N.S.

, mutual trust and fundamental rights in the Common

European Asylum System

Conference paper by
Francesco Maiani, Assistant Professor, IDHEAP (Lausanne)

ECLN Meeting
When the Court gets it Wrong, EUI (S. Domenico) Nov. 18 and 19, 2013

Not to be quoted without the Authorʼs permission

Abstract: The N.S. judgment has been hailed by some as a breakthrough for
fundamental rights protection in the Unionʼs Area of Freedom, Security and Justice.
Focusing on the judgmentʼs passages on mutual trust and fundamental right
protection, this paper argues the opposite position. Based on strikingly bad
arguments, the N.S. judgment devises an unjustifiably restrictive “human rights test”
in pursuance of a judicial policy prioritizing the short-term effet utile of the Dublin II
Regulation over the long-term achievement of Treaty objectives.

1. Introduction
Between 2008 and 2010, the Member States transferred around 2ʼ200 asylum
seekers to Greece under the so-called “Dublin II Regulation” (hereafter “DR”)1, and
sought unsuccessfully to remove about 14ʼ000 more. They did so in full knowledge of
the fact that, as the European Court of Human Rights (ECtHR) would later confirm,
this meant exposing them to degrading detention conditions, and stripping them of all
chances to have their asylum claim fairly considered – such were the flaws of Greek
reception and protection standards2.

This mass violation of fundamental rights occurred in the EU, in the implementation
of an EU Regulation theoretically premised on full respect for EU and international
standards 3 , while the Commission stood by without taking meaningful action 4 . It
rested on a doctrine of absolute or unconditional mutual trust between States that –
as such – has no foundation in primary or secondary EU Law, but that was
convenient enough for State administrations bent on removing as many asylum
seekers as possible. It only stopped at the behest of the ECtHR. After initial
hesitations, the Court condemned the practice in no ambiguous terms in 2011,
reaffirming both the limits of mutual trust and the requirements of meaningful human
                                                                                                               
1
Regulation n° 343/2003 (OJ 2003 L 50/1). The Regulation will be replaced in January 2014 by
Regulation n° 604/2013 (OJ 2013 L 180/31), the “Dublin III Regulation”. The “Dublin” nickname
comes from the 1990 Dublin Convention (OJ 1997 C 254/1), concluded between the Member
States before the Union acquired competences in the field of asylum.
2
See ECtHR, M.S.S. v. Belgium and Greece [GC], no. 30696/09, 21.1.2011.
3
Dublin II Regulation (note 1), preamble recitals 2, 12 and 15.
4
Bringing case C-130/08 against Greece (OJ 2008 C 128/25) and withdrawing it while the
situation on the ground worsened, without raising the issue of the transfers with the other
Member States, does not qualify as “meaningful action”.

  1  
rights scrutiny in the operation of the “Dublin system”5. Only then were transfers
stopped. Only then, having to bear the consequences of the situation in Greece that
only the asylum seekers had felt so far, did the Commission and the Member States
start to apply decisively both pressure and assistance for the reconstruction of that
national asylum system6.

The ECJ judgment in the N.S. case came months later, essentially on the same facts
as M.S.S. 7 . It has been generally well-received and even hailed by some
commentators as a breakthrough in the protection of fundamental rights in the
Unionʼs Area of Freedom, Security and Justice (AFSJ). In their view, the Court has
boldly carved out a “human rights exception” to what they called a “rule of automatic
cooperation” prevalent in AFSJ Law8. My reading is the exact opposite, probably
because I start from the inverse premise that a “rule of automatic cooperation” as
found in other areas of the AFSJ is conspicuously lacking in EU asylum legislation
(see infra, 2). The Court has in my view rendered a poorly reasoned judgment whose
ambiguous conclusions are open to be interpreted as condoning, in situations falling
short of the utter disaster witnessed in Greece, human rights violations for the sake of
mutual trust. This is a particularly risky step to take at a moment when national
administrations are only too eager to go back to “Dublin business as usual”, and
when the asylum practices of several Member States are precisely of the kind that
raises serious concerns without attaining the peaks (or depths) of the Greek crisis.

