Responsibilities of the Member States under the Dublin II Regulation from a fundamental rights perspective

Abstract: This essay examines the responsibilities of the Member States in the European Union under the Dublin II Regulation from a fundamental rights perspective. The examination focuses in particular on two main obligations of the Member States – the obligation to assess other Member States’ compliance with fundamental rights and the obligation for all Member States to respect fundamental rights in the Union. Member States have previously been permitted to presume that all Member States of the Union are safe countries for third-country nationals. However, reality shows that grave deficits might exist in the responsible Member State’s asylum- and reception system. Both the ECtHR and the CJEU have acknowledged in the cases of M.S.S. and N.S. respectively that the use of a conclusive presumption therefore could expose asylum seekers to treatment contrary to fundamental rights in transfer situations. At present, the lack of subsequent judgement from the CJEU nevertheless limits the transferring Member State’s obligation to assess the responsible Member State’s compliance with fundamental rights to the duty of assessing the compliance with the prohibition of torture and inhuman treatment according to Article 4 in the Charter. It is currently difficult to establish how fundamental rights in the Charter specifically relevant for asylum seeker impact the responsibilities of the Member States under the Dublin II Regulation. The question whether Member States’ actions fall within the scope of the Charter appears to be an imminent issue. The absence of preliminary rulings from the CJEU on the interpretation of the scope and meaning of the rights is noticeable. This primarily applies to rights without corresponding provisions in the ECHR. Since the status of the case law from the ECtHR seems to be in dispute, the scope and meaning of corresponding rights may thus not be established for certain without further guidance from the CJEU. Notwithstanding the responsibilities of the Member States with regard to the two main obligations today, there is reason to expect that the future accession of the Union to the ECHR will enhance Member States’ responsibilities in general.