Opinion of the Advocate General — ECLI:EU:C:2020:130
Date: 2020-02-27
Language of the case: German
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation   C-18/19 — 1 
Case C-18/19 
Request for a preliminary ruling 
Date lodged: 
11 January 2019 
Referring court: 
Bundesgerichtshof (Federal Court of Justice, Germany) 
Date of the decision to refer: 
22 November 2018 
Person concerned and appellant: 
WM 
Authority involved: 
City of Frankfurt am Main 
  
BUNDESGERICHTSHOF (Federal Court of Justice, Germany) 
ORDER 
[...] 
of 
22 November 2018 
in custody awaiting deportation proceedings 
Parties: 
1.  WM, born [...] 1980, Tunisian national, last known address: Frankfurt am 
Main Prison I [...] 
Person concerned and appellant   
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 11. 2018 — CASE C-18/19 
 
2  
Anonymised version 
[...] 
2.  City of Frankfurt am Main — Municipality, [...] Municipal Legal Office — 
[...] 
Authority involved:      
[Or. 2] 
On 22 November 2018, the Fifth Civil Chamber of the Federal Court of Justice 
[...] 
ordered: 
The proceedings are stayed. 
The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling under Article 267 TFEU: 
Does Article 16(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) preclude national provisions under which 
custody awaiting deportation may be enforced in an ordinary custodial 
institution if the foreign national poses a significant threat to the life and 
limb of others or to significant internal security interests, in which case the 
detainee awaiting deportation is accommodated separately from prisoners 
serving criminal sentences? 
[Or. 3] 
Grounds: 
I. 
1 The person concerned is a Tunisian national. By decision of 1 August 2017, the 
competent Ministry of the State of Hesse ordered his deportation to Tunisia on the 
basis of Paragraph 58a(1) of the Gesetz über den Aufenthalt, die Erwerbstätigkeit 
und die Integration von Ausländern im Bundesgebiet (German Act on the 
Residence, Economic Activity and Integration of Foreigners in the Federal 
Territory, ‘German Residence Act’). According to that provision, the supreme 
Land authority may issue a deportation order for a foreigner without a prior 
expulsion order based on the assessment of facts, in order to avert a special danger 
to the security of the Federal Republic of Germany or a terrorist threat. 
2 The ground stated for the order was that the person concerned posed a particular 
threat within the meaning of Paragraph 58a(1) of the German Residence Act. It 
stated that this followed from an overall assessment of the personality of the 
person concerned, his conduct, the external expression of his personal beliefs, his 
CITY OF FRANKFURT AM MAIN 
 
3 
Anonymised version 
links to other persons and groups which pose a terrorist threat to the internal 
security of the Federal Republic of Germany and other facts. It stated that it was 
necessary to take particular account in that context of: his radical Islamist views, 
his classification as a trafficker and recruiter for the ‘Islamic State’ (IS) by the 
State Office for the Protection of the Constitution, his activity for IS in Syria, the 
visual material found in his possession depicting excessively barbaric and 
inhumane execution scenes, the communication and user content found on his 
mobile telephone and a contact’s laptop and his willingness expressed in chat 
records to attack the way of life in Germany which conflicts with his ideals. [Or. 
4] 
3 The person concerned lodged an appeal against that order with the 
Bundesverwaltungsgericht (Federal Administrative Court, Germany) and applied 
for temporary relief. The Federal Administrative Court dismissed that application 
by order of 19 September 2017 [...] on condition that, in addition to the note 
verbale already received from the Tunisian Ministry of Foreign Affairs, a 
Tunisian government department gave assurance that, if a life sentence were 
handed down, the possibility of reviewing the sentence with a view to commuting 
it to a fixed term of imprisonment or reducing the period of detention would be 
granted. In support of its decision, the Federal Administrative Court held, inter 
alia, that, based on the extensive evidence collected by the security authorities, it 
was sufficiently likely, in the sense of the assessment of facts required under 
Paragraph 58a of the German Residence Act, that the person concerned would 
commit a terrorist attack in Germany. 
4 An arrest warrant issued against the person concerned in January 2017 on the 
grounds of suspicion of supporting a foreign terrorist group was recalled by the 
Federal Court of Justice [...]; the person concerned, who was on remand in 
custody, was then released. 
5 At the request of the competent Aliens Department and by order of 18 August 
2017, the Amtsgericht (Local Court) ordered the person concerned to be remanded 
in custody awaiting deportation to Tunisia by 23 October 2017. The department 
noted in its detention request that custody awaiting deportation was to be 
enforced, on the basis of Paragraph 62a(1), sentence 2, alternative 2, of the 
German Residence Act, in Frankfurt-am-Main Prison I (a general prison), rather 
than in a specialised facility for detainees awaiting deportation. By order of 
24 August 2017, the Landgericht (Regional Court) dismissed the appeal lodged by 
the person concerned against the detention order. By his reasoned appeal [Or. 5] 
following expiry of the period of detention, on which the referring court is 
required to rule, the person concerned is seeking a finding of unlawful detention. 
6 Custody awaiting deportation was subsequently extended several times; appeals 
have also been lodged against those extensions and are pending before the Federal 
Court of Justice. On 9 May 2018, the person concerned was removed to Tunisia. 
The present proceedings concern only the period of detention up to 23 October 
2017. 
REQUEST FOR A PRELIMINARY RULING OF 22. 11. 2018 — CASE C-18/19 
 
