Procedural Limbo and Responsibility Evasion in the Dublin System: Unpacking the Pitfalls of the Dublin III Regulation in Case C-458/24 Daraa

Table of Contents: 1. Introduction. – 2. Context, background and judgment. – 2.1. Facts of the case and legal framework. – 2.2. The Opinion of the AG and the judgment of the Court. – 3. Critical analysis. – 3.1. The trajectory of the case law. – 3.1.1. Exceptions to transfers due to systemic deficiencies and fundamental rights concerns. – 3.1.2. Exceptions to transfers due to procedural requirements. – 3.2. The illusion of overcoming limbo. – 3.3. Responsibility-sharing and mutual trust. – 4. Looking ahead: the Asylum and Migration Management Regulation. – 5. Conclusion.

Abstract: This article critically examines the evolving challenges within the Common European Asylum System, focusing on the legal and practical dilemmas ensuing from the Dublin III Regulation. Using the recent judgment of the Court in Case C-458/24 as a lens, the analysis explores systemic weaknesses exposed by Member States’ suspension of asylum transfers, and the resulting procedural limbo faced by applicants. The article assesses the strict conditions for invoking exceptions to the transfer system, and the shifting of responsibility under Articles 3(2) and 29(2) of the Dublin III Regulation, examining their interplay with mutual trust, solidarity, and fundamental rights protection. It then evaluates the recently adopted Asylum and Migration Management Regulation, acknowledging its meaningful reforms while identifying persistent concerns, including unresolved gaps in the legal status of applicants during the interim transfer period. The article concludes that, despite progress, core structural flaws remain, demanding genuine commitment to collective responsibility, fair burden-sharing, and protection of asylum seekers’ fundamental rights at the heart of EU asylum law.

Keywords: Common European Asylum System – Dublin III Regulation – mutual trust – responsibility allocation – New Pact on Migration and Asylum – Asylum and Migration Management Regulation.

1.   Introduction

The evolving landscape of European asylum law continues to test the resilience and coherence of the Common European Asylum System (CEAS), particularly in the face of mounting pressures on Member States and the principle of mutual trust that underpins EU cooperation. Despite multiple reforms, the CEAS still faces inherent structural weaknesses that hinder the EU’s ability to effectively respond to the increasing number of asylum seekers coming to Europe.[1] This tension is particularly evident in the recent judgment of the Court in Case C‑458/24, DO v Bundesrepublik Deutschland,[2] delivered on 5 March 2026. This case concerns the legal consequences of a Member State’s unilateral suspension of Dublin transfers, an increasingly relevant challenge amid fluctuating migration flows and divergent national responses. In this context, this contribution examines how the European Court of Justice’s interpretation of Articles 3(2) and 29(2) of Regulation 604/2013 (‘Dublin III Regulation’ or ‘Regulation’),[3] as reflected in Case C-458/24, impacts asylum seekers’ procedural rights and the allocation of responsibility between Member States, and to what extent the Asylum and Migration Management Regulation (AMMR), entered into force in June 2026,[4] addresses the structural gaps exposed by that interpretation.

The case is set against the backdrop of Italy’s decision to suspend, with limited exceptions, the acceptance of Dublin transfers, raising fundamental questions about the operation of the Regulation’s responsibility criteria, the scope of exceptions based on systemic flaws, and the procedural mechanisms that ensure asylum seekers are not left in procedural limbo. The referring court’s questions probe the boundaries of the functioning of mutual trust under the Regulation, the interplay between Articles 3(2) and 29(2), and the procedural and substantive rights of applicants caught in the crossfire of inter-State disputes.

Section 2 of this contribution introduces the facts of the case and the legal framework (2.1), and the reasoning of the Court, highlighting similarities and differences with the Opinion of the AG (2.2). Section 3 provides a critical analysis of the judgment, focusing on the evolution of the case law on exceptions to the Dublin transfer system (3.1), the practical challenges of the Regulation’s current interpretation from the perspective of applicants’ rights (3.2), and the effects of this interpretation on the responsibility-sharing system and mutual trust (3.3). Finally, Section 4 examines novelties introduced by the AMMR, in particular whether it addresses the gaps in the Dublin III system identified in relation to the transfer of asylum seekers. It is argued that, despite the Dublin III Regulation’s aim of assigning clear responsibility for asylum applications to a single Member State, the current application of its Articles 3(2) and 29(2) creates prolonged procedural limbo for applicants and contributes to systemic imbalances in effective burden-sharing among the Member States, exposing the pitfalls of the Dublin transfer system. These issues are only partially addressed by the new AMMR, which introduces meaningful reforms, but risks undermining procedural guarantees through broader non-compliance sanctions, narrower appeal grounds, and an extended maximum transfer period that may deepen rather than resolve the limbo it seeks to overcome. 

2.   Context, background and judgment 

2.1.  Facts of the case and legal framework 

The case concerns a Syrian national who entered Germany in 2023 and applied for asylum. A search on Eurodac, the EU’s biometric database that allows national authorities to compare fingerprints with existing records, revealed that the individual had previously passed through Italy. 

