Minos Mouzourakis is Legal Research Intern at the Fahamu Refugee Programme and MSc in Refugee and Forced Migration Studies student at the University of Oxford.
The dynamics of supranational judicial dialogue
Europe’s human rights legacy has been traditionally built on the European Convention on Human Rights (ECHR) and its interpretation by the case-law of the European Court of Human Rights (ECtHR or Strasbourg). As the European Union (EU) progressively evolved from a common market to an area of freedom, security and justice, however, the protection of fundamental rights and the express recognition of its own rights culture have figured equally high in its constitutional agenda. The Court of Justice of the EU (CJEU or Luxembourg) has drawn upon the ECHR to lay down general principles of EU law as early as the late 1960s (Stauder  ECR 419). More particularly, the entry into force of the Charter of Fundamental Rights of the European Union (CFR) following the Lisbon Treaty has manifested a close nexus between the ECHR and EU law in the framework of human rights.
The EU legal order interlocks with the ECHR in a number of ways. Firstly, Article 6(3) of the Treaty on European Union (TEU) recognises the rights enshrined in the ECHR as general principles of EU law, which have direct effect in the domestic legal orders of Member States where EU law is applicable (Mangold  ECR I-9981, para 78). Secondly, insofar as CFR rights correspond to rights enshrined by the ECHR, Article 52(3) CFR provides that the ‘the meaning and scope of those rights’ shall be the same under both instruments, subject to the possibility of EU law conferring more extensive protection than its Strasbourg counterpart. Accordingly, Strasbourg jurisprudence provides a floor of protection in the Union’s constitutional order to the extent that CFR provisions must at least match the level of protection afforded to ECHR rights (McB  ECR I-8965). The pluralist framework of European human rights law has thence engaged the two supranational courts in a dialectic model, whereby the Luxembourg and Strasbourg attempt to avoid giving contradictory rulings on the interpretation of their respective legal instruments (Craig and de Burca 2011: 405). The field of asylum is an illuminative example of such dialogue, exhibited through express references to ECtHR jurisprudence by the EU Court (De Baere 2013: 9).
Institutional differences between the two courts matter, however. In the context of refugee protection, Strasbourg adjudicates individual complaints (art 34 ECHR) relating to ECHR violations without any mandate to directly interpret the 1951 Refugee Convention or the EU asylum acquis. Even where it has de facto acted as an asylum court (Bossuyt 2012) and intervened in the asylum process ‘through the back door’, the ECtHR remains aware of its lack of competence – and potential lack of legitimacy – to dictate Member States’ actions in the Union’s common policy on asylum. Quite on the contrary, Strasbourg has shown deference to Member States vis-à-vis the implementation of their international obligations by developing a presumption of equivalent protection of human rights: where ‘equivalent protection is considered to be provided by the organisation, the presumption will be that the State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation’ (Bosphorus v Ireland (2006) 42 EHRR 1, para 156). Conversely, where a State has discretion when fulfilling its international obligations, the ECHR standards of protection apply in full.
For its part, the CJEU was faced with significantly different challenges when called to wear its ‘asylum hat’ following the Lisbon Treaty. The preliminary reference procedure under Article 267 of the Treaty on the Functioning of the EU (TFEU) imposes upon Luxembourg the delicate task of providing guidance to national courts on questions regarding the legality or interpretation of EU law. The peculiarity of this procedure lies in the narrowness and breadth that may simultaneously be carried by the question referred: on one hand, a national court may seek guidance on a highly specific point of law; on the other, however, the CJEU’s ruling clarifies the obligations not only of the national court referring the question on a point of law but of all Member States thereon. By nature, the Court’s preliminary rulings are therefore somewhat elevated above their surrounding fact-sensitive context and acquire explicit weight for the Union as a whole. As will be discussed below, this detachment from fact, coupled with the marked impact of its decisions on EU policies, seem to transcend into the way Luxembourg reads fundamental rights against the Union’s asylum instruments.
