Opinion of the Advocate General — ECLI:EU:C:2022:432
Date: 2022-06-02
Language of the case: Estonian
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Estonia

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:  
14 April 2021 
Referring court: 
Riigikohus (Estonia) 
Date of the decision to refer: 
30 March 2021 
Appellant: 
I.L. 
Respondent: 
Politsei- ja Piirivalveamet 
  
Subject matter of the main proceedings 
Appeal brought by I.L., by which he requests that the order of the Tallinna 
Ringkonnakohus (Court of Appeal, Tallinn, Estonia) of 2 December 2020 be 
annulled and that a new order be made declaring that both the application of the 
Politsei- ja Piirivalveamet (Police and Border Guard Board; ‘the PPA’) to have 
him placed in a detention facility and his placement in a detention facility were 
unlawful. 
Subject matter and legal basis of the request for a preliminary ruling 
This request for a preliminary ruling seeks an interpretation of the first sentence of 
Article 15(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 (OJ 2008 L 348, 
p. 98). 
EN 
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Question referred for a preliminary ruling 
Is the first sentence of Article 15(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 
to be interpreted as meaning that Member States may keep in detention a third-
country national in respect of whom there is a real risk that, while at liberty and 
prior to removal, he or she will commit a criminal offence, the investigation and 
punishment of which may substantially impede the execution of the removal 
process? 
Provisions of EU law cited 
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, recitals 2 and 16, point 7 of 
Article 3, and Article 15 
Provisions of national law applied 
Väljasõidukohustuse ja sissesõidukeelu seadus (Law on forced departure and the 
prohibition on entry; ‘the VSS’), Paragraph 68 and Paragraph 15 
Succinct presentation of the facts and procedure in the main proceedings 
1 I.L., a national of the Republic of Moldova, who was staying in the Republic of 
Estonia on the basis of a visa exemption, was apprehended on 12 October 2020 on 
suspicion of inflicting physical pain on his cohabiting partner and another injured 
party, both female, and causing harm to their health. By judgment of 13 October 
2020, the Harju Maakohus (Court of First Instance, Harju, Estonia) sentenced I.L. 
for physical abuse in accordance with points 2 and 3 of Paragraph 121(2) of the 
Karistusseadustik (Criminal Code; ‘the KarS’) in simplified urgent proceedings. 
According to the indictment underlying the judgment, the public prosecutor’s 
office also accused the person concerned of having threatened the victim by 
telling her that if he were removed from Estonia he would return to the country 
and kill her. However, he was acquitted of that charge under Paragraph 120(1) of 
the KarS (Threatening behaviour). The final sentence imposed by the judgment of 
the Court of First Instance was imprisonment for one year, one month and 28 days 
with a probationary period of two years, with the result that the court released the 
person concerned from custody in the courthouse. 
2 By notification of 13 October 2020, the PPA prematurely terminated the visa-
exempt stay of the person concerned pursuant to the Välismaalaste seadus (Law 
on aliens; ‘the VMS’). The notification stated that the last day of his authorised 
stay was 13 October 2020 and that a foreign national was obliged to leave the 
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territory of the Member States of the Schengen area immediately if his or her stay 
is prematurely terminated. The obligation to leave the territory could be enforced 
immediately in accordance with the provisions of the VSS. The PPA re-arrested 
the person concerned on the same day on the premises of the Court of First 
Instance, Harju in accordance with point 1 of Paragraph 15(2) of the VSS. It was 
noted in the record of the arrest that his attitude towards the offence committed 
and his behaviour after the sentencing had been taken into account in the arrest. 
On the basis of that attitude and behaviour, there were grounds to believe that the 
person concerned may abscond prior to his removal, despite his undertaking to 
depart voluntarily and his request for voluntary departure to be ordered. 
Accordingly, on the same day, the PPA issued an order obliging the person 
concerned to leave Estonia pursuant to the VSS, as he was staying there without a 
legal basis. According to the order, I.L. was required to leave the territory 
immediately, but no later than by 13 October 2020. The order was enforceable 
from the same day and, after the expiry of the said period, the foreign national was 
to be removed from the Republic of Estonia to Moldova in accordance with the 
VSS if he had not complied with the obligation to leave the territory. At the same 
time, the PPA also imposed an entry ban on the person concerned for three years 
from the date on which the obligation to leave the territory was fulfilled. 