The Dublin III Regulation establishes a hierarchy of criteria to determine the Member State responsible for processing an asylum application by a third-country national or a stateless individual, to ensure that only one Member State handles each asylum request.[5]These criteria include the Member State where the asylum seeker first irregularly entered the EU. However, the system provides for an exception where the transfer of the applicant to the responsible Member State is impossible due to systemic deficiencies in that State’s asylum system, giving rise to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights (CFR).[6] In such circumstances, responsibility is transferred to another Member State. 

Since Italy constituted the applicant’s first point of entry into the EU, the German Federal Office for Migration and Refugees (BAMF) submitted a request to the Italian authorities to take charge of the applicant, which was declined. Indeed, since December 2022, Italy no longer accepts the transfer of the majority of applicants under the Regulation.[7] The BAMF declared the asylum application inadmissible on the grounds that Italy was the responsible Member State, and ordered the applicant’s transfer to Italy. The applicant then brought an appeal against the decision of the BAMF before a German administrative court. The national court granted suspensive effect to the appeal, holding that Italy’s refusal to take charge of the applicant showed a breakdown in the Regulation system. Since the system relies on mutual trust and the obligation of Member States to examine the asylum applications for which they are responsible, the court considered that a refusal to assume responsibility would undermine the entire framework. It therefore questioned whether such a refusal would shift the responsibility to examine the asylum application to Germany, rendering the BAMF’s rejection unlawful. 

In this regard, Article 29(2) of the Regulation provides that where a transfer does not take place within six months, responsibility automatically shifts to the requesting Member State.[8] At the same time, the Dublin III Regulation is complemented by Directive 2013/32,[9] which provides that a Member State is not required to examine an application where another Member State is responsible under the Dublin III Regulation, or where the application is considered inadmissible for procedural reasons.[10]

To clarify the legal issues at stake, the court stayed the proceedings and referred several questions to the European Court of Justice (ECJ or Court). The referring court asked whether Article 3(2) of the Dublin III Regulation requires the requesting Member State to continue examining the criteria and assume responsibility if the responsible Member State refuses to take charge, and if this duty applies even where the responsible Member State has no systemic flaws risking a breach of Article 4 of the EU Charter of Fundamental Rights. In addition, the referring court sought to clarify whether Article 33(1) of Directive 2013/32 must be interpreted as precluding national legislation under which an asylum application has to be rejected as inadmissible where the Member State responsible is not willing to take charge.

2.2.  The Opinion of the AG and the judgment of the Court 

Both the AG and the Court begin their reasoning by clarifying the two cumulative conditions that must be satisfied to successfully invoke Article 3(2) of the Dublin III Regulation and stop the transfer of an applicant for international protection to the responsible Member State.[11] These concern, first, the presence of ‘systemic flaws’, which are generally established where flaws with a high level of severity affect the asylum procedure and the reception conditions of applicants for international protection.[12] Secondly, the systemic flaws should result in a risk for the person concerned of being exposed to inhuman or degrading treatment under Article 4 CFR.[13]

Both the AG and the Court agree that a unilateral suspension of transfers by a Member State, such as Italy’s refusal to accept Dublin returnees, does not, in itself, constitute systemic flaws under Article 3(2) of the Regulation.[14] Therefore, the requesting Member State (in this case, Germany) shall not become the responsible Member State on the basis of Article 3(2) of the Regulation.[15] Moreover, according to the Court, the responsible Member State (in this case, Italy) cannot unilaterally relieve itself of its obligations under the Dublin III Regulation, as this would undermine the functioning of the system.[16] If such a declaration were taken as evidence of systemic flaws, preventing the transfers of asylum applicants, it could also encourage them to continue their journey to another Member State offering more favourable conditions.[17] For these reasons, in the absence of actual systemic flaws, the standard responsibility criteria remain applicable, and the refusal by the responsible Member State to fulfil its obligations does not shift that responsibility.

Having established the limits of Article 3(2), the Court turns to the procedural consequences governed by Article 29(2). The Court recalls that, if the transfer of an applicant is not completed within the six-month time limit provided by Article 29(1), responsibility automatically shifts to the requesting Member State.[18] Relying on the same understanding of the AG, the Court interprets Article 29(2) as applying broadly to all failures in transferring applicants within the time limit, regardless of the reasons causing the delay or suspension.[19] For this reason, the provision also applies to cases of unilateral suspension by the responsible Member State.[20]

To justify its reasoning, the Court holds that the EU legislature did not include any general provision for the interruption or suspension of the six-month time limit in the Dublin III Regulation, limiting extensions to the six-month deadline only in two situations listed in Article 29(2) (notably, where the person is imprisoned, or if they abscond).[21] Even these exceptions – which only extend the time limit but do not suspend it – must be interpreted strictly, and cannot be applied to other situations.[22]Therefore, the Court confirms that the transfer deadline still runs even when the transfer is impossible, including when the requesting state is not at fault.[23]