4  
Anonymised version 
II. 
7 The appellate court considers that custody awaiting deportation was lawfully 
enforced in Frankfurt-am-Main Prison I. It holds that that follows from 
Paragraph 62a(1), sentence 2, alternative 2, of the German Residence Act and that 
that provision does not infringe Article 16(1) of Directive 2008/115/EC. 
III. 
8 The appeal is admissible in accordance with Paragraph 70(3), sentence 1, no 3, of 
the Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der 
freiwilligen Gerichtsbarkeit (German Act on Proceedings in Family Matters and in 
Matters of Non-contentious Jurisdiction, ‘FamFG’) with the form of order sought 
in accordance with Paragraph 62 FamFG Act and in terms of all other formalities 
(Paragraph 71 FamFG). Whether or not it is well-founded depends on the answer 
given by the Court of Justice of the European Union to the question referred, as 
set out in the operative part. 
9 1. The detention order granted by the Local Court and upheld by the appellate 
court would be unlawful and the appeal therefore well founded if Article 16(1) of 
Directive 2008/115/EC is to be interpreted as meaning that enforcement of 
custody awaiting deportation in an ordinary custodial institution is prohibited even 
if the foreigner poses a significant threat to the life and limb of others or to 
significant internal security interests. [Or. 6] 
10 (a) According to Article 16(1), sentence 1, of Directive 2008/115/EC, the 
detention of persons concerned for the purpose of removal or return shall take 
place as a rule in specialised detention facilities. Only where a Member State 
cannot provide accommodation in such a specialised detention facility can it resort 
to prison accommodation (sentence 2), in which case the third-country nationals 
must be kept separated from ordinary prisoners. According to the case-law of the 
Court of Justice of the European Union, this exception must be interpreted strictly. 
Therefore, in a Member State with a federal structure, such as the Federal 
Republic of Germany, it can be applied only if no Land has a specialised detention 
facility for detainees awaiting deportation (judgment of 17 July 2014, Bero and 
Others, C-417/13, EU:C:2014:2095). Enforcement in an ordinary prison together 
with ordinary prisoners is also not permissible where the third-country national 
consents to such accommodation (judgment of 17 July 2014, Pham, C-474/13, 
EU:C:2014:2096). 
11 (b) For foreigners who pose a significant threat to the life and limb of others or 
to significant internal security interests (‘persons posing a threat’), national 
German law (Paragraph 62a of the German Residence Act) allows custody 
awaiting deportation to be enforced in an ordinary (‘other’) custodial institution, 
rather than in a specialised facility for detainees awaiting deportation, in which 
case, they must be accommodated separately from prisoners serving criminal 
CITY OF FRANKFURT AM MAIN 
 
