Judgment — ECLI:EU:C:2026:15
Date: 2026-01-15
Language of the case: English
Court formation: Tenth Chamber
Procedure: Reference for a preliminary ruling
Origin: Ireland

AN CHUIRT UACHTARACH
THE SUPREME COURT
S:AP:IE:2023:000096
[2024] IESC 42 
Dunne J.
Charleton J.
Woulfe J. 
Hogan J.
Murray J.
Between/
L.K.
Respondent
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER 
FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL
Appellants
To: The President and Members of the Court of Justice of the European Union
Order for Reference of the Supreme Court of the 23rd day of October 2024
1
Introduction
1. The Supreme Court of Ireland has decided to refer to the Court of Justice, pursuant to 
Article 267 of the Treaty on the Functioning of the European Union, questions arising 
in respect of the correct interpretation and application of the concept of “delay” in 
Article 15(1) of Directive 2013/33/EU of the European Parliament and of the Council 
of 26th June, 2013 laying down standards for the reception of applicants for 
international protection (“the 2013 Directive”), to which effect is given by Regulation 
1 l(4)(b) of the European Communities (Reception Conditions) Regulations 2018, S.I. 
No. 230/2018 (“the 2018 Regulations”).
2. Article 15 of the 2013 Directive requires member states to establish standards regulating 
international protection applicants’ access to the labour market. Paragraph (1) thereof 
obliges States to:
"[E]nsure that applicants have access to the labour market no later than nine 
months from the date when the application for international protection was 
lodged if a first instance decision by the competent authority has not been taken 
and the delay cannot be attributed to the applicant. ”
3. Regulation 11(3) of the 2018 Regulations enables an international protection applicant 
to apply for a labour market access permission eight months after an international 
protection application has been made. Regulation 11(4) further provides:
"The Minister may, on receipt of an application made in accordance with 
paragraph (3), grant a permission to the applicant where satisfied that -
(a) subject to paragraph (6), a period of 9 months, beginning on the 
application date, has expired, and, by that date, a first instance 
decision has not been made in respect of the applicant’s protection 
application, and
2
(b) the situation referred to in subparagraph (a) cannot be attributed, 
or attributed in part, to the applicant.
4. The meaning of ‘delay’ in Article 15, the use of the phrase "attributed in part" in 
Regulation 1 l(4)(b) of the 2018 Regulations and whether the use of that phrase means 
that the 2018 Regulations do not properly transpose the Directive are matters which are 
central to this reference, and raise questions as to the appropriate test to be applied when 
considering whether delay on the part of an applicant for international protection can 
be attributed to him or her so as to entitle the Minister to refuse the applicant a labour 
market access permission.
Background
5. On 2nd September, 2019, L.K. (“the respondent”) applied for international protection in 
the State on the basis that he would face a real risk of suffering serious harm if he was 
returned to Georgia, his home state. A preliminary Section 15 interview was scheduled 
with the International Protection Office (“IPO”) for 16th September, 2019. The 
respondent did not receive written notification of this date and was never contacted 
personally in respect of his appointment by the IPO, the International Protection 
Accommodation Service, or the hotel accommodation at which he was residing. The 
respondent contacted his social worker, who arranged an interview for 12th December, 
2019. He received an international protection questionnaire (“IPO 2 questionnaire”) in 
Georgian to complete which was to be returned by 6th January, 2020.
6. Four extensions of time were ultimately granted by the IPO until 24th August, 2020 to 
facilitate the submission of the respondent’s IPO 2 questionnaire. An extension was first 
granted on 7th January, 2020 until 5th February, 2020, in circumstances where the 
applicant did not have a solicitor to provide legal advice. On 28th January, 2020, the 
respondent was referred to a solicitor by the Legal Aid Board and further extensions 
3
were sought for the purposes of taking instructions, which were granted on 5th February, 
2020 and 20th February, 2020. In circumstances where the respondent did not speak 
English, the services of a Georgian translator were required to complete the IPO 2 
questionnaire. The third request for an extension of time was initially refused by the 
IPO on 4th March, 2020, but subsequently granted on 16th March, 2020 until 1st May, 
2020 due to the advent of the Covid-19 pandemic and the related difficulties of 
arranging in-person translation services. This extension was provided to all applicants 
for international protection. A fourth, and final, extension of time was sought by the 
respondent’s solicitor on 17th July, 2020 and this was granted by the IPO until 24th 
August, 2020. The respondent attended an in-person appointment with his solicitor in 
the presence of a translator on 5th August, 2020, and the questionnaire was submitted to 
the IPO on 25th August, 2020.
