1 The claimant, by his own account a Nigerian national, challenges the decision rejecting his asylum applications as inadmissible and ordering his deportation to Italy.

2 In August2019, the claimant applied for recognition of entitlement to asylum. A EURODAC comparison revealed that he already lodged an asylum application in Italy on 7 June 2017. On request of the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) at the end of August 2019 the Italian authorities agreed to take charge of the claimant.

3 The Federal Office rejected the asylum applications as inadmissible under section 29 (1) no. 1 of the Asylum Act (AsylG, Asylgesetz) (no. 1), declared that no deportation ban existed under section 60 (5) and (7) first sentence of the Residence Act (AufenthG, Aufenthaltsgesetz) (no. 2), ordered the deportation to Italy (no. 3), and issued an entry and residence ban under section 11 (1) AufenthG (no. 4).

4 On 11 September 2019, the claimant brought an action against that decision. The Administrative Court (Verwaltungsgericht) dismissed an application to order the suspensive effect of the action brought by decision of 1 October 2019.

5 In a circular letter to the Dublin departments of the EU Member States dated 24 February 2020 the Italian Ministry of the Interior informed that due to the health situation caused by the COVID 19 pandemic no transfers from and to Italy will take place. Consequently, by letter to the claimant dated 25 March 2020, the Federal Office suspended the execution of the deportation order until further notice in accordance with section 80 (4) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) in conjunction with article 27 (4) of the Dublin III Regulation. The reason given was that transfers under the Dublin III Regulation are impossible at present due to the COVID-19 pandemic. The declaration made was subject to revocation.

6 By decision of 4 May 2020, the Administrative Court dismissed a further application of the claimant as inadmissible to order the suspensive effect of the action brought.

7 By the contested judgment of 10 June 2020, the Administrative Court annulled the Federal Office's notice. The responsibility to examine the request for asylum had been transferred to the defendant pursuant to article 29 (2) of the Dublin III Regulation due to expiry of the time limit for transfer. The suspension of the execution of the deportation order ordered by the defendant did not interrupt the time limit for transfer since it was incompatible with EU law. Article 27 (4) of the Dublin III Regulation did not provide for a suspension that is detached from the outcome of a specific appeal. Here, the suspension did not aim at providing effective legal protection to the claimant. The absence of such an aim was already given expression by the fact that the suspension had not been ordered - as provided for by article 27 (4) of the Dublin III Regulation - pending the outcome of such an appeal, but rather "until further notice" and "subject to a reservation" and the defendant therefore left the door open to repeal this decision still within the pending proceedings. In the present case, the suspension decision did only take into account that a transfer to Italy turned out to be impossible. According to the general scheme of the Dublin III Regulation in such constellations the risk of impossibility fell within the sphere of the requesting Member State.

8 As grounds for its leapfrog appeal (Sprungrevision) the defendant stated: The Dublin III Regulation did not preclude, within the context of an appeal pending against a transfer decision, the possibility of an accompanying administrative review with suspensive effect under article 27 (3) of the Dublin III Regulation. Article 27(4) of the Dublin III Regulation should be understood as an opening clause which allows the Member States to determine the regulatory scope under national law within the overall framework defined. According to the general scheme of the Dublin III Regulation, the risk of a transfer being precluded for reasons for which the requesting State is not responsible, as a result of a wholly unusual set of circumstances, could not be ascribed unilaterally to the requesting Member State. Furthermore, the Court of Justice had clarified in its case-law that the transferring State should always have a continuous period of six months to carry out the transfer and that article 29 (1) first sentence of the Dublin III Regulation was clearly based on the fundamental idea that the time limit for transfer only starts to run once it is practically possible to carry out the transfer. Moreover, there was nothing to suggest that the EU legislature deliberately failed to regulate the possibility of suspension of the Dublin transfer procedure for more than a very short period on objective grounds and left room, even in such an unusual set of circumstances, for a transfer of responsibility based on the mere passage of time. Therefore, there was good cause to assume that the Dublin III Regulation contains an unintended regulatory gap in that regard.