The presumption of compliance under the Dublin Regulation
Regulation (EC) No 343/2003 (Dublin II Regulation) lays down the criteria and mechanisms for determining which EU Member State is responsible for examining an asylum application, as part of the broader set of measures forming the Union’s Common European Asylum System (CEAS). It has recently been recast by Regulation (EU) No 604/2013 (Dublin III Regulation). The Dublin system sets out criteria to determine the Member State responsible for processing an asylum application and thence requires that Member State to take charge of or take back an asylum seeker from another Member State. At the same time, however, Dublin permits a Member State to derogate from these responsibility criteria in order to assume responsibility for an asylum claim under the ‘discretionary clauses’ contained in Article 17. Finally, Article 3(3) of the Dublin III Regulation codifies the ‘safe third country’ concept, under which Member States may refuse to examine asylum claims made by applicants who have irregularly entered their territory from a non-EU country considered safe under certain criteria and return such applicants to that country.
The operation of the Dublin system relies on mutual trust between EU Member States, which fuels a presumption that all countries comply with standards of protection and are safe for asylum seekers to be transferred thereto. However, systems of automatic mutual trust become difficult to reconcile with the often sensitive context underlying the fundamental rights of asylum seekers (Noll 2001: 182; Costello 2012: 316; Mitsilegas 2012: 335). To abide by the principle of non-refoulement and prevent exposure of an applicant to a risk of ill-treatment, courts need often undertake a fact-sensitive assessment of the circumstances an asylum seeker would face upon return to another Member State. Practice has in fact illustrated numerous cases where returning an applicant to an EU country under the Dublin Regulation would amount to an infringement of her fundamental rights. Judicial intervention from national courts and no less from the two European courts, has thence mandated the suspension of transfers of asylum seekers under the Dublin system on that ground.
The Strasbourg route to suspension
The ECtHR has developed ample jurisprudence on the suspension of Dublin transfers to prevent violations of human rights, which has been comprehensively commented by scholars such as Moreno-Lax (2011) and Costello (2012). Yet the interpretative approach adopted by the Court with regard to the Dublin Regulation’s compliance with human rights has not always been consistent throughout its case-law. In TI v United Kingdom  INLR 211, a case of an asylum seeker threatened with indirect refoulement if returned to Germany from the United Kingdom, the Court engaged in an empirical reading of the individual applicant’s circumstances to assess the risk of ill-treatment upon return to Germany and subsequent return to Sri Lanka (Noll 2001: 178).
In its subsequent ruling in KRS v United Kingdom (2009) 48 EHRR SE8, however, Strasbourg scrutinised the Dublin system under a formalist and questionable route. It refused to suspend a transfer to Greece on an assumption that the EU asylum acquis is in line with fundamental rights (Costello 2012: 319):
‘In reaching this conclusion the Court would also note that the Dublin Regulation, under which such a removal would be effected, is one of a number of measures agreed in the field of asylum policy at the European level and must be considered alongside Member States’ additional obligations under Council Directive 2005/85/EC and Council Directive 2003/9/EC to adhere to minimum standards in asylum procedures and to provide minimum standards for the reception of asylum seekers. The presumption must be that Greece will abide by its obligations under those Directives’ (KRS, p. 17)
The reasoning in KRS raises a number of critical objections. Firstly, Strasbourg wrongly relied on a Bosphorus-type presumption to pay deference to Member States on the ground that returning an asylum seeker under Dublin ‘is the implementation of a legal obligation on the State in question which flows from its participation in the asylum regime created by that Regulation’ (KRS, p. 16). As Moreno-Lax (2011: 14) correctly points out, the existence of the Article 3(2) sovereignty clause confers discretion upon Member States to undertake processing responsibility and refrain from transferring an applicant. Secondly, the ECtHR adopted what Noll (2001: 181) would describe an untenable formal approach to the examination of Dublin transfers. It treated the mere existence of Council Directive 2003/9/EC (Reception Conditions Directive) and Council Directive 2005/85/EC (Asylum Procedures Directive) as warranting too strong a presumption of Dublin compatibility with fundamental rights (Costello 2012: 320), without any assessment of the individual risk faced by the asylum seeker or any consideration of the practical application of the asylum acquis in Greece (Moreno-Lax 2011: 16). In that light, KRS read the Convention-compliance of the Dublin Regulation as a systemic issue raising questions around the mechanism’s framework rather than its effect on the individual asylum seeker’s rights.