7. Separately, the respondent sought to apply for a labour market access permission 
pursuant to Regulation 11(3) of the 2018 Regulations. On 20th June, 2020, the 
respondent’s solicitor submitted an application to the Labour Market Access Unit 
(“LMAU”) for a workforce permit, as over eight months had expired since his 
international protection application was first made. This was refused by a letter dated 
28th August, 2020 for the following reason: "The delay in issuance of a first instance 
decision is attributable to you”. It was further noted that the respondent had not 
returned his IPO 2 questionnaire despite same being issued on 12th December, 2019. 
Accordingly, the LMAU concluded that the respondent did not meet the conditions for 
the granting of a labour market access permission under Regulation 11(4).
8. On 11th September, 2020, the respondent’s solicitor requested a review of the first 
instance decision pursuant to Regulation 20(1 )(e) of the 2018 Regulations as a matter 
of urgency. In a decision dated 2nd December, 2020, the Review Officer affirmed the 
4
decision of the LMAU, taking the view that the delay in the issuance of the respondent’s 
first instance decision could be attributed to his actions by reason of failing to attend 
his Section 15 interview and return the IPO 2 questionnaire within a reasonable 
timeframe.
9. The respondent’s solicitor submitted an appeal to the International Protection Appeals 
Tribunal ("IPAT") pursuant to Regulation 21 of the 2018 Regulations, which was 
refused in a decision dated 3rd March, 2021. Therein, the Designated Member of IPAT 
noted that she was obliged to apply the wording of Article 15(1) of the 2013 Directive 
over the Irish transposing Regulations, in line with the Court of Justice of the European 
Union (“CJEU”) judgment in Minister for Justice & Equality & Others v. Workplace 
Relations Commission & Ors (Case C-378/17). In examining the issue of delay, the 
Designated Member relied on the recent judgment of the CJEU in KS and MHK v. 
International Protection Appeals Tribunal & Ors and RAT and DS v. Minister for 
Justice and Equality (Joined Cases C-322/19 and C-385/19) fKS"\ in which it was 
held that delay in the processing of an application for international protection within 
the meaning of Article 15(1) may be attributed to the applicant where he or she has 
failed to cooperate with the competent national authorities.
10. The respondent was ultimately issued a certificate of permission by the LMAU by letter 
dated 8th June, 2022, and since 6th February, 2023, has taken up a full-time job as a 
construction labourer.
11. The respondent sought leave to apply for judicial review to quash the decision of the 
IPAT refusing the respondent labour market access, in addition to seeking a declaration 
against the second to fourth named appellants and, in particular, Ireland, that these 
appellants failed to adopt the measures necessary to transpose and/or implement Article 
15(1) of the 2013 Directive and damages for same.
5
12. In a judgment of the High Court (Heslin J.) of 9th June 2022 ([2022] IEHC 441), the 
respondent was successful. It was held that the finding by IPAT that the delay in issuing 
a first instance decision could be attributed to the respondent and/or that he failed to 
cooperate in the processing of his application was unreasonable and irrational. It was 
also found by the trial judge that there was a "material difference" between the wording 
of Article 15(1) and that employed in Regulation 1 l(4)(b) of the 2018 Regulations, 
which amounted to a failure to properly transpose the former into domestic law. The 
matter was then appealed to this Court.
The Appeal to this Court
13. The parties identified three issues to be determined by this Court:
(i) Whether the concept of delay for the purposes of Article 15(1) of Directive 
2013/33 encompasses only a delay that may be attributed wholly and 
exclusively to the applicant for international protection, or does it encompass 
any not insignificant delay that may be attributed to the applicant or that may 
be considered to constitute “non-cooperation” by the applicant?
