Judgment;Summary — ECLI:EU:C:2023:903
Date: 2023-11-23
Language of the case: French
Court formation: Second Chamber
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

Translation C-614/22 – 1 
Case C-614/22 
Request for a preliminary ruling 
Date lodged: 
24 September 2022 
Referring court: 
Conseil d’État (Belgium) 
Date of the decision to refer: 
13 September 2022 
Appellant: 
XXX 
Respondent: 
Commissaire général aux réfugiés et aux apatrides 
  
CONSEIL D’ÉTAT (COUNCIL OF STATE), ADMINISTRATIVE 
LITIGATION DIVISION 
ELEVENTH CHAMBER 
JUDGMENT 
No 254.462 of 13 September 2022 
[…] 
In the proceedings: XXX, 
       […] 
       v 
Commisaire général aux réfugiés et aux apatrides 
(Commissioner General for Refugees and Stateless Persons, 
Belgium) 
THE COUNCIL OF STATE, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2022 – CASE C-614/22 
 
2  
I. Subject matter of the appeal 
By an appeal in cassation lodged on 8 July 2020, XXX sought to have set aside 
Judgment No 236.483 of 8 June 2020 of the Conseil du contentieux des étrangers 
(Council for asylum and immigration proceedings, Belgium) […]. 
II. […] 
[…] [procedure] 
III. Facts of the case 
The appellant, a Guinean national, arrived in Belgium with her three children. She 
submitted an application for international protection on 8 August 2018. 
By a decision of 24 June 2019, the Commissioner General for Refugees and 
Stateless Persons granted refugee status to a daughter of the appellant, K. H., born 
on 8 July 2017 in Guinea, but refused to grant international protection to the 
appellant. 
The appellant brought an action against that decision of 24 June 2019 before the 
Council for asylum and immigration proceedings […]. 
On 8 June 2020, the Council for asylum and immigration proceedings dismissed 
that action by the judgment under appeal. 
IV. Grounds of appeal 
First ground of appeal 
The appellant raises a first ground of appeal alleging infringement ‘of 
Articles 39/65 and 48/3 of the loi du 15 décembre 1980 sur l’accès au territoire, le 
séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 
on the admission, residence, establishment and removal of foreign nationals; “the 
Law of 15 December 1980” or “the Law on Foreign Nationals”); Articles 20 and 
23 of Directive [2011/95/EU of the European Parliament and of the Council of 
13 December 2011] on standards for the qualification of third-country nationals or 
stateless persons as beneficiaries of international protection, for a uniform status 
for refugees or for persons eligible for subsidiary protection, and for the content of 
the protection granted [OJ 2011 L 337, p. 9]; Article 288 [TFEU]; […] Articles 7 
and 24 of the Charter of Fundamental Rights of the European Union [“the 
Charter”] […]’. 
[…] 
[…] [irrelevant to the questions referred for a preliminary ruling] 
COMMISSAIRE GÉNÉRAL AUX RÉFUGIÉS ET AUX APATRIDES 
 
