Opinion of the Advocate General — ECLI:EU:C:2022:434
Date: 2022-06-02
Language of the case: Dutch
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-66/21 – 1 
Case C-66/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
29 January 2021 
Referring court:  
Rechtbank Den Haag, zittingsplaats Zwolle (Netherlands) 
Date of the decision to refer:  
28 January 2021 
Applicant:  
O.T. E. 
Defendant:  
Staatssecretaris van Justitie en Veiligheid 
  
Subject of the action in the main proceedings 
The applicant applied for asylum in the Netherlands, having previously lodged 
asylum applications in Italy and Belgium. He informed the Netherlands asylum 
authority that he had become the victim of human smugglers in Italy. The asylum 
authority decided not to examine his application on the ground that this was 
Italy’s responsibility because of the earlier applications. The applicant challenged 
that authority's decision, which would entail the applicant being transferred to 
Italy.  
Subject and legal basis of the request for a preliminary ruling  
The take back request made by the Netherlands to Italy pursuant to Regulation 
(EU) No 604/2013, raises the question of the interpretation to be accorded to 
Article 6 of Directive 2004/81/EC and to the guarantees (such as a reflection 
period or a residence permit linked to trafficking) which that article offers to third-
country nationals who claim to have been victims of human smuggling. 
Article 276 TFEU.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-66/21 
 
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Questions referred for a preliminary ruling 
Question 1(a): Since the Netherlands has failed to specify in national law when 
the reflection period guaranteed in Article 6(1) of Directive 2004/81/EC 
commences, must that provision be interpreted as meaning that the reflection 
period commences by operation of law when the third-country national notifies 
(communicates) the trafficking in human beings to the Netherlands authorities?  
Question 1(b): Since the Netherlands has failed to specify in national law the 
duration of the reflection period guaranteed in Article 6(1) of Directive 
2004/81/EC, must that provision be interpreted as meaning that the reflection 
period ends by operation of law once the trafficking in human beings has been 
reported or the third-country national concerned indicates that he no longer wishes 
to report such trafficking?  
Question 2: Are expulsion orders within the meaning of Article 6(2) of Directive 
2004/81/EC to be understood to include orders for the removal of a third-country 
national from the territory of one Member State to the territory of another Member 
State? 
Question 3(a): Does Article 6(2) of Directive 2004/81/EC preclude the adoption 
of a transfer decision during the reflection period guaranteed in the first paragraph 
of that article? 
Question 3(b): Does Article 6(2) of Directive 2004/81/EC preclude, during the 
reflection period guaranteed in the first paragraph of that article, the enforcement 
of a transfer decision which has already been taken, or the preparations for such 
enforcement?  
Provisions of European Union law cited 
Article 2, Article 17(1), Article 18(1)(d), and Article 19 of Regulation (EU) 
No 604/2013 of the European Parliament and of the Council establishing the 
criteria and mechanisms for determining the Member State responsible for 
examining an application for international protection lodged in one of the Member 
States by a third-country national or a stateless person  
Article 2, Article 6, and Article 17 of Council Directive 2004/81/EC on the 
residence permit issued to third-country nationals who are victims of trafficking in 
human beings or who have been the subject of an action to facilitate illegal 
immigration, who cooperate with the competent authorities  
Article 3(3) of Directive 2001/40/EC on the mutual recognition of decisions on 
the expulsion of third country nationals 
Article 3(5) of Directive 2008/115/EC on common standards and procedures in 
Member States for returning illegally staying third-country nationals 
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID 
 
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Provisions of national law cited 
Article 8(k), Article 30(1), and Article 60 of the Vreemdelingenwet 2000 (Law on 
Foreign Nationals of 2000) 
Paragraphs A4/1, B8/3.1, and C2/5 van de Vreemdelingencirculaire (Circular on 
Foreign Nationals) 
Brief summary of the facts and the procedure in the main proceedings 
1 The applicant applied for asylum in the Netherlands on 26 April 2019, having 
previously lodged three asylum applications in Italy and one in Belgium. At his 
registration interview, he said that he had been threatened and mistreated by 
organised criminals. 
2 On 3 June 2019, the Netherlands requested Italy to take the applicant back under 
Article 18(1)(d) of Regulation No 604/2013. On 13 June 2019, Italy accepted the 
claim. 