(ii) Whether a national measure transposing the Directive that provides that a delay 
that is attributable in part to the applicant for international protection may be 
attributed to them entirely and preclude access to the labour market constitutes 
such a sufficiently serious breach of EU law such as to give rise to Francovich 
damages?
(hi) Whether this Court should, or is obliged, having regard particularly to the extant 
judgment of the CJEU interpreting Article 15(1) of Directive 2013/33/EU in 
Joined cases C-322/19 and C-385/19 KS & MHK v IPAT, to refer to the CJEU, 
pursuant to the third paragraph of Article 267 TFEU, a question(s) regarding the 
appropriate interpretation of Directive 2013/33/EU and especially the concept 
6
of “delay” under Article 15(1) thereof as regards decisions refusing access to 
the labour market.
14. For reasons which will become apparent, this Court has not considered the second of 
the issues identified by the parties.
The Arguments of the Parties
15. As a preliminary issue, the appellants contended that the High Court judge erred in 
finding that in substance, the Designated Member of IPAT applied the test featured in 
Regulation 1 l(4)(b) in her determination of the respondent’s culpability for delay, as 
opposed to that set out in Article 15(1) of the 2013 Directive. Further, it was submitted 
that the Designated Member applied the CJEU’s interpretation of ‘delay’ in KS to 
include that which results from a lack of cooperation by the applicant with the 
competent national authorities, and accordingly, based her findings on matters which 
were within the control of the respondent and his solicitor, notwithstanding the Covid- 
19 restrictions and delays arising therefrom. The appellants therefore submitted that the 
issue as to whether the Directive had been correctly transposed into Irish law did not 
arise and the respondent’s claim ought to have been dismissed by the High Court in 
limine.
16. The respondent agreed with the High Court’s finding that the wording of the Directive, 
rather than the implementing provisions in the 2018 Regulations, was applied in 
substance by the Designated Member. It was submitted that the High Court judge 
conducted a detailed and comprehensive analysis of the events preceding the 
submission of the respondent’s IPO questionnaire and correctly identified the periods 
of delay that could not be attributed to him, including the delay on the part of the State 
in processing his claim, the time reasonably required to instruct a solicitor with the 
7
assistance of a translator, and the serious disruption engendered by the Covid-19 
pandemic.
Failure to Correctly Transpose Directive 2013/33/EU
17. The appellants submitted that the High Court judge erred in finding that the State had 
failed to correctly transpose and/or implement Article 15(1) of the 2013 Directive by 
way of Regulation 1 l(4)(b). First, the appellants contended that the trial judge erred in 
law by failing to apply the requisite EU rules on statutory interpretation, which bound 
him to consider the aims, purposes, context and origin of Article 15(1). The appellants 
argued that the trial judge ought to have placed reliance on recitals 11,23 and 31 of the 
2013 Directive, which provide that the objective thereof is to establish standards for the 
reception of applicants and their access to the labour market; an aim which the 
appellants contend falls short of obliging member states to grant an automatic right of 
access. Further, it was submitted that Article 15(2) of the 2013 Directive provides that 
member states shall assure ^effective" access to the labour market only, and it is for the 
respondent to demonstrate why the system in place in Ireland is "impossible in practice 
or excessively difficuir to enforce (Opinion of Advocate General Richard de la Tour in 
KS, para. 74).
18. Second, the appellants submitted that it was within the margin of discretion afforded to 
the State to transpose Article 15(1) by inserting the words ^attributed in pari" into 
Regulation 11 (4)(b). The appellants contended that requiring an applicant to seek legal 
advice promptly and file their international protection application "as soon as 
reasonably practicable1' (see s. 27(1) of the International Protection Act 2015) are 
appropriate "conditions for granting access to the labour market'’, under Article 15(2) 
of the 2013 Directive. Further, the appellants contended that the trial judge’s finding 
that the wording contained in Regulation 1 l(4)(b) exceeded the State’s discretionary 
8
limits is inconsistent with the finding in KS that an applicant’s cooperation is the 
touchstone for determining whether delay can be attributed to him or her. The CJEU 
therefore does not exclude other considerations aside from the conduct of an applicant 
as contributing the overall ‘delay’ in the process. Third, the appellants submitted that 
before the trial judge addressed the issue of potential State liability for incorrect 
transposition under EU law, he ought to have determined (i) whether it was possible to 
interpret Regulation 11(4) in conformity with Article 15(1) of the Directive 
(‘sympathetic interpretation’), and if not, (ii) whether Article 15(1) has direct effect in 
the State, citing, inter alia the judgments of the CJEU in Farrell v. Whitty (Case C- 
356/05) and Poplawski II (Case C-573/17).