3 On 14 October 2020, the PPA applied to the Tallinna Halduskohus (Tallinn 
Administrative Court, Estonia) for authorisation to detain the person concerned 
pursuant to points 1 to 3 of Paragraph 15(2) of the VSS and to place him in a 
detention facility for two months. It gave, inter alia, the following reasons in 
support of its application. The person concerned could abscond prior to his 
removal. He had used violence in a close relationship and there was a strong 
public interest in preventing such offences. The main objective of the order to 
leave the territory to be enforced was to prevent future criminal offences. 
Although the person concerned had stated that he wanted to solve the problems 
with his cohabiting partner before leaving the territory, the PPA was not 
convinced that his violent behaviour would not be repeated in a stressful situation. 
The PPA was permitted to take into account the fact that the person concerned had 
threatened to become violent against his partner in the event of his removal. His 
previous criminal offence illustrated the danger that he posed, which is why he 
must be placed in a detention facility until his removal. Since he had not built up 
trust through his previous behaviour, it was not possible for less restrictive 
supervision measures to be applied. 
4 At the hearing before the Administrative Court, Tallinn, the PPA specified that 
I.L. had fulfilled his duty to cooperate and was in possession of the documents 
required to return to the Republic of Moldova. Therefore, the PPA applied to have 
him placed in a detention facility on the sole basis of point 1 of Paragraph 15(2) of 
the VSS. By order of 15 October 2020, the Administrative Court granted 
authorisation for I.L. to be placed in a detention facility until his removal, but not 
beyond 15 December 2020. 
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5 The Administrative Court, Tallinn agreed that there was a risk that the person 
concerned would avoid the removal process and not leave Estonia voluntarily 
(points 1 and 4 of Paragraph 68 of the VSS). Even though he had stated at the 
court hearing that, upon his release, he would only go to his flat to collect his 
belongings, and would avoid meeting his former partner and then leave Estonia 
voluntarily, the Administrative Court found that, taking into account his previous 
behaviour, there were grounds to believe that it was likely that his departure from 
Estonia would not take place in the manner described. It could not be guaranteed 
that he would not come into contact with his former cohabiting partner when 
collecting his belongings. If he were to come into contact with her, there was a 
high probability that the situation would escalate and he might re-offend. If he 
were to do so, voluntary departure would obviously be ruled out. This is because, 
if criminal proceedings were instituted, the person concerned had the right to be 
present at his trial, and, moreover, remand in custody pending trial could also be 
ordered in criminal proceedings. There was therefore reason to doubt the 
credibility of the intentions that he described at the hearing. The State had an 
interest in preventing potential new offences. There was currently a high risk that 
the person concerned would re-offend. 
6 Furthermore, the Administrative Court, Tallinn took into account that the person 
concerned had to be tested for COVID-19 in order to return to the Republic of 
Moldova, causing an additional time delay, which was why it had not been 
possible to carry out the removal within the 48 hours provided for in the VSS. The 
court took the view that less restrictive supervision measures might not have 
ensured the completion of the removal process, and, moreover, there was also a 
lack of trust in the person concerned, such as was required for the application of 
other supervision measures. Finally, the court found that his placement in a 
detention facility was not contrary to health and safety considerations and that 
such detention was proportionate. 