3 
Second part 
Submissions of the parties 
The appellant states […] that ‘Article 23 of Directive [2011/95] has not been 
transposed into Belgian law in favour, in particular, of parents of a minor 
recognised as a refugee …’, that ‘Article 10 of the Law of 15 December 1980 
creates […] a right to family reunification in favour of certain family members of 
the beneficiary of international protection, provided that they comply with the 
conditions laid down by law …’, that, ‘on the one hand, the concept of family 
member within the meaning of Article 23 of Directive 2011/95 is broader than the 
family members referred to in Article 10 of the Law of 15 December 1980’, that, 
‘by way of illustration, Article 10(1)(7) of the Law of 15 December 1980 
recognises the right to family reunification of the mother of a foreign national 
recognised as a refugee, provided that that foreign national is an unaccompanied 
foreign minor’, that ‘if the child is accompanied, there is no entitlement to family 
reunification’, that, ‘on the other hand, Articles 10 and 12a of the Law of 
15 December 1980 impose conditions (on admissibility and substance) for family 
reunification, such that the right to family life for a refugee is not automatic’, that 
it ‘follows from the above that Article 10 of the Law of 15 December 1980 does 
not fully transpose Article 23 of Directive 2011/95’, that ‘Article 9a of the Law of 
15 December 1980 does not transpose it either’, that ‘that article relates to 
permission (and not admission) to stay, with its own conditions of admissibility 
and substance, which do not allow the family member to enjoy the 
abovementioned benefits’, that ‘certain rights [listed] in the directive, such as the 
right to a travel document, apply only to the beneficiary of international 
protection …’, that ‘… an incomplete transposition of Article 23 of Directive 
[2011/95] is sufficient to give rise to a right to be granted international protection 
status’, that ‘… the national law must be interpreted in accordance with Article 
[23(2)] of Directive [2011/95] to guarantee its effectiveness […]’, that ‘the Court 
of Justice of the European Union has not yet been called upon to rule on the 
effectiveness of that provision …’, that ‘the national courts are therefore required 
to interpret Belgian law so far as possible in the light of the wording of Article 23 
of Directive [2011/95] and the purpose of the directive concerned in order to 
achieve the result sought by the directive, namely, in particular, full observance of 
the right to asylum of family members of asylum seekers, the principle of family 
unity and consideration of the child’s best interests …’, that ‘the objective pursued 
by Article 23 of Directive [2011/95] is to maintain the refugee’s family unity’, 
that ‘that objective is mentioned in […] recitals [16 and 18] of the directive …’, 
that ‘the Belgian legislature has not adopted a sui generis status, specifically 
transposing Article 23 of Directive 2011/95, so that the family members of the 
beneficiary of international protection can claim the benefits referred to in 
Articles 24 to 35 of Directive 2011/95’, that ‘in that context, the national court 
must therefore interpret the ordinary rules on international protection, namely 
Article 48/3 of the Law, in the light of Article 23 of Directive 2011/95, to ensure 
that that provision is effective’, that ‘the Court of Justice of the European Union, 
in the judgment [of 4 October 2018, Ahmedbekova, C-652/16, EU:C:2018:801] 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2022 – CASE C-614/22 
 
4  
[…], held that EU law allows a Member State to grant derivative refugee status to 
the family members of a refugee …’, that ‘the granting of international protection 
status to family members of a beneficiary of such protection is the only 
mechanism allowing to ensure, as required by Article 23 of Directive 2011/95, 
that family unity is maintained and family members claim the benefits referred to 
in Articles 24 to 35’, that ‘… those benefits are linked to refugee or international 
protection status, and are grouped together under the heading “Content of 
international protection” …’, that ‘the incomplete transposition of a directive is 
sufficient to give rise to a right on the part of the addressee and an obligation on 
the part of the Belgian State, pursuant to Article 288 TFEU and the case-law of 
the Court of Justice’, that ‘the judgment under appeal, which concludes “that no 
legally binding provision requires the Belgian State to grant international 
protection to a person solely on the ground that he or she is a family member of a 
beneficiary of such protection”, […] directly […] undermines the effectiveness of 
Article 23 of Directive 2011/95 and Article 288 [TFEU]’, that in ‘the absence of 
the full transposition of Article 23 of the directive, Article 48/3 of the Law of 
15 December 1980 must be interpreted in accordance with Articles 20 and 23 of 
the directive in order to comply with Article 288 of the Treaty’, that ‘in the 
absence of an amendment to national law so that a refugee’s family members can 
claim the benefits [listed] in Article 23, the judicial authorities are required to take 
all necessary measures to achieve the result prescribed by the directive’, that ‘the 
only way to achieve that result – that is to say, to maintain the family unity of a 
child refugee by allowing that child’s mother to claim certain benefits, including 
being granted a travel document – is to grant that mother derivative international 
protection’ […] [reiterations]. 
The opposing party contends that ‘… [the appellant remains] unable to explain 
why the Council for asylum and immigration proceedings could not lawfully find, 
as the Court of Justice of the European Union has found, that Article 23 of 
Directive [2011/95] does not refer to the granting of international protection 
status, but only to the benefits referred to in Articles 24 to 35 of that directive’, 
that ‘although the appellant submits that an incomplete transposition of Article 23 
is sufficient to give rise to a right to be granted international protection status, she 
is unable to put forward any relevant argument to demonstrate that that provision 
relates to the granting of international protection status to the family members of a 
beneficiary of international protection, and not solely to the benefits referred to in 
Articles 24 to 35 of Directive [2011/95]’, that ‘Article 3 of that directive allows a 
Member State to provide, [by means of] a more favourable standard, for the 
benefit of international protection to be extended to a family member’, that ‘that 
possibility is not sufficient to give rise to a right that persons may claim when the 
State has not made use of that [option]’, that ‘Belgium has not adopted more 
favourable standards […],’ that ‘if the appellant considers that Article 23 of 
Directive [2011/95] has not been validly transposed into Belgian law, it is 
ineffective that she present her arguments in that regard before the Council for 
asylum and immigration proceedings, which in any event has no jurisdiction to 
rule as regards the granting of the benefits referred to in Articles 24 to 35 of that 
directive, irrespective of whether the transposition of Article 23 is complete or 
COMMISSAIRE GÉNÉRAL AUX RÉFUGIÉS ET AUX APATRIDES 
 
