7.  The applicant was born in 1968 and lives in Apeldoorn.
8.  In a judgment of 29 October 2008, the Zutphen Regional Court (rechtbank) convicted the applicant of the transportation of 2,800 grams of heroin and of seven counts of people trafficking (mensensmokkel) as defined in Article 197a of the Criminal Code (Wetboek van Strafrecht), committed jointly with other perpetrators. It sentenced him to a partially suspended term of 40 months’ imprisonment.
9.  Both the applicant and the prosecution appealed against the Regional Court’s judgment.
10.  On 19 July 2011 the Arnhem Court of Appeal (gerechtshof) gave its judgment, upholding the conviction for the offence of transporting heroin and also of four counts of people trafficking, and acquitting him on the three other counts. It sentenced him to 40 months’ imprisonment less the time spent in pre-trial detention. Based on the evidence submitted, the Court of Appeal found established that the applicant and his co-perpetrators had, for purposes of financial gain, between 10 November 2006 and 17 January 2007 facilitated the unauthorised residence of a total of 20 Iraqi migrants in the Netherlands, Germany and Denmark.
11.  The applicant lodged an appeal in cassation (cassatie), the scope of which is limited to procedural conformity and points of law, with the Supreme Court (Hoge Raad). In his written grounds of appeal of 8 August 2013, the applicant raised, inter alia, a complaint regarding the four counts of people trafficking of which he had been convicted by the Court of Appeal. The applicant contended that the Court of Appeal had convicted him of facilitation of unauthorised “residence”, as defined in Article 197a § 2 of the Criminal Code, whereas the evidence relied on by the Court of Appeal to uphold that conviction did not prove that the Iraqi migrants had had “residence” in the Netherlands, Germany or Denmark. Instead, the evidence demonstrated that the applicant had organised and financed the Iraqi migrants’ transportation to Denmark via the Netherlands and Germany, which had been intercepted on each occasion in Germany. As the migrants’ stay in the Netherlands and Germany had only been brief and transitory, and given that they had never even entered Denmark, there was, according to the applicant, no proof of “residence” in those countries. In that regard, the applicant referred to European Union law, namely Council Directive 2002/90/EG of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (hereinafter “the Directive”) and Council Framework Decision 2002/946/JBZ of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (hereinafter “the Framework Decision”). Submitting that Article 197a of the Criminal Code had been amended in order to implement the Directive, the applicant argued that the notion of the facilitation of unauthorised “residence” within the meaning of Article 197a § 2 should be understood as entailing a long-term stay, to be distinguished from “transit” or “entry” as defined in the first paragraph of Article 197a, which had been added to Article 197a when the Directive was implemented. The applicant’s grounds of appeal in cassation did not include a request that the Supreme Court put a question to the CJEU for the purpose of obtaining a preliminary ruling.
12.  In his advisory opinion of 10 December 2013, the Advocate General (advocaat-generaal) to the Supreme Court expressed his view that the applicant’s appeal should be dismissed with the exception of the first of the grounds of the appeal, which pertained to the length of the proceedings: the duration of the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention, for which a reduction of sentence was to be applied. With regard to the applicant’s complaint that the evidence did not show that there had been any “residence” of the migrants in the countries at issue, the Advocate General was of the opinion that Article 197a § 2 of the Criminal Code called for a broad interpretation of “residence”, as had been the case prior to the implementation of the Directive and the Framework Decision. Since that implementation was intended to broaden the scope of Article 197a of the Criminal Code, the second paragraph of that provision retained its broad meaning of “residence”, thereby encompassing “transit”. The separate penalisation in the first paragraph of Article 197a of the facilitation of unauthorised “transit and entry” did not change the broad scope of paragraph 2. The Advocate General thus concluded that the applicant’s complaint in this matter should be dismissed.
13.  On 24 December 2013, the applicant submitted written comments in reply to the Advocate General’s advisory opinion (a so-called “Borgers letter”[1]) in which he made a tentative request for questions to be referred to the CJEU for a preliminary ruling about the interpretation of “residence”, “entry” and “transit” within the context of the Directive and whether the Directive contained minimum rules or constituted a general framework of terms, if the Supreme Court were to concur with the Advocate General.
14.  On 4 March 2014 the Supreme Court gave its judgment, which read:
“[the applicant’s counsel] have submitted written grounds of appeal. That document is annexed to this judgment, of which it is a component part.
The Advocate General [...] has advised that the impugned judgment be quashed − but only as regards the prison sentence imposed, reducing it due to the violation of the right to adjudication within a reasonable time − and that the remainder of the appeal be dismissed.
Counsel [for the applicant] have submitted a written reply.”