Moreover, the Court emphasises that the objectives of the Dublin III Regulation are to ensure a clear and workable method for rapidly determining the Member State responsible for examining an application for international protection. This aims to guarantee effective access to asylum procedures, while ensuring the rapid processing of applications.[24] To achieve this objective, the EU legislature established mandatory time limits for the take-charge and take-back procedures,[25] including a six-month deadline for carrying out transfers, after which responsibility for examining the application shifts.[26]

While this understanding of Article 29(2) of the Regulation would de facto allow the responsible Member State to escape its responsibilities to take over protection,[27] the Court considers that this risk can be mitigated by two factors. First, despite a unilateral declaration such as the one by Italy, the responsible Member State must still cooperate with the requesting Member States to carry out the transfer before the deadline, and remains fully responsible during the time limit for transfer.[28] Secondly, the automatic transfer of responsibility is necessary to ensure effective access to the asylum procedure, and the effective protection of the fundamental right to seek asylum, as guaranteed by the CFR.[29]

The Court also clarified that the requesting Member State cannot refuse to apply Article 29(2) of the Regulation on the ground that the responsible Member State has suspended the procedures under the Regulation, since a Member State cannot rely on another Member State’s failure to fulfil its obligations to justify its own non-compliance with EU law.[30] Member States’ non-compliance should be remedied through Articles 258 and 259 TFEU.[31]

To conclude, the Court also clarifies that Article 33(1) of Directive 2013/32 cannot be invoked to declare an application inadmissible in this situation. Article 33(2) provides an exhaustive list of the grounds to consider an application inadmissible, and it must be interpreted strictly.[32] Neither the fact that another Member State is responsible under the Dublin III Regulation nor the suspension or refusal of take-charge procedures by that State appears among those grounds.[33] The Directive also distinguishes between Dublin cases and inadmissibility decisions. Where another Member State is responsible, the requesting Member State must adopt a transfer decision under Article 26 of the Dublin III Regulation, rather than declare the application inadmissible. Accordingly, an application for international protection cannot be rejected as inadmissible merely because the Member State responsible refuses to take charge of or take back the applicant.[34]

Differently from the Court, the AG in his Opinion also situates his reasoning within the evolving framework of EU asylum law, including the 2024 Pact on Migration and Asylum.[35] Although Dublin III has been repealed in June 2026 by the AMMR, its successor maintains a mechanism similar to that of Article 29(2). This continuity underscores the EU legislature’s intention to ensure that asylum applications are processed promptly, and that the time limit for transfers remains a core element of responsibility determination.[36]

Two aspects of this judgment are particularly novel relative to the existing case law. First, while the Court had previously established that a Member State’s unilateral suspension cannot, in itself, amount to systemic flaws under Article 3(2),[37] the present case clarifies the consequences that ensue under Article 29(2): the six-month deadline continues to run during the suspension, with responsibility shifting automatically to the requesting Member State upon its expiry, irrespective of the cause of the failed transfer. Second, the AG’s reading explicitly anchors the Article 29(2) regime in continuity with the AMMR. Although the AMMR overhauls several procedural mechanisms, most notably by replacing the take-back procedure with a take-back notification, it preserves the structural function of strict transfer time limits, signalling the EU legislature’s continued reliance on this mechanism to allocate responsibility throughout the regulatory transition. These two points already highlight the broader structural tensions discussed below.

3.   Critical analysis 

3.1.  The trajectory of the case law 

This judgment falls within a line of evolving case law concerning the protection of applicants in the context of the EU asylum transfer system and, more specifically, the Dublin III system. The ECJ’s rulings on exceptions to transfers of an applicant to the responsible Member State may be divided into two general categories: those where the exception is applied due to systemic flaws and fundamental rights concerns, and those where it is applied in connection with the procedural conditions prescribed by the Dublin III Regulation. This case involves considerations relating to both areas. 

3.1.1.   Exceptions to transfers due to systemic deficiencies and fundamental rights concerns 

The CEAS is built on the foundation of mutual trust, which requires Member States to presume each other’s full compliance with EU law. When that compliance may be called into question in practice, this creates a fundamental tension within the system. This tension became particularly evident in 2011 with the N.S. and others ruling,[38] which is seen as marking an end to the ECJ’s application of ‘blind trust’ within the asylum system.[39] In these joined cases, the transfer of applicants to the responsible Member State was suspended because of systemic deficiencies in its asylum procedure and reception conditions, aiming to prevent applicants from facing a real risk of inhuman or degrading treatment in violation of Article 4 CFR.[40] The ECJ held for the first time that, notwithstanding the principle of mutual trust, EU law precludes the application of an absolute presumption that national asylum authorities always act in accordance with fundamental rights protection.[41] This standard was confirmed and narrowed in 2013 in Abdullahi,[42] where the Court held that systemic deficiencies constitute the only ground on which an applicant may challenge a transfer decision. Applicants have no general right to contest the application of the responsibility criteria; the review is confined to whether the transfer would expose them to a real risk of inhuman or degrading treatment in the responsible Member State.[43]

