Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 25 November 2021 (1)

Case C-519/20

K

party to the proceedings:

Landkreis Gifhorn

(Request for a preliminary ruling
from the Amtsgericht Hannover (Local Court, Hannover, Germany))

(Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2008/115/EC – Common standards and procedures for returning illegally staying third-country nationals – Detention for the purpose of removal – Article 16(1) – Concept of ‘specialised detention facility’ – Article 18(1) – Concept of ‘emergency situation’ – National legislation under which detention may, because of an emergency situation, take place in prison accommodation – Scope of the assessment to be carried out by the judicial authority responsible for the detention)

I.      Introduction

1.        In the present case, the Court is called upon to clarify a number of rules relating to the detention of third-country nationals awaiting removal, laid down in Directive 2008/115/EC, (2) further to its earlier judgments of 17 July 2014, Bero and Bouzalmate (3) and Pham, (4) and of 2 July 2020, Stadt Frankfurt am Main. (5)

2.        This case concerns the particular situation in which the Federal Republic of Germany is relying on an ‘emergency situation’ within the meaning of Article 18(1) of that directive in order to derogate from the rule that such nationals are to be detained, for the purpose of their removal, in specialised detention facilities. It was on the basis of such legislation that K, a Pakistani national, was placed in detention in the Langenhagen division of the Hannover prison facility in Germany in September 2020.

3.        The Amtsgericht Hannover (Local Court, Hannover, Germany) is at present called upon to determine whether that measure was lawful, in light of the provisions of Articles 16 and 18 of Directive 2008/115, and it is to that end that it has referred a number of questions to the Court for a preliminary ruling.

4.        First of all, the referring court asks the Court to clarify the conditions under which a Member State may rely on the existence of an ‘emergency situation’, within the meaning of Article 18(1) of the directive, in order to place third-country nationals awaiting removal in prison detention. Next, the referring court asks the Court to determine what powers the judicial authority responsible for the detention has in this context. Lastly, the referring court seeks to establish whether the Langenhagen division in which K was placed may be classed as a ‘specialised detention facility’ within the meaning of Article 16(1) of the directive. That particular issue will permit the Court to define the criteria on the basis of which a specialised detention facility should be distinguished from a prison, in particular, with regard to the management of the facility, the detention regime and the physical conditions of detention.

5.        In this Opinion, I shall, first, set out the reasons for which I consider that national legislation which, for a period of three years, permits the detention of third-country nationals pending removal in prison accommodation, does not fulfil the conditions of urgency laid down by the EU legislature in Article 18(1) of Directive 2008/115.

6.        Secondly, I shall explain that the adoption of exceptional measures on the basis of Article 18 does not relieve the judicial authority responsible for the detention of the task of checking, in each individual case, whether the circumstances on the basis of which the emergency situation was recognised are still present.

7.        Thirdly, I shall set out the reasons for which I consider that, in light of the information given by both the referring court and the German Government, the Langenhagen division of the Hannover prison facility could not, it seems, be classed at the time of K’s detention as a ‘specialised detention facility’ for the purposes of the first sentence of Article 16(1) of Directive 2008/115.

II.    Legal framework

A.      Directive 2008/115

8.        Recitals 13, 16, 17 and 24 of Directive 2008/115 state:

‘(13)      The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued. … Member States should be able to rely on various possibilities to monitor forced return.

…

(16)      The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.

(17)      Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. Without prejudice to the initial apprehension by law-enforcement authorities, regulated by national legislation, detention should, as a rule, take place in specialised detention facilities.

…

(24)      This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.’

9.        Article 1 of Directive 2008/115 provides:

‘This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of [European Union] law as well as international law, including refugee protection and human rights obligations.’

10.      Article 16 of Directive 2008/115, entitled ‘Conditions of detention’, provides, in paragraph 1 thereof:

‘Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.’

11.      Article 17(2) of the directive reads as follows:

‘Families detained pending removal shall be provided with separate accommodation guaranteeing adequate privacy.’

12.      Article 18 of the directive, entitled ‘Emergency situations’, provides:

‘1.      In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide … to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2).

2.      When resorting to such exceptional measures, the Member State concerned shall inform the [European] Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist.

3.      Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive.’

13.      In its proposal for the recasting of Directive 2008/115, (6) the Commission has not suggested any amendment to the rules laid down in Articles 16 and 18 of the directive.

B.      German law

14.      In accordance with Paragraphs 83 and 84 of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law of the Federal Republic of Germany), the Bundesländer (German Federal States) are responsible for carrying out detentions ordered for the purpose of the removal of illegally staying third-country nationals.

15.      Paragraph 62a(1) of the Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on the residence, economic activity and integration of foreign nationals in the federal territory) (7) of 30 July 2004, in the version in force from 29 July 2017 to 20 August 2019, designed to transpose Article 16(1) of Directive 2008/115 into German law, was worded as follows:

‘Detention for the purpose of removal shall take place in principle in specialised detention facilities. If there is no specialised detention facility in the federal territory or if the foreign national poses a serious threat to the life and limb of others or to significant internal security interests, detention may take place in other prison accommodation; in those circumstances, the persons detained for the purpose of removal shall be accommodated separately from ordinary prisoners.’

16.      That provision was amended following the entry into force of the Zweiten Gesetz zur besseren Durchsetzung der Ausreisepflicht (Second law to improve the implementation of the obligation to leave the territory) (8) of 15 August 2019.

17.      Paragraph 1, point 22 of that law provides:

‘Paragraph 62a(1) [of the AufenthG] is replaced by the following:

“(1)      Individuals detained for the purpose of removal shall be kept separate from ordinary prisoners. Where several members of a family are detained, they shall be accommodated separately from other individuals detained for the purpose of removal. They shall be guaranteed adequate privacy.”’

18.      With reference to that Paragraph 1, point 22, the explanatory memorandum to the draft law stated the following: (9)

‘The amendment to Paragraph 62a(1), means that, temporarily, in accordance with Article 18(1) of Directive 2008/115, individuals detained for the purpose of removal will not have to be kept in specialised detention facilities. Detention for the purpose of removal may, temporarily, take place in all detention facilities and, up to a maximum of 500 places, in prisons. It is still necessary to keep individuals detained for the purpose of removal separate from ordinary prisoners. The current rule regarding the accommodation to be provided for several members of the same family, set out in the third and fourth sentences of Paragraph 62a(1), as well as the requirements of Article 16 and 17 of Directive 2008/115, remain applicable. In addition, the question of whether prison accommodation is acceptable and lawful must still be considered in each particular case, for example, for individuals belonging to a vulnerable group. It is planned that the judicial authorities of the [Federal States] will make up to 500 places available for individuals detained for the purpose of removal, so that, taking into account the planned increase in the number of places in detention for the purpose of removal in the detention facilities of the [Federal States], approximately 1 000 places in all will be available for detention for the purpose of removal. … Article 18(1) of Directive 2008/115 provides for the derogation, in emergency situations, from the separation requirement under Article 16(1) and from the requirement that families are to be provided with separate accommodation under Article 17(2). At present, the separation requirement is transposed into German law by the first and second sentences of Paragraph 62a(1); the requirement regarding family accommodation is set out in the third and fourth sentences of Paragraph 62a(1). The condition that must be met in order to make use of the derogation under Article 18(1) is that an exceptionally large number of third-country nationals to be returned places an excessive burden on the capacities of detention facilities or on the administrative or judicial staff. That condition is met in the Federal Republic of Germany’s case. Existing capacity in Germany (as at 27 March 2019) stands at approximately 487 places in detention for the purpose of removal across the federal territory. Given the imbalance between the number of individuals under an enforceable obligation to leave the territory and the number of places in detention for the purpose of removal, an excessive burden is clearly being placed on those existing capacities. That excess over capacity is in fact creating a significant bottleneck which is impeding the implementation of enforceable obligations to leave the territory. Existing places in detention for the purpose of removal are already being best utilised at federal level, through coordination among [the Federal States]. The Gemeinsame Zentrum zur Unterstützung der Rückkehr (Joint Return Support Centre, Germany (ZUR)), created in 2017, is also endeavouring to improve the management of places in detention for the purpose of removal. The rate of places in detention that are occupied, across the federal territory, through the intermediary of the ZUR, runs at about 10 percent. That means, in practice, that a large number of applications for detention cannot be submitted, even if the requisite conditions are met. Furthermore, it was not foreseeable that demand would so outstrip capacities. The number of newly arriving applicants for [international] protection having steadily decreased in the years up to 2015, the [Federal States] had, over the years, adapted capacities in detention for the purpose of removal to the then lesser demand, by decreasing the number of places. In response to the change in the situation in 2015 and the surge in the number of applicants for [international] protection, the primary obligation of the federal and [State] governments was to create capacity to meet the needs of individuals. That obligation arises, inter alia, from [European Union] law, in particular, Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96) and Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), as well as the Convention for the Protection of Human Rights and Fundamental Freedoms. [(10)] In those circumstances, the processing of new arrivals took priority over increasing detention capacity, the aim being to meet the requirements of Directive 2008/115 subsequently (once the asylum application and appeal procedure is completed). The very aim of the derogation rule in Article 18 [of the directive] is to enable the authorities, in such situations, to give priority to the processing of new arrivals, without foreseeably infringing obligations in the future. Directive 2008/115 not only sets out the requirements in terms of conditions of detention, but also requires, under Article 8(1), the Member States to take all necessary measures to enforce return decisions. The precise purpose of Article 18 of Directive 2008/115 is to resolve potential conflicts of objectives in unforeseen, exceptional situations, such as existed in 2015 and over the years that followed. It should therefore now be applied. Once the exceptional situation had ended, the [Federal States] immediately began to increase detention capacities and they have already been able to increase the number of places in detention to 487 for the whole of the federal territory (as at 27 March 2019). Given the time usually needed to complete a construction project or to create detention facilities for the purpose of removal, it has not yet been possible to bring the number of places in detention for the purpose of removal completely into line with current needs. Given the measures taken, it may be expected that the number of places in detention for the purpose of removal will satisfy requirements by 30 June 2022. The exceptional situation will continue until that date and, consequently, it is necessary to repeal Paragraph 62a(1), as it is currently drafted, until that date. The legislation currently applicable will then enter into force once again.’