19. The respondent argued that the High Court was correct in finding that the State had 
failed to correctly transpose the 2013 Directive, notwithstanding the degree of 
discretion conferred by Article 15(2) on each member state. The respondent rejected 
the appellants’ contention that Regulation 1 l(4)(b) constitutes a faithful transposition 
of Article 15(1) and submitted that the trial judge had adequate regard to the purpose of 
Article 15(1), which is to ensure that international protection applicants “have effective 
access to the labour market (Article 15(2)); a reception condition which was 
recognised by the CJEU as a “right” conferred by the 2013 Directive in KS and is 
expressed as a “facet of human dignity” in Article 20(5) and recitals 11, 25, 35 and 
Article 1 of the EU Charter of Fundamental Rights (“the Charter”).
20. Further, the respondent submitted that the trial judge was correct in finding that the 
insertion of the words, “attributed in part” fell outside the margin of discretion afforded 
to the State, noting as he did at para. 165 of his judgment that the additional phrase had 
the effect of denying an applicant labour market access if any insignificant delay could 
be attributed to him. The respondent accordingly disputed the appellants’ interpretation 
9
of Article 15(1) which entitles a member state to deny access to the labour market if 
delay attributable to an applicant amounts to significant delay, notwithstanding other 
extraneous factors. It was submitted that this approach cannot justify the actual words 
employed in the transposing Regulations.
The Decision to Refer
21. This appeal raises an important issue as to what is comprised in the meaning of “delay” 
as that word is used in Article 15(1) of the 2013 Directive. This Court is of the view 
that the concept of delay is a matter which requires further elucidation, in circumstances 
where that concept has never been fully considered by the CJEU.
22. In order to understand the issues that arise, it would be helpful to set out some details 
of the timeline involved in this case.
23. The first period of delay involves the period between the respondent’s initial application 
on 2nd September, 2019 for international protection up to 12th December, 2019, when 
he attended at the IPO and was furnished with a copy of the IPO 2 questionnaire which 
he was obliged to complete for the purpose of enabling his application to be considered. 
This Court agreed with the trial judge that the delay during this period is not something 
that can be attributed, in any shape or form, to the respondent, given that he was not 
personally notified of a date for an earlier appointment, and the interview which 
occurred on 12th December, 2019 was arranged at his behest. That delay can only be 
attributed to the appellants. The questionnaire was to be returned by 6th January, 2020. 
In circumstances where he was first referred to a solicitor on 28th January, 2020 by the 
Legal Aid Board, it would appear that there can be no question of delay being attributed 
to the respondent in respect of a reasonable period of time after 28th January, 2020 for 
the purpose of completing the form. Indeed, extensions of time were granted to facilitate 
this. Nevertheless, by 4th March, despite the fact that extensions had been given to the 
10
respondent on 5th February and 20th February, 2020, the questionnaire was still not 
completed. It was only by reason of the onset of Covid-19, and the restrictions 
associated with that, that a further extension was granted to all applicants for 
international protection on 16th March, 2020 which was to avail the respondent until 1st 
May, 2020. The questionnaire was not returned by then and it is noteworthy that it was 
not until 17th July, 2020 that a further extension was sought. The fact that the IPO had 
been prepared to grant a number of extensions of time in which to furnish the 
questionnaire is irrelevant. The application could not be processed when the respondent 
had failed to comply with his obligations to provide the necessary information. The IPO 
was entitled to give further extensions as, without the completed questionnaire, the 
application for international protection could not be considered.
24. This Court is of the view that there were a number of instances over the nine months 
from when the respondent first applied for international protection where there was 
significant delay on his part in providing the questionnaire required by the IPO for the 
purposes of processing his application. Even allowing for the entirely unforeseeable 
circumstances of the Co vid-19 pandemic, the delay on the part of the respondent in this 
case is difficult to understand and, in truth, there is no satisfactory explanation for it. 