I will develop my critique (point 4) after recapitulating the legal background to the
case (point 2) and the relevant passages of the NS decision (point 3).

2. Legal background to N.S.

Throughout a history of more than 20 years and three complete recasts (see footnote
1), the key tenets of the Dublin system have remained unchanged. First: each asylum
claim filed in the Union by a third country national must be, as a rule, examined by a
single Member State, to be identified according to predefined criteria (Art. 3(1) DR).
Second: once this “responsible State” has been identified, the other member States
are entitled to transfer the applicant there without examining her protection needs
(Art. 16 DR). It is worth stressing that they may do so (Art. 17(1) DR) and that at any
rate, under the so-called “sovereignty clause”, they are entitled to examine a claim
that is filed with them for any reason they see fit, thus becoming the responsible
State (Art. 3(2) DR)9. This is the key difference between Dublin and other AFSJ

                                                                                                               
5
ECtHR, M.S.S. (note 2); this was preceded by a seriously flawed admissibility decision
expressing “concerns” but giving the go-ahead to transfers to Greece: ECtHR, K.R.S. v.
United Kingdom (dec.), no. 32733/08, 2.12.2008.
6
See R. BIEBER / F. MAIANI, Sans solidarité point dʼUnion européenne, RTDE 2012, 295, 322 f.
7
ECJ, joined cases C-411/10 and C-493/10, N.S., M.E. and others, 21.12.2011, nyr.
8
V. MITSILEGAS, The Limits of Mutual Trust in Europeʼs Area of Freedom, Security and Justice:
From Automatic Inter-State Cooperation to the Slow Emergence of the Individual, YEL 2012,
319, 334 and 358 f; I. CANOR, My Brotherʼs Keeper? Horizontal Solange: “An Ever Closer
Distrust Among the Peoples of Europe”, CMLR, 383, most of all at 385 f and 388.
9
“It must be underscored that [the Dublin II Regulation] never obliges a Member State to refuse
to examine an application for asylum” (AG Jääskinen, C-4/11, Puid, 18.4.2013, para. 71; see
also ECJ, C-528/11, Halaf, 30.5.2013, nyr, para 34 ff).

  2  
instruments based on mutual recognition such as the European Arrest Warrant or the
Brussels II bis Regulation10.

The system aims to ensure that every person seeking protection in the Union has
access to an asylum procedure. At the same time, it aims to control the movement of
protection seekers in the Schengen area by denying them the choice of their
destination, and to prevent them from aggravating the administrative burden on the
national asylum systems by pursuing their claim in more than one State.

Quickness and lightness, to borrow from Calvinoʼs Lezioni americane, were from the
outset meant to be the defining features of the Dublin procedure11. That should have
been no more than a swift and problem-free formality between the request for
protection, somewhere in the Union, and the start of the asylum procedure properly-
so-called in the “right” State.

This is where mutual trust becomes central. State-to-State transfers of asylum

seekers (read: removals) fall as such under the principle of non-refoulement. Under
international refugee and human rights law, before proceeding, the sending State
must satisfy itself that the destination State is “safe”, i.e. that the applicant does not
incur a relevant risk of being persecuted or ill-treated there, or of being removed to a
place where such a risk exists. A systematic and in-depth risk analysis, carried out
before each transfer, would however defeat the purpose of the Dublin system.
Instead, the system operates on the presumption that all the participating States are
“safe” (DR, recital 2 of the preamble).

When the Dublin system was first established in the 1990s, this safety presumption
rested solely on the common international obligations of the participating States,
particularly under the 1951 Convention on the status of refugees (CSR) and the
ECHR. With the Amsterdam and Lisbon Treaty the legal context has evolved
considerably. At present, the Dublin system is part and parcel of a Common
European Asylum System (CEAS) that under Art. 6 TEU and 78 TFEU must i.a.:
• be in accordance with the relevant international standards and with the
Charter,
• aim to “[offer] appropriate status to any third country national requiring
international protection and [to ensure] compliance with the principle of non-
refoulement”, and
• lead to uniform asylum legislation.
Already at present, three EU Directives lay down minimum standards that cover most
aspects of substantive and procedural asylum law, providing an additional basis for
mutual trust12. In the longer run, the achievement of CEAS should bring about a
situation in which a level playing field of protection exists across the Union, whereby
                                                                                                               