Such restrictive reading was however broadened in 2017, with C.K. and Others.[44] In that case, the Court examined the potential transfer of an asylum seeker who had recently undergone a high-risk pregnancy and faced complications following childbirth. In view of her condition, the applicant claimed that the transfer to the responsible Member State would endanger her health. Although no evidence indicated the existence of systemic flaws in the Member State’s asylum procedure or reception conditions, (on the contrary: the responsible Member State had provided assurances confirming that the individual would have access to accommodation, medical treatment, and appropriate care),[45] the ECJ emphasised that the act of transfer itself could pose a real risk of inhuman or degrading treatment in light of the applicant’s particularly serious health condition.[46]

The Court therefore held that national authorities must assess such individual circumstances before ordering a transfer.[47] It clarified that, even in the absence of systemic deficiencies, a transfer may still be incompatible with Article 4 CFR where it would expose a seriously ill applicant to inhuman or degrading treatment.[48] The Court rejected the interpretation that the transfer of responsibility to another Member State for examining an asylum application under Article 3(2) of the Dublin III Regulation would take place only in cases of systemic flaws in the responsible Member State, emphasizing that, on the one hand, nothing in the provision suggested the EU legislature had wanted to limit this option to cases of systemic flaws, and, on the other, that such a reading would be inconsistent with the general and absolute character of Article 4 CFR.[49]

The shift from a purely systemic‑flaw test to a more individualised assessment, grounded in the absolute nature of Article 4 CFR, was consolidated in 2019 with Jawo.[50] In this case, the applicant argued that his transfer was unlawful because the six-month transfer period under Article 29(1) of the Dublin III Regulation had expired, and the living conditions in the responsible Member State would expose him to a risk of inhuman or degrading treatment. The Court reaffirmed that transfers must be suspended whenever there are substantial grounds to believe that they would breach the individual’s rights under Article 4 CFR. This risk may not only arise from systemic flaws, but also from general or individual deficiencies, provided they reach a particularly high level of severity (such as lack of access to shelter, food, or hygiene).[51] National authorities must verify, based on objective, reliable, and up‑to‑date information, whether such risks exist before executing a transfer. 

3.1.2.   Exceptions to transfers due to procedural requirements 

In parallel with the exceptions to transfer of applicants due to fundamental rights concerns, the Court has been increasingly busy clarifying the procedural conditions for transfers under the Regulation. These conditions may also generate exceptions to transfers or, at the very least, cause delays in initiating or completing the transfer process within its prescribed timeframe. In 2017, with Shiri, the ECJ was asked to explain the consequence of a transfer not taking place within the six-month time limit set by Article 29(1) of the Dublin III Regulation.[52] The Court ruled that if the transfer does not occur within that period, responsibility for examining the asylum application shifts automatically to the Member State where the applicant is currently present, regardless of any refusal by the responsible Member State to take charge.[53] This case demonstrated that transfer of responsibility after the expiry of the six-month period is automatic and not conditional upon any ‘reaction’ by the responsible Member State.[54]

In the case of IA in 2022, an applicant challenged his transfer after he was formally and involuntarily committed by court order to a psychiatric hospital due to mental illness, making transfer impossible within the normal six-month Dublin time frame.[55] The referring court asked whether such court-ordered committal could be considered ‘imprisonment’ under Article 29(2), allowing for the extension of the transfer deadline up to one year. The ECJ ruled that ‘imprisonment’ in Article 29(2) does not cover non-voluntary psychiatric committal, as this measure is not imposed in the context of criminal proceedings for an offence; thus, the usual six-month transfer time limit remains applicable, and cannot be extended on these grounds.[56] Otherwise, a more generous interpretation of the term of ‘imprisonment’ would disregard the exceptional nature of extending the time-limit under Article 29(2),[57] which, in turn, would undermine the effective functioning of the Dublin system and the achievement of its objectives.[58]

In the Joined Cases of MA, PB, LE in 2022, several applicants challenged their proposed transfer under the Dublin III Regulation to the responsible Member State after the authorities of the requesting Member State suspended transfer decisions due to the COVID-19 pandemic, invoking administrative suspension under domestic law.[59] The referring court asked the ECJ whether this administrative suspension could interrupt the Dublin III six-month transfer time limit, so that responsibility would not revert to the requesting Member State after the time expired. The Court ruled that only suspension directly linked to the effective judicial protection of the applicant under Articles 27(3) or 29 of the Regulation can interrupt the six-month transfer deadline, excluding suspensions based on material impossibility.[60]

Finally, in 2024 with Tudmur, two applicants challenged their transfer after the responsible Member State had unilaterally suspended its obligations under the Dublin III transfer system. This led the ECJ to consider whether such suspension amounted to a risk of inhuman or degrading treatment under Article 4 CFR, and thus precluded the asylum seekers’ transfer under Article 3(2) of the Dublin III Regulation.[61] The Court answered negatively, holding that a Member State’s unilateral suspension of its responsibilities to take charge of asylum seekers may not, in itself, justify the finding of systemic deficiencies in its asylum procedure or reception conditions resulting in a risk of inhuman or degrading treatment for the applicants.[62] At the same time, the ECJ clarified that the responsible Member State cannot unilaterally discharge itself of its responsibilities under the Dublin III Regulation, as that would both jeopardise the functioning of the system and, were this considered sufficient to find systemic flaws in the asylum reception conditions, encourage applicants’ asylum shopping.[63]