19.      Paragraph 6 of the Second law to improve the implementation of the obligation to leave the territory, entitled ‘Further amendment of the Aufenth[G] with effect from 1 July 2022’, provides:

‘Paragraph 62a(1) of the AufenthG, as published on 25 February 2008 (BGBl. 2008 I, p. 162), last amended by Article 1 of this law, is replaced by the following:

“Detention for the purpose of removal shall take place in principle in specialised detention facilities. If there is no specialised detention facility in the federal territory or if the foreign national poses a serious threat to the life and limb of others or to significant internal security interests, detention may take place in other prison accommodation; in those circumstances, the persons detained for the purpose of removal shall be accommodated separately from ordinary prisoners. Where several members of a family are detained, they shall be accommodated separately from other individuals detained for the purpose of removal. They shall be guaranteed adequate privacy.”’

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

20.      The applicant, K, is a Pakistani national who, on 11 August 2020, was placed in detention for the purpose of removal in the Langenhagen division of Hannover prison. By order of 25 September 2020, his detention was prolonged until 12 November 2020. The applicant brought an action against that order, on the ground that the measure ordering his detention, in so far as concerned the period from 25 September to 2 October 2020, was contrary to the obligation to place third-country nationals awaiting removal in ‘specialised detention facilities’, within the meaning of Paragraph 62a(1) of the AufenthG, in the version in force between 29 July 2017 and 20 August 2019.

21.      It is in the context of that action for a review of lawfulness that the referring court has raised questions about the legality of the amendments made to Paragraph 62a(1) of the AufenthG with effect from 15 August 2019, in light of the conditions laid down in Article 18 of Directive 2008/115.

22.      Being in doubt as to the interpretation of that provision, the Amtsgericht Hannover (Local Court, Hannover) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      Is EU law, in particular Article 18(1) and (3) of Directive [2008/115], to be interpreted as meaning that a national judicial authority ordering detention for the purpose of removal must, in each individual case, verify the conditions laid down in that provision, in particular whether the exceptional situation persists, where the national legislature, on the basis of Article 18(1), has derogated from the conditions laid down in Article 16(1), of that Directive in national law?

(2)      Is EU law, in particular Article 16(1) of Directive [2008/115], to be interpreted as precluding national legislation which on a temporary basis, until 1 July 2022, permits the placing of detainees awaiting removal in a prison facility, despite specialised detention facilities being provided in the Member State and despite the fact that there is no emergency situation within the meaning of Article 18(1) of Directive [2008/115] which would make that absolutely necessary?

(3)      Is Article 16(1) of Directive [2008/115] to be interpreted as meaning that a “specialised detention facility” for the detention of persons awaiting removal is not deemed to exist solely because:

–        the “specialised detention facility” is indirectly subject to supervision by the same member of the government as detention facilities for ordinary prisoners, namely the Justizministerin [(Minister for Justice, Germany)],

–        the “specialised detention facility” is organised as a division of a prison and, while it has its own governor, is under the overall management of the prison facility as it is one of a number of divisions of that prison?

(4)      If Question 3 is answered in the negative:

Is Article 16(1) of Directive [2008/115] to be interpreted as meaning that accommodation in a “specialised detention facility” for detainees awaiting removal exists if a prison sets up a specific division as a detention facility, if that division operates for detainees awaiting removal a specific compound with three buildings within the perimeter and one of those three buildings temporarily houses only prisoners serving custodial sentences for default of payment of a fine or short custodial sentences, where the prison takes care to ensure that detainees awaiting removal are separated from prisoners, and where, in particular, each building has its own facilities (its own clothing store, medical facilities, gym) and, while the yard/outside space is visible from all the buildings, each building has its own area for use by the detainees which is fenced off with a wire-mesh fence that prevents direct access between the buildings?’

23.      The applicant, the German and Netherlands Governments and the Commission have lodged written submissions. The German Government and the Commission also replied to the questions for written answer put to them by the Court and made oral submissions at the hearing which took place on 16 September 2021.

IV.    Analysis

24.      I shall respond to the questions referred in a different order from the order in which they were put by the referring court.

25.      I shall begin by considering the second question, which concerns the circumstances in which a Member State may rely on the existence of an emergency situation, within the meaning of Article 18(1) of Directive 2008/115, in order to prescribe the detention of third-country nationals awaiting removal in prison accommodation. Indeed, that seems to me to be the central issue in the present reference for a preliminary ruling. Although the Court has already given a ruling on the emergency measures that were adopted by the Council of the European Union in response to the migration crisis of 2015, (11) it has not yet had an opportunity to provide guidance regarding the scope of Article 18(1) of Directive 2008/115 or, in particular, on the option which the Member States have of detaining third-country nationals awaiting removal in prison accommodation for reasons relating to the existence of a national emergency.

26.      I shall then consider the first question referred, which concerns the role of the judicial authority responsible for the detention, in order to establish the extent to which that authority is required, in each individual case, to verify the existence or persistence of an emergency situation within the meaning of Article 18(1) of the directive.

27.      Lastly, in response to the third and fourth questions referred, I shall clarify the criteria which should be used to distinguish between the situation in which the third-country national is placed in a specialised detention facility from the situation in which he or she is placed in prison accommodation separate from ordinary prisons, with particular regard to the management of the facility, the detention regime and the physical conditions of detention.

A.      The reasons justifying the detention of third-country nationals awaiting removal in prison accommodation (the second question)

28.      By its second question for a preliminary ruling, the referring court is essentially asking the Court whether Article 16(1) of Directive 2008/115 precludes national legislation under which, for a period of three years, third-country nationals awaiting removal may be detained in prison accommodation, even though no emergency situation within the meaning of Article 18(1) of that directive exists.

29.      Before answering that question, I shall, first, recall the principles which the Court established in its judgments in Bero and Bouzalmate, Pham and Stadt Frankfurt am Main concerning the conditions of detention which the EU legislature has set out in Article 16(1) of Directive 2008/115, in the French-language version thereof. (12) Those judgments were delivered in the context of disputes relating to the assessment of the lawfulness of detention pursuant to Paragraph 62a(1) of the AufenthG, in its previous versions.

30.      Secondly, I shall consider the extent to which a Member State may rely on the existence of an emergency situation, within the meaning of Article 18(1) of Directive 2008/115, as justification for carrying out detention in prison accommodation, independently of the particular circumstances of the case at hand.

31.      Thirdly and lastly, I shall consider the extent to which legislative provisions, such as those in Paragraph 62a(1) of the AufenthG, in the version in force from 15 August 2019 onwards, meet the requirements set out in Article 18.

1.      The general regime provided for in Article 16(1) of Directive 2008/115

32.      The objective of Directive 2008/115 is to establish, in accordance with Article 79(2) TFEU, an effective removal and repatriation policy based on common standards and common legal safeguards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity. (13)

33.      It follows from recitals 13 and 16 of the directive, and from the wording of Article 15(1) thereof, that the Member States must carry out the removal of illegal migrants using the least coercive measures possible. In order to ensure effective return procedures, the directive thus provides for a gradation of measures ranging from the measure which allows the person concerned the most liberty, namely granting a period for his or her voluntary departure, to measures which restrict that liberty the most, namely detention in a specialised facility. It is only where, in the light of an assessment of each specific situation, the enforcement of the return decision in the form of removal risks being compromised by the conduct of the person concerned that the Member States may deprive that person of his or her liberty and detain him or her. (14)

34.      That latter measure is the most serious constraining measure allowed under Directive 2008/115 in a forced removal procedure. (15) It is, in principle, a measure of last resort. (16) It is therefore strictly regulated by the EU legislature, in Chapter IV of the directive, in such a way as to ensure the observance both of the principle of proportionality with regard to the means used and objectives pursued and of the fundamental rights of the migrants concerned. (17)

35.      It is in that context that Article 16(1) of Directive 2008/115 sets out the rules relating to the conditions of detention and the detention regime.

