The Dublin Regulation between Strasbourg and Luxembourg : reshaping non-refoulement in the name of mutual trust?

Abstract

This article addresses one of the most challenging inconsistencies in the case law of the ECtHR and the CJEU. It critically analyses the judgments delivered by these two courts on the compatibility of the Dublin Regulation with the fundamental rights enshrined in the ECHR and in the EUCFR, respectively. On the one hand, the article proposes an interpretation of the judgments which is able to reconcile the two different approaches concerning EU Member States' obligations under the Dublin Regulation. On the other, it argues that an irreconcilable interpretation of the principle on non-refoulementunderlies the different thresholds established by the two courts in order to rebut the mutual trust presumption. This divergent interpretation is deemed to trigger a violation of Articles 52 and 53 of the EUCFR.