Therefore, while the Dublin III system is construed around the principle that, once the responsible Member State is identified, the applicant will be swiftly transferred, the case law demonstrates that in practice the system reveals hiccups, resulting in frequent exceptions to such a rule. These issues may arise from systemic deficiencies and concerns in protecting the applicant’s fundamental rights, or from procedural contingencies anticipated within the legislation itself, highlighting a more cumbersome reality than the smooth mechanism envisioned. 

3.2.  The illusion of overcoming limbo 

As clarified by the AG in his Opinion, this case offers the ECJ the opportunity to build on its reasoning in Tudmur,[64] addressing the procedural uncertainty faced by applicants when the responsible Member State neither permits their transfer, nor exhibits systemic deficiencies. This topic is particularly timely given that, in December 2022, the Italian asylum authority issued two circulars informing other national competent authorities that transfers under the Dublin III Regulation would temporarily be suspended in Italy until further notice, due to ‘suddenly appeared technical reasons related to unavailability of reception facilities’.[65] The suspension does not apply to cases involving family reunification of unaccompanied minors, while in all other situations the circulars noted the need to ‘reschedule the reception activities for third countries nationals’.[66]

Notwithstanding the limited attention given by the Court to the factual circumstances surrounding Italy’s unilateral suspension of transfers, the AG addressed it in greater detail in his Opinion. Despite his assertion that the Italian suspension is temporary and could be lifted at any time,[67] the number of migrants that it is expected to take back continues to rise,[68] causing friction in other Member States.[69] In 2023, Italy also declared a state of emergency as a result of the exceptional increase in the flows of applicants entering via the Mediterranean migratory routes.[70] While the declaration was not extended beyond April 2025, its end did not coincide with the withdrawal of the unilateral declaration on the suspension of the Dublin III Regulation. On the contrary, statistics by the Asylum Information Database, managed by the European Council on Refugees and Exiles, show a significant decline in Italy’s asylum recognition rates in 2024 compared to 2022.[71] In view of the ongoing suspension, figures for 2025 will presumably rise. Moreover, Italian regional courts and the Council of State have blocked access to documents justifying the declaration on the state of emergency, making it difficult to assess the full extent of the problem or predict its duration.[72] It is therefore desirable, but at the moment unlikely, that this suspension will be lifted soon.

From this perspective, the Court’s reading of the existing provisions highlights exactly the vulnerabilities of this system, which struggles to accommodate scenarios in which a responsible Member State openly disengages from it. The Court builds directly on its reasoning in Tudmur, holding that unilateral policy choices, such as Italy’s decision to suspend its obligations under the Dublin III Regulation, cannot justify derogations under Article 3(2).[73] The strict conditions governing Article 3(2) make it applicable only where systemic deficiencies in the asylum procedure or reception conditions create a real risk of inhuman or degrading treatment within the meaning of Article 4 CFR. The ECJ has consistently emphasised that such deviations are permissible only in exceptional circumstances,[74] since not every infringement of fundamental rights is sufficient to rebut the presumption of mutual trust without undermining the functioning of the Area of Freedom, Security and Justice and, ultimately, of the EU itself.[75]

Impasses connected to Member States’ policy choices in the CEAS should not come at the cost of swift processing of asylum applications either. Indeed, the Court strongly emphasises the importance that the Dublin transfer system attributes to the interests of applicants. From the outset, the Dublin III Regulation underscores the need to rapidly determine the responsible Member State to guarantee effective access to international protection procedures, and to uphold the objective of promptly processing asylum claims.[76]The AG also devotes several paragraphs to this priority,[77] noting that the Court’s case law consistently favours the rapid processing of applications to protect the interests of third-country nationals over concerns about possible circumvention of responsibility criteria.[78]Both the Court and the AG’s analyses, including literal and teleological readings of Article 29, align with the judgment in Shiri, reaffirming that the Regulation’s time limits serve a vital functional purpose: protecting applicants’ timely access to the examination of their claims.[79]

Given the emphasis on the swift processing of asylum applications, the Court’s position on the obligations of the requesting Member State is somewhat striking. The current understanding of the practice under Article 29(2) obliges a requesting Member State to submit a transfer request to a Member State that has, in policy or practice, suspended its obligations according to Article 3(2), knowing full well that a negative response, or no response at all, will follow. The applicant then waits in limbo until the expiry of the six-month deadline, and only then may their claim be considered by the requesting Member State. This situation creates a period of time where, in practice, no Member State assumes responsibility for the applicant, resulting in long delays, uncertainty, and potentially a complete absence of effective protection, which is fundamentally at odds with the very notion of safeguarding the fundamental rights of migrants.[80] This procedural paradox effectively prolongs the applicant’s uncertainty and delays access to protection, which contravenes the Regulation’s objective of establishing a mechanism for responsibility-sharing within the EU while upholding the fundamental rights of asylum seekers, including the rapid treatment of their applications. 