36.      In accordance with the first sentence of Article 16(1), detention for the purpose of the removal of illegally staying third-country nationals is, as a rule, to take place in specialised detention facilities. The second sentence thereof provides that, where a Member State ‘cannot’ meet that requirement and orders detention in prison accommodation, the third-country nationals must be kept apart from ordinary prisoners.

37.      Article 16(1) of Directive 2008/115 is intended to guarantee respect for the human dignity of individuals who have committed no offence and observance of their fundamental rights, by ensuring that detention measures are distinct from the enforcement of custodial sentences and are implemented under conditions and a regime appropriate to the individual’s legal status.

38.      As regards the obligation to provide accommodation in a specialised detention facility, laid down in the first sentence of Article 16(1) of Directive 2008/115, the Court has held that compliance with that obligation is incumbent on the Member States as such, and not on the Member States according to their respective administrative or constitutional structures. (18) The judicial authorities responsible for detention must therefore be able to order detention in specialised detention facilities, if necessary, having recourse to any agreements providing for administrative cooperation that may have been concluded for that purpose. (19)

39.      As regards the derogation provided for in the second sentence of Article 16(1) of Directive 2008/115, that must be interpreted strictly. (20) According to the Court, that derogation ‘authorises the Member States, in exceptional circumstances, and other than in those expressly referred to in Article 18(1) of [that directive], to detain illegally staying third-country nationals in prison accommodation, for the purpose of removal, where, owing to the particular facts of the case, they cannot comply with the objectives pursued by that directive by detaining them in specialised facilities’. (21) The Court has held that that may be the case where the person concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned, (22) it being understood that the requirements of public policy must be interpreted strictly. (23) On the other hand, the Court considers that neither the wishes expressed by the person concerned (24) nor the lack of a specialised detention facility in a Land of the Federal Republic of Germany (25) can, without more, justify detention for the purpose of removal in prison accommodation pursuant to the second sentence of Article 16(1) of Directive 2008/115.

40.      As regards the obligation, laid down in Article 16(1) of Directive 2008/115, to keep third-country nationals detained in prison accommodation apart from ordinary prisoners, the Court has held that it is unconditional, (26) ‘is not coupled with any exception and constitutes a guarantee of observance of the rights which have been expressly accorded by the EU legislature’. (27)

2.      The exceptional measures provided for in Article 18 of Directive 2008/115

41.      The purpose of Article 18 of Directive 2008/115, entitled ‘Emergency situations’, is to define the conditions under which a Member State ‘may’ decide to take emergency measures derogating from the conditions of detention set out in Articles 16(1) and 17(2) of the directive on account of the existence of an unforeseen heavy burden on the capacity of detention facilities. The provision provides an option, the Member States retaining a discretion to determine the extent to which the management of the migratory pressure they are experiencing renders it necessary to derogate from the conditions of detention and the detention regime for third-country nationals set out in Article 16(1) of the directive.

42.      That discretion is not, however, limitless.

43.      Indeed, I consider that the adoption of emergency measures is liable to have extremely serious consequences for the third-country nationals concerned, since the regime for carrying out their detention could then resemble the regime for the enforcement of a custodial sentence.

44.      Article 18 of Directive 2008/115 plainly states that the emergency measures may derogate from the conditions of detention set out ‘in Articles 16(1) and 17(2)’ of that directive. The EU legislature did not distinguish between the first sentence of Article 16(1) of the directive (the principle of detention in a specialised facility) and the second sentence thereof (the obligation to keep third-country nationals apart from ordinary prisoners in the event they are detained in prison accommodation). In other words, the existence of an emergency situation allows Member States to detain third-country nationals awaiting removal in prison accommodation without requiring them to ensure that they are kept apart from ordinary prisoners (28) or to provide families with separate accommodation.

45.      Admittedly, even in the emergency situations contemplated by Article 18 of Directive 2008/115, the Member States may not derogate from the obligations set out in Articles 16(2) to (5) and 17(1), (3), (4) and (5) of the directive, the aim of which is to ensure that the rights of third-country nationals, and of detained minors in particular, are observed. (29) That said, I do not think that that is sufficient to ensure respect for the human dignity of the individuals concerned and observance of their fundamental rights, especially in the situation where the measure imposing detention in prison accommodation is based not on the particular conduct of the individual but on the administrative and judicial situation in the Member State in which the individual finds himself or herself. Indeed, detention in prison accommodation in itself clearly entails an even harsher restriction of liberty than the restriction inherent in detention in a specialised detention facility. Moreover, if there is no separation within a prison between third-country nationals and ordinary prisoners, there is a risk that that will result in the application to those third-country nationals of the regime for the enforcement of custodial sentences. The detention will then necessarily take the form of a punitive measure. (30)

46.      Given the severity of the consequences, which I have just described, of the exceptions provided for in Article 18 of Directive 2008/115, it seems essential to me that they be applied exceptionally and in a proportionate manner, on the basis of a strict interpretation of the substantive conditions laid down by the EU legislature. (31)

47.      I shall begin by examining those conditions, taking a literal interpretation of Article 18(1) of Directive 2008/115, and then clarify their scope in the light of the general scheme and purpose of that directive.

(a)    The literal interpretation of Article 18(1) of Directive 2008/115

48.      The adoption of urgent measures as provided for in Article 18(1) of Directive 2008/115 is subject to compliance with a series of substantive and formal conditions whose aim is to create a strictly circumscribed framework for the adoption of such exceptional measures.

49.      In the first place, Article 18 of Directive 2008/115 requires, as is clear from its title, that there be an emergency situation.

50.      The corresponding French word ‘urgence’ is defined in the Larousse dictionary as ‘the quality … of requiring immediate action’.

51.      In the procedural field, urgency is found in the situation where serious and irreparable damage could ensue if the situation is not swiftly remedied, and it allows courts to adopt certain measures under an expedited procedure. (32) In EU law, and in particular in matters relating to the area of freedom, security and justice, the urgent preliminary-ruling procedure thus enables cases to be considered with a ‘minimum of delay’ where the individual concerned is held in custody. (33)

52.      In the area of immigration and asylum policy, the difficulties associated with managing migratory flows and the emergency measures which that necessitates are provided for by the EU legislature in numerous acts of primary and secondary legislation.

53.      For example, urgency is illustrated in Article 78(3) TFEU, which addresses the situation where Member States are confronted by a sudden influx of third-country nationals. (34) It was on the basis of that provision that, following the migration crisis of the years 2014 and 2015, the Council instituted, in September 2015, a temporary and exceptional mechanism for the relocation of individuals clearly needing international protection. (35)

54.      Urgency is also illustrated in Article 29 of Regulation (EU) 2016/399, (36) which concerns the situations in which a Member State may exceptionally and immediately reintroduce internal border control where public policy or internal security calls for urgent action. (37) It was on the basis of Article 25 of Regulation (EC) No 562/2006, (38) which has been replaced by Article 29 of Regulation 2016/399, and in response to the migration crisis of 2014 and 2015, that the Federal Republic of Germany reintroduced border control at its internal borders in 2015.

55.      As those provisions show, an emergency situation thus demands rapid or even immediate action.

56.      In the second place, I would observe that the EU legislature has defined precisely the circumstances in which a Member State may rely on the existence of an emergency situation in the context of the removal of third-country nationals. In accordance with Article 18(1) of Directive 2008/115, such a situation must be characterised by ‘an exceptionally large number of third-country nationals to be returned [placing] an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff’.

57.      The precision of those grounds implies, in my view, that the Member States must carry out as complete and up-to-date an evaluation as possible of the circumstances which indicate that urgent measures are needed.

58.      In this context, I do not think it sufficient for the Member State merely to communicate the number of third-country nationals under an obligation to return. In my view, that information does not enable a sufficiently precise assessment to be made of the actual burden weighing at any particular time on the capacity of specialised detention facilities. For one thing, detention is a measure to be taken only as a last resort against third-country nationals who are under an obligation to return. According to the Court’s case-law, it is only where, in the light of an assessment of each specific situation, the removal risks being compromised by the conduct of the person concerned and where there is no other alternative that the Member States may deprive an individual of his or her liberty and detain him or her. (39) For another thing, the rate of detention of third-country nationals under an obligation to return varies significantly from one Member State to another and, in a Member State like the Federal Republic of Germany, from one Federal State to another.