15.  The Supreme Court went on to hold that the applicant’s complaint that the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention was well-founded and that the sentence imposed on the applicant should be reduced as a consequence thereof. The Supreme Court further considered:
“4.  Assessment of the remaining grievances
The grievances cannot lead to cassation [of the impugned judgment] (de middelen kunnen niet to cassatie leiden). Based on section 81 (1) of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), this requires no further reasoning as the grievances do not give rise to the need for a determination of legal issues in the interests of legal uniformity or legal development.”
16.  The Supreme Court thus quashed the Court of Appeal’s judgment as regards the imposed sentence, reduced the sentence to 34 months’ imprisonment, and dismissed the remainder of the grounds of appeal. No further appeal lay against the Supreme Court’s judgment.
17.  Section 80a of the Judiciary (Organisation) Act entered into force on 1 July 2012. It provides as follows (references to other domestic legislation omitted):
“1.  The Supreme Court may, after having taken cognisance of the advisory opinion of the Procurator General (gehoord de procureur-generaal), declare an appeal in cassation inadmissible if the complaints raised do not justify an examination in cassation proceedings (de aangevoerde klachten geen behandeling in cassatie rechtvaardigen), because the appellant party obviously has insufficient interest in the cassation appeal (klaarblijkelijk onvoldoende belang heeft bij het cassatieberoep) or because the complaints obviously cannot succeed (klaarblijkelijk niet tot cassatie kunnen leiden). 2.  The Supreme Court shall not take a decision as referred to in the first paragraph without first having taken cognisance of:
a.  [in civil cases:] the summons or request [introducing the cassation appeal] ... and the memorandum in reply (conclusie van antwoord) or the statement of defence (verweerschrift), if submitted;
b.  [in criminal cases:] the written statement of the grounds of the cassation appeal (de schriftuur, houdende de middelen van cassatie) ...; or, as the case may be,
c.  [in tax cases:] the written statement introducing the cassation appeal (het beroepschrift waarbij beroep in cassatie wordt ingesteld) ... and the statement of defence, if submitted. 3.  The cassation appeal shall be considered and decided by three members of a multi-judge Chamber (meervoudige kamer), one of whom shall act as president. 4.  If the Supreme Court applies the first paragraph, it may, in stating the grounds for its decision, limit itself to that finding.”
18.  Section 81 of the Judiciary (Organisation) Act reads:
“1.  If the Supreme Court considers that a complaint does not constitute grounds for overturning the impugned judgment and does not give rise to the need for a determination of legal issues in the interests of legal uniformity and legal development, it may, in giving reasons for its decision on such complaint, limit itself to that finding. 2.  The appeal in cassation shall be considered and determined by three members of a multi-judge Chamber (meervoudige kamer), one of whom shall act as president.”
19.  In a judgment of 11 September 2012 (ECLI:NL:HR:2012:BX0129) the Supreme Court clarified its understanding of sections 80a and 81 of the Judiciary (Organisation) Act as applicable in criminal cases, which reads, as far as relevant to the present case:
“2.1.2.  The explanatory memorandum (memorie van toelichting) to the Bill that led to this Act (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2010/11, 32 576, no. 3), includes the following:
‘1.  Introduction
Aim pursued by the Bill
This Bill aims to strengthen the role of the cassation procedure (versterking van de cassatierechtspraak) by establishing different and new requirements for lawyers who act as representatives before the Supreme Court and by introducing the possibility for the Supreme Court to declare inadmissible a cassation appeal at the beginning of the procedure. The Bill is intended to enable the Supreme Court to concentrate on its core tasks as a court of cassation. The adequate execution of these core tasks is under pressure as a result of cassation appeals being lodged in cases that do not lend themselves to a review in cassation, and because certain issues about which it would be desirable for the Supreme Court itself to pronounce do not reach the Supreme Court in time or at all. The establishment of quality requirements for counsel is aimed at ensuring that cassation appeals are accompanied by statements of grounds of appeal that are of decent quality.
...
Accelerated inadmissibility
Another measure [in addition to establishing new quality requirements for legal representatives] is the introduction of a mechanism for disposing of cases that goes beyond that of the current section 81 of the Judiciary (Organisation) Act. Section 81 of the Judiciary (Organisation) Act enables the Supreme Court to limit the reasoning of the rejection of a cassation grievance to the finding that the complaint raised therein “does not constitute grounds for overturning the impugned judgment and does not give rise to the need to determine legal issues in the interests of legal uniformity and legal development”.