9 The legal dispute is to be suspended. In accordance with article 276 of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) is to be obtained on the questions raised in the operative part of the decision. Those questions concern the interpretation of article 27 (4) and article 29 (1) and (2) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180 p. 31, amended OJ 2017 L 49 p. 50, hereinafter Dublin III Regulation).

10 1. In national law, the legal assessment is based on the Asylum Act in the version promulgated on 2 September 2008 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1798), last amended by the Fifty-ninth Act Amending the Criminal Code - Improvement of Protection of Personality Rights in the case of Image Recordings (StrÄndG 59; Neunundfünfzigstes Gesetz zur Änderung des Strafgesetzbuchs - Verbesserung des Persönlichkeitsschutzes bei Bildaufnahmen) of 9 October 2020 that entered into force on 1 January 2021 (BGBl. I p. 2075).

11 The following provisions of national law are hence the decisive legal framework for the legal dispute:
Section 29 AsylG
(1) An application for asylum shall be inadmissible if
1. another country
a) according to Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180 of 29 June 2013, p. 31); or
b) (...)
is responsible for conducting the asylum procedure;
(...).
Section 34a AsylG
(1) If the foreign national is to be deported to a safe third country (section 26a) or to a country responsible for processing the asylum application (section 29 (1) no. 1), the Federal Office shall order his or her deportation to this country as soon as it has been ascertained that the deportation can be carried out. (...) No prior deportation warning or time limit shall be necessary. If it is not possible to order a foreign national's deportation in line with the first or second sentences, the Federal Office shall warn the foreign national that he or she will be deported to the country in question.
(2) Applications pursuant to section 80 (5) of the Code of Administrative Court Procedure against the deportation order shall be filed within one week of notification. No deportation shall be permissible prior to a court decision if the application has been filed in good time. (...)
Section 77 AsylG
(1) In disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral hearing; if the decision is taken without oral hearing, it shall be based on the situation at the time the decision is taken. (...)
Section 80 VwGO
(...)
(4) The authority which has issued the administrative act or which has to decide on the objection may suspend execution in cases falling under subsection 2 unless otherwise provided by federal law. (...)
(5) Upon application, the court dealing with the main case may completely or partly order the suspensive effect (...).

12 2. The questions referred for a preliminary ruling are relevant for the decision and require clarification by the Court of Justice. The action can only succeed if suspension of the execution of the deportation order by the authorities on account of the fact that transfers to the responsible Member State are (temporarily) impossible in fact due to the COVID-19 pandemic does not interrupt the time limit for transfer pursuant to article 29 (1) of the Dublin III Regulation.

13 2.1 According to article 29 (1) no. 1 (a) AsylG, an application for asylum is inadmissible if another country is responsible under the Dublin III Regulation. The Administrative Court assumes in its judgment that responsibility had passed to the Federal Republic of Germany pursuant to article 29 (2) of the Dublin III Regulation because transfer to Italy was not carried out within the six-month time limit. According to article 29 (1) first subparagraph of the Dublin III Regulation, the transfer must be carried out as soon as practically possible and, at the latest within six months of acceptance by another Member State of the take charge (or take back) request (first alternative) or of the final decision on an appeal or review where it has suspensive effect in accordance with article 27 (3) of the Dublin III Regulation (second alternative). The time limit for transfer was interrupted by the timely application for ordering the suspensive effect of the action against the deportation order of 29 August 2019 (article 29 (1) of the Dublin III Regulation), of which the Federal Office also informed the Italian authorities. The judicial decision dismissing that application for interim protection set in motion once again the six-month time limit for transfer, which expired on 1 April 2020 (see established jurisprudence, Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) judgments of 26 May 2016 - 1 C 15.15 - (...) para. 11; of 8 January 2019 - 1 C 16.18 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 164,165 para. 7; and of 26 February 2019 - 1 C 30.17 - (...) para. 31). According to that jurisprudence, due to the ban on transfer by virtue of law to ensure proper procedures during the time limit for transfer (section 34a (2) AsylG; see also CJEU, judgment of 19 June 2018 - C-181/16 [EU:C:2018:465], Gnandi -), that time limit is interrupted even where an application to the court for temporary relief is unsuccessful or is not adjudicated. The referring Court considers, even in light of the diverging jurisprudence of at least one other Member State, that the Court of Justice has clarified in its case-law that, even where a transfer has been only temporarily precluded by virtue of law or effective individual decision, the Member States must have a continuous period of six months which they may use in full to carry out the transfer (see, in that regard, CJEU, judgment of 29 January 2009 - C-19/08 [ECLI:EU:C:2009:41], Petrosian - para. 40 et seqq., para. 44). The claimant's further application to order the suspensive effect of the action of 26 March 2020 did not cause a new interruption of the time limit for transfer since it was not filed in good time and therefore did not have the effect as prescribed in section 34a (2) second sentence AsylG (see also article 27 (3) (c) of the Dublin III Regulation).