5 
not’, that ‘the arguments based on the primacy of EU law and the principles of 
interpretation cannot lead the Council for asylum and immigration proceedings to 
claim jurisdiction that it does not have’, and that ‘the Council for asylum and 
immigration proceedings was able lawfully to decide that the consideration of the 
best interests of the child and respect for the family life of the appellant did not in 
any event allow to establish a right for a family member of a beneficiary of 
international protection to be granted the same status as the latter …’. 
In reply, the appellant states that ‘the respondent advocates an approach to 
Article 23 of the directive that deprives that provision of any effectiveness’, that 
‘… to refer the appellant to a multitude of institutions and judicial authorities so 
that she may assert individually the rights referred to in Articles 24 to 35 of 
Directive [2011/95], which the European legislature describes as “content of 
international protection”, deprives Article 23 of Directive 2011/95 of its 
effectiveness and certainly does not pursue the objective of the directive 
(including maintaining the refugee’s family unity and considering the best 
interests of the child)’, that ‘the incomplete transposition of Article 23 places a 
refugee who is a minor in a precarious situation, if his or her parent does not enjoy 
a status that guarantees him or her the benefits [listed] in Articles 24 to 35 of the 
directive (including the right to a residence permit, but also access to employment, 
education, health care, housing, etc.)’, that ‘as to the jurisdiction of the Council for 
asylum and immigration proceedings, Article 39/2 of the Law of 15 December 
1980 provides that the Council may vary the contested decision’, that, 
‘accordingly, it has every authority to grant the appellant the refugee status 
sought’, that it ‘is further required, in the words of the Court of Justice, to interpret 
the national law, “so far as possible, in the light of the wording and the purpose of 
the directive concerned in order to achieve the result sought by the directive and 
consequently comply with the third paragraph of Article 288 TFEU”’, that ‘the 
granting of derivative refugee status is moreover fully compatible with EU law 
(judgment [of 4 October 2018, Ahmedbekova, C-652/16, EU:C:2018:801])’, that 
‘the appellant deplores the fact that the best interests of the child, and the 
effectiveness of the refugee status of the minor, are again examined marginally 
(by the respondent and by the Council for asylum and immigration proceedings), 
without those best interests being a primary consideration’ […]. [reiterations or 
irrelevant considerations] 
Assessment 
[…] [irrelevant to the questions referred for a preliminary ruling] 
Article 23 of Directive [2011/95] […] provides that: 
‘1. Member States shall ensure that family unity can be maintained. 
2. Member States shall ensure that family members of the beneficiary of 
international protection who do not individually qualify for such protection 
are entitled to claim the benefits referred to in Articles 24 to 35, in 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2022 – CASE C-614/22 
 