While Article 29(2) provides strict time limits to ensure that some Member State will eventually process the asylum application at stake, its current interpretation does not succeed in resolving this procedural uncertainty in full. The adherence to deadlines ad litteram, without accounting for the practical implications of policy driven or administrative suspensions, means that periods of limbo for applicants may still persist. What appears formally settled within the framework of the Dublin III Regulation therefore remains, in practice, only partially addressed in terms of ensuring effective and timely protection under the CEAS.

3.3.  Responsibility-sharing and mutual trust 

Of particular interest are also the structural overlaps between Articles 3(2) and 29(2), both of which risk creating incentives for Member States to disengage from participating in the effective operation of the CEAS. 

Article 3(2) of the Regulation purports to offer a safeguard for applicants by shifting responsibility only in cases of systemic deficiencies resulting in a real risk of inhuman or degrading treatment. However, scholars have pointed out that its operation can paradoxically encourage Member States to demonstrate the presence of such deficiencies to avoid taking charge of applicants.[81] It does not help that the ECJ seems to be increasingly relaxing the requirements for satisfying the test under Article 3(2), for example by holding that individual circumstances or general deficiencies would suffice to demonstrate a threat to Article 4 CFR. Obviously, a more generous interpretation of the requirements under Article 3(2)’s test enhances the protection for the fundamental rights of the applicant, but if the bar for proving such flaws becomes easily surmountable, a Member State might then use Article 3(2) strategically to discharge itself of its duties. In a similar fashion, the Court acknowledges that the aims of the Dublin III Regulation preclude unilateral declarations of suspension (like Italy’s) from triggering Article 3(2), as otherwise a Member State could once again absolve itself of its responsibilities.[82]

One may then turn to Article 29(2) to compel the responsible Member State to take responsibility. As previously highlighted, under Article 29(2) the Member State responsible is required to respond within six months to a transfer request. If no response is received, responsibility for processing the asylum application automatically shifts to the requesting Member State. Yet, this silence within the six-month deadline also allows a responsible Member State to evade its duties, frustrating the system’s goal that every claim be processed by one clearly defined Member State. There is a reasonable explanation behind what may seem at first a counterintuitive design of Article 29(2). As the AG’s historical analysis clarifies, the six-month deadline was introduced to address cases where a transfer could not be completed in time due to delays attributable to the requesting Member State, rather than because of a lack of cooperation by the responsible Member State. Article 29(2) was therefore intended to achieve two aims: first, to ensure responsibility for processing an application would revert to the requesting Member State when the delay was its fault, and second, to guarantee that an applicant’s claim would ultimately be examined by a Member State.[83] Naturally, the operation of the provision has always rested on the assumption that the responsible Member States would collaborate in taking charge of, or taking back, the applicant concerned.[84] This also explains why, when adopting the Dublin II Regulation (which first introduced the provision), the EU legislature could not have foreseen a scenario in which the responsible Member State would deliberately refrain from participating in the system altogether.[85]

More broadly, the presumption behind the operation of the Dublin transfer system is that procedures will unfold in good faith, with administrative efficiency and respect for fundamental rights.[86] The CEAS itself draws its legitimacy not simply from the allocation of responsibility, but also from the commitment to solidarity and fair sharing of burden among Member States in general (and not only in response to emergencies). In this sense, Articles 67 and 80 of the TFEU further enshrine the idea that responsibility for asylum, immigration and border checks is a collective European undertaking, dependent on all Member States upholding shared standards, and not merely seeking to minimize their own exposure.​[87] However, the procedural loopholes arising from the current interpretation of Article 3(2) and Article 29(2) may allow Member States to exploit these provisions to limit their obligations. This problem is further exacerbated by the failure to initiate infringement procedures in such cases, which in practice risks legitimizing this conduct and weakens the stability of the CEAS as a whole. 

Thus, while the judgment may well align with the spirit of Articles 3(2) and 29(2) of the Dublin III Regulation, it nonetheless sits in tension with the principle of mutual trust. In particular, while the AG states that ‘Article 29(2) of the Dublin III Regulation does not affect the principle of mutual trust’,[88] and ‘the automatic transfer of responsibility […] does not depend on the reason why the applicant was not transferred within the prescribed period’,[89] the very possibility that the provision can be used as a leeway to circumvent obligations deriving from mutual trust points to a tension with this fundamental principle. Since both the interpretation of the Court and the one of the AG are consistent with the Dublin III Regulation, this suggests that it is the legal framework itself that sits uneasily with the presumption that all Member States will fulfil their obligations under the Regulation.