59.      Moreover, it is clear from the wording of Article 18(1) of Directive 2008/115 that the information communicated by the Member State must demonstrate the existence of an ‘unforeseen heavy burden’ on the Member State’s material and human capacities. Those two criteria are cumulative. The reference to an ‘unforeseen’ burden reveals the EU legislature’s intention to restrict the implementation of the derogations provided for in Article 18 of the directive to those cases where the Member State could not have anticipated such pressure on the capacities of its specialised detention facilities or its personnel. On the other hand, the legislature’s reference to a ‘heavy burden’ does not mean that capacities have to be shown to be saturated.

60.      Finally, in the third place, the EU legislature has specified, in Article 18(1) of Directive 2008/115, that Member States may adopt urgent measures only for so long as the exceptional situation persists. It follows from that, first, that such measures must be lifted as soon as the exceptional situation comes to an end and, secondly, that the directive does not lay down any maximum duration for such measures. Directive 2008/115 differs from other instruments of the Common European Asylum System, under which urgent measures are to be adopted for short periods of time amenable to extension. The measures in question must nevertheless have the same characteristics. The ‘exceptional’ nature of the situation in itself implies that the measures should be of short duration. In the context of the preparatory work for the recasting of Directive 2008/115, the Parliament accordingly proposes that the application of such measures should be limited to three months. (40) Moreover, by making the application of such measures conditional on the persistence of the emergency situation, the EU legislature has rendered it necessary for the Member States periodically to reassess the situation, so as to ensure, in accordance with the principle of proportionality, that the urgent measures do not remain in place longer than is strictly necessary for the management of the crisis.

61.      The scope of those conditions should now be examined in the light of the general scheme of which Article 18 of Directive 2008/115 forms part and of the objectives pursued by the EU legislature.

(b)    The general scheme and the purpose of Directive 2008/115

62.      As I have indicated, the aim of Directive 2008/115 is to establish an effective removal and repatriation policy based on common standards, so that the persons concerned are repatriated in a humane manner and with full respect for their fundamental rights and dignity. (41)

63.      Article 18 of that directive aims to attain those objectives even in the event of a national emergency.

64.      For one thing, by authorising the detention of third-country nationals awaiting removal in prison accommodation, without any separation from ordinary prisoners, the EU legislature sought to give Member States the means to ensure their removal, even when the reception capacities of detention facilities are at risk of saturation. Such a measure must therefore contribute to the establishment of an effective removal policy and, more generally, to the efficient management of migratory flows, which, according to Article 79(1) TFEU, is one of the European Union’s objectives. (42)

65.      For another thing, the EU legislature took pains to state clearly, in Article 18(3) of Directive 2008/115, that, despite the urgency of the situation, the Member States are not allowed to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under the directive. (43)

66.      That provision reflects the EU legislature’s intention to ensure, regardless of the urgency of the situation, respect for the human dignity of the third-country nationals concerned and observance of their fundamental rights, in accordance with Article 1 and recitals 2, 17 and 24 of Directive 2008/115, and also observance of the principle of proportionality, in accordance with recitals 13 and 16 of the directive. (44) According to the Court’s case-law, compliance with the principle of proportionality requires that measures so adopted should not, as a result of their duration or the manner in which they are applied, exceed the limits of what is appropriate and necessary to attain the objectives pursued by the EU legislature. (45)

67.      It follows from that, first, that urgent measures must not ultimately result in a mechanism whereby detention in prison accommodation without any separation from ordinary prisoners becomes systematic and generalised. The urgency of the situation referred to in Article 18 of Directive 2008/115 does not justify that, since a particularly heavy burden on the reception capacities of specialised detention facilities does not relieve the authorities responsible for detention of the need to investigate, at any time and as a matter of priority, whether there are places available in detention facilities.

68.      Secondly, it follows that urgent measures must not ultimately prevent the administrative or judicial authorities responsible for detention from examining each situation individually, in order to determine whether detention, if it is to take place in prison accommodation, and without any separation from ordinary prisoners moreover, is proportionate. (46)

69.      For one thing, in a situation where the capacities of specialised detention facilities are at risk of saturation, it will be appropriate to check whether a less restrictive measure might be envisaged, as an effective response to the emergency. (47) In this context, I think that urgent measures adopted pursuant to Article 18 of Directive 2008/115 should be accompanied by more extensive recourse to measures other than detention, such as those envisaged in Article 7(3) of the directive, in particular, where the most vulnerable are concerned. (48)

70.      For another thing, it will be necessary to check, in each case, whether detention in prison accommodation, with the possibility of there being no separation from ordinary prisoners, is appropriate to the situation of the migrant concerned, taking into account, for example, his or her age, physical and mental health, status and family situation. I would repeat here that Article 18(1) of Directive 2008/115 does not allow the Member States to derogate from their obligations under Articles 16(2) to (5) and 17(1), (3), (4) and (5) of the directive, which address the situation of vulnerable persons and minors. (49) That rule only makes sense if the competent national authorities are able to examine the particular situation of each migrant concerned, with reference to the material conditions under which his or her detention will be carried out.

71.      The above interpretation seems to me to be supported by the case-law of the European Court of Human Rights.

72.      Indeed, the European Court of Human Rights considers that general or automatic decisions to place applicants for international protection in detention may be contrary to Article 5(1)(f) ECHR (50) if no individual assessment of the particular needs of the individuals concerned is carried out first. The competent national authorities are accordingly required to take charge of the person concerned by adopting appropriate measures and investigating whether it might be possible to replace them with another less radical measure. (51) Thus, in its judgment in Rahimi v. Greece, (52) the European Court of Human Rights found against the Hellenic Republic on the ground that the decision to deprive the unaccompanied minor in question of his liberty appeared ‘to have resulted from automatic application’ of the legislation in question, having been adopted without the Greek authorities having examined his individual situation as an unaccompanied minor and without their having considered his best interests. (53)

73.      Thirdly, in accordance with the principle of proportionality, the period for which an exceptional regime applies may not exceed what is strictly necessary in order to respond to the urgency of the situation. Moreover, Article 18(2) of Directive 2008/115 requires the Member States to inform the Commission as soon as the reasons for applying an exceptional measure have ceased to exist. Any exceptional regime must therefore be as short as possible and will require the Member State to provide for reassessment of the situation, so that the regime is at all times appropriate to the circumstances.

74.      All of those matters must be taken into account in the assessment of whether legislative provisions, such as those in Paragraph 62a(1) of the AufenthG, in the version in force from 15 August 2019 onwards, fulfil the conditions set out in Article 18(1) of Directive 2008/115.

3.      Assessment of the national legislation

75.      It is clear from the information before the Court that, under the legislative provision at issue, the Federal States are no longer required to order the detention of third-country nationals awaiting removal in specialised detention facilities. They may place them in prison accommodation, provided that their separation from ordinary prisoners is ensured and that families are accommodated separately. It is also necessary to ensure that detention in prison accommodation is ‘acceptable and lawful … in each particular case’, such as in the case of vulnerable persons. (54)

76.      It is also clear from the information before the Court that that provision was notified to the Commission on 27 August 2019, pursuant to Article 18(2) of Directive 2008/115, the German Government indicating both the date of its entry into force and the period for which it is to apply. The urgent measures, and the derogation which they entail from EU rules, are to apply for three years, from 15 August 2019 to 30 June 2022, the German Government expecting the emergency situation to have come to an end by that date.

77.      For the reasons which I shall now explain, I think that the provision in question, in view of its nature and the objective which it pursues, in particular, does not fulfil the conditions laid down by Article 18(1) of Directive 2008/115.

78.      Admittedly, the legislative provision in question unambiguously provides for a fixed-term mechanism, and so its temporary nature cannot be disputed. However, I do not think that the situation which the legislation is intended to remedy can be classified as an ‘emergency situation’ for the purposes of Article 18 of the directive.

79.      First, an emergency situation implies the rapid or even immediate taking of decisions. The legislation at issue, however, was adopted on 15 August 2019, four years after the migration crisis began, which indicates neither the rapidity nor the immediacy called for in an emergency situation. It is undeniable that, in 2015, the situation could have been described as ‘exceptional’ and ‘unforeseeable’, as is emphasised in the explanatory memorandum to the draft Second law to improve the implementation of the obligation to leave the territory. However, I do consider that the competent national authorities were in a reasonable position to anticipate an exponential increase in the pressure on the capacities of their detention facilities over the course of the years that followed. Indeed, data from the European Asylum Support Office (EASO), the European Border and Coast Guard Agency (Frontex) and the Statistical Office of the European Union (Eurostat) all attest to a significant and steady increase in the number of illegally staying third-country nationals in the years 2015 to 2017, before levelling off and then decreasing. In the circumstances, I think that, by 2019, the burden weighing on the capacities of specialised detention facilities could not be described as ‘unforeseen’ for the purposes of Article 18(1) of Directive 2008/115.