7 I.L. brought an appeal against the order of the Administrative Court, Tallinn 
before the Court of Appeal, Tallinn, requesting that the order of the 
Administrative Court be set aside and his release be ordered. The Court of Appeal, 
Tallinn dismissed that appeal by order of 2 December 2020 and upheld the order 
of the Administrative Court. In its reasoning, it referred to the fact that the person 
concerned presented a risk of absconding within the meaning of point 1 of 
Paragraph 68 of the VSS, that is to say, that the foreign national had still not left 
the territory of Estonia after the expiry of the time limit for voluntary departure set 
in the return decision. Since the person concerned had attached conditions to his 
departure, it was likely that he would not leave the territory if those conditions 
were not fulfilled. He could look for new ways to stay in the country and refuse to 
leave. The shorter the period of time given to him to leave the territory, the higher 
the likelihood of that. In view of the nature and seriousness of the offence 
committed by the person concerned, it could also not be considered likely that he 
would succeed in fulfilling the conditions that he had set and would then leave 
Estonia voluntarily within the time limit set for him. The Court of Appeal, Tallinn 
also stated that the grounds for detention provided for in points 1 to 3 of 
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Paragraph 15(2) of the VSS did not confer entitlement to detain a person to 
prevent a possible new offence. According to the provisions of the VSS, the 
purpose of detaining a person was to ensure that the person left the territory of 
Estonia. The Court of Appeal also stated that point 4 of Paragraph 68 of the VSS 
was applicable only if the judicial decision handing down the conviction had 
become final. However, on the date on which the Administrative Court, Tallinn 
authorised the placement of I.L. in a detention facility, that judicial decision had 
not yet become final. It became final soon afterwards, on 21 October 2020. Lastly, 
the Court of Appeal, Tallinn found that the application of less restrictive 
supervision measures was not warranted. 
8 I.L. was removed from the Republic of Estonia to Moldova on 23 November 
2020. 
Essential arguments of the parties in the main proceedings 
9 I.L. had already lodged an appeal against the order of the Court of Appeal, Tallinn 
prior to his removal, requesting that that order be set aside and that a new order be 
made declaring that the application of the PPA and his placement in a detention 
facility were unlawful. He submits that he had learned from his actions and would 
not commit any more offences in the future. He had cooperated fully in the 
proceedings. There was therefore no reason to fear that he would commit a new 
offence when collecting his belongings. His wish to pack up his belongings and 
take them with him before leaving the territory was understandable and could not 
be regarded as an unacceptable condition. There was no risk of absconding, and 
less restrictive supervision measures should have been applied. I.L. takes the view 
that, since he had now already been removed from Estonia, it was appropriate to 
move from an application for annulment to an application for a declaratory 
finding. If the Riigikohus (Supreme Court, Estonia; ‘the referring court’) were to 
find that the application of the PPA and the placement in a detention facility were 
unlawful, this would provide him with a basis on which to assert a claim for 
damages against the PPA (he had not been able to work or receive pay, and has 
been unlawfully deprived of his liberty). 
10 The PPA requested that the appeal be dismissed. It explains that it prematurely 
terminated I.L.’s visa-exempt stay following the hearing of the criminal case 
before the Court of First Instance, in which I.L. was convicted, and that I.L. was 
arrested immediately after the hearing before the court of first instance. He was 
told that he had to leave the territory of Estonia and was asked whether he agreed 
to do so voluntarily. The person concerned did agree, but set conditions: he would 
not leave the territory until he had resolved the conflict with the victim. The PPA 
could not allow him to return to the victim. The victim feared for her life because 
of the threats made by I.L. When issuing the return decision, the PPA had 
assessed the evidence and weighed up the factual circumstances, and had also 
taken into account the objections of the person concerned, his attitude towards the 
offence committed and his behaviour after the conviction. The person concerned 
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could abscond prior to his removal and posed a threat to public order. He had used 
violence in a close relationship. The prevention of violence against a partner was a 
priority of the Republic of Estonia, and there was a very strong public interest in 
respect of such incidents. While punishment in criminal proceedings was a 
reaction to an act that had already been committed, it also served the purpose of 
separating a potentially dangerous person from law-abiding society, such that the 
primary objective of the return decision to be enforced was the State’s desire to 
prevent possible new offences. The PPA had not applied the ground provided for 
in point 1 of Paragraph 68 of the VSS when assessing the risk of absconding in 
relation to the person concerned. An enforceable return decision had been issued 
in respect of the person concerned on the basis of points 1 and 4 of 
Paragraph 72(2) of the VSS. The PPA had deemed it necessary to place him in a 
detention facility in order to carry out the removal. It had not been possible to 
apply other supervision measures to him, as there was not a sufficient probability 
that they would successfully lead to the desired outcome. The person concerned 
did not have a legal basis on which to reside and work in the Republic of Estonia, 
and, moreover, the financial means available to him were not sufficient to cover 
accommodation costs. He could have avoided the removal process and this would 
have made it much more difficult to remove him from Estonia. Taking into 
account the circumstances of the offence committed by I.L. and considering his 
emotional state, the PPA took the view that he would not leave the territory of 
Estonia voluntarily and that he intended to resolve the conflict that had arisen in a 
close relationship. The injured party had informed the law enforcement authorities 
that I.L. was calling and writing to her and threatening to find a way to come to 
Estonia to take revenge on her. 
