European case law digest – March 2019
In our March edition of the European case law digest, we feature cases in the field of migration law, procurement law and family law.
Judgments in Case C-163/17 Jawo and in Joined Cases C-297/17, C-318/17 Ibrahim, C-319/17 Sharqawi and Others and C-438/17 Magamadov
Member state: Italy/Germany
Date (decision published): 19.03.2019
Subject of case: Whether the Charter of Fundamental Rights of the European Union precludes the transfer of an applicant for international protection, pursuant to the Dublin III Regulation, to the Member State normally responsible for processing his application, if he would be exposed to a substantial risk of suffering in that Member State inhuman or degrading treatment on account of the living conditions (assuming that he is granted such protection).
Abubacarr Jawo, a Gambian national, lodged an initial application for asylum in Italy, which he had reached by sea. He then continued his journey and later submitted another application for asylum in Germany. The German authorities rejected that application as being inadmissible and ordered the removal of Mr Jawo to Italy. However, the attempt in June 2015 to transfer Mr Jawo to Italy failed because he was not present at the accommodation centre where he lived.
Mr Jawo stated upon his return that he had visited a friend in another German city and that no-one had advised him that he needed to report his absence. Before the Higher Administrative Court in BadenWürttemberg, Germany, Mr Jawo claimed that Germany had become the Member State responsible due to the expiry of the time limit of 6 months laid down by Dublin III Regulation for his transfer to the Member State normally responsible (Italy). As Mr Jawo had not absconded when the transfer was attempted, that time limit could not be extended to a maximum of eighteen months. In addition, he asserted that his transfer to Italy would be unlawful because there are systemic deficiencies in the asylum procedure, reception conditions for applicants and living conditions of beneficiaries of international protection in that Member State
On the latter point and more generally, the Court concludes that EU law does not preclude the transfer of an applicant for international protection to the Member State responsible or the rejection of an application for the grant of refugee status as being inadmissible on the grounds that the applicant has been previously granted subsidiary protection by another Member State, unless it is established that the applicant would, in that other Member State, be in a situation of extreme material poverty, irrespective of his wishes and personal choices. A high degree of insecurity or a significant degradation of living conditions do not attain the threshold necessary unless the above s the case.
Judgment of the Court of Justice in Case C-465/17 Falck Rettungsdienste and Falck
Member state: Germany
Date (decision published): 21.03.2019
Subject of case: Do EU public procurement rules apply to the tendering services for the transport of patients provided, in emergency situations, by non-profit organisations or associations?
After having invited some public aid associations to submit tenders, the City of Solingen (Germany) awarded, in 2016, the contract for emergency services, for a period of five years, to two such associations. The contract concerned, inter alia, the care of patients in an emergency situation by an emergency worker assisted by a paramedic and the transport by ambulance of patients cared for by a paramedic assisted by a medical assistant (the latter, ‘transport by qualified ambulance’).
The company Falck Rettungsdienste GmbH and its parent Falck A/S group brought an action before the German courts for a declaration that the award was illegal owing to the lack of prior publication of a contract notice in the Official Journal of the European Union (OJ), in accordance with the general rules laid down in the directive on public procurement. The Higher Regional Court, Düsseldorf, asked the Court of Justice whether those contracts fall within the concept of ‘danger prevention services’ which Article 10(h) of Directive 2014/24 excludes from the scope of application, subject to certain conditions, i.e. that they are provided by non-profit organisations or associations.
The Court rules that, according to Article 10(h) of the directive, the usual public procurement rules, including the obligation to publish the contract notice in the Official Journal, do not apply to public contracts for services relating to civil defence, civil protection and danger prevention (which the court held included emergency ambulances), subject to two conditions, namely that (i) the services correspond to certain CPV codes (here, corresponding to ‘emergency/rescue services’ or ‘ambulance services’) and (ii) that they are provided by non-profit organisations or associations. That exclusion of the application of the public procurement rules contains, however, an exception in that it does not include non-emergency patient transport ambulance services, which are subject to a simplified public procurement regime
Member state: United Kingdom/France
Date (decision published): 26.03.2019
Subject of case: Can a minor in the guardianship of a citizen of the EU under the Algerian “kafala “ system be regarded as a ‘direct descendant’ of that citizen?
A French couple resident in the UK applied to the UK authorities for entry clearance, as an adopted child, for an Algerian child who had been placed in their guardianship in Algeria under the kafala system, an institution in the family law of some countries that follow the Koranic tradition. British authorities refused that application, a decision which was appealed. The Supreme Court of the United Kingdom asked the Court of Justice whether under the directive on the freedom of movement, the child can be regarded as a ‘direct descendant’ of the persons who took her in under Algerian kafala, a status which would give her a right of entry to the UK.
The Court noted that while the directive does not contain any explicit definition of “direct descendant”, the concept of a ‘direct descendant’ commonly refers to the existence of a parent-child relationship and that the concept of a ‘parent-child relationship’ must be construed broadly, covering any parent-child relationship, whether biological or legal, and so a ‘direct descendant’ of a citizen of the EU must consequently including both biological and the adopted child of such a citizen.
The Court stated that, given that the placing of a child under the Algerian kafala system does not create a parent-child relationship between the child and its guardian, a child who is placed in the legal guardianship of citizens of the EU under that system cannot be regarded as a ‘direct descendant’ of a citizen of the EU. However, However, the Court considered that such a child falls under the concept of “other family members’ referred to in the directive on the freedom of movement.
Therefore, the Court concluded that it is for the competent national authorities to facilitate the entry and residence of a child placed in the legal guardianship of citizens of the EU under the Algerian kafala system as one of the ‘other family members’ of a citizen of the EU, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned.
In the event that it is established, following such an assessment, that the child and its EU citizen guardian are called to lead a genuine family life and that that child is dependent on its guardian, the court considers that requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.