80.      Secondly, the period for which the legislation at issue is to apply seems to me to exceed what should be strictly necessary in order to manage an emergency situation such as the one contemplated by Article 18(1) of the directive. The German legislature decided that the provision in question should apply not for a short period of time amenable to extension, but for a fixed term of three years, ending on 30 June 2022, that being the date on which projects to build specialised detention facilities are expected to be completed. In the explanatory memorandum to the draft Second law to improve the implementation of the obligation to leave the territory, the German legislature emphasised that ‘the exceptional situation will continue until [30 June 2022]’. That, it seems to me, is difficult to reconcile with the requirement for periodic reassessment of the situation which flows from Article 18(1) of the directive. It also seems to contradict the German Government’s assertion that it is continually inquiring into occupation rates at specialised detention facilities, in order to be able to make that reassessment.

81.      Thirdly, there is no information in the case file to indicate how far the legislation at issue was based on an accurate assessment of the relationship, in 2019, between the number of third-country nationals subject to a detention order and the capacity of the specialised detention facilities. The German Government has stated that it does not have that information for August 2019 or for the following months. Similarly, the Commission has pointed out that the notification given on 27 August 2019, pursuant to Article 18(2) of Directive 2008/115, did not contain that information for 2019 or for the preceding years, the German legislature merely noting that there was an insufficient number of places in specialised detention facilities for the large number of third-country nationals under an obligation to leave the territory.

82.      I wonder, in fact, whether it was by mistake that the legislation at issue was based on Article 18 of Directive 2008/115, the conditions for the application of which are not fulfilled, because the reasons which led to the adoption of that legislation seem to me to be quite different.

83.      Indeed, I note, first of all that, while this legislation provides for detention to take place in prison accommodation, third-country nationals awaiting removal are to be kept apart from ordinary prisoners and separate accommodation is to be provided for families. However, as I have explained, the purpose of implementing Article 18 of Directive 2008/115 is so that Member States can derogate both from the obligation to keep third-country nationals apart from ordinary prisoners and from the obligation to provide separate accommodation for families. The only effect of that legislation, therefore, is to permit detention in prison accommodation, something which Article 16(1) of Directive 2008/115 allows where, owing to the particular facts of the case, Member States cannot comply with the objectives pursued by that directive by carrying out detention in specialised facilities. (55)

84.      Next, it seems to me, from the explanatory memorandum to the draft Second law to improve the implementation of the obligation to leave the territory, that that legislation is first and foremost a programming law. It was adopted in order to compensate for the lack of capacity at specialised detention facilities, the German Government having given priority to the reception of applicants for international protection during the migration crisis of 2014 and 2015. The legislation’s present purpose, therefore, is to create a space of three years for the construction of a sufficient number of specialised detention facilities. The explanatory memorandum states, with reference to Paragraph 1, point 22, of the Second law to improve the implementation of the obligation to leave the territory, that, ‘in response to the change in the situation in 2015 and the surge in the number of applicants for [international] protection, the primary obligation of the federal and [State] governments was to create capacity to meet the needs of individuals. … In those circumstances, the processing of new arrivals took priority over increasing detention capacity, the aim being to meet the requirements of Directive 2008/115 subsequently (once the asylum application and appeal procedure is completed). The very aim of the derogation rule in Article 18 [of the directive] is to enable the authorities, in such situations, to give priority to the processing of new arrivals, without foreseeably infringing obligations in the future. … The precise purpose of Article 18 of Directive 2008/115 is to resolve potential conflicts of objectives in unforeseen, exceptional situations’.

85.      I do not, however, share the point of view expressed by the German legislature in that explanatory memorandum. While the standards for the reception of applicants for international protection set by Directive 2013/33 and those for the detention of third-country nationals awaiting removal set by Directive 2008/115 are part of the Common European Asylum System, those directives nevertheless have their own scope and pursue distinct objectives. None of the standards set by those directives suggests that preserving the fundamental rights of applicants for international protection should be to the detriment of the rights of detained third-country nationals.

86.      In light of those matters, I consider that Paragraph 62a(1) of the AufenthG, in the version in force from 15 August 2019 onwards, fails to fulfil the conditions laid down in Article 18(1) of Directive 2008/115, both because of the grounds on which the German legislature justified the detention of third-country nationals awaiting removal in prison accommodation and because of the circumstances in which that legislative provision was adopted and in which it is applied. To say the contrary would be tantamount to condoning a Member State’s failure to fulfil its obligations under Article 16(1) of the directive, which would jeopardise the directive’s aim and undermine its effectiveness.

87.      I understand that the Commission also shares this view. Indeed, at the hearing, the Commission informed the Court that, pursuant to Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen, (56) it has been carrying out on-site inspections since February 2020. Those inspections have enabled the Commission to conclude that there is no emergency situation in Germany, and so it has recommended that the Member State reassess the situation and put forward a plan of action.

88.      In light of all of those considerations, I suggest that the Court rule that Article 18(1) of Directive 2008/115 is to be interpreted as precluding national legislation under which, for a period of three years, third-country nationals awaiting removal may be detained in prison accommodation, where neither the grounds on which that legislation is based, nor the circumstances in which it was adopted, nor the manner in which it is applied indicate an emergency situation for the purposes of that article.

B.      The extent of the powers of the judicial authority responsible for the detention (the first question)

89.      By its first question for a preliminary ruling, the referring court is essentially asking the Court whether Article 18(1) and (3) of Directive 2008/115 is to be interpreted as meaning that a national judicial authority responsible for detention must, in each individual case, verify the existence, or even the persistence of an emergency situation justifying the detention of the person concerned in prison accommodation.

90.      For the reasons which I shall now explain, I consider that a judicial authority responsible for detention must be able to check, at any time, whether the conditions laid down in Article 18(1) of the directive and justifying the adoption of exceptional measures are fulfilled.

91.      Admittedly, determining the existence of an emergency situation and adopting the consequential exceptional measures are, first and foremost, responsibilities of the Member State. Given the nature and gravity of the circumstances referred to in Article 18(1) of Directive 2008/115, it is the responsibility of the Member State to make such determinations on the basis of a comprehensive, in-depth examination of all the information at its disposal concerning the burden on the capacities of its specialised detention facilities or its administrative and judicial staff. In accordance with Article 18(2) of the directive, the Commission is merely to be informed of the adoption and repeal of such urgent measures, the EU legislature not having provided for any ex ante review of such measures. Leaving aside any review which the Court may carry out in the context of a reference for a preliminary ruling, such measures are only subject, after they have been adopted, to the evaluation and monitoring procedure instituted by Regulation No 1053/2013.

92.      A judicial authority responsible for the detention of a third-country national awaiting removal must nevertheless be able to carry out a review.

93.      Such a review seems to me to be justified by the fact that, under Article 18(1) of Directive 2008/115, urgent measures can only be kept in place as long as the exceptional situation persists, the Member States being required, under Article 18(2) of the directive, to inform the Commission ‘as soon as the reasons for applying these exceptional measures have ceased to exist’. Consequently, it seems to me that a judicial authority responsible for detention must be able, in each case brought before it, to check whether the urgent measures are justified with reference to the conditions laid down in Article 18(1) of the directive.

94.      Such a review seems all the more necessary to me in that the existence of an emergency situation and the risk of capacity saturation which that could entail are objective criteria which the judicial authority responsible for detention must take into account when making a detention order. Indeed, it is clear from recital 6 of Directive 2008/115 and from the Court’s case-law that decisions to detain must be adopted on a case-by-case basis and based on objective criteria other than the fact of an illegal stay. (57) It is therefore the responsibility of the judicial authority to check, on the basis of an individual assessment of the particular needs of the migrant concerned, whether recourse might be had to a measure other than detention and, if not, whether it is possible to place the migrant in a specialised detention facility or, in the event of capacity saturation, in prison accommodation.

95.      Indeed, such a review seems indispensable to me in that Article 16(1) of Directive 2008/115 must be regarded as having direct effect. (58) Indeed, Article 16 needs no further specification by provisions of EU or national law in order to confer on third-country nationals awaiting removal rights which they can invoke as such. In those circumstances, and in accordance with the Court’s settled case-law, it is the responsibility of the judicial authority to ensure the effective application of the principles and requirements set out in that article by the EU legislature.

96.      In light of those matters, I consider that Article 18 of Directive 2008/115 is to be interpreted as meaning that a judicial authority responsible for detention must check, in each individual situation, whether the circumstances referred to in Article 18(1) of the directive that justified the adoption of exceptional measures are still present.

C.      The concept of ‘specialised detention facilities’ (the third and fourth questions)

97.      By the third and fourth questions which it has referred for a preliminary ruling, the national court is essentially asking the Court to clarify the criteria which distinguish a specialised detention facility from a prison, for the purposes of Article 16(1) of Directive 2008/115, in particular, with regard to the management of the place, the detention regime and the physical conditions of detention.