Summary of the grounds for the request for a preliminary ruling 
11 The dispute in the case concerns only the permissibility of the placement of the 
person concerned in a detention facility. The question of whether the premature 
termination of his stay, the return decision issued in respect of him and the entry 
ban were lawful is not the subject matter of this case. 
12 The Administrative Court, Tallinn authorised the placement of the person 
concerned in a detention facility by order of 15 October 2020. He has now been 
released and removed from Estonia. The person concerned takes the view that it is 
appropriate to move from an application for annulment to an application for a 
declaratory finding. Authorisation is granted by order which is subject to appeal 
(Halduskohtumenetluse seadustik [Law on the administrative courts]; ‘the 
HKMS’, Paragraph 265(5)). The fact that circumstances have changed during the 
appeal proceedings (the person concerned has been removed from Estonia, for 
example) does not preclude the court of higher instance from reviewing the 
lawfulness of the order granting the authorisation and, if necessary, annulling it, 
that is to say, revoking it with retroactive effect. At the same time, this removes 
the presumption of the permissibility of the restriction of the fundamental rights of 
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the person concerned. The possibility to set aside the order granting authorisation 
is not precluded by Paragraph 158(2) of the HKMS either in the present case. 
13 In accordance with Paragraph 23(11) of the VSS, the administrative court is to 
grant authorisation to arrest a person who is to be removed and to place him or her 
in a detention facility for up to two months if one of the grounds provided for in 
Paragraph 15(2) of the VSS exists and the principles set out in subparagraph 1 of 
that paragraph are complied with. Paragraph 15(2) of the VSS provides that a 
foreign national may be detained if the application of the supervision measures 
provided for in the VSS does not ensure effective compliance with the obligation 
to leave the territory and, in particular, if 1) there is a risk of absconding, 2) the 
foreign national fails to comply with the obligation to cooperate, or 3) the foreign 
national is not in possession of the documents required for return or there is a 
delay in obtaining them from the receiving country or country of transit. 
Paragraph 15 of the VSS transposes Article 15 of Directive 2008/115/EC into 
Estonian law. 
14 The Administrative Court granted authorisation for the person concerned to be 
placed in a detention facility pursuant to point 1 of Paragraph 15(2) of the VSS, 
that is to say, because of a risk of absconding. In accordance with Article 3(7) of 
the directive, the term ‘risk of absconding’ is to be understood as being based on 
objective criteria defined by law (see also judgment of 15 March 2017, Al Chodor 
and Others, C-528/15, EU:C:2017:213). In Estonian law, these are exhaustively 
provided for in Paragraph 68 of the VSS. The circumstances set out in that 
provision must be present in order to establish a risk of absconding, but other 
circumstances characterising the foreign national and the case must also be taken 
into consideration in order for that risk to be established definitively. 
15 The adjudicating Chamber of the referring court takes the view that there are no 
circumstances in the case which indicate that the person concerned poses a risk of 
absconding. The Administrative Court found that there was a risk of absconding 
for two reasons: 1) the foreign national had not left the territory of Estonia within 
the time limit for voluntary departure set in the return decision (point 1 of 
Paragraph 68 of the VSS); and 2) the foreign national had committed a criminal 
offence for which he had been sentenced to a custodial sentence (point 4 of 
Paragraph 68 of the VSS). 
16 Point 1 of Paragraph 68 of the VSS is not applicable in this case, because its 
application presupposes that the person concerned has been set a time limit for 
voluntary departure by way of a written return decision. However, the PPA 
confirmed to the referring court that the appellant was not set a time limit for 
voluntary departure when the return decision was issued and that an immediately 
enforceable return decision was issued in respect of him in accordance with 
points 1 and 4 of Paragraph 72(2) of the VSS. This is also confirmed by the steps 
taken by the PPA on 13 October 2020 – it was factually impossible for the person 
concerned to depart voluntarily. In the light of the foregoing, he also cannot be 
accused of failing to comply with the time limit for voluntary departure, and it 
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cannot be concluded from that alleged failure that he poses a risk of absconding 
pursuant to point 1 of Paragraph 68 of the VSS. 