But for the Covid-19 pandemic, the IPO would not have been willing to give a further 
extension of time to the respondent to complete the questionnaire. It should also be 
noted that the respondent made his application for labour market access on or about 
20th June, 2020. That was at a time when the necessary information had not been 
provided by him to the IPO for the processing of his application for international 
protection. Had the questionnaire been returned to the IPO in a timely manner, there is 
nothing to suggest that the respondent’s application could not have been processed 
within the nine-month period commencing on 2nd September, 2019.
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25. This Court is mindful of the decision of the CJEU in KS. The CJEU noted at para. 74 
as follows:
"74. By the second question referred in Case C-385/19, the International 
Protection Appeals Tribunal asks, in essence, what acts may constitute a delay 
attributable to the applicant for international protection within the meaning of 
Article 15(1) of Directive 2013/33.
75. It should be noted at the outset, as the Advocate General noted in point 
99 et seq. of his Opinion, that Directive 2013/33 gives no guidance in that 
regard."
26. Thus, it is clear that the Directive itself gives no guidance as to what acts constitute a 
delay attributable to an applicant for international protection.
27. The CJEU went on to say, at para. 76 to 80, as follows:
“ 76. Accordingly, it is necessary to refer to the rules of common procedures 
for granting international protection established by Directive 2013/32, which, 
as stated in paragraph 60 above, must be taken into account in interpreting the 
provisions of Directive 2013/33.
77. It thus follows from Article 31(3) of Directive 2013/32 that a delay in the 
examination of his or her application for international protection is attributable 
to the applicant where that applicant fails to comply with his or her obligations 
under Article 13 of that directive. That provision provides that applicants have 
an obligation to cooperate with the competent authorities with a view to 
establishing their identity and other elements referred to in Article 4(2) of 
Directive 2011/95, namely their age, background, including that of relevant 
relatives, nationality (or nationalities), country (or countries) and place(s) of 
previous residence, previous asylum applications, travel routes, travel 
12
documents and the reasons for applying for international protection. The 
applicant’s obligation to cooperate means that he or she must supply, as far as 
possible, the required supporting documents and, where appropriate, the 
explanations and information requested (judgment of 14 September 2017, K., 
C-18/16, EU:C:2017:680, paragraph 38).
78. Article 13 of Directive 2013/32 also allows Member States to impose 
upon applicants other obligations necessary for the processing of their 
application, inter alia, to require them to report to the competent authorities or 
to appear before them at a specified time and place and to inform the authorities 
of their current place of residence, and even provide that applicants may be 
searched or photographed or have their statements recorded.
79. It follows, in essence, from the foregoing considerations that a delay in 
the processing of an application for international protection may be attributed 
to the applicant where he or she has failed to cooperate with the competent 
national authorities. Bearing in mind the need for uniform interpretation and 
application of EU law, as recalled in paragraph 57 et seq. above, this 
interpretation is called for even where, as a result of a specific derogating act, 
in the present case Protocol No 21, Directive 2013/32 does not apply in the 
Member State concerned.
80. In the light of the foregoing considerations, the answer to the second 
question referred in Case C-385/19 is that Article 15(1) of Directive 2013/33 
must be interpreted as meaning that a delay in the adoption of a decision at first 
instance concerning an application for international protection which results 
from a lack of cooperation by the applicant for international protection with the 
competent authorities may be attributed to that applicant."
13
28. The passage cited above makes it clear that an applicant for international protection has 
an obligation to cooperate with the competent authorities of a member state in the 
processing of their application. This includes providing relevant information as to their 
nationality, background, and so on. However, the CJEU observed that the Directive 
does not give any guidance as to what acts may constitute a delay attributable to an 
applicant. In this case, there has been a delay in processing the application for 
international protection. No application for international protection can be processed 
without the provision of information which the questionnaire referred to previously is 
designed to elicit. In this case, the questionnaire was not furnished until 25th August, 
2020, almost 12 months after the respondent arrived in the country. The State cannot be 
faulted for the fact that the application for international protection had not been 
determined prior to that date. It should be recalled that when the respondent made his 
application for labour market access on or about 20th June, 2020, the necessary 
information had not been provided by him to the IPO for the processing of his 
application. On one view of the facts and circumstances in this case, it might be said 
that the delay in processing the application for international protection was entirely that 
of the respondent, in circumstances where the IPO simply could not process his 
application without him cooperating with the IPO, with a view to establishing the 
various matters referred to in Article 4(2) of Directive 2011/95/EU of the European 
Parliament and of the Council of 13th December, 2011.