98.      The referring court asks, first, whether the concept of ‘specialised detention facility’ excludes places such as a specific division of a prison the management of which comes under the overall management of the prison and which, like the prison, is under the authority of the Minister for Justice.

99.      Secondly, in the event that such a place could be so classified, the referring court asks whether the concept of ‘specialised detention facility’ covers a place which is a specific division of a prison in which third-country nationals awaiting removal are kept apart from ordinary prisons, comprising three buildings surrounded by a wire-mesh fence and between which there is no direct access, each of which has its own facilities (clothing store, medical facilities, gym and outside space), one of those buildings being temporarily assigned to the enforcement of custodial sentences for default of payment of a fine or short custodial sentences.

100. I would observe that, when giving a preliminary ruling, the Court may provide clarification to guide the national court in its interpretation of a rule of EU law. However, it is for the national court to verify the facts of the dispute before it and, in this case, to determine whether the physical conditions of the detention at the Langenhagen division of Hannover prison between 25 September and 2 October 2020 preclude its classification as a ‘specialised detention facility’. (59) That is a factual determination outside the jurisdiction of the Court in proceedings under Article 267 TFEU and one for the national court to make.

1.      Detention in specialised facilities

101. The EU legislature offers no precise definition of the regime and material conditions appropriate to a specialised detention facility. It is, however, possible to infer these from the definition of the concept of ‘detention’, from the rights of third-country nationals while in detention and from the principles outlined by both the European Court of Human Rights and the Council of Europe.

102. The concept of ‘detention’ is not defined in Directive 2008/115. It is, however, defined in Directive 2013/33 with reference to the detention of applicants for international protection. According to the Court, that definition is equally applicable under Directive 2008/115. (60)

103. Under Article 2(h) of Directive 2013/33, ‘detention’ is defined as ‘confinement of an applicant [for international protection] by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement’. (61) According to the Court, detention in a specialised detention facility is a ‘measure that deprives the person concerned of his or her liberty’ (62) or a ‘coercive measure that deprives [the person concerned] of his or her freedom of movement and isolates him or her from the rest of the population, by requiring him or her to remain permanently within a restricted and closed perimeter’. (63)

104. The nature and purpose of detention are fundamentally different from the nature and purpose of a punitive measure, in that the sole purpose of detention is to aid the successful removal of the illegally staying third-country national. (64) By stating, in the first sentence of Article 16(1) of Directive 2008/115, the principle that detention must take place in a specialised detention facility, the EU legislature expressed its intention that, across the Member States, facilities should be set up that are specifically designed for the purpose of preparing and carrying out the removal of third-country nationals.

105. Moreover, the distinction which the legislature drew in Article 16(1) of Directive 2008/115 between detention in a specialised detention facility and detention in a prison means that the former must be something different from the latter, as much because of the internal rules of operation as because of the design and fitting out of the premises. It should be noted in this connection that it is particularly necessary for the distinction between these two categories of facility to be clear since specialised detention facilities are also designed to hold certain applicants for international protection (for reasons other than removal), in accordance with Article 8(3) of Directive 2013/33. (65)

106. The regime and material conditions of detention may also be inferred from Articles 16 and 17 of Directive 2008/115. The EU legislature took care to set out the rights which Member States must guarantee while detention is being carried out, such as a right of access to emergency health care and to contact with family members, legal representatives and consular staff. It has also defined the physical conditions necessary for the placing of families and minors in detention and requires the Member States to give primary consideration to the best interests of the child, in accordance with the obligations laid down in Articles 7, 14(1) and 24 of the Charter of Fundamental Rights, which are also mentioned in recital 22 and Article 5 of the directive. Accordingly, families must be provided with separate accommodation guaranteeing them adequate privacy and minors must be able to engage in recreational activities suited to their age and, where appropriate, have access to education. Unaccompanied minors should, as far as possible, be provided with special care by qualified personnel in suitable facilities.

107. Lastly, the regime and material conditions of detention may be inferred from the obligation incumbent on every Member State to respect the dignity of individuals who have been deprived of their liberty and to observe their right not to be exposed to inhuman or degrading treatment. (66)

108. The requirements laid down by the EU legislature essentially incorporate those set out by the European Court of Human Rights and the Council of Europe.

109. The European Court of Human Rights assesses the ‘appropriateness’ of a detention regime by reference to the rights enshrined in Articles 3, 5 and 8 ECHR, on the basis of information regarding the place of detention and the conditions and length of detention. It assesses each case individually, taking into account the cumulative effect of the conditions of detention in light of the particular situation of the third-country nationals concerned. (67)

110. The European Court of Human Rights pays particular attention to the arrangement and equipment of the premises and to the qualifications of the staff supervising the third-country nationals, in particular where families are concerned. The premises must be clean and offer sufficient living space for the number of individuals likely to be placed there. In particular, they must have sufficient, freely available personal hygiene facilities, a catering area and equipment and a freely accessible telephone. The premises must also possess medical equipment and a room for visits by family members and consular staff. They must also have an education and leisure area and an area for open-air exercise. Finally, detention centres catering for families must, according to the European Court of Human Rights, also contain bedrooms that are specially equipped for the detention of young children, with suitable, safe childcare equipment. (68)

111. In addition, guideline 10 of the ‘Twenty guidelines on forced return’, adopted by the Committee of Ministers of the Council of Europe on 4 May 2005 and referred to in recital 3 of Directive 2008/115, requires, in point 1 thereof, that persons detained pending removal should ‘normally’ be accommodated in facilities specifically designated for that purpose, offering material conditions and a regime appropriate to their legal situation. (69) Guideline 10 also requires, in point 4 thereof, that persons detained pending removal should not normally be held together with ordinary prisoners, convicted or on remand. Guideline 11 requires, in points 2 to 4 thereof, that families be provided with separate accommodation guaranteeing adequate privacy in institutions having personnel and facilities that take into account the particular needs of children, allowing them access to education and recreational activities. (70)

112. All of that makes it possible to identify the essential criteria which distinguish a specialised detention facility.

113. Such a facility must, first and foremost, be a place distinct, by reason of its purpose and its organisation, from a prison, otherwise the distinction drawn by the EU legislature in Article 16(1) of Directive 2008/115 would be rendered meaningless and nugatory.

114. Next, it must be a facility which enables detention to be carried out by qualified staff under a regime governing the deprivation of liberty and under physical conditions that are appropriate to the legal status of third-country nationals, in particular the most vulnerable, and respect the human dignity and observe the fundamental rights of the persons concerned.

115. At this juncture, it is appropriate to examine the conditions under which detention must take place when it is in prison accommodation, as contemplated by the second sentence of Article 16(1) of Directive 2008/115.

2.      Detention in a prison

116. I would reiterate that, in accordance with the second sentence of Article 16(1) of Directive 2008/115, where a Member State cannot place a third-country national awaiting removal in a specialised detention facility and is obliged to resort to prison accommodation, it must ensure that he or she is kept apart from ordinary prisoners.

117. I would also point out that, in the judgment in Pham, the Court held that the separation obligation is more than just a specific procedural rule for carrying out the detention in prison accommodation and constitutes a substantive condition for that detention, without observance of which the latter would, in principle, not be consistent with the directive. (71) It also held that the separation obligation is unconditional and not coupled with any exception. (72)

118. The force of the principles which the Court identified in that case implies spatial and organisational separation between the third-country nationals awaiting removal and ordinary prisoners. Prisons are, of course, designed for a use other than detention pending removal. The administration and the prison regime are reflected in internal operating rules and in administrative and physical constraints that serve the precise objectives associated with the enforcement of a custodial sentence.

119. Compliance with that separation obligation therefore demands strict separation by means of the creation of a separate facility isolated from the rest of the prison. It also means that third-country nationals awaiting removal should be treated differently from ordinary prisoners. The Member State must therefore ensure that, within the facility dedicated to the removal of third-country nationals, the arrangements for carrying out detention are different from those for enforcing a custodial sentence. That implies the establishment of a regime and of physical conditions of detention that are appropriate to their legal status and capable of meeting their particular needs, which means that the facility should be staffed by individuals whose remit is different from that of those working with ordinary prisoners.

120. It is on the basis of those factors that it is necessary to assess the extent to which a facility such as that described by the referring court could be classified as a ‘specialised detention facility’ for the purposes of the first sentence of Article 16(1) of Directive 2008/115.

3.      The Langenhagen division of Hannover prison

121. Considering the information supplied by both the referring court and the German Government, it seems to me that the detention measure under which K was held in the Langenhagen division of Hannover prison from 25 September to 2 October 2020 was more akin to a measure for detention in prison accommodation within the meaning of the second sentence of Article 16(1) of Directive 2008/115 than to a measure for detention in a specialised detention facility within the meaning of the first sentence of that provision.