MSS v Belgium and Greece (2011) 53 EHRR 2 brought a much needed departure on that point. In essence, the Court clarified that the existence of the sovereignty clause in the Dublin Regulation precludes the application of a Bosphorus-type presumption, given that Member States are not compelled to transfer an asylum seeker to another country (MSS, para 338). More importantly, however, it abandoned the formalist reasoning employed in KRS to hold that:
‘[T]he existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where… reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention’ (Saadi v Italy, para 147 (2009) 49 EHRR 30; MSS, para 353)
Instead, MSS reiterated the Court’s ‘well-established case-law’ under which expulsion is contrary to the ECHR ‘where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country’ (Soering v United Kingdom (1989) 11 EHRR 349, paras 90-91; MSS, para 365). Accordingly, alongside finding Greece in violation of Articles 3 and 13 ECHR due to the substandard conditions of detention, the dire living conditions endured by the applicant and its deficient asylum procedure, the Court held that, by transferring him to Greece, Belgium had ‘knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment’ in contravention of Article 3 ECHR (MSS, para 367).
The impact of MSS on the operation of the Dublin system cannot be overstated. Whilst a number of Member States had already halted transfers to Greece prior to January 2011, the Strasbourg ruling de facto declared the country unsafe for Dublin returns. Therefore the CJEU appears to have been confronted with an easy task when called to rule on the same question at the end of the same year. NS v Secretary of State for the Home Department  2 CMLR 9 offered an important test for the EU court to clarify how far the Strasbourg-Luxembourg dialogue could extend in relation to Dublin returns.
Deviating through Luxembourg
The factual circumstances in NS concerned an asylum seeker’s return to Greece under the Dublin Regulation, thereby very much resembling the MSS context. Yet the aforementioned institutional distance between Luxembourg and Strasbourg was equally a factor in play. As the nature of the preliminary questions referred by the national courts reveal below, NS was somewhat required to depart from the in casu assessment of the individual applicant’s risk to touch upon the general operability of the Dublin system:
‘(2) Is the duty of a Member State to observe EU fundamental rights (including the rights set out in Articles 1, 4, 18, 19(2) and 47 of the Charter) discharged where that State sends the asylum seeker to the Member State which Article 3(1) [of Regulation No 343/2003] designates as the responsible State in accordance with the criteria set out in Chapter III of the regulation (‘the responsible State’), regardless of the situation in the responsible State?
(3) In particular, does the obligation to observe EU fundamental rights preclude the operation of a conclusive presumption that the responsible State will observe (i) the claimant’s fundamental rights under European Union law; and/ or (ii) the minimum standards imposed by Directives 2003/9 …, 2004/83 … and 2005/85 …?’ (NS, para 50)
At first reading, the CJEU seems to have endorsed the ECtHR’s findings to prohibit transfers to Greece and to unsettle the principle of mutual confidence underlying the Dublin system (De Baere 2013: 11). However, a closer look reveals that Luxembourg’s conclusion was not reached through the same route carved by Strasbourg in MSS. The EU Court seemed to place questionable emphasis on the Dublin system’s underlying principle of ‘mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights’ (NS, para 83; Costello 2012: 327). Formalist interpretations hence found their way back into the judicial scrutiny of Dublin transfers to some extent, for the Court approached the issue of compatibility with fundamental rights not from the viewpoint of the individual transfer but of the system as a whole. With these considerations in mind, the test laid down in NS drifted off the Strasbourg route in two main respects.
‘Real risk of being subject to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights’
In his Opinion, Advocate-General Tristenjak envisaged breach of any fundamental right as a sufficient ground to preclude a Dublin transfer (NS AG Opinion, para 178). Breach of a provision of the Reception Conditions Directive or the Asylum Procedures Directive would thus suffice to suspend transfers only when it translates into a fundamental right breach (NS AG Opinion, para 126). The CJEU disagreed with that approach, however. It did not deem the infringement of any right reason enough to interfere with the operation of the Dublin system (NS, para 82) and instead confined the possibility of suspending transfers within the strict boundaries of violations of Article 4 CFR amounting to inhuman or degrading treatment (NS, para 94).