10     On mutual recognition in these instruments, see MITSILEGAS (note 8), 323 ff.  
11
Dublin II Regulation (note 1), preamble recitals 3 and 4.
12
Adopted between 2003 and 2005, they have been replaced by their recast versions: Directive
2011/95 (OJ 2011 L 337/9: qualification and status), Directive 2013/32 (OJ 2013 L 180/60:
asylum procedures) and Directive 2013/33 (OJ 2013 L 180/96: reception conditions). Five
States participating in the Dublin system by virtue of international agreements (Denmark and
the four EFTA States) are not bound by these EU asylum measures.

  3  
the standards applied in all Member States are both adequate (read: in line with the
relevant international standards) and equivalent13.

In such a scenario, operating the Dublin system on the basis of a safety presumption
would be relatively unproblematic. But the Dublin system has never operated in such
conditions. To begin with, the CEAS suffers from an “asylum lottery syndrome”:
standards and practices still differ to such an extent that the very same asylum claim
can have a different outcome depending on which State examines it14. Quite apart
from this, and more to our point, it is common knowledge that reception and/or
protection standards are more or less defective in some Member States, and
catastrophically deficient in Greece since at least 200715.

Not surprisingly, in such a context, the implementation of the Dublin system

frequently gives to objections. The family of cases to which NS belongs is
schematically as follows: the applicant enters the EU irregularly through a border
State, say Greece; possibly after experiencing harsh detention or destitution, she
travels on to a State rumoured to be more generous and claims asylum there; under
the Dublin II Regulation the claim is summarily rejected and she is referred back to
the first State; she then objects that a transfer would place her at risk of ill-treatment
or of onward illegal refoulement due to the lower or outright inadequate standards
applied by the responsible State.

Of course not all such claims are well-founded, and some are based on completely
invented circumstances16. But since the CEAS is still a construction site full of rather
dangerous corners, one could have expected the authorities of the sending State to
exercise a measure of caution in addressing at least reasonably substantiated
claims, and to make good use of the sovereignty clause. Instead, they have applied
the presumption that all States are “safe” even in the face of overwhelming evidence
to the contrary, displaying on occasion a reckless disregard for the rights of
protection seekers. The case of transfers to Greece evoked in the introduction is only
the most extreme and well-documented instance of this. Indeed, for all practical
purposes, national authorities have applied the Dublin system as if it included a “rule
of automatic cooperation”, even though as said no such rule exists in the Dublin
system, and even though the Strasbourg Court had made it clear since 2000 that the
sending State retains responsibility for potential breaches of article 3 ECHR in the
responsible State, and may not rely on an absolute presumption of safety17.

Remedies – where at all available – were until 2010 ineffective. In some States,
courts considered the safety presumption as irrebuttable de jure – sometimes on the

                                                                                                               
13
See again Art. 78 TFEU and the Stockholm Programme (OJ 2010 C 115/1), para. 6.2.
14
For an unsurpassed analysis of the interpreted conundrums occasioned by this situation, see
G. NOLL, Formalism v. Empiricism : Some Reflections on the Dublin Convention on the
Occasion of Recent European Case Law, NJIL 2000, 161.
15
For a summary of the reports published until 2011, see ECtHR , M.S.S. (note 2), para 159 ff.
16
For a good example, see ECtHR, Mohammed Hussein and others v. the Netherlands and Italy
(dec.), no. 27725/10, 2.4.2013.
17
ECtHR, T.I. v. United Kingdom (dec.), no. 43844/98, ECHR 2000-III.