122. I have come to that view after weighing up the various characteristics which that facility apparently has.

123. Some of those characteristics could suggest classification of the facility as a ‘specialised detention facility’. Indeed, the Langenhagen division does appear to be separated geographically from Hannover prison to which it is attached, the former lying several kilometres away from the latter. In addition, the Langenhagen division comprises three buildings each of which has its own facilities, which is to say medical facilities, a clothing store, a gym and outside space. There is one detainee per room, unless several individuals ask to be accommodated together. The personal hygiene facilities are freely accessible throughout the day. Detainees are allowed one visit per day, may keep a mobile telephone and have internet access.

124. The fact that the management of the Langenhagen division comes under the management of Hannover prison and that, like the prison, it is under the authority of the Minister for Justice is not sufficient to rule out classification of that division as a ‘specialised detention facility’. Indeed, the remits of prison governors, like those of ministers, differ from one Member State to another and they may, therefore, exercise their authority over facilities of very different kinds.

125. On the other hand, the Langenhagen division has other characteristics which, given their importance, do seem to rule out its classification as a ‘specialised detention facility’.

126. The Langenhagen division can, in fact, accommodate ordinary prisoners. One of the three buildings which make up the division was used for the enforcement of short custodial sentences and custodial sentences for default of payment of a fine. It would seem reasonable to assume that the competent judicial authorities did not order those sentences, even though they were short or default sentences, to be carried out in a ‘specialised detention facility’ designed for the removal of third-country nationals or under conditions and procedures other than those laid down in the Gesetz über den Vollzug der Freiheitsstrafe und der freiheitsentziehenden Maßregeln der Besserung und Sicherung (Law on the enforcement of prison sentences and security measures entailing a deprivation of liberty) (73) of 16 March 1976. It appears from the information before the Court that detention in the Langenhagen division is carried out in accordance with the regime for the enforcement of custodial sentences and that the staff responsible for supervising third-country nationals awaiting removal are the prison staff in charge of ordinary prisoners. In its answers to the questions put by the Court, the German Government has also stated that ‘following the order of 30 September 2020 of the Amtsgericht Hannover (Local Court, Hannover)’, (74) the 15 prisoners held in the Langenhagen division were transferred ‘to other penal institutions in the Land’. Those factors tend to show that that facility could be used for the enforcement of both detention measures and custodial sentences, given the applicable regime and how it operates in practice.

127. In those circumstances, I think that the measure ordering detention in the Langenhagen division of Hannover prison was a measure for detention in prison accommodation within the meaning of the second sentence of Article 16(1) of Directive 2008/115.

128. In light of all of those considerations, I suggest that the Court rule that the first sentence of Article 16(1) of Directive 2008/115 is to be interpreted as meaning that a ‘specialised detention facility’ is a place the purpose of which is to prepare the removal of third-country nationals and where detention is carried out under a regime governing the deprivation of liberty and under physical conditions that are appropriate to the legal status of third-country nationals and to their vulnerability.

129. The concept of ‘specialised detention facility’ does not include a facility that can be used for the enforcement both of measures to detain third-country nationals awaiting removal and of custodial sentences and where detention is carried out in accordance with the legislation on the enforcement of custodial sentences and under the supervision of the facility’s prison staff.

V.      Conclusion

130. Having regard to the foregoing considerations, I suggest that the Court answer the questions referred by the Amtsgericht Hannover (Local Court, Hannover, Germany) as follows:

(1)      Article 18(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals is to be interpreted as precluding national legislation under which, for a period of three years, third-country nationals awaiting removal may be detained in prison accommodation, where neither the grounds on which that legislation is based, nor the circumstances in which it was adopted, nor the manner in which it is applied indicate an emergency situation for the purposes of that article.

(2)      Article 18 of Directive 2008/115 is to be interpreted as meaning that a judicial authority responsible for detention must check, in each individual situation, whether the circumstances referred to in Article 18(1) of the directive that justified the adoption of exceptional measures are still present.

(3)      The first sentence of Article 16(1) of Directive 2008/115 is to be interpreted as meaning that a ‘specialised detention facility’ is a place the purpose of which is to prepare the removal of third-country nationals and where detention is carried out under a regime governing the deprivation of liberty and under physical conditions that are appropriate to the legal status of third-country nationals and to their vulnerability.

(4)      The concept of ‘specialised detention facility’ does not include a facility that can be used for the enforcement both of measures to detain third-country nationals awaiting removal and of custodial sentences and where detention is carried out in accordance with the legislation on the enforcement of custodial sentences and under the supervision of the facility’s prison staff.

1      Original language: French.

2      Directive of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).

3      C-473/13 and C-514/13, EU:C:2014:2095; ‘the judgment in Bero and Bouzalmate’.

4      C-474/13, EU:C:2014:2096; ‘the judgment in Pham’.

5      C-18/19, EU:C:2020:511; ‘the judgment in Stadt Frankfurt am Main’.

6      Proposal for a directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (COM(2018) 634 final).

7      BGBl. 2004 I, p. 1950; ‘the AufenthG’.

8      BGBl. 2019 I, p. 1294.

9      See Deutscher Bundestag Drucksache 19/10047, available at the following internet address: https://dserver.bundestag.de/btd/19/100/1910047.pdf (pp. 44 and 45).

10      Signed at Rome on 4 November 1950; ‘the ECHR’.

11      See, in this regard, judgment of 6 September 2017, Slovakia and Hungary v Council (C-643/15 and C-647/15, EU:C:2017:631), concerning Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (OJ 2015 L 248, p. 80).

12      Article 16(1) of Directive 2008/115 is not formulated in exactly the same way in all the language versions, as the Court noted in the judgment in Bero and Bouzalmate (paragraphs 26 and 27).

13      See Article 1 and recitals 2 and 11 of Directive 2008/115, and the judgment in Stadt Frankfurt am Main (paragraph 37 and the case-law cited).

14      See, on this point, judgment of 28 April 2011, El Dridi (C-61/11 PPU, EU:C:2011:268, paragraphs 39 and 41).

15      See, on this point, judgment of 28 April 2011, El Dridi (C-61/11 PPU, EU:C:2011:268, paragraph 42).

16      In its judgment of 19 January 2012, Popov v. France, CE:ECHR:2012:0119JUD003947207, at § 119, the European Court of Human Rights accordingly pointed out that ‘placement in administrative detention [is] a measure of last resort for which no alternative [is] available’. See also Resolution 1707 (2010), entitled ‘Detention of asylum seekers and irregular migrants in Europe’, adopted on 28 January 2010, in which the Parliamentary Assembly of the Council of Europe stated that the ‘detention of … irregular migrants shall be exceptional and only used after first reviewing a finding that there is no effective alternative’ (point 9.1.1).

17      See recitals 13, 16, 17 and 24 of Directive 2008/115.

18      See the judgment in Bero and Bouzalmate (paragraph 28).

19      See the judgment in Bero and Bouzalmate (paragraph 31).

20      See the judgment in Stadt Frankfurt am Main (paragraph 31 and the case-law cited).

21      The judgment in Stadt Frankfurt am Main (paragraph 39).

22      See the judgment in Stadt Frankfurt am Main (paragraph 46 and the case-law cited).

23      The judgment in Stadt Frankfurt am Main (paragraph 42 and the case-law cited).

24      See the judgment in Pham (paragraph 22).

25      The judgment in Bero and Bouzalmate (paragraph 31).

26      See the judgment in Pham (paragraph 17).

27      The judgment in Pham (paragraph 19).

28      I would, however, repeat that, in the judgment in Pham, the Court held, in its interpretation of the second sentence of Article 16(1) of Directive 2008/115, that the obligation requiring illegally staying third-country nationals to be kept apart from ordinary prisoners ‘is not coupled with any exception’ and ‘constitutes a substantive condition for [the detention of third-country nationals in prison accommodation], without observance of which the latter would, in principle, not be consistent with the directive’ (paragraphs 19 and 21).

29      See, by way of illustration, judgment of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor) (C-441/19, EU:C:2021:9, paragraph 42), and ‘Returning unaccompanied children: fundamental rights considerations’, European Union Agency for Fundamental Rights (FRA), September 2019, p. 7.

30      The European Court of Human Rights (‘the ECtHR’) requires there to be a connection between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. See, in particular, judgment of the ECtHR of 13 December 2011, Kanagaratnam and Others v. Belgium, CE:ECHR:2011:1213JUD001529709, § 84.

31      The Commission proposes an even stricter delimitation of this discretion in its proposal for a regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum (COM(2020) 613 final). The Commission notes that ‘the right to liberty and freedom of movement is protected given that, if detention is used in the context of the derogatory rules to the asylum and return border procedure, such derogatory rules can only be applied in a strictly regulated framework and for a limited time’ (point 3.3, p. 13). See also Commission Recommendation (EU) 2020/1366 of 23 September 2020 on an EU mechanism for preparedness and management of crises related to migration (OJ 2020 L 317, p. 26).