14 However, the referring Court is uncertain whether suspension of the execution of the deportation order by the Federal Office by its notice of 25 March 2020 pursuant to section 80 (4) VwGO, which, owing to the declaration of the Italian Ministry of the Interior, was made because the transfer was impossible in fact due to the COVID-19 pandemic, falls within the scope of article 27 (4) of the Dublin III Regulation and can interrupt the time limit for transfer pursuant to article 29 (1) of the Dublin III Regulation.

15 2.2 The questions referred for a preliminary ruling require clarification by the Court of Justice.

16 a) By referred question 1, the referring Court wishes to know whether, in a situation such as that at issue in the main proceedings, suspension by the authorities of the execution of a transfer decision, which was granted "until further notice" on account of the fact that transfers are (temporarily) impossible in fact due to the COVID-19 pandemic, falls within the scope of article 27 (4) of the Dublin III Regulation.

17 aa) The possibility provided for Member States in article 27 (4) of the Dublin III Regulation, whereby the responsible authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review exists in national law under section 80 (4) VwGO. According to the jurisprudence of the referring Court (BVerwG, judgment of 8 January 2019 - 1 C 16.18 - BVerwGE 164,165 para. 20), the possibility afforded by article 27 (4) of the Dublin III Regulation, whereby the responsible authorities may also suspend the implementation of the transfer decision, has the effect of giving suspensive effect, at the time of its use, to an appeal within the meaning of article 29 (1) in conjunction with article 27 (3) of the Dublin III Regulation. This is because the practical effect of article 27 (4) of the Dublin III Regulation requires that the regulation can be applied without the risk of the time limit for transfer expiring and responsibility being transferred to the requesting Member State (see CJEU, judgment of 13 September 2017 - C-60/16 [ECLI:EU:C:2017:675] Khir Amayry - para. 71).

18 Section 80 (4) first sentence VwGO states that the authorities have, in principle, the power to suspend execution at their discretion, unless otherwise provided by federal law. The provisions of the Asylum Act do not preclude suspension by the authorities under section 80 (4) VwGO. However, section 34a (1) first sentence AsylG requires that deportation shall be ordered as soon as it has been ascertained that it can be carried out, including the cases referred to in section 29 (1) no. 1 AsylG (subsection 1), and contains specific provisions governing the time limit to be complied with where an application to a court to order the suspensive effect of an action is filed and prohibiting deportation prior to a court decision (subsection 2). The authorities may decide to suspend execution whenever there are doubts as to the lawfulness of the deportation order pursuant to section 34a (BVerwG, judgment of 9 August 2016 - 1 C 6.16 - BVerwGE 156, 9 para. 18). Such doubts may exist even where it transpires during the pending appeal proceedings that prompt transfer is not in fact possible ("as soon as it has been ascertained that the deportation can be carried out"). Where deportation bans or grounds for a temporary suspension (Duldung) arise once the deportation order has been issued, the Federal Office is not required to immediately annul the deportation order, but may, where there are temporary obstacles to deportation, simply (temporarily) suspend its execution (BVerwG, judgment of 8 January 2019 - 1 C 16.18 - BVerwGE 164,165 para. 23). Even in the case of deportation that is legally and factually possible within the meaning of section 34a(1) first sentence AsylG, there may be reason to temporarily suspend its execution, for example to ensure the effectiveness of judicial protection pending final judicial clarification.