29. However, some of the delay over the relevant period involved that which could not be 
attributed to the respondent, in particular, the period of time between September and 
December of 2019. It is also an essential part of any system for processing such claims 
that those seeking international protection be provided with assistance, including legal 
assistance and translation services where necessary, in order to assist them in complying 
14
with their obligations. In the course of these proceedings, evidence was given on behalf 
of the State as to the length of time it normally takes for the IPO 2 questionnaire to be 
submitted, being on average a period of approximately seven weeks. In this case, the 
application simply could not be processed because of the delay in furnishing the 
questionnaire. This Court is conscious of the fact that the onset of the Covid-19 
pandemic disrupted the processing of such applications. However, some of the delay 
that has taken place in this case is simply inexplicable and can only be attributable to 
the respondent.
30. This begs the question: how are the various elements of delay in processing this 
application for international protection to be attributed? As was noted by the CJEU, the 
2013 Directive itself gives no guidance as to what acts may constitute a delay 
attributable to an applicant for international protection. In considering what is meant by 
delay in Article 15(1), is it appropriate to consider the overall period of time and to 
assess the extent of the delay that can be attributed to the respondent himself, as opposed 
to any delay on the part of the State? Is it possible to say that, in circumstances where 
there is significant unexplained delay on the part of an applicant for international 
protection, that constitutes delay that can be "attributed to the applicant, even though 
there has also been some delay on the part of the State itself? In other words, can part 
of the overall delay be "attributed to the applicant" for the purposes of the Directive, 
or must delay in processing the application be exclusively that of the applicant?
31. A further issue arises in relation to the transposition of the 2013 Directive by means of 
the 2018 Regulations. The Directive enables a person to have access to the labour 
market when a decision on their application has not been made within the period of nine 
months, and the delay in taking the decision "cannot be attributed” to the applicant, as 
opposed to the wording used in the 2018 Regulations: "cannot be attributed, or 
15
attributed in part, to the applicant” for international protection. This Court is of the 
view that part of the delay in this case cannot be attributed to the applicant, namely, the 
period between September, 2019, when he first made his application for international 
protection, and the date in December, 2019, when he attended at the IPO and was 
furnished with the questionnaire. However, this Court is also of the view that there was 
significant delay on the part of the respondent in completing the questionnaire and 
therefore, there was delay attributable to him. It is therefore necessary to consider: what 
is the effect of the phrase " attributed in part” in the 2018 Regulations? Does the 
inclusion of that phrase in the 2018 Regulations mean that the State has failed to 
properly transpose the 2013 Directive, given the margin of appreciation that the State 
enjoys in how it chooses to implement the Directive?
32. To what extent are EU rules on statutory interpretation relevant in considering the 
wording of Article 15(1) of the Directive and also its aim, purpose, context and origin 
(see HK v. Service federal des Pensions (Case C-45/22); Imperial Tobacco Bulgaria, 
(Case C-55/21), and NovaText GmbH v. Ruprecht-Karls-Universitat Heidelberg (Case 
C-531/20)? The appellants placed reliance on a number of recitals in the Directive to 
support their arguments. In the first instance, reference was made to Recital 11, which 
provides as follows:
"Standards for the reception of applicants that will suffice to ensure them a 
dignified standard of living and comparable living conditions in all Member 
States should be laid down. ”
33. Reference was also made to Recital 23, which states:
"In order to promote the self-sufficiency of applicants and to limit wide 
discrepancies between Member States, it is essential to provide clear rules on 
the applicants’ access to the labour market I’
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34. The comments of Advocate General Richard de la Tour in KS, at para. 74, are also of 
relevance, where he observed as follows:
“74. First, while Member States are entitled to introduce conditions other 
than those expressly mentioned in Article 15(1) of that directive, they must 
nevertheless ensure effective access to the labour market. In other words, in the 
absence ofEU rules, the conditions determined by the Member States for access 
to that market must not render impossible in practice or excessively difficult the 
exercise of rights conferred by the EU legal order. In that context, a national 
rule which seeks to deprive the applicant of that status on the ground that he or 
she is subject to a transfer procedure seems contrary to the principle laid down 
by the EU legislature in so far as it prevents the applicant from enjoying the 
rights associated with that status.