Two questions are raised against this reasoning. Firstly, restricting the scope of non-refoulement to violations of Article 4 CFR takes a narrower approach than that adopted by Strasbourg jurisprudence (Costello 2012: 333). Albeit subject to satisfying a high threshold, the ECtHR has, for instance, shown readiness to prevent expulsions which would expose individuals to a real risk of a flagrant denial of justice in violation of Article 6 ECHR (Othman (Abu Qatada) v United Kingdom, para 261). NS therefore seems unfaithful to its duty to mirror the scope and meaning of ECHR and CFR rights under Article 52(3) CFR. Secondly, one could inquire, on the contrary, whether the possibility of EU law offering more extensive protection than the ECHR should be pertinent in that context. Den Heijer (2012: 1750) reflects on the special bearing, if any, carried by the right to asylum under Article 18 CFR, protection from refoulement under Article 19(2) CFR and the right to an effective remedy under Article 47 CFR. Although on the facts the Court could exhaust its analysis in Article 4 CFR, NS should not exclude the possibility of interfering with the operation of the Dublin system on the basis of these rights (Costello 2012: 328).
‘Systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State’
Furthermore, the Strasbourg-Luxembourg dialogue is questioned by the higher threshold for suspension of transfers laid down by the EU Court in NS. A paradox seems to underpin the Court’s reasoning. On one hand, it expressly referred to the MSS test and deemed that the severity of fundamental rights violations ‘described in that judgment shows that there existed in Greece, at the time of the transfer of the applicant MSS, a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers’ (NS, paras 88-89). On the other hand, however, the concept of ‘systemic deficiency’ in later paragraphs seems to confuse evidential criteria and requisite conditions for finding an Article 4 CFR breach. The CJEU ruled that:
‘[T]he Member States, including the national courts, may not transfer an asylum seeker to ‘the Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and reception conditions for asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman and degrading treatment within the meaning of Article 4 of the Charter’ (NS, para 94).
The ‘systemic deficiencies’ test thus seems to introduce the source of risk of an Article 4 CFR breach as a determinant condition for preventing return under the Dublin system. NS ‘begs the question whether purely individual circumstances (such as pertaining to particularly vulnerable asylum seekers), which before the ECtHR are normally decisive for prohibiting expulsion, may also oppose transfer under the Dublin Regulation’ (Den Heijer 2012: 1747). In other terms, ‘[w]hat in the MSS case was held to be a sufficient condition of intervention has been made by the NS case into a necessary one’ (EM (Eritrea)  EWCA Civ 1336, per Sir Stephen Sedley, para 47). Costello (2012: 331) has been particularly critical of such interpretation on two grounds. Firstly, the distinction between systemic and non-systemic sources of harm is at odds with Strasbourg’s interpretation of Article 3 ECHR. Secondly, introducing ‘systemic deficiencies’ as an additional condition renders the NS threshold much more difficult to meet in practice than the MSS test.
Read as a conditio sine qua non for prohibiting expulsion, the ‘systemic deficiencies’ test reveals the institutional limits of Strasbourg-Luxembourg convergence. The ECtHR has applied the non-refoulement doctrine even-handedly, notwithstanding whether returns are carried out within a system of interstate mutual trust, like MSS, or in any other context such as that in Sufi and Elmi v United Kingdom (2012) 54 EHRR 9. Conversely, NS signals a degree of introspectiveness on the part of the CJEU. To the extent that it applies stricter requirements for suspending Dublin returns than those applicable to other forms of expulsion, Luxembourg seems to create a dangerous double standard based solely on the assumption that ‘mutual trust and the presumption of compliance are the ‘raison d’être’ of the CEAS’ (Costello 2012: 334).
Is the Luxembourg road a breakaway from Strasbourg?