  4  
basis of national statutory provisions to that effect18. In others, they would disregard
all evidence relating to the general situation in the responsible State, requesting hard
proof of wholly individualized risks – misreading the case-law of the ECtHR and
placing rebuttal of the safety presumption de facto out of reach for the vast majority of
applicants19. Things evolved at national level as evidence of the Greek catastrophe
accumulated at increasing tempo, and on 21 January 2011 the ECtHR Grand
Chamber judgment in M.S.S. clearly condemned the practice followed until then
under the standpoint of Art. 3 ECHR. The major points can be summed up as follows:
• Dublin transfers cannot be exempted from ECtHR scrutiny under the
Bosphorus doctrine, since under the Dublin system Member States retain the
necessary discretion – especially by virtue of the sovereignty clause – to act in
an ECHR-compliant manner (para. 338 ff).
• It would be incompatible with Articles 3 and 13 ECHR to operate the Dublin
system on the basis of a conclusive presumption that the responsible State is
safe for the applicant. Member States may start from that presumption, but
must allow for a serious examination – in first and in second instance – of any
claim that Art. 3 would be infringed in the responsible State (para. 385 ff).
• The safety presumption is effectively rebutted in the case of Greece
essentially on the basis of the numerous available field reports (para. 344 ff).
To the objection that such reports did not (by their very nature) disclose any
individualized risks, the Court replied: “The fact that a large number of asylum
seekers in Greece find themselves in the same situation as the applicant does
not make the risk concerned any less individual where it is sufficiently real and
probable” (para. 359). In other words, it affirmed that systemic risks – so far
ignored by national case-law – could be as relevant as the traditionally
accepted individualized risks from the standpoint of Art. 3 ECHR.

3. The NS judgment: a summary

The N.S. case that came before the ECJ was the same as M.S.S. and yet not the
same. The facts were identical, as were the issues raised under the standpoint of the
prohibition of torture and inhuman or degrading treatment (compare Art. 3 ECHR with
Art. 4 and 19(2), in conjunction with Art. 52(3), of the EU Charter of Fundamental
Rights, CFR). Yet, the ECJ also had the occasion to examine questions that lie
beyond the remit of the ECtHR, such as bars to Dublin transfers potentially deriving
from Art. 18 CFR (Right to Asylum), or from the violation of EU asylum legislation (as
opposed to Charter rights) in the responsible State. The institutional position and
preoccupations of the ECJ, as the supreme judicature of the EU, are also different
and broader than those of the ECtHR.

In the event, the ECJ based its conclusions entirely on Art. 4 CFR – avoiding the
questions arising under Art. 18 CFR (para. 109 ff)20, and tangentially addressing the
questions relating to the violation of EU standards by the responsible State (para. 84-
                                                                                                               
18
PH. DE BRUYCKER et al., Setting up a Common European Asylum System, Study for the
European Parliament, PE 425.622, p. 129 f.
19
For more details see F. MAIANI/C. HRUSCHKA, Le partage des responsabilités dans lʼespace
Dublin, entre confiance mutuelle et sécurité des demandeurs dʼasile, ASYL 2/11, 12, 13.
20
This avoidance may have something to do with the fact that Art. 18 CFR has both an obscure
meaning and far-reaching potentialities. For more of the same, ECJ, Halaf (note 9), para 40.

  5  
85)21. It confirmed the main findings of the M.S.S. judgment, i.e. that the Dublin
system could not be operated on the basis of an irrebuttable presumption of safety,
and that the situation in Greece was such as to rule out any transfers there on the
basis of Art. 4 (para. 89, 99 and 100). In fact, on these basic points, it could have
hardly deviated from the M.S.S. precedent without riding roughshod over the
“homogeneity clause” of Art. 52(3) of the Charter and without opening a major conflict
with the Strasbourg Court.

That said, the Courtʼs preoccupation with the effet utile of the Dublin Regulation and
overall architecture of AFSJ Law did influence its reasoning and conclusions in the
key passages of the judgment (paras. 75-86).

The Court started from uncontroversial premises. On the one hand, EU Asylum Law
must conform to the relevant human rights standards, and must be interpreted
accordingly (para. 75-77). On the other hand, secondary legislation in this area, and
particularly the Dublin system, rest on the “principle of mutual confidence”. In
applying them, national authorities must therefore start from the assumption that all
participating States respect will respect human rights (para. 78-80).