3 On 30 July 2019, the applicant reported that he had been a victim of trafficking in 
human beings in Italy and that he had recognised one of the criminals involved in 
the Netherlands reception centre. He was given a hearing in this regard by the 
vreemdelingenpolitie (Aliens Police). Although the applicant wanted to make a 
report about the trafficking in human beings on that occasion, this report was 
ultimately only recorded on 3 October 2019.  
4 The applicant was not granted a reflection period in accordance with Article 6 of 
Directive 2004/81 or a residence permit linked to trafficking in human beings.  
5 By decision of 12 August 2019, the defendant refused to examine the applicant’s 
application for a residence permit of unlimited duration issued to persons granted 
asylum on the ground that, under Regulation No 604/2013, that was Italy’s 
responsibility. That decision also entailed the transfer of the applicant to the 
Italian authorities. 
6 The applicant lodged an appeal against that decision. 
Main submissions of the parties to the main proceedings 
7 The applicant submits that the defendant should have assessed his asylum 
application on its merits under Article 17(1) of Regulation No 604/2013. 
8 The Rechtbank (District Court) is of the view that Regulation No. 604/2013 
cannot be successfully relied upon in light of the judgment of the Court of Justice 
in Case C-661/17 of 23 January 2019, M.A. and Others (ECLI:EU:C:2019:53). 
The applicant has not made a plausible case for the existence of the exceptional 
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circumstances which would oblige the defendant to use the aforementioned 
competence.  
9 The applicant first claimed to be a victim of violence or threats related to 
trafficking in human beings on 30 July 2019. Consequently, the Rechtbank is of 
the view that this raises the question whether he should therefore have been 
granted a reflection period under Article 6 of Directive 2004/81 at some stage 
after that date and, if so, whether the defendant was entitled to take measures to 
expel the applicant from the Netherlands even without that reflection period. The 
question also arises as to whether the contested decision constitutes an expulsion 
order.  
10 The defendant maintains that the applicant did not have to be granted a reflection 
period under Article 6 of Directive 2004/81. According to Dutch immigration 
policy, only the Koninklijke Marechaussee (Royal Netherlands Marechaussee) or 
the police are competent to grant a reflection period, and not the defendant. 
According to the defendant, whether or not a reflection period should have been 
granted cannot therefore be the subject of these proceedings.  
11 Moreover, according to the defendant, the applicant’s reflection period ends with 
his report. The applicant therefore no longer has any interest in the assessment of 
whether he should have been granted a reflection period. Furthermore, he is 
lawfully resident, and it follows from Directive 2004/81 that only people without 
a valid residence permit must be granted a reflection period. 
12 Moreover, a reflection period would not have precluded the adoption of the 
contested decision, since a transfer decision is not an expulsion decision within 
the meaning of Article 6 of Directive 2004/81. Expulsion in that sense must be 
understood as expulsion from the European Union, which is not the case with a 
transfer under Regulation No 604/2013.  
13 The defendant refers in that regard to Article 2 of Directive 2004/81, which 
defines the terms ‘expulsion order’ and ‘measure to enforce an expulsion order’. 
According to the defendant, those definitions are based on Directive 2001/40, the 
purpose of which is expulsion from the territory of the EU. It follows from 
Article 3(3) of Directive 2001/40 that the provisions of Regulation No 604/2013 
apply without prejudice. It follows, in turn, from Articles 2 and 19 of that 
regulation that it takes account of the term ‘removal’ but does not equate it with 
‘transfer’.  
Brief summary of the reasons for the referral  
14 According to the Rechtbank, the applicant still has an interest in the assessment of 
whether a reflection period should have been granted after the report had been 
made. In reviewing the transfer decision of 12 August 2019, the Rechtbank takes 
into account facts and circumstances that became known or that occurred after that 
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date. However, the question remains whether the defendant was entitled to 
lawfully make the contested decision.  
15 The Rechtbank sees no legal basis for the defendant’s assertion that a reflection 
period need only be granted to a foreign national who is illegally resident in the 
territory of a Member State under national law. Article 6(3) of Directive 2004/81 
clearly points in a different direction. 
16 In the Netherlands, Article 6(1) of Directive 2004/81 has been incorporated in 
policy only in summary form. According to the case-law, that does not satisfy the 
obligation of transposition into national law. That is also acknowledged by the 
defendant. The duration and commencement of the reflection period are not 
specified. Nor is there any binding provision governing the authority competent to 
grant the reflection period or to establish that it has begun. The defendant’s 
assertion that only officers of the Koninklijke Marechaussee or the police are 
competent to grant a reflection period is therefore not supported by the law.  