One could give the NS test the benefit of the doubt and read it as a confirmation of the MSS test under a ruling limited in scope or wrong choice of words on the part of the CJEU, in order to salvage the Strasbourg-Luxembourg judicial dialogue. Yet what has followed the judgment in the EU context seems to confirm that dissonance between the two courts was not accidental. The Dublin III Regulation, which was still on the negotiating table when the NS ruling was handed, provided a valuable opportunity for the Union to codify the correct approach to suspension of transfers. The wording suggested by the European Commission in Article 31(2) of the Dublin III proposal is worth recalling:
‘When the Commission considers that the circumstances prevailing in a Member State may lead to a level of protection for applicants for international protection which is not in conformity with Community legislation, in particular with Directive […/…/EC] laying down minimum standards for the reception of asylum seekers and with Directive 2005/85/EC, it may decide… that all transfers of applicants in accordance with this Regulation to the Member State concerned be suspended’ (European Commission 2008: 52)
Admittedly, this provision took a broader, albeit not unjustifiable, reading than that adopted by both the Advocate-General and the Court in NS to warrant suspension in any case where a Dublin transfer would expose an applicant to conditions falling short of the Directives’ standards. After the proposed clause was rejected by the Council during negotiations, any reference to suspension was left to the new Article 3(2) of the Dublin III Regulation which codifies almost verbatim the wording of the CJEU in NS:
‘Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.’ (Dublin III Regulation, Article 3(2))
Moreover, the Luxembourg Court has not shown any sign of retreat from its narrow interpretation in subsequent case-law. In Bundesrepublik Deutschland v Kaveh Puid  2 WLR 98, it hinted that systemic deficiencies are a necessary condition for suspension by deeming that ‘[i]t is for the referring court to examine whether such systemic deficiencies existed…’ (Puid, para 31). More recently, its ruling in Shamso Abdullahi v Bundesasylamt  ECR I-0000 seems to markedly reconfirm dissonance with Strasbourg:
‘[T]he only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that latter Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter’ (Abdullahi, para 60)
Where is the dialogue mandated by Article 52(3) CFR and Article 6(3) TEU then left? Luxembourg’s consistent course in NS, Puid and Abdullahi undoubtedly illustrates a conscious departure from the ECtHR’s route which fits uneasily with its duty to follow its Strasbourg counterpart. Beyond raising strong constitutional objections, the tension between Strasbourg and Luxembourg also places national courts in a highly precarious position vis-à-vis Dublin transfers. It may result in a situation where, in the absence of systemic deficiencies, a Member State would lawfully return an applicant to another country under EU law but could at the same time infringe the ECHR by exposing that applicant to inhuman or degrading treatment. Greece may have formed a straightforward case for suspension given that both courts concurred on the existence of systemic deficiencies. How are Member States to treat harder cases such as Bulgaria or Italy, however? With one eye cast on the pending ECtHR case of Tarakhel v Switzerland (Application no. 29217/12) regarding returns to Italy, one inquires whether Strasbourg will be prepared to halt Dublin transfers to prevent risks of ill-treatment in the absence of systemic deficiencies and push back against Luxembourg.
Against that backdrop, recent judicial developments in the United Kingdom have taken important steps to resolve the Strasbourg-Luxembourg discordance. The Supreme Court in EM (Eritrea) v Secretary of State for the Home Department  UKSC 12 correctly returns to the Strasbourg position:
‘Violation of article 3 does not require (or, at least, does not necessarily require) that the complained of conditions said to constitute inhuman or degrading conditions are the product of systemic shortcomings. It is self-evident that a violation of article 3 rights is not intrinsically dependent on the failure of a system. If this requirement is grafted on to the presumption it will unquestionably make its rebuttal more difficult’ (EM (Eritrea), per Lord Kerr, para 42).
‘[t]he removal of a person from a member state… to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR’ (EM (Eritrea), per Lord Kerr, para 58)
The Supreme Court’s ruling strikes much needed clarity on the prevalence of the Soering and MSS doctrine as the pertinent test for the legality of Dublin transfers. The Dublin-Strasbourg-Luxembourg triangle is not easily resolved, however. On one hand, the Supreme Court points to an issue of legal uncertainty in the Dublin instrument. NS and Article 3(2) of the Dublin III Regulation expressly set out systemic deficiencies in the asylum procedure and in reception conditions leading to a real risk of exposing an applicant to a violation of Article 4 CFR as the sole ground for prohibiting transfers. In that light, a national court suspending a Dublin transfer in the absence of systemic deficiencies or to prevent flagrant breaches of rights other than Article 4 CFR would have to go beyond Article 3(2) and rely on the discretionary clauses of Article 17. As it is currently drafted, the Regulation does not provide clear guidance to national courts as to its fundamental rights limitations.