6  
accordance with national procedures and as far as is compatible with the 
personal legal status of the family member. 
[…]’ [irrelevant] 
One of the benefits referred to in Articles 24 to 35, which Article 23[(2)] requires 
to be granted, is the residence permit provided for in Article 24 of Directive 
[2011/95]. 
The opposing party does not dispute that Belgian law does not grant a right of 
residence for the appellant in her situation, in respect of the transposition of 
Directive [2011/95]. The appellant is the mother of three minor children one of 
whom was recognised as a refugee in Belgium. The family already existed in the 
country of origin. 
Article 10(1)(1)(7) of the Law of 15 December 1980 […] provides for a right of 
residence for ‘the father and mother of a foreign national recognised as a refugee 
within the meaning of Article 48/3 or enjoying subsidiary protection, who come to 
live with him or her, provided he or she is under the age of 18 and has entered the 
Kingdom without being accompanied by an adult foreign national responsible for 
him or her by law and has not been effectively taken into the care of such a person 
subsequently, or has been left unaccompanied after entering the Kingdom’. That 
provision does not apply to the appellant, since her minor child, recognised as a 
refugee, did not enter Belgium without being accompanied by an adult foreign 
national responsible for her. 
The appellant submits, in essence, that, in the absence of having been validly 
transposed into Belgian law, Article 23 of Directive [2011/95] has direct effect, 
meaning that Belgium is under an obligation to grant her international protection. 
At the same time, the appellant asserts that the national law must be applied in a 
manner consistent with EU law and that, in order to give effect to Article 23 of 
Directive [2011/95], which has not been transposed, Article 48/3 of the Law of 
15 December 1980, on the granting of refugee status, must be interpreted as 
allowing her to be granted international protection. 
The Council of State considers that, pending the judgment of the Court of Justice 
of the European Union on the questions referred for a preliminary ruling by the 
present judgment, Article 23 of Directive [2011/95] does not seem to require 
international protection to be granted to the family members of the beneficiary of 
international protection covered by that directive. That provision seems to provide 
only for the granting of the benefits referred to in Articles 24 to 35 to family 
members who do not individually qualify for international protection. Moreover, 
Article 48/3 of the Law of 15 December 1980 does not offer the possibility of 
granting international protection to persons, such as the appellant, who do not 
individually qualify for such protection. The interpretation of Article 48/3 of the 
Law of 15 December 1980, relied on by the appellant, according to which 
COMMISSAIRE GÉNÉRAL AUX RÉFUGIÉS ET AUX APATRIDES 
 
7 
international protection could be granted to her under that provision, is therefore a 
contra legem interpretation. 
It seems to the Council of State, pending the judgment of the Court of Justice of 
the European Union ruling on the questions referred for a preliminary ruling by 
the present judgment, that if Article 23 of Directive [2011/95] had direct effect in 
the absence of transposition, the appellant could claim the benefit of what appears 
to be provided for in Article 23, namely the granting of the benefits referred to in 
Articles 24 to 35 and in particular the residence permit provided for in Article 24, 
which would enable her to reside legally in Belgium with her family. By contrast, 
the direct effect of Article 23 of Directive [2011/95] does not seem to imply that 
the appellant is entitled to something not provided for by that article, namely 
international protection when the appellant does not individually qualify for such 
protection. 
However, since the Council of State is adjudicating at last instance, it is obliged to 
refer the matter to the Court of Justice of the European Union, as requested by the 
appellant, concerning the possible direct effect of Article 23 of Directive 
[2011/95] and its consequences. 
The [first and second] questions [set out in the operative part] should therefore be 
referred for a preliminary ruling. 
[…] 
It is also appropriate to ask the question raised by the appellant. This question is 
worded as follows: 
[…] [text of the third question] 
Second ground of appeal 
The appellant enters a second ground of appeal alleging infringement ‘of 
Articles 39/65, 48/3 and 57/1(4) of the Law of 15 December 1980 […]; 
Articles 20 and 23 of Directive 2011/95 […]; […] Article 8 of the European 
Convention on Human Rights; Articles 7 and 24 of the Charter of Fundamental 
Rights of the European Union; Article 3 of the International Convention on the 
Rights of the Child […]’. [reiterations or irrelevant considerations] 
Submissions of the parties 
First part 
[…] [irrelevant] 
Second part 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2022 – CASE C-614/22 
 