17 Directive 2004/81 should have been transposed by 6 August 2006. The question 
then is what consequences should be attached to the failure to transpose. 
Article 6(1) of that directive is sufficiently specific to be applied by the 
Rechtbank. To take any other view would seriously undermine the effectiveness 
of EU law on this point and does not appear to be compatible with the great 
importance which the institutions of the Union and the Member States attach to 
combating trafficking in human beings and associated criminality.  
18 The question therefore arises as to the interpretation to be given to Article 6 of the 
Directive and the guarantees it offers to third-country nationals who claim to have 
been victims of trafficking in human beings. To that end, the Rechtbank refers the 
first question concerning the reflection period guaranteed in that article to the 
Court of Justice for a preliminary ruling.  
19 The second question referred concerns the definition of ‘expulsion’. The 
defendant submitted, first, that ‘expulsion’ within the meaning of Article 6(2) of 
Directive 2004/81 must be understood as meaning the expulsion of a foreign 
national from the territory of all the Member States of the Union, or from the 
Schengen area. It relied in that regard on Articles 2 and 3(3) of Directive 2001/40.  
20 The Rechtbank is of the view that those provisions are not relevant, inter alia 
because the defendant’s transfer decision does not enforce the recognition of an 
expulsion decision taken by another Member State. 
21 It also appears to the Rechtbank that if, under European Union law, a Member 
State were to have taken a decision to expel a foreign national from the territory of 
the Union, there is no need for a directive on the mutual recognition of and 
compliance with such decisions, because such a decision taken by a competent 
authority would be binding even without such coordination. It is precisely where 
an expulsion order refers only to an expulsion from the territory of a Member 
State that, in order to achieve the desired result of expulsion from the territory of 
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the Union, the mutual recognition of national expulsion measures provided for by 
EU law is necessary.  
22 Second, the defendant relies on Directive 2008/115 for his interpretation of the 
term ‘expulsion’. In the view of the Rechtbank, however, it does not follow from 
this that ‘expulsion order’ as referred to in Article 6(2) of Directive 2004/81 must 
be understood to mean expulsion from the territory of the Member States, all the 
more so because Directive 2008/115 was adopted several years after Directive 
2004/81 and does not have the same purpose.  
23 In addition, Article 3(5) of Directive 2008/115 defines removal as ‘the physical 
transportation out of the Member State’, in order to enforce the obligation to 
return. It follows logically from the enforcement of the obligation to return, that is 
to say, the obligation to go back to the country of origin or to another country 
willing to receive the third-country national, that removal from the territory of a 
Member State under Directive 2008/115 cannot take place to the territory of 
another Member State.  
24 Finally, for the purposes of interpreting the term ‘removal’, the defendant referred 
to Articles 2 and 19 of Regulation No 604/2013, stating that that regulation does 
not equate a transfer decision with expulsion within the meaning of Article 6 of 
Directive 2004/81.  
25 In the view of the Rechtbank, this does not constitute an argument in support of 
the interpretation advocated by the respondent. The decisive factor when 
reviewing the contested decision, which is a transfer decision under Regulation 
No 604/2013, is whether an order for the expulsion of a third-country national 
from the territory of a Member State to the territory of another Member State is 
also an expulsion order within the meaning of Article 6(2) of Directive 2004/81. 
Therefore, in order to obtain certainty as to the scope of the term ‘expulsion’ in 
the said Article 6, the Rechtbank refers the second question to the Court of Justice 
for a preliminary ruling.  
26 Article 6(2) of Directive 2004/81 prohibits the enforcement of ‘any expulsion 
order’ that has been made. According to the Rechtbank, it follows from this that 
no new, yet to be enforced, expulsion orders may be made during the reflection 
period either. Therefore, if the second question is to be answered in the 
affirmative, a (yet to be implemented) decision, aimed at the expulsion from the 
territory of one Member State to the territory of another Member State could be 
regarded as an expulsion order within the meaning of the directive.  
27 In that case, the nature of the reflection period guaranteed in Article 6(1) of 
Directive 2004/81 appears to preclude the adoption of a transfer decision, such as 
that contested by the applicant during that period. However, the defendant 
explicitly expresses a contrary view. 
28 In order to obtain certainty as to the correct interpretation of the Directive, the 
Rechtbank refers the third question to the Court of Justice for a preliminary ruling.