In general, the paradoxes created by Articles 3(2) and 29(2) go beyond technical misalignments; they may call into question the broader legal and communal fabric of trust that is vital for any transnational system. From this perspective, if the mechanism in Article 3(2) can be manipulated to escape obligations, and if Article 29(2) allows a Member State to simply wait out a procedural clock, the incentives are misaligned.[90] This distortion not only jeopardises individual applicants’ rights but also undermines the broader trust between Member States. Ultimately, mutual trust is not a self-executing doctrine, but rather requires continuous, good-faith engagement and reciprocity, underpinned by effective oversight and swift remedies for breaches.​[91]

Some of the governments that participated as applicants in the main proceedings highlighted this dilemma, noting that this interpretation would ratify an infringement of EU law by Italy.[92] In response, the Court held that any misapplication of EU law by Italy should be addressed through infringement proceedings, rather than by distorting the application of the Dublin Regulation.[93]While this is doctrinally sound, it nevertheless exposes a structural limitation: in the absence of such proceedings, the Dublin III system becomes vulnerable to manipulation in a context of increasingly asymmetric asylum cooperation among Member States. This limitation is particularly troubling given that the ongoing challenges in EU asylum law may have an impact on absolute fundamental rights such as the prohibition of inhuman or degrading treatment. 

Given these issues, reform proposals become even more urgent. No longer can the Regulation remain a mere mechanism for allocating responsibility without regard to the realities of migration flows, differentiated capacities, and the fundamental need for trust and solidarity. Mutual trust must be supported by operational rules that genuinely foster collective responsibility and guard against opportunistic disengagement. To address these challenges, the following section assesses whether the reforms introduced by the AMMR represent genuine progress towards a more resilient and equitable European asylum system. 

4.   Looking ahead: the Asylum and Migration Management Regulation 

The shift from the responsibility-allocation mechanism of the Dublin III Regulation to the corresponding provisions of the AMMR,[94] under the New Pact on Migration and Asylum,[95] marks an essential transformation in the EU’s legal architecture not only for cross-border asylum transfers, but for the Union’s migration management as a whole. Its critical analysis reveals structural, procedural, and especially rights-based implications, which reshape the core dynamics underlying responsibility allocation and enforcement within the Union.

The AMMR regulates the determination of the responsible Member State and the transfer of migrants by introducing streamlined transfer and enforcement mechanisms,[96] prioritizing operational efficiency and harmonization. Crucially, this drive for efficiency is not intended to come at the expense of individualised assessments. In a significant doctrinal step, Article 16(3) of the AMMR moves beyond the systemic flaws test of Article 3(2) Dublin III as the principal exception to mutual trust: rather than requiring that the risk of inhuman or degrading treatment stem from systemic deficiencies in the responsible Member State’s asylum system, individual circumstances alone may now suffice to preclude a transfer.[97] This recalibration of the threshold reflects and consolidates the trajectory traced by the Court’s case law from N.S. through C.K. and Jawo, and represents one of the AMMR’s most meaningful departures from its predecessor.

Articles 39 to 41 of the AMMR also introduce faster administrative procedures, comprising shorter periods to submit and respond to transfer requests.[98] These provisions are designed to streamline the process, which should, theoretically, reduce the period that migrants spend in procedural limbo with minimum protection, thereby safeguarding their fundamental rights. The most significant of these changes is the replacement, under Article 41, of the take-back mechanism of the Dublin III Regulation, with a take-back notification. Under Articles 23-25 of the Dublin III Regulation, returning an applicant to the responsible Member State required a formal request, which that State could accept or refuse: a bilateral consent mechanism that proved vulnerable to the kind of unilateral obstruction illustrated by Italy’s conduct in the present case.[99] Article 41 of the AMMR removes this dependency, as a Member State simply notifies the responsible Member State of the intended transfer,[100] reversing the procedural logic from a request requiring acceptance to a notification presumed valid. The notified Member State retains the right to raise objections, but only on the same substantive grounds that currently justify refusal of a take-back request. This reform thus addresses procedural deadlocks to a certain extent, though it falls short of resolving the deeper tension between mutual trust and the capacity of Member States to resist transfers in practice.

Moreover, the applicant’s procedural guarantees under the AMMR are somewhat questionable. Under the Dublin III Regulation, the six-month deadline prescribed by Article 29(1) for the physical transfer of an applicant to the responsible Member State may be extended to a maximum of eighteen months if the individual ‘absconds’.[101] The rationale seems to be to prevent manipulation of procedures while maintaining proportionality and protection against arbitrary or punitive extensions. In other words, absconding is understood as both a voluntary and conscious evasion, underscoring a high threshold that guards against excess State discretion.[102]

By contrast, Article 46(2) of the AMMR allows for the extension of the transfer period up to three years under specific circumstances, such as, but not limited to, if the applicant has absconded.[103] Article 18 partially counterbalances this by introducing stricter sanctions for the asylum applicant’s non-compliance with the competent authorities, including the possibility of detention and the restriction of certain rights.[104] It is important to note that the definition of non-compliance under the AMMR is less stringent, often encompassing any failure of the individual to cooperate or be available for transfer, rather than requiring active evasion.[105] As a result, this lower evidentiary threshold risks expanding Member States’ discretion, potentially at the risk of diminishing individualised procedural guarantees. 