32      See order of the Vice-President of the Court of 14 January 2016, AGC Glass Europe and Others v Commission (C-517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).

33      See, by way of example, order of 12 February 2019, RH (C-8/19 PPU, EU:C:2019:110, paragraphs 33 and 34).

34      In accordance with Article 78(3) TFEU, in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission and after consulting the European Parliament, may adopt provisional measures for the benefit of the Member State(s) concerned.

35      See, for example, Decision 2015/1601.

36      Regulation of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1).

37      See Joined Cases Landespolizeidirektion Steiermark (Maximum period of border control at internal borders) (C-368/20) and Bezirkshauptmannschaft Leibnitz (Maximum period of border control at internal borders) (C-369/20), currently pending before the Court.

38      Regulation of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1).

39      See Article 15(1) of Directive 2008/115 and judgment of 28 April 2011, El Dridi (C-61/11 PPU, EU:C:2011:268, paragraphs 39 and 41).

40      I would note in this context that, in the context of the preparatory work for the recasting of Directive 2008/115, the Parliament proposes to limit this discretion further, replacing ‘as long as the exceptional situation persists’ with a precise maximum duration of three months: see the amendments to the proposal for a directive cited in footnote 6 to this Opinion tabled within the Parliament, available at: https://www.europarl.europa.eu/doceo/document/LIBE-AM-658738_EN.pdf, under Article 21 – paragraph 1 (p. 342).

41      See, inter alia, the judgment in Stadt Frankfurt am Main (paragraph 37 and the case-law cited); and judgments of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor) (C-441/19, EU:C:2021:9, paragraph 70 and the case-law cited); and of 24 February 2021, M and Others (Transfer to another Member State) (C-673/19, EU:C:2021:127, paragraph 28).

42      The effective return of third-country nationals who do not have a right to stay in the EU is an essential component of the European Agenda on Migration, as is stated in the proposal for a directive cited in footnote 6 to this Opinion (p. 1).

43      See judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C-808/18, EU:C:2020:1029, paragraph 264 and the case-law cited).

44      See judgment of 14 May 2020, Országos Idegenrendészeti Foigazgatóság Dél-alföldi Regionális Igazgatóság (C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paragraph 274 and the case-law cited), and the judgment in Stadt Frankfurt am Main (paragraph 38).

45      See, by analogy, judgment of 15 February 2016, N. (C-601/15 PPU, EU:C:2016:84, paragraph 54 and the case-law cited).

46      See, concerning the detention of an applicant for international protection, judgment of 14 May 2020, Országos Idegenrendészeti Foigazgatóság Dél-alföldi Regionális Igazgatóság (C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paragraph 258 and the case-law cited).

47      It is clear from recitals 13 and 16 and Article 15(1) of Directive 2008/115 that Member States must carry out removals using the least coercive measures possible. In the event that several measures are capable of achieving the stated objective, preference should be given to the least onerous. See, on that point, judgment of 22 June 2021, Ordre des barreaux francophones et germanophone and Others (Preventive measures for removal) (C-718/19, EU:C:2021:505, paragraph 58).

48      Article 7(3) of the directive allows the Member States the option of imposing obligations on third-country nationals so as to avert the risk of their absconding during the period for voluntary departure. The obligations expressly listed in that connection are regular reporting to the authorities, the deposit of an adequate financial guarantee, the submission of documents or staying at a certain place.

49      The European Court of Human Rights considers that minors must be afforded greater protection when it comes to assessing the seriousness of a measure restricting liberty, or even the occurrence of inhuman or degrading treatment (see, in particular, judgment of the ECtHR of 28 February 2019, Khan v. France, CE:ECHR:2019:0228JUD001226716).

50      See, in particular, judgments of the ECtHR of 23 July 2013, Suso Musa v. Malta, CE:ECHR:2013:0723JUD004233712; of 22 November 2016, Abdullahi Elmi and Aweys Abubakar v. Malta, CE:ECHR:2016:1122JUD002579413; and of 4 April 2017, Thimothawes v. Belgium, CE:ECHR:2017:0404JUD003906111.

51      See judgments of the ECtHR of 5 April 2011, Rahimi v. Greece, CE:ECHR:2011:0405JUD000868708, and of 13 December 2011, Kanagaratnam and Others v. Belgium, CE:ECHR:2011:1213JUD001529709, concerning the detention of the applicants (a mother and her three children) in a closed centre designed for adults.

52      ECtHR, 5 April 2011, CE:ECHR:2011:0405JUD000868708.

53      § 108 of that judgment.

54      See the explanatory memorandum to the draft Second law to improve the implementation of the obligation to leave the territory.

55      See the judgment in Stadt Frankfurt am Main (paragraph 39).

56      OJ 2013 L 295, p. 27.

57      See the judgment in Stadt Frankfurt am Main (paragraph 38 and the case-law cited).

58      By virtue of the principle of the primacy of EU law, if it is impossible for national law to be interpreted consistently with the requirements of EU law, any national court hearing a case within its jurisdiction is, as an organ of a Member State, under an obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it (judgment of 15 April 2021, Braathens Regional Aviation, C-30/19, EU:C:2021:269, paragraph 58 and the case-law cited).

59      See, by analogy, judgment of 5 June 2014, Mahdi (C-146/14 PPU, EU:C:2014:1320, paragraph 79 et seq.).

60      See judgment of 14 May 2020, Országos Idegenrendészeti Foigazgatóság Dél-alföldi Regionális Igazgatóság (C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paragraph 224).

61      This definition is, in accordance with Article 8(3)(d) of Directive 2013/33, relevant in the context of a detention order under Directive 2008/115.

62      Order of 3 June 2021, Republika Slovenija (Detention of applicants for international protection) (C-186/21 PPU, EU:C:2021:447, paragraph 26 and the case-law cited).

63      See judgment of 14 May 2020, Országos Idegenrendészeti Foigazgatóság Dél-alföldi Regionális Igazgatóság (C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paragraphs 216 to 223).

64      See Article 15 of Directive 2008/115. See also, on this point, Advocate General Bot’s treatment of the question in his Opinion in Bero and Bouzalmate (C-473/13, C-474/13 and C-514/13, EU:C:2014:295, point 91 et seq.). According to Advocate General Bot, the EU legislature has thus transposed the case-law of the European Court of Human Rights according to which any deprivation of liberty can be consistent with Article 5(1)(f) ECHR only if it is carried out for the purpose of enforcement of deportation proceedings and is proportionate to that aim (see ECtHR, 15 November 1996, Chahal v. United Kingdom, CE:ECHR:1996:1115JUD002241493, §§ 112 and 113, and 19 January 2012, Popov v. France, CE:ECHR:2012:0119JUD003947207, § 140) (footnote 33 to the Opinion).

65      The concepts of ‘detention’ and ‘specialised detention facility’ are in fact common to a number of instruments of the Common European Asylum System.

66      See recital 24 and Article 1 of Directive 2008/115. See also judgment of the ECtHR of 15 December 2016, Khlaifia and Others v. Italy, CE:ECHR:2016:1215JUD001648312, § 161 et seq.

67      See, inter alia, judgments of the ECtHR of 19 January 2012, Popov v. France, CE:ECHR:2012:0119JUD003947207, § 89 et seq., and of 15 December 2016, Khlaifia and Others v. Italy, CE:ECHR:2016:1215JUD001648312, § 163 et seq.

68      See judgment of the ECtHR of 19 January 2012, Popov v. France, CE:ECHR:2012:0119JUD003947207.

69      See also the report of the (former) Committee on Migration, Refugees and Population of the Parliamentary Assembly of the Council of Europe of 11 January 2010 entitled ‘The detention of asylum seekers and irregular migrants in Europe’, in particular, principle 8 in Annex 1 to the report, concerning the ‘10 guiding principles governing the circumstances in which the detention of asylum seekers and irregular migrants may be legally permissible’, which states that the place, conditions and regime of detention must be appropriate. See also the report of the Commissioner for Human Rights of the Council of Europe, entitled ‘Fundamental rights of migrants in an irregular situation in the European Union’ (Title III, (ii), pp. 16 and 17).

70      In the same vein, in point 9.2 of Resolution 1707 (2010) (see footnote 15 to this Opinion), the Parliamentary Assembly of the Council of Europe proposed, as one of the ‘15 European rules governing minimum standards of conditions of detention for migrants and asylum seekers’, that detainees should have to be accommodated in centres specifically designed for the purpose of immigration detention and not in prisons (rule 2). It also suggested that such centres be required to offer material conditions and a detention regime appropriate to the legal and factual situation of the persons concerned (rules 5 and 6).

71      See the judgment in Pham (paragraph 21).

72      See the judgment in Pham (paragraphs 17 and 19).

73      BGBl. 1976 I, p. 581.

74      The case file before the Court makes no further mention of that order of 30 September 2020.

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