8  
The appellant states that ‘… even in the absence of a formal obligation laid down 
in Article 23 of Directive 2011/95 to grant the parent of a recognised refugee the 
same international protection status, that obligation stems from the combined 
reading of Articles 20 and 23 of Directive [2011/95], read in the light of 
Articles 7, 18 and 24 of the Charter, [Article] 8 of the European Convention on 
Human Rights and [Article] 3 of the International Convention on the Rights of the 
Child’, that ‘as Belgian law currently stands, the Council for asylum and 
immigration proceedings […] [had to] make a balanced and reasonable 
assessment of all the current and relevant circumstances of the case, taking 
account of all the interests in play and, in particular, of the best interests of the 
child concerned’, that ‘…consideration of the best interests of the child may 
suffice to entitle the family member of a minor beneficiary of international 
protection to the same status as the child’, that ‘the best interests of the child are 
indeed an interpretative rule which must guide the Council for asylum and 
immigration proceedings in its application of Article 23 of the directive’ […] […] 
[reiterations or irrelevant considerations]’. 
The opposing party contends […] that ‘… the only obligations arising from 
Article 23 were to grant the benefits referred to in Articles 24 to 35 of Directive 
[2011/95] and no obligation arose to grant international protection status to the 
family members of a beneficiary of international protection’, […] that ‘… the 
Council for asylum and immigration proceedings cannot be required to grant 
international protection status on the basis of Article 23 of the directive, when that 
provision does not provide for it …’, that ‘the Council for asylum and 
immigration proceedings was able lawfully to conclude that the fact that the 
transposition of Article 23 of Directive [2011/95] is incomplete, if proven, is not 
sufficient to give rise to a right to be granted international protection status for the 
family members of a beneficiary of such protection’, that ‘… the Court of Justice 
has already ruled on the scope of Article 23 of Directive [2011/95] and the fact 
that that article might not be fully transposed into Belgian law cannot under any 
circumstances lead to the granting of international protection status to the 
appellant’, […]. [reiterations or irrelevant considerations]. 
In reply, the appellant states […] that ‘… the best interests of the child must be a 
primary consideration for the United Nations, the European Union and the Belgian 
legislature’, that ‘accordingly, Member States, when implementing EU law, must 
make a balanced and reasonable assessment of all the current and relevant 
circumstances of the case, taking account of all the interests in play (see, in 
particular, judgment of 26 March 2019, SM (Child placed under Algerian kafala), 
C-129/18, EU:C:2019:248, in which the Court of Justice interpreted the concept 
of another family member extensively, in the name of the best interests of the 
child – but also the recent judgment of 16 July 2020, État belge (Family 
reunification – Minor child), C-133/19, C-136/19 and C-137/19, 
EU:C:2020:577)’, that ‘a simple option for a Member State, provided for by an act 
of secondary EU legislation, may become a legal obligation for that Member State 
to guarantee respect for the fundamental rights enshrined in the Charter of the 
European Union’ […]. [reiterations or irrelevant considerations] 
COMMISSAIRE GÉNÉRAL AUX RÉFUGIÉS ET AUX APATRIDES 
 