So far so good. But in approaching the key issue – how do human rights and mutual
confidence interact? – the Court started using extremely guarded language. It
conceded that the Dublin system “may, in practice, experience major operational
problems in a given Member State, meaning that there is a substantial risk that
asylum seekers may, when transferred to that Member State, be treated in a manner
incompatible with their fundamental rights” (para. 81; emphasis added). It then added
that not “any infringement of fundamental rights” in the responsible State will “affect
the obligations (sic) of the other Member States to comply with the [Dublin II
Regulation]” (para. 82). The reason offered was that “[a]t issue here is the raison
dʼêtre of the European Union and the creation of an [AFSJ] and, in particular, the
[CEAS], based on mutual confidence and a presumption of compliance, by other
Member States, with EU Law and, in particular, fundamental rights” (para. 83). The
conclusion, a few paragraphs below, was that a transfer would be incompatible with
Art. 4 CFR “if there are substantial grounds for believing that there are systemic flaws
in the asylum procedure and reception conditions […] resulting in inhuman or
degrading treatment […] of asylum seekers transferred to the territory of that Member
State” (para. 86, emphasis added).

4. The NS judgment: analysis

The main conclusion reached by the Court in para. 86 of the N.S. judgment is
ambiguous. Perhaps intentionally, the Court stopped short of saying that only
“systemic flaws” entailing a risk of inhuman or degrading treatment preclude a Dublin
transfer.

                                                                                                               
21
This aspect of the N.S. judgment would also deserve full treatment, as it touches on the
relation between mutual trust and harmonization in the CEAS. Suffice it to note that the Court
only excluded that “slight” or “minor” violations of the relevant Directives could not preclude a
transfer – something that no-one had ever suggested – thus leaving the question standing.

  6  
One could therefore interpret N.S. in a non-limitative sense. Such a reading would go
like this22. When there are systemic flaws entailing a risk of inhuman or degrading
treatment in the responsible State, this will entail per se an obligation not to transfer
without any further evidential requirements being imposed. But transfers could also
be barred for risks deriving from circumstances of a less “systemic” nature, or for
risks involving other fundamental rights such as arbitrary detention. The Court did not
need to dwell on these further hypotheses because indeed, there were “systemic
risks” of ill-treatment in Greece and that settled the case.

Such a benign reading of N.S. is in fact required if one wants to fully reconcile it with
ECtHR case-law.

First: a test exclusively based on “systemic flaws” is not sufficient. In cases where
Art. 3 ECHR is invoked against removal, the controlling factor are the “foreseeable
consequences of the applicantʼs removal” (emphasis added). The “systemic” situation
in the destination State is a relevant issue – and may in extreme cases settle the
matter against removal – but short of this, the applicantʼs “personal circumstances”
must also be considered. Indeed, it is clear from M.S.S. and subsequent Dublin
cases that even in the absence of “systemic flaws”, individualized risk may render a
removal incompatible with Art. 3 ECHR23 . The practical importance of this point
cannot be overstated. On the one hand, the expression “systemic flaws” is inherently
imprecise, and if interpreted as synonymous with “complete breakdown of the asylum
system” would leave out systematic practices that are a relevant risk factor to at least
a class of applicants – e.g. Hungaryʼs former practice of automatically removing to
Serbia the asylum seekers having transited there24. On the other hand, even in the
absence of problematic general practices, applicants may still have the most serious
grounds to fear irreparable harm owing to individual circumstances25.

Second: a test exclusively based on Art. 4 of the Charter is not sufficient. It is correct
to state, as the ECJ does, that not any risk to fundamental rights will preclude
removal (para 82). This is in line with Strasbourg precedent saying that while a risk of
persecution, death, serious ill-treatment, arbitrary deprivation of liberty or denial of a
fair trial in the destination State may preclude expulsion, threats to other human
rights normally will not26. But as it is readily apparent, the list of relevant risks is not
restricted to torture and inhuman or degrading treatment. And under EU Law,
arguably, the list could be longer – I am referring again to Art. 18 CFR, whose secrets
the ECJ guards so jealously (see note 19).