In addition, the AMMR restricts the range of aspects that can be appealed in transfer decisions and expands the circumstances under which deadlines may be extended and sanctions may be imposed against applicants.[106] More specifically, Article 43 of the AMMR limits the grounds for appeal primarily to risks of inhuman or degrading treatment or breaches of family unity.[107] This approach could erode the standard of effective judicial protection, potentially conflicting with the case law of the ECJ or of the European Court of Human Rights, especially when solidarity mechanisms are invoked and applicants might be moved without individualised guarantees.

A comparative analysis of their respective legal frameworks reveals that neither the Dublin III Regulation, nor the AMMR adequately addresses the legal status of migrants during the interim period preceding their transfer to the Member State responsible. Even though the AMMR foresees faster procedures that will minimize the time spent in this ‘legal uncertainty’ gap, it still fails to address the issue of the legal status of the migrants during that period. In this sense, pending the transfer implementation, the Regulation creates a limbo excluding full reception conditions or work rights for the affected migrants.[108] Consequently, the lack of legal certainty surrounding the protection of their fundamental rights persists, and it is further exacerbated by the extension of the transfer period to a maximum of three years encompassed under Article 46(2) of the AMMR.

Another key policy shift is reflected in solidarity provisions: whereas the Dublin III Regulation assigns individual responsibility to Member States separately and treats absconding mostly as an administrative matter resulting in the extension of transfer deadlines, the AMMR envisions inter-State responsibility sharing under Articles 48 to 54. This includes information exchange, administrative cooperation, and the creation of a solidarity pool under Article 12,[109] reinforcing administrative efficiency but also risking a more coercive model overall.[110] Critics highlight that while change is unlikely to address chronic delays and ‘secondary movements’, it risks undermining fundamental rights, especially in contexts of systemic deficiencies or State non-compliance.[111]

In sum, the AMMR represents a meaningful but incomplete step forward from the Dublin III Regulation. On the one hand, it introduces genuinely significant reforms: the recalibration of the transfer exception beyond the systemic flaws test, the replacement of the take-back procedure with a simpler notification mechanism, and the shortening of procedural deadlines all address structural weaknesses that the present case brought into sharp relief. On the other hand, the extension of the transfer period to up to three years, the broadening of non-compliance sanctions, and the narrowing of appeal grounds under Article 43 risk undermining the very procedural guarantees that the Dublin system was meant to uphold. Most fundamentally, neither instrument addresses the issue of the legal status of the migrants while the administrative procedure for their transfer is pending, maintaining a legal vacuum regarding their rights and protections during this period. 

5.   Conclusion

In conclusion, the evolving application of the Dublin III Regulation reveals fundamental questions about the nature and resilience of European asylum law. The judgment of the Court serves as a significant contribution to this ongoing debate, shedding light on the strict conditions under which exceptions to the Dublin transfer system may be invoked, and highlighting the importance of procedural certainty, effective remedies, and the indivisibility of fundamental rights protection. While this analysis has examined the case in detail, exploring its implications for the future of responsibility allocation in EU asylum law, it has also reflected on the limits of unilateral Member State action and the evolving relationship between managing migration flows and supranational solidarity. 

The trajectory of the case law reveals a shift from a narrow focus on systemic deficiencies in responsible Member States to more nuanced, individualised assessments, alongside a clarification of the procedural conditions that can delay or alter transfers. Despite the formal safeguards embedded in Article 3(2) and Article 29(2) of the Dublin III Regulation, procedural limbo persists for asylum applicants when Member States unilaterally suspend transfers, undermining both timely protection and the objectives of the Dublin transfer system. Moreover, the operational structure of these two provisions creates incentives for Member States to evade responsibility, undermining mutual trust, collective solidarity and the effective functioning of the CEAS. The AMMR only partially addresses these shortcomings: while it aims to strengthen individualised protection and reduce the scope for unilateral obstruction by the responsible Member State, it risks eroding the procedural guarantees that the Dublin system was designed to uphold. Most critically, the AMMR leaves unresolved the issue of legal certainty faced by applicants awaiting transfer, perpetuating procedural limbo and risking further fragmentation in the EU’s asylum system.

Reflecting on the current legal landscape, there is an urgent need for reform within the Dublin transfer system, including solidarity mechanisms and distribution keys, to ensure that responsibility is shared fairly and that the system guarantees both fundamental rights and transnational trust. Upholding mutual trust within the CEAS is at a critical point, as recurrent crises and procedural loopholes risk turning a principle of cooperation into one of avoidance while undermining the level of protection of fundamental rights of migrants. Addressing these challenges requires not only doctrinal refinement and legislative changes but also a renewed political commitment to solidarity, fairness, and the protection of fundamental rights.[112] Finally, whatever reforms are pursued, they must not lose sight of the human dimension of asylum systems and responsibility-sharing mechanisms. Any legislative development in this area must ultimately keep the rights, dignity, and wellbeing of applicants at the forefront of European asylum policy.