9 
Assessment 
First part 
[…]. [irrelevant] 
Second part 
The appellant submits, in essence, that the consideration of the best interests of the 
child referred to in Article 20 of Directive [2011/95] and respect for family life 
implies that international protection must be granted, under Article 23 of that 
directive, to the mother of a child who is recognised as a refugee in Belgium and 
who arrived there accompanied by her mother, even if the mother does not 
individually qualify for such protection. 
The Council of State, pending the judgment of the Court of Justice of the 
European Union ruling on the questions referred for a preliminary ruling by the 
present judgment, does not consider [this to be the case] […]. [reiterations] 
It seems possible that the best interests of the child referred to in Article 20 of 
Directive [2011/95] and respect for family life can be achieved by granting the 
benefits referred to in Articles 24 to 35, including a residence permit allowing the 
mother of the child recognised as a refugee to reside legally in Belgium with her 
family, without it being necessary to grant her international protection when she 
does not individually qualify for such protection. If the Court of Justice of the 
European Union should find that, in the absence of transposition of Article 23 of 
Directive [2011/95], that provision has direct effect, the appellant could claim 
from the Belgian State the benefits referred to in Articles 24 to 35, including a 
residence permit allowing her to reside legally in Belgium with her family. 
However, since the Council of State is adjudicating at last instance, it is obliged to 
refer the matter to the Court of Justice of the European Union, as requested by the 
appellant, as to whether the consideration of the best interests of the child, as 
referred to in Article 20 of Directive [2011/95], and respect for family life, means 
that international protection must be granted, under Article 23 of that directive, to 
the mother of a child who is recognised as a refugee in Belgium and who arrived 
there accompanied by her mother, even if the mother does not individually qualify 
for such protection. 
It is therefore necessary to ask the question raised by the appellant. This question 
[…] [is the fourth question in the operative part]. 
[…] [text of the fourth question] 
ON THOSE GROUNDS, 
THE COUNCIL OF STATE HEREBY FINDS: 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2022 – CASE C-614/22 
 
10  
[…] 
Pursuant to [the third paragraph of] Article 267 [TFEU], the following questions 
are referred to the Court of Justice of the European Union for a preliminary ruling: 
– ‘Can Article 23 of Directive 2011/95/EU of the European Parliament and of 
the Council of 13 December 2011 on standards for the qualification of third-
country nationals or stateless persons as beneficiaries of international protection, 
for a uniform status for refugees or for persons eligible for subsidiary protection, 
and for the content of the protection granted, which has not been transposed into 
Belgian law to provide for the granting of a residence permit or international 
protection to the mother of a child who was recognised as a refugee in Belgium 
and who arrived there accompanied by her mother, have direct effect?’ 
‘If so, does Article 23 of Directive 2011/95/EU confer, in the absence of 
transposition, on the mother of a child who was recognised as a refugee in 
Belgium and who arrived there accompanied by her mother the right to claim the 
benefits referred to in Articles 24 to 35, including a residence permit allowing her 
to reside legally in Belgium with her family, or the right to obtain international 
protection even if the mother does not individually qualify for such protection?’ 
‘Does the effectiveness of Article 23 of Directive 2011/95, read in the light of 
Articles 7, 18 and 24 of the Charter of Fundamental Rights of the European 
Union, require Member States that have not amended their national laws so that 
family members (within the meaning of Article 2(j) of that directive) of the 
beneficiary of such status may, if they do not individually qualify for such status, 
claim certain benefits, to grant those family members the right to derivative 
refugee status so that they may claim those benefits in order to maintain family 
unity?’ 
‘Does the effectiveness of Articles 20 and 23 of Directive 2011/95, read in the 
light of Articles 7, 18 and 24 of the Charter of Fundamental Rights of the 
European Union, require Member States that have not amended their national 
laws, so that the parents of a refugee who is a minor can claim the benefits listed 
in Articles 24 to 35 of the directive, to [allow those parents to] enjoy derivative 
international protection in order to give primary consideration to the best interests 
of the child and to ensure the effectiveness of that child’s refugee status?’ 
[…] 
[procedure]