19 The referring Court has also decided that EU law (article 27 (4) of the Dublin III Regulation) imposes certain limits on the broad discretion afforded under national law (section 80(4) first sentence VwGO). According to section 80 (4) VwGO, the minimum requirement for a suspension decision by the authorities pursuant to that paragraph and in keeping with article 27 (4) and article 29 (1) first subparagraph of the Dublin III Regulation is that the applicant must have filed an appeal against the deportation order. Additional limitations are apparent from the objective of article 27 (3) and (4) in conjunction with article 29 (1) first subparagraph of the Dublin III Regulation, of striking a balance between, on the one hand, the facility to grant effective legal protection and to determine rapidly the Member State responsible for substantive examination of the asylum application (see recital 5 of the Dublin III Regulation) and, on the other hand, the objective of preventing resettlement by asylum applicants seeking to make a particular Member State responsible for examining their asylum application (prevention of secondary movement). The transfer of responsibility after expiry of the time limit for transfer is intended to prevent asylum applications from remaining unexamined for months or even years; at the same time, the objective of ensuring that they are examined as rapidly as possible should not deprive the Member State concerned of a continuous time limit for transfer of six months, in which all that remains is for it to make the outstanding transfer arrangements, nor should the idea of expeditiousness undermine effective legal protection (see article 27 (3) and (4) of the Dublin III Regulation). That means that a suspension decision by the authorities may be taken in due course even under EU law where doubt persists as to the lawfulness of the deportation order; in that case, the interest of an applicant in obtaining effective legal protection clearly takes precedence over the idea of expeditiousness. The effectiveness of judicial protection (see also article 46 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ L 180 p. 60)) allows a suspension by the authorities for objectively justifiable reasons, which need not be legally binding, even below that threshold, provided they do not arbitrarily disregard the idea of expeditiousness and the interests of the responsible Member State and are not otherwise abusive. The present proceedings do not, however, give rise to a final clarification of that threshold of arbitrariness or abuse; however, it is overstepped if, in a clear legal situation in which transfer is possible, the suspension decision by the authorities serves solely to interrupt a time limit for transfer which could not or could no longer be safeguarded as a result of official omissions (see BVerwG, judgment of 8 January 2019 - 1 C 16.18 - BVerwGE 164,165 para. 27 with further references).

20 bb) As stated in referred question 1, the referring Court interprets the defendant's suspension decision of 25 March 2020 as meaning that it was issued revocably and "until further notice" only on account of the fact that transfers are (temporarily) impossible in fact due to the COVID-19 pandemic. It is therefore necessary to clarify whether such a suspension decision which, according to its reasoning, was not taken in connection with legal protection, is covered by article 27 (4) of the Dublin III Regulation. The abundant national jurisprudence and legal literature, all of which refer to EU law and present strong arguments, differ in their assessment of this, both in principle and in detail.

21 According to the referring Court, it follows from the wording of article 27 (4) of the Dublin III Regulation, first, that the execution of a transfer decision taken on the basis of national legislation in conformity therewith can be suspended at most pending the conclusion and thus only during a pending appeal or review. However, it is conceivable that a suspension may also be granted for a shorter period ("until further notice"), for example for as long as the transfer is impossible in fact. Second, it is apparent from the wording ("to suspend") that there is a connection with legal protection in the sense of a causal link between the suspension and the granting of legal protection. This is supported by the heading of article 27 of the Dublin III Regulation ("Remedies") and by their systematic classification in the procedural safeguards of section IV of the Regulation. The connection between a suspension and legal protection exists where transfers are (temporarily) impossible under national law, inasmuch as deportation can (only) be ordered as soon as it has been ascertained that it can be carried out (section 34a (1) AsylG). If deportation is not possible, there are doubts as to the lawfulness of the deportation order which must be examined in the pending appeal proceedings.

