CJEU, 23 January 2019, M.A., S.A. and A.Z., C-661/17

Brexit and Dublin: the Court of Justice clarifies the implications for the Dublin System of the process of withdrawal from the EU of the United Kingdom

Résumé

In M.A., S.A. and A.Z., the CJEU deals with a case involving Brexit and the Dublin III Regulation, the discretionary clause set out in its Article 17(1) and the principle of the best interests of the child. The Court clarifies that, despite the planned withdrawal of the UK from the EU, the provisions of EU Law concerning the responsibilities for the examination of asylum applications remain fully applicable in that Member State. Indeed, the notification of the intention to withdraw from the EU, pursuant to Article 50 TEU, does not impact on the application of the Dublin III Regulation, as long as the Member State concerned has not actually left the EU. The CJEU further explains that a Member State is not obliged to use the discretionary clause set out in Article 17(1) of the Dublin III Regulation where the Member State responsible for examining an asylum application has notified its intention to withdraw from the EU. Similarly, considerations relating to the best interests of the child cannot oblige the Member State to make use of the discretionary clause, whose exercise, ultimately, remains fully optional and only subject to the State’s “absolute discretion”.