                                                                                                               
22
See e.g. R. BANK/C. HRUSCHKA, Die EuGH-Entscheidung zu Überstellungen nach Griechenland und
ihre Folgen für Dublin-Verfahren (nicht nur) in Deutschland, ZAR 2012, 182.
23
These classic principles of ECtHR case-law are explicitly reiterated in post-M.S.S. and post-
N.S. cases: see ECtHR, Mohammed Hussein (note 15), para. 69 and 78; ECtHR, Mohammed
v. Austria, no. 2283/12, para. 95 and 102. See also C. COSTELLO, Courting Access toAsylum in
Europe: Recent Supranational Jurisprudence Explored, HRLR 2012, 287, 331.
24
See UNHCR, Note on Dublin transfers to Hungary of people who have transited through
Serbia, October 2012, repealed in December 2012 owing to changes in Hungarian practice.
25
For an example see the judgment of the Swiss Federal Administrative Tribunal, E-6323/2010,
30.11.2010.
26
ECtHR, Z. and T. v. United Kingdom (dec.), no 27034/05, 28.2.2006, p. 7.

  7  
To sum up, under both standpoints, an “open” interpretation of N.S. is indispensable
if meaningful human rights protection is to be possible in the Common European
Asylum System – at least, on the minimum level required by ECHR jurisprudence.

The problem is that the argumentation of the ECJ points squarely in the opposite
direction. As noted, the Court does not state that only “systemic flaws” entailing an
Art. 4 Charter risk preclude transfers. But a few paragraphs before the Court only
concedes that “major operational problems” are not “inconceivable” against the
background of the safety presumption, suggesting as much. And that is how the
message has been widely understood 27 . For instance, in a more recent case,
Advocate General Jääskinen has observed: “It is evident that [in N.S.] the Court has
aimed at establishing a high barrier against the setting aside of the principle of mutual
trust underlying [the Dublin II Regulation]”28. Even more clearly, the UK Court of
Appeal has held that “[according to N.S.], the sole ground on which a second state is
required to […] refrain from returning the applicant to the state of first arrival, is that
the source of risk to the applicant is a systemic deficiency, known to the former, in the
latterʼs asylum or reception procedures. Short of this, even powerful evidence of
individual risk is of no avail” (emphasis added)29.

Otherwise stated: on this reading of N.S., short of a breakdown of the asylum system
of the responsible State, Dublin transfers may be carried out regardless of even the
most serious risks to the whole range of the applicantʼs human rights. As experience
demonstrates, national administrations will only be too eager to endorse this reading,
and irreparable damage may have been done on a potentially large scale before the
ECtHR steps in or the ECJ amends its position. Hardly a satisfactory outcome for a
judgment that should have clarified the constitutional fundamentals of a Common
European Asylum System premised on the “full and inclusive application” of human
rights and refugee law standards.

Just as unsatisfactory is the argument on which the Courtʼs conclusion rests. In

essence, the Court justifies the narrowness of its “human rights test” by stating that
“at issue here is the raison dʼêtre of the European Union and the creation of an
[AFSJ], and, in particular, the [CEAS] based on mutual confidence”.

The Court does not explain what the “raison dʼêtre of the Union”. As for the
circumstance that the CEAS is be “based on mutual confidence”, that can be an
argument only in perfectly circular reasoning: CEAS secondary legislation is based
on mutual confidence (para. 78), therefore only narrow human rights exceptions will
be admitted because CEAS Law is based on mutual confidence (para. 83). My main
point, however, is that the Court subverts explicit value-judgments to be found in the
relevant Treaty provisions. Art. 78 TFEU states that the central aim of the CEAS as a
whole is to “ensure compliance with the principle of non-refoulement”, and its
foundational value is respect for the Charter and the relevant human right treaties.
Whatever the raison dʼêtre of the EU may be, that is surely the raison dʼêtre of the
                                                                                                               
27
See e.g. K. HAILBRONNER/D. THYM, Vertrauen im europäischen Asylsystem, NVwZ 2012, 406,
point III; W. WEIß, Grundrechtsschutz in der EU: Quo vadis?, EuZW 2012, 201;
28
AG Jääskinen, Puid (note 9), para. 62.
29
Court of Appeal for England and Wales, EM v. the SSHD, [2012] EWCA Civ 1336, para. 62.

