MARCELLA FERRI, The exercise of the discretionary clause in the Dublin system and its justiciability after the AHY judgment: it is only a matter of national law…but at what price!

ABSTRACT – In the AHY judgment (Case C‑359/22), rendered on 18 April 2024, the Court of Justice provided further clarifications on the justiciability of the discretionary clause set out in the Dublin III Regulation. This blog post focuses on the two main problematic points affecting the judgment. Firstly, the Court’s reasoning is not fully coherent with its previous case-law on the discretionary clause, in particular with the MA judgment which, on that occasion, was significantly reinterpreted (if not really misinterpreted). Secondly, the solution taken by the Court in AHY on the interplay between the discretionary clause and the scope of application of EU fundamental rights is really questionable. After analysing these shortcomings, this blog post highlights that the AHY judgment can be seen as the ultimate and culminating moment of a case-law providing the Member States with an increasing margin of manoeuvre about both the exercise of the discretionary clause and its judicial review. Finally, the post remarks the impact of that case-law for both the national legal systems and the Common European Asylum System.

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