75. Secondly, while Member States may, for reasons relating to their 
employment policy give priority to certain categories of persons, those persons 
must be EU citizens, nationals of the European Economic Area or legally 
resident third-country nationals. It follows from Article 15(2) of Directive 
2013/33 that reasons relating to national employment policy do not justify 
drawing a distinction between applicants based on whether their application is 
to be examined by the host Member State or by the Member State which the 
competent national authorities have designated as responsible on the basis of 
the criteria laid down by Regulation No 604/2013."
35. The preliminary view of this Court is that the use of the words “attributed in part” do 
not give rise to a conclusion that Ireland has not properly transposed the 2013 Directive 
given that, as was said by Advocate General Richard de la Tour, this Court is of the 
17
view that ^the conditions ... for access to that market must not render impossible in 
practice or excessively difficult the exercise of rights conferred by the EU legal order
36. The view that the inclusion of the words "attributed in part ’ in the 2018 Regulations 
is not an improper transposition of the 2013 Directive is, however, predicated on the 
view that the word ^''delay’, as used in the Directive should be understood as involving 
the assessment of the acts of delay on the part of an applicant, and a consideration of 
whether those acts are of such substance as to constitute delay which can be attributed 
to the applicant. Where the CJEU has not furnished guidelines as to what constitutes 
‘"'"delay'\ is the correct approach to considering delay within the meaning of Article 
15(1) to have regard to the acts of the applicant on the one hand and the State authorities 
on the other as to the various elements making up the delay, in coming to a decision on 
the application for international protection? Can acts of delay on the part of the State 
outweigh acts of delay on the part of an applicant? If so, how is that to be assessed? 
Further, have the 2018 Regulations properly transposed the Directive into Irish law in 
circumstances where it does not appear that the inclusion of the words "attributed in 
part” render impossible in practice or excessively difficult the exercise of rights 
conferred by the EU legal order?
37. In the circumstances, the opinion of the CJEU is sought pursuant to Article 267(3) 
TFEU in respect of the following questions as to the interpretation of the 2013 Directive 
and as to whether or not it has been properly transposed by means of the 2018 
Regulations:
1. In K.S., the CJEU noted that Directive 2013/33/EU gives no guidance in relation to 
what acts may constitute a delay attributable to the applicant for international 
protection within the meaning of Article 15(1) of the Directive. In considering what 
acts may constitute a delay attributable to an applicant, is it appropriate to have 
18
regard to the fact that an applicant such as the respondent in this case provided no 
information at all (by way of response to the questionnaire) for more than the nine­
month period provided for under Article 15 of the Directive?
2. Does the concept of delay for the purposes of Article 15(1) of Directive 2013/33/EU 
encompass only a delay that may be attributed wholly and exclusively to the 
applicant for international protection, or does it encompass any not insignificant 
delay that may be attributed to the applicant or that may be considered to constitute 
“non-cooperation” by the applicant?
3. In circumstances where there is significant unexplained delay on the part of an 
applicant for international protection, and there has also been delay on the part of 
the State itself, together with delay due to external factors such as those arising from 
Covid-19, can part of the overall delay be "attributed to the applicant" for the 
purposes of Directive 2013/33/EU, or must any delay in processing the application 
be exclusively that of the applicant?
4. Does the inclusion of the phrase, " attributed in part” in Regulation 1 l(4)(b) of the 
European Communities (Reception Conditions) Regulations 2018, S.I. No. 
230/2018 mean that Ireland has failed to properly transpose Directive 2013/33/EU, 
given the margin of appreciation that member states enjoy in how they choose to 
implement the Directive and in circumstances where it does not appear that the 
inclusion of this phrase renders impossible in practice or excessively difficult the 
exercise of rights conferred by the EU legal order?
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