17 Point 4 of Paragraph 68 of the VSS is not applicable in the present case either. The 
provision requires that the person concerned has been sentenced to a custodial 
sentence for a criminal offence by final judgment (presumption of innocence 
under Paragraph 22(2) of the Eesti Vabariigi põhiseadus [Basic Law of the 
Republic of Estonia]). The decision convicting the appellant became final after the 
Administrative Court had granted authorisation. 
18 The adjudication Chamber takes the view that there are also no other 
circumstances which indicate that the person concerned posed a risk of 
absconding within the meaning of Paragraph 68 of the VSS; in particular, point 6 
of Paragraph 68 of the VSS, according to which ‘the foreign national has informed 
the Police and Border Guard Board … or the administrative authority concludes 
from his or her attitude and behaviour that he or she does not wish to comply with 
the obligation to leave the territory’, is not applicable. From the representations 
recorded in the minutes of the hearing of the person concerned in the proceedings 
for the issuance of a return decision, in which he stated that he did not want to 
separate from his partner and asked for the opportunity to make amends, it cannot 
be inferred that he intended to abscond prior to removal. A person must be given 
the opportunity to express his or her point of view on the content of the onerous 
administrative act under consideration in the procedure for the adoption of an 
administrative act, without this entailing adverse consequences. It cannot 
automatically be concluded from the statements made at the hearing that the 
person concerned intends not to comply with the administrative act, if there are no 
further circumstances indicating a risk that he will abscond prior to removal. Nor 
is a risk of absconding apparent from the desire expressed by him at the hearing 
before the Administrative Court to recover the belongings that he had left with his 
cohabiting partner and to receive the remuneration to be paid by his employer. A 
person’s desire to recover property belonging to him or her before leaving the 
territory is in principle legitimate, because it would be difficult, if not impossible, 
to retrieve it after having left the territory. The PPA has not presented any 
circumstances which, together with the statements made by the person concerned, 
would lead to the conclusion that there is a risk that he would go into hiding or 
abscond prior to his removal and that there was therefore a risk of absconding 
within the meaning of Paragraph 68 of the VSS. 
19 The adjudicating Chamber takes the view that there also does not appear to be any 
circumstances in the present case that would indicate that the grounds for 
detention provided for in points 2 and 3 of Paragraph 15(2) of the VSS exist. 
20 The lawfulness of the detention of the person concerned therefore depends on the 
question of how Paragraph 15(2) of the VSS is to be interpreted, namely whether 
the grounds provided for in points 1 to 3 constitute an exhaustive list, at least one 
of which must exist, or whether it is a non-exhaustive illustrative list, and a person 
can also be detained on the basis of a general provision. The general provision 
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contemplated by the adjudicating Chamber is that concerning the threat posed to 
effective removal, as referred to in the introductory sentence of Paragraph 15(2) of 
the VSS. The latter interpretation is supported by the wording of the provision, 
namely the words ‘in particular, if’ preceding points 1 to 3. In fact, the final 
assessment of a detention as being lawful also presupposes, in any event, 
compliance with the principles laid down in Paragraph 15(1) of the VSS 
(detention as a last resort, observance of the principle of proportionality). 
21 On the basis of a preliminary assessment by the adjudicating Chamber, the 
circumstances in the present case confirm that the condition for detention laid 
down in the general provision is satisfied, and the detention of the person 
concerned on the basis of the general provision laid down in Paragraph 15(2) of 
the VSS would be permissible when read in conjunction with the principles 
referred to in Paragraph 15(1) of the VSS. In view of the temporal proximity 
between the events and the nature of the offence committed by the person 
concerned, there was sufficient reason to assume that the person concerned might 
make another attempt to resolve the conflict that had arisen with his cohabiting 
partner and, in doing so, commit a new offence. Therefore, there was a real risk 
that the person concerned, while at large, would commit a criminal offence before 
being removed, the investigation and punishment of which (delivery of a 
judgment and possible subsequent execution of the sentence) would affect his 
removal, or more precisely, postpone it indefinitely and thereby make it 
considerably more difficult to remove him from the territory. Effective removal 
was therefore at risk. Taking into account the circumstances characterising the 
appellant’s person (age, state of health), behaviour and circumstances (connection 
to Estonia, lack of a place of permanent residence), it was not possible to ensure 
that successful removal could be carried out as effectively by means of other 
supervision measures (Paragraph 10(2) of the VSS). Having regard to, inter alia, 
the possible duration of the detention, the latter was in accordance with the 
principle of proportionality. 