Section 81 of the Judiciary (Organisation) Act has in recent years played an important part in keeping the workload of the Supreme Court manageable. The Supreme Court now applies this provision in approximately half of its cases. However, the limits of its application are discernible. Moreover, section 81 is applied only at the end of cassation proceedings and, (invariably, in civil and criminal cases) after an advisory opinion from the Procurator General. However, the possibility of rejecting cases that have no prospect of success at an earlier stage of the proceedings and in a simple manner would constitute a considerable alleviation for the parties to the proceedings and the Supreme Court alike. ...
Pursuant to Article 118 § 2 of the Constitution (Grondwet), the Supreme Court is charged, in the cases and within the limits prescribed by law, with overturning judicial decisions that are contrary to the law (de cassatie van uitspraken wegens schending van het recht). The Bill explicitly does not seek to change the Supreme Court’s task. Nor does [the Bill] involve a leave-to-appeal system in which a court has to give prior permission before a legal remedy can be used. The freedom of parties to lodge cassation appeals remains unimpaired. What is new is the latitude given to the Supreme Court to declare an appeal inadmissible on the (substantive) finding that the grounds of appeal submitted do not justify a detailed review in cassation proceedings (geen nadere beoordeling in cassatie rechtvaardigen). The appeal may, for instance, be manifestly ill-founded (klaarblijkelijke ongegrondheid), because the impugned ruling rests on two grounds, each of which is capable of supporting the decision by itself but only one of which is challenged, or there may be a lack of interest, for example because a ground for the appeal, although well-founded, cannot, after the overturning of the impugned ruling, lead to an outcome other than the one to which that ruling had led.’
... 2.2.2.  Section 80a of the Judiciary (Organisation) Act does, however, bring about a change in cases in which an omission hitherto necessitated the overturning of the impugned ruling, even though the person bringing the cassation appeal did not actually have a sufficient interest − deserving to be respected in law (niet voldoende in rechte te respecteren belang) − in such an overturning and a possible rehearing after remittal or referral of the case. In this context, it is to be noted that the mere possibility – regardless of the reason for which the appeal is considered well-founded – that in that situation a different, and possibly more advantageous, ruling could be given (for example, a reduction of sentence pursuant to the length of the proceedings before and after remittal or referral of the case, or in relation to changed personal circumstances) cannot be considered an interest that deserves to be upheld in law in cassation proceedings.
...
Consequences for the content of the statement of grounds of appeal in cassation and the ‘Borgers letter’ 2.6.1.  Pursuant to the second paragraph of section 80a of the Judiciary (Organisation) Act the Supreme Court will not issue a decision of the kind referred to in the first paragraph without first having taken cognisance of the written statement of grounds of appeal in cassation ... If the ‘selection at the gate’ (selectie aan de poort) which the legislature has introduced by way of section 80a of the Judiciary (Organisation) Act is to achieve its intended aim, then the lawyer who acts as legal representative, or the public prosecution service as the case may be, can reasonably be expected – in the words of the explanatory memorandum – to submit ‘statements of grounds of appeal ... that are of decent quality’.
... 2.6.3.  Section 80a of the Judiciary (Organisation) Act provides that in the cases referred to therein, the Supreme Court may declare the cassation appeal inadmissible after having heard the Procurator General. It must be presumed that the Procurator General will express his point of view as to the applicability of section 80a of the Judiciary (Organisation) Act on a hearing day set by the judge in charge of the Supreme Court’s list of cases (rolraadsheer) and also that if the Procurator General is of the opinion that the case lends itself to the application of section 80a of the Judiciary (Organisation) Act, he will express this point of view in writing. In that case, counsel for the person by whom or on whose behalf the appeal has been lodged may respond in writing to that point of view within a period of two weeks thereafter.”
20.  In its judgment of 26 May 2015 (ECLI:NL:HR:2015:1332) the Supreme Court explained its practice as regards the application of sections 80a and 81 of the Judiciary (Organisation) Act in relation to a request for referral to the CJEU made in that case. It held, as far as relevant to the present case:
“2.1.  The Supreme Court finds that the complaints raised do not justify an examination in cassation proceedings because the appellant party obviously has insufficient interest in the cassation appeal or because the complaints obviously cannot succeed. The Supreme Court will therefore – based on section 80a of the Judiciary (Organisation) Act and after having taken cognisance of the advisory opinion of the Procurator General − declare the appeal in cassation inadmissible. 2.2.1.  It is inherent therein (daarin ligt besloten) that the request contained in the written grounds of appeal to put a preliminary question to the Court of Justice of the European Union cannot be granted (voor inwilliging vatbaar). The reasons are as follows. 2.2.2.  A judgment in which the appeal in cassation is declared inadmissible or dismissed by application of and with reference to section 80a or 81 of the Judiciary (Organisation) Act contains an abridged reasoning of that decision. Furthermore, such a judgment contains the conclusion that no issues arise that justify an examination in cassation proceedings or give rise to the need for a determination of issues in the interests of legal uniformity, legal development or legal protection. Since preliminary questions within the meaning of Article 267 of the Treaty on the Functioning of the European Union concern the interpretation of Community law and are issues of law (rechtsvragen), it is inherent in such a judgment that there is no need to put preliminary questions. The judgment also implies that the case in question concerns one of the situations where there is no need for such referral of preliminary questions, namely when the preliminary question raised is not relevant for the resolution of the dispute or can be answered in the light of the case-law of the Court of Justice [of the European Union] or that no reasonable doubt exists as to the manner in which the question concerning the rules of Community law was to be resolved.”