  8  
CEAS. By contrast, no reference is made to “mutual confidence” or “mutual
recognition”, which in the scheme of the Treaty are at most the implicit underpinning
of a single component of the CEAS (see Art. 78(2)(e) TFEU). Against this backdrop,
placing limits on the effective protection of fundamental rights in the name of mutual
trust would at least require a sustained argumentation 30 . The reference to the
“creation of the AFSJ” suggests that the Court may have reasoned by analogy with
its case law relating to other areas of AFSJ Law – judicial cooperation in civil and
criminal matters31. If so, it was quite wrong to do so. Apart from begging the question
of whether in those areas of AFSJ Law “mutual trust” should trump effective
individual human rights protection, such an analogy is not warranted. The Treaty
itself recognizes “mutual recognition” as the cornerstone of judicial and police
cooperation, but specifically not of CEAS Law (see Art. 67, 81 and 82 TFEU). This
difference is fully reflected in secondary legislation (see above, text at notes 9 and
10).

Beyond dubious value-judgments and false analogies, the reasoning employed by

the Court is also (less overtly) flawed in its structure. “Mutual confidence” is by
definition confidence in the fact that all Member States will respect human rights
(para. 78). It authorizes Member States to dispense with the ex officio, case-by-case
assessment they should otherwise carry out to ascertain that the human rights
conditions making a transfer permissible are met. But in this logic, when evidence
that the basic conditions are not met comes to the attention of the authorities, mutual
confidence may no longer come into play (lest it become blind faith). Itʼs not a matter
of “rule” and “exception”, but rather a matter of conditions fulfilled or otherwise. Yet
the whole structure of paras. 80 to 86 reflect the logical scheme of a “rule” to be
broadly applied (mutual trust) and of “exceptions” to be narrowly construed. The
Court is so involved in its “rule vs. exceptions” device as to conjure out of thin air non-
existing “obligations” of the other Member States to transfer applicants under the
Dublin II Regulation (paras. 82 and 85; see above, text at footnote 9).

Eventually, one is left wondering why the Court reasoned as it did in N.S. Was there
a superior reason of judicial policy guiding it, une certaine idée of how the CEAS
should eventually function? Was it driven by its preoccupation of securing the
greatest possible effet utile of the EU measure at hand? Certainly the points made by
the Court tend to safeguard to the greatest possible extent the regular
implementation of the Dublin system, insulating it from most human rights incidents
that may affect its operation. If national authorities stick to the restrictive human rights
test outlined in para. 86 of N.S., legal challenges to transfer decisions will prosper
only in the most extreme cases. But does this favour the effet utile of the Treaty, the
attainment of the objectives and principles enshrined in its Art. 78 – a point that
should receive equal if not greater attention from the Court? Let me recall again
recent history, this time in the light of Art. 78(1) TFEU. During the time of “Dublin
impunity” before M.S.S., a practice of systematic violation of the non-refoulement
principle was allowed to be carried out within the Union, while a whole national
asylum system drifted farther and farther away from agreed EU standards and policy

                                                                                                               
30
For a similar argument, see COSTELLO (note 22), 334.
31
See MITSILEGAS (note 8).

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in this area. After transfers were stopped at the behest of an external body – the
ECtHR – Member States were forced to at least suspend this particular refoulement
practice, and increased pressure and support were brought to bear in order to
gradually bring back that national asylum system in line with EU standards and
policy. In due time, transfers to Greece will resume in orderly fashion and the effet
utile of Dublin will be fully restored. If N.S. now swings the pendulum back to the old
times, does the integrity of EU asylum law stand to gain?

Insisting on a strong version of mutual trust while standards still diverge so

dramatically between the Member States is not accelerated progress towards the
ideal CEAS of Art. 78(1) TFEU. It is a short cut to an alternative, dystopian CEAS.
“Short cuts” – says Frodo to Pippin in the Lord of the Rings – “make delays”. In this
case, they may well have worse consequences.

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