rapid determination of the Member State responsible for examining an application for international protection and to the fact that, having regard to the aim of guaranteeing effective access to the procedures for granting international protection and of not compromising that objective of rapid processing, it is essential that such applications are, when necessary, examined by a Member State other than that designated as being responsible pursuant to the criteria set out in Chapter III of that regulation (see, to that effect, judgment of 13 November 2018, X and X, C‑47/17 and C‑48/17, EU:C:2018:900, paragraphs 69 and 70).

67It follows from the objectives of the Dublin III Regulation recalled in the preceding paragraphs of the present judgment and from a combined reading of Article 29(1) thereof, which defines the transfer time limit, and from Article 29(2) of that regulation, which provides that failure to implement a transfer decision within that time limit results in a transfer of responsibility, that the EU legislature did not intend to require the requesting Member State to implement transfer decisions in all cases, but to bear, vis-à-vis the persons concerned and the other Member States, the consequences of delays observed in the implementation of such decisions, in order to ensure that the processing of applications for international protection is not excessively delayed.

68In that context, the clarification in Article 29(1) of the Dublin III Regulation that the transfer is to be carried out ‘in accordance with the national law of the requesting Member State’ must be interpreted as meaning that the Member States have a certain margin of discretion in defining the conditions for implementing transfer decisions and that they may, on that basis, provide that the implementation of a transfer decision may be suspended in order to ensure enhanced protection for third-country nationals in the context of the implementation of Directive 2004/81.

69That discretion cannot, however, mean that a Member State may provide that a suspension of the implementation of a transfer decision resulting from its national law entails the suspension or interruption of the transfer time limit.

70Besides the fact that the reference to national law in Article 29(1) of the Dublin III Regulation relates to the conditions for implementing the transfer and not to the rules for calculating the transfer time limit, it must be pointed out that, in so far as the expiry of the transfer time limit entails, pursuant to Article 29(2) of that regulation, a transfer of responsibility between Member States, enabling each Member State to vary the rules for calculating that time limit depending on the content of its national legislation would lead to a change in the allocation of responsibilities between the Member States under that regulation.

71Such an interpretation of Article 29(1) of the Dublin III Regulation would, moreover, be liable to frustrate the achievement of the objectives of that regulation, recalled in paragraphs 65 and 66 of the present judgment, since it would risk delaying, as the case may be indefinitely, the calculation of the time limit for transfer for reasons which have not been adopted by the EU legislature and, consequently, rendering that time limit redundant and unduly delaying the examination of the applications for international protection of the persons concerned.

72Accordingly, the fact that the detailed rules governing appeals against decisions rejecting an application for a residence permit as a victim of trafficking in human beings fall, as is apparent from paragraph 40 of the present judgment, within the procedural autonomy of the Member States does not allow the Member States to derogate from the rules for calculating the transfer time limit resulting from Article 29 of the Dublin III Regulation.

73That assessment is not called into question by the risks of forum shopping and abuse of rights mentioned by the referring court, in so far as it follows from the considerations set out in paragraphs 32 to 47 of the present judgment that such risks do not arise, in any event, from the rules laid down by the EU legislature but stem, as the case may be, from the choices made by the Kingdom of the Netherlands in the context of its procedural autonomy.

74It follows from the foregoing that the answer to the question referred is that Article 29(1) and (2) of the Dublin III Regulation, read in conjunction with Article 27(3) of that regulation,must be interpreted as:– not precluding national legislation which provides that the submission of a request for review of a decision refusing to grant a third-country national a residence permit as a victim of trafficking in human beings entails the suspension of the implementation of a previously adopted transfer decision concerning that third-country national, but as– precluding national legislation which provides that such a suspension entails the suspension or interruption of the period for the transfer of that third-country national.

Costs

75Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (First Chamber) hereby rules:

1.not precluding national legislation which provides that the submission of a request for review of a decision refusing to grant a third-country national a residence permit as a victim of trafficking in human beings entails the suspension of the implementation of a previously adopted transfer decision concerning that third-country national, but as

2.precluding national legislation which provides that such a suspension entails the suspension or interruption of the period for the transfer of that third-country national.