21.  Article 267 of the Treaty on the Functioning of the European Union (“TFEU”)[2] provides as follows:
“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a)  the interpretation of the Treaties;
(b)  the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union ...;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”
22.  On 25 November 2016, the CJEU published its (updated) Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2016/C 439/01), which reads, as far as relevant to the present case:
“3.  The jurisdiction of the Court to give a preliminary ruling on the interpretation or validity of EU law is exercised exclusively on the initiative of the national courts and tribunals, whether or not the parties to the main proceedings have expressed the wish that a question be referred to the Court. In so far as it is called upon to assume responsibility for the subsequent judicial decision, it is for the national court or tribunal before which a dispute has been brought – and for that court or tribunal alone – to determine, in the light of the particular circumstances of each case, both the need for a request for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.”
Relevant case-law of the CJEU
23.  In the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health (C-283/81, ECLI:EU:C:1982:335), the CJEU received a request from the Italian Court of Cassation for a preliminary ruling. This request concerned the question as to whether the third paragraph of Article 177 of the EEC Treaty[3] laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified, or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt.
24.  In its judgment of 6 October 1982 the CJEU explained, firstly, as follows:
“... 6.  The second paragraph of that article [current Article 267] provides that any court or tribunal of a Member State may, if it considers that a decision on a question of interpretation is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. The third paragraph of that article provides that, where a question of interpretation is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. 7.  That obligation to refer a matter to the Court of Justice is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice. More particularly, the third paragraph of Article [267] seeks to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law. The scope of that obligation must therefore be assessed, in view of those objectives, by reference to the powers of the national courts, on the one hand, and those of the Court of Justice, on the other, where such a question of interpretation is raised within the meaning of Article [267]. 8.  In this connection, it is necessary to define the meaning for the purposes of Community law of the expression ‘where any such question is raised’ in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before the Court of Justice. 9.  In this regard, it must in the first place be pointed out that Article [267] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article [267]. ...”
25.  The CJEU went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain “whether a decision on a question of Community law [was] necessary to enable them to give judgment”. It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations: (1) where the question was not relevant, in the sense that the answer to the question, regardless of what it might be, could in no way affect the outcome of the case; (2) where the question was materially identical to a question which had already been the subject of a preliminary ruling in a similar case, or where previous decisions of the Court had already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue were not strictly identical; or (3) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved (bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member States and to the Court of Justice, and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it).
26.  The judgment then concluded as follows (point 21):
“... the third paragraph of Article [267] of the [Treaty on the Functioning of the European Union] is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court [of Justice], unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”
27.  In the case of György Katz v. István Roland Sós (C-404/07, ECLI:EU:C:2008:553), the CJEU delivered its judgment on 9 October 2008 which, as far as relevant to the present case, reads:
“37.  [...] It is for the national court, not the parties to the main proceedings, to bring a matter before the Court of Justice. The right to determine the questions to be put to the Court thus devolves on the national court alone and the parties may not change their tenor [...].”
28.  In its judgment of 9 November 2010 in the case of VB Pénzügyi Lízing Zrt. v. Ference Schneider (C-137/08, ECLI:EU:C:2010:659), the CJEU stated, as far as relevant to the present case:
“28.  [...] the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties [...].”
29.  In the case of Lucio Cesare Aquino v. Belgische Staat (C-3/16, ECLI:EU:C:2017:209), the CJEU gave judgment on 15 March 2017, stating, as far as relevant to the present case:
“43.  It follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts referred to in the third paragraph have the same discretion as all other national courts as to whether a decision on a question of EU law is necessary to enable them to give judgment. They are not therefore obliged to refer a question of the interpretation of EU law raised before them if the question is not relevant, that is to say, if the answer to that question, whatever it may be, cannot have any effect on the outcome of the case [...]. 44.  Consequently, if in accordance with the procedural rules of the Member State concerned, the pleas in law raised before a court referred to in the third paragraph of Article 267 TFEU must be declared inadmissible, a request for a preliminary ruling cannot be regarded as necessary and relevant for that court to be able to give judgment.”