Further, EM (Eritrea) serves to point out a more fundamental internal incoherence in EU law. One would recall that both the precepts of Article 52(3) CFR and Article 6(3) TEU have primacy over EU secondary acts such as Regulations, given that both CFR and general principles of EU law have ‘the same legal value as the Treaties’ (Article 6(1) TEU; Nold  ECR 491). In that light, the narrower NS test codified by Article 3(2) of the Dublin III Regulation would contravene the primary law of the Union stemming from the CFR and general principles, insofar as it does not compel national courts to respect the rights enshrined in the ECHR and the Union’s duty to follow the interpretation of those rights by the Strasbourg court.
The momentum triggered by EM (Eritrea) should therefore be catalytic for CJEU intervention to remedy this internal incoherence. One could look forward to a carefully drafted preliminary reference asking the Court to clarify the relationship between Article 3(2) of the Dublin III Regulation and the MSS test for non-refoulement as regards the Member States’ obligations to suspend transfers. More pertinently, however, the legality of the Regulation itself could be challenged through a direct action for annulment under Article 263 TFEU on the ground that it contravenes the primary law of the Union. Under the current constitutional balance and until the EU accedes to the ECHR, Strasbourg cannot directly scrutinise EU legislative acts to ensure their compliance with fundamental rights. The ball is therefore left in Luxembourg’s court to ‘get the dialogue right’.
Treaties and Legislation
Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950 (ECHR)
United Nations Convention Relating to the Status of Refugees, Geneva, 28 July 1951 (Geneva Convention)
Charter of Fundamental Rights of the European Union (CFR)  OJ C364/1
Treaty on the Functioning of the European Union (TFEU)  OJ C83/47
Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (Reception Conditions Directive)  OJ L31/18
Council Regulation (EC) No 343/2003 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 (Dublin II Regulation)  OJ L50/1
Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (Asylum Procedures Directive)  OJ L326/13
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 stateless person (recast) (Dublin III Regulation)  OJ L180/31
Case 29/69 Stauder v City of Ulm  ECR 419
Case 4/73 Nold v Commission of the European Communities  ECR 439
Soering v United Kingdom (1989) 11 EHRR 349
TI v United Kingdom  INLR 211
Case C-144/04 Mangold v Helm  ECR I-9981
Bosphorus Hava Yollari v Ireland (2006) 42 EHRR 1
Case C-72/06 Commission v Greece  ECR I-00057
KRS v United Kingdom (2009) 48 EHRR SE8
Saadi v Italy (2009) 49 EHRR 30
Case C-400/10 PPU McB  ECR I-8965
MSS v Belgium and Greece (2011) 53 EHRR 2
Joined Cases C-411/10 NS v Secretary of State for the Home Department and C-493/10 ME v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform  2 CMLR 9,
(Opinion of AG Tristenjak)
Sufi and Elmi v United Kingdom (2012) 54 EHRR 9
Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1
EM (Eritrea) v Secretary of State for the Home Department  EWCA Civ 1336
Case C-4/11 Bundesrepublik Deutschland v Kaveh Puid  2 WLR 98
Case C-394/12 Shamso Abdullahi v Bundesasylamt  ECR I-0000
EM (Eritrea) v Secretary of State for the Home Department  UKSC 12
Tarakhel v Switzerland, Application no. 29217/12
DE BAERE, G. (2013) ‘The Court of Justice of the EU as a European and International Asylum Court’, KU Leuven Working Paper 118.
COSTELLO, C. (2012) ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’, Human Rights Law Review 12(2): 287-339.
DEN HEIJER, M. (2012) ‘Joined Cases C-411 & 493/10 NS v Secretary of State for the Home Department and ME v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, Judgment of the Court (Grand Chamber) of 21 December 2011’, Common Market Law Review 49: 1735-1754.
EUROPEAN COMMISSION (2008) Proposal for a Regulation of the European Parliament and of the Council 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 (Recast), COM(2008) 820, 3 December 2008, Brussels.
MITSILEGAS, V. (2012) ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’, Yearbook of European Law 31(1): 319-372.
MORENO-LAX, V. (2012) ‘Dismantling the Dublin System: MSS v Belgium and Greece’, European Journal of Migration and Law 14(1): 1-31.
 The recast technique in EU law-making consists in amending parts of an existing legislative act.
 At the time, the European Commission had initiated infringement proceedings against Greece for its failure to transpose the Reception Conditions Directive (Commission v Greece  ECR I-00057).
 Note that the case has now been overruled by EM (Eritrea)  UKSC 12