22 Paragraph 15 of the VSS transposed the provisions of Article 15 of Directive 
2008/115/EC. Article 15(1) provides that, unless other sufficient but less coercive 
measures can be applied effectively in a specific case, Member States may only 
keep in detention a third-country national who is the subject of return procedures 
in order to prepare the return and/or carry out the removal process, in particular 
when: (a) there is a risk of absconding or (b) the third-country national concerned 
avoids or hampers the preparation of return or the removal process. It is also 
provided that any detention is to be for as short a period as possible and only 
maintained as long as removal arrangements are in progress and executed with 
due diligence. 
23 Article 15(1) (read in conjunction with recital 16) of Directive 2008/115/EC does 
not provide a clear answer to the question of whether detention is also permissible 
on the sole basis of the general provision, that is to say, where there is a threat to 
effective removal, or whether one of the grounds listed in that provision must be 
present in every case (point (a) or (b)). The European Commission has taken the 
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view that the listing is not exhaustive (see Commission Recommendation (EU) 
2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be 
used by Member States’ competent authorities when carrying out return-related 
tasks [OJ 2017 L 339, p. 83, point 14.1]). As far as the adjudicating Chamber is 
aware, the Court of Justice of the European Union has yet to provide a clear 
answer to this question (cf., for example, judgments of 6 December 2011, 
Achughbabian, C-329/11, EU:C:2011:807, paragraph 36; 5 June [2014], Mahdi, 
C-146/14 PPU, EU:C:2014:1320, paragraphs 61 and 74; 14 May 2020, Országos 
Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, 
C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paragraphs 269 to 272). 
24 Article 15 is unconditional and sufficiently precise, and therefore produces direct 
legal effect (see, for example, judgments of 28 April 2011, El Dridi, 
C-61/11 PPU, EU:C:2011:268, paragraph 47; of 5 June 2014, Mahdi, 
C-146/14 PPU, EU:C:2014:1320, paragraph 54; and the judgment in Országos 
Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, cited above, 
C-924/19 PPU and C-925/19 PPU, paragraph 288). The adjudicating Chamber 
takes the view that it cannot be ruled out that the facts under consideration could 
in principle correspond, for example, to the ground referred to in Article 15(1)(b). 
However, the wording of points 2 and 3 of Paragraph 15(2) of the VSS, which 
transposes Article 15 of the directive, differs from that of the directive to a certain 
extent; moreover, as stated above, the adjudicating Chamber takes the view that 
neither of those two provisions of Estonian law is applicable in this case. 
Notwithstanding the direct effect of a directive, a person’s rights cannot be 
directly restricted on the basis of a directive. 
25 According to settled case-law of the Court of Justice of the European Union, when 
interpreting a provision of EU law, both the wording and the general scheme and 
the purpose of the rules of which it forms part must be taken into account (for 
example, judgment of 2 July 2020, Stadt Frankfurt am Main, C-18/19, 
EU:C:2020:511, paragraph 33). 