22 The Dublin system is intended to enable quick determination of the Member State responsible for substantive examination of the asylum application, based on objective and fair criteria both for the Member States and for the persons concerned (see recital 5 of the Dublin III Regulation). The impact of the COVID-19 pandemic on the Dublin system, especially the fact that transfers to the responsible Member State are impossible, might cause the interest of the requesting Member State in the effective functioning of the system to take priority over the interest of the person concerned in the prompt clarification of that responsibility. Otherwise, the requesting Member State cannot unilaterally transfer the risk of a transfer of responsibility to the person concerned and the responsible Member State if, owing to unforeseeable circumstances, a transfer within the prescribed time limits is impossible in fact.

23 b) With referred question 2, the referring Court seeks further clarification should question 1 be answered in the affirmative. If question 1 is answered in the affirmative, it is necessary to clarify whether suspension by the authorities of execution of the transfer decision, only on account of the fact that transfers are (temporarily) impossible in fact due to the COVID-19 pandemic, interrupts the time limit for transfer pursuant to article 29 (1) of the Dublin III Regulation. This was to be affirmed if that suspension decision by the authorities was covered by the scope of application of article 27 (4) of the Dublin III Regulation and was generally capable of interrupting the time limit for transfer provided for in article 29 (1) of the Dublin III Regulation (see on this 2.2 a) aa)). The fact that transfers are impossible in fact due to the COVID-19 pandemic might give rise to an unusual set of circumstances, the responsibility for which cannot be ascribed unilaterally to the requesting Member State. In any event, this might be an unintended regulatory gap giving rise to an application by analogy of article 27 (4) of the Dublin III Regulation and having the effect of interrupting the time limit for transfer laid down in article 29 (1) of the Dublin III Regulation. It would be different if the time limit for transfer did not depend in principle on the transfer being possible in fact. According to article 29 (1) first subparagraph of the Dublin III Regulation, the time limit for transfer ends, irrespective of whether transfer is possible in fact, at the latest within six months of acceptance of the take charge or take back request or of the final decision on a legal review which has suspensive effect. The cases in which the time limit for transfer can be extended due to factual circumstances could be enumerated in article 29 (2) second sentence of the Dublin III Regulation (maximum of one year due to imprisonment and maximum of 18 months if the person concerned absconds). It might therefore be possible to infer from the regulatory structure of article 29 of the Dublin III Regulation that only reasons which preclude a transfer for which the applicant is responsible can interrupt the time limit for transfer. The Court of Justice has already decided that, even where transfer is temporarily impossible because the person to be transferred is seriously ill, the time limit for transfer expires after six months and responsibility is transferred to the requesting Member State (CJEU, judgment of 16 February 2017 - C-578/16 PPU [ECLI:EU:C:2017:127], C.K. et al. - para. 89). However, it is not apparent from that decision whether the time limit for transfer is interrupted, at the very least, where the competent authorities of that State suspend the implementation of the transfer decision in such a situation based on national legislation within the meaning of article 27 (4) of the Dublin III Regulation.

24 c) Referred question 3 seeks clarification as to whether a suspension decision by the authorities can (again) interrupt the time limit for transfer under article 29 (1) of the Dublin III Regulation even where a court (prior to the outbreak of the COVID-19 pandemic) had already dismissed an application to order the suspensive effect of an action. An action against a transfer decision does not have suspensive effect under national law. The person concerned may within one week of notification file an application with the administrative court to order the suspensive effect of the action and deportation is impermissible prior to a court decision. By the court decision dismissing such an application, the legal protection required under EU law before the transfer is carried out is provided and deportation is permissible (article 27 (3) (c) of the Dublin III Regulation). The referring Court is seeking clarification as to whether, in that situation (also), the time limit for transfer is interrupted again where the authorities suspend execution only on account of the fact that transfer is impossible in fact due to a pandemic, thereby giving rise to doubts under national law as to the lawfulness of the deportation order (transfer decision).

25 3. The referring Court requests that the Court of Justice process the case under article 105 of the Rules of Procedure of the Court of Justice because the nature of the case requires that it be dealt with within a short time. A number of Member States have refused to carry out transfers due to the COVID-19 pandemic. The Federal Office issued suspension decisions due to the COVID-19 pandemic in more than 20,000 cases in the period from mid-March to the end of June 2020 alone. Legal proceedings were pending in 9,303 of those cases.