26 The wording of Article 15(1) – ‘eelkõige kui’ (‘in particular when’) (insbesondere 
dann, wenn, en particulier lorsque) – suggests the listing in that provision is non-
exhaustive and serves only as an aid for interpreting the general provision, namely 
the risk posed to effective removal. This is also supported by a comparison with, 
for example, Article 8(3) of 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), in which the word 
‘üksnes’ (‘only’) (nur, ne … que) is used, which expressly indicates that the list of 
grounds for detention is exhaustive (see also, for example, judgment of 
17 December 2020, Commission v Hungary, C-808/18, EU:C:2020:1029, 
paragraph 168). The grounds for detention provided for in Article 28(2) of 
Regulation (EU) No 604/2013 of the European Parliament and of the Council of 
26 June 2013 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 
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stateless person (OJ 2013 L 180, p. 31) are also exhaustive (see also the Al 
Chodor and Others judgment, C-528/15, cited above). On the other hand, the 
Court of Justice of the European Union has repeatedly emphasised that the 
provisions on detention in Directive 2008/115/EC must be interpreted strictly (see, 
for example, the judgment in El Dridi, cited above, C-61/11 PPU, paragraph 42; 
Mahdi, cited above, C-146/14 PPU, paragraph 55; the judgment of 7 June 2016, 
Affum, C-47/15, paragraph 62; the judgment in Stadt Frankfurt am Main, cited 
above, C-18/19, paragraph 42). This could militate against the interpretation that 
the listing is to be understood as being non-exhaustive. 
27 One objective of Directive 2008/115/EC is to ensure the effective removal of 
illegally staying third-country nationals (second recital, Article 1). The Court of 
Justice of the European Union has also repeatedly emphasised that the directive 
obliges Member States to apply the standards and procedures laid down therein in 
order to ensure the effective return or removal of a third-country national staying 
illegally in a Member State (for example, judgment of 24 February 2021, M and 
Others, C-673/19, paragraph 31). On the other hand, the purpose of Directive 
2008/115/EC is to protect the fundamental rights of the person concerned (second 
recital, Article 1). This is particularly significant in the case of detention in 
application of a coercive measure, because the person concerned is thereby 
deprived of his or her right to liberty (Article 6 of the Charter of Fundamental 
Rights of the European Union). In accordance with Article 5(1)(f) of the European 
Convention for the Protection of Human Rights and Fundamental Freedoms, 
liberty may be deprived only in accordance with a procedure prescribed by law in 
the case of a lawful arrest or deprivation of liberty of a person against whom 
action is being taken with a view to deportation or extradition. Therefore, under 
the Convention, the detention of a person for the purpose of removal is 
permissible as such, but the case-law of the European Court of Human Rights has 
established certain qualitative requirements for the legal basis of detention. 
Accordingly, the Court of Justice of the European Union has also emphasised that 
the legal basis for detention must be clear, predictable, accessible and protect 
against arbitrariness (see the judgment in Al Chodor, cited above, C-528/15, 
paragraphs 40 to 44). According to a preliminary assessment by the adjudicating 
Chamber, the threat to effective removal, together with the obligation to apply less 
restrictive measures and to assess proportionality, constitutes a predictable legal 
basis for detaining a person that ensures sufficient protection of fundamental 
rights and protects against arbitrariness. 
28 The Court of Justice of the European Union has stated that the possibility of 
detaining a person on grounds of public order and public safety cannot be based 
on Directive 2008/115/EC (judgment of 30 November 2009, Kadzoev, 
C-357/09 PPU, paragraph 70). It is also emphasised in the abovementioned 
Commission Recommendation of 16 November 2017 that detention cannot be 
used for the purpose of protecting public order. In other words, the sole purpose of 
detaining a foreign national on the basis of Paragraph 15 of the VSS and 
Article 15 of Directive 2008/115/EC can be to ensure effective removal. However, 
according to a preliminary assessment by the adjudicating Chamber, the detention 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 30. 3. 2021 – CASE C-241/21 
 
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of a person to ensure effective removal is not precluded where there is a real risk 
that the person concerned, while at liberty and prior to removal, will commit a 
criminal offence, the investigation and punishment of which may substantially 
impede the execution of the removal process. The Court of Justice of the 
European Union has also held (albeit in the context of its examination of the 
imprisonment of third-country nationals for illegal entry or stay) that 
imprisonment is liable to thwart the application of that procedure and delay return, 
thereby undermining the effectiveness of Directive 2008/115/EC (see the 
judgment in Affum, cited above, C-47/15, paragraph 63, and judgment of 
1 October 2015, Skerdjan Celaj, C-290/14, EU:C:2015:640, paragraph 26 and the 
case-law cited). 
29 Since only the Court of Justice of the European Union is competent to give a 
binding interpretation of EU law, a preliminary ruling on the interpretation of 
Article 15(1) of Directive 2008/115/EC must be obtained in view of the various 
possible interpretations described above.