5 
Anonymised version 
sentences. Paragraph 62a(1) of the German Residence Act reads as follows 
(extract): 
‘As a general principle, custody awaiting deportation shall be enforced in 
specialised detention facilities. If there are no specialised detention facilities 
in the federal territory or if the foreigner poses a significant threat to the life 
and limb of others or to significant legally protected internal security 
interests, custody awaiting deportation may be enforced in other custodial 
institutions; in such cases the persons in detention awaiting deportation shall 
be accommodated separately from prisoners serving criminal sentences. [Or. 
7] 
12 The provision in Paragraph 62a(1), sentence 2, alternative 2, of the German 
Residence Act was included in the German Residence Act under the Gesetz zur 
besseren Durchsetzung der Ausreisepflicht (German Act to Improve the 
Enforcement of Forced Departure) of 20 July 2017, which was announced on 
28 July 2017 and, according to its Article 9, entered into force the following day 
(Federal Law Gazette I, p. 2780). In the present case it applies because detention 
was ordered on 18 August 2017 and therefore after the entry into force of the Law. 
13 (c) There is disagreement as to whether Article 16(1) of Directive 
2008/115/EC allows the national legislature to adopt special rules for ‘persons 
posing a threat’ (see paragraph 11) permitting enforcement of custody awaiting 
deportation in an ordinary custodial institution. 
14 (aa) The German legislature assumes that the new rule which it has adopted is 
compatible with the directive. That rule, which was not included in the draft law 
prepared by the Federal Government (Bundestag document 18/11546), is based on 
a proposal by the Bundestag Committee on Internal Affairs, the explanatory 
memorandum for which reads as follows (Bundestag document 18/12415 p. 15): 
‘Special security precautions may be required for the accommodation of 
detainees awaiting deportation who pose a significant threat to the life and 
limb of others or to significant internal security interests. Pre-removal 
detention centres are not designed to take account of special security needs 
(“housing minus freedom”). It follows that, where individual detainees 
awaiting deportation constitute such a risk, not least for the other detainees 
awaiting deportation, accommodation in ordinary pre-removal detention 
centres may present a particular, if not unreasonable, risk. In such cases, it 
must be possible to accommodate those detainees awaiting deportation in 
other suitable facilities.’ 
15 The Bundesrat Committee on Internal Affairs (lead committee) also proposed an 
appropriate addendum to the law, the explanatory memorandum for which reads 
as follows (Bundesrat document 179/1/17 p. 15): [Or. 8] 
‘Prisoners in pre-removal detention centres enjoy far greater freedoms 
under the EU Return Directive than prisoners on remand or prisoners 
REQUEST FOR A PRELIMINARY RULING OF 22. 11. 2018 — CASE C-18/19 
 
6  
Anonymised version 
serving criminal sentences. They are granted extensive freedom of 
communication, including international calls in foreign languages, and it is 
therefore difficult to keep a check on individuals. In addition, detainees 
awaiting deportation are allowed to move more freely around the facility 
and have more social facilities available to them and, because of the use to 
which it is put, maximum security of the facility against external attack has 
not been necessary to date. These relaxed enforcement conditions are not 
appropriate for persons who pose a threat to security. Persons who pose a 
significant threat to the life and limb of others or to significant internal 
security interests require closer monitoring. Otherwise, there is a danger of 
injury to other prisoners and to supervisory staff. For those persons, custody 
awaiting deportation needs to be enforced in the high-security wings of 
suitable custodial institutions. In the working group set up in the 
Penitentiary Commission to deal with terrorist assassins, and the same must 
apply to potential terrorists, the 15 participating Länder issued a unanimous 
call for decentralised accommodation, which can only be ensured if existing 
custodial institutions are used. 
The wording of Article 16(1), sentence 1 of the Return Directive merely 
provides for detention to take place as a rule in specialised detention 
facilities. Exceptions to that rule are not excluded. […]’. 
16 (bb) Some commentators consider that Paragraph 62a(1), sentence 2, alternative 
2, of the German Residence Act is not compatible with Directive 2008/115/EC, as 
Article 16 of the Directive does not provide for an exception in the event of 
enhanced security requirements [...]. The Bundesrat Committee on Legal Affairs 
also initially expressed concerns during the legislative process as to the 
compatibility of the proposed rule with the directive. As detainees awaiting 
deportation must be also kept separated in an ordinary custodial institution from 
prisoners serving criminal sentences, they would necessarily have to be 
accommodated with prisoners on remand. However, it may be in keeping with the 
spirit of the directive to equate prisoners on remand with prisoners serving 
criminal sentences, meaning that [Or. 9] persons subject to forced departure 
cannot be accommodated in custodial institutions (Bundesrat document 390/1/17 
p. 2). The plenary session of the Bundesrat disagreed. 
17 (cc) From another point of view, the rule is admissible because the 
responsibilities of Member States under Article 72 TFEU with regard to the 
safeguarding of internal security are not affected and the Return Directive should 
not be seen as a conclusive regulation in that regard. Therefore, the responsibility 
of the Member States to take effective measures to avert danger also apply in the 
event of custody awaiting deportation [...]. As pre-removal detention centres are 
open facilities, effective measures to avert danger are hardly possible in or would 
fundamentally change the nature of the facility and thus contradict the overall 
concept of the Return Directive [...]. 
CITY OF FRANKFURT AM MAIN 
 
7 
Anonymised version 
18 (d) If Article 16 of Directive 2008/115/EC precludes the enforcement of 
custody awaiting deportation in an ordinary custodial institution in the case of 
persons posing a threat, detention should not have been ordered in the present 
case, as that form of enforcement had been announced and was therefore 
foreseeable by the court ordering detention. In terms of the need for the most 
effective application of EU law, the court ordering detention must refrain from 
ordering custody awaiting deportation if it is foreseeable that the person 
concerned will be unlawfully accommodated [...]. 
19 2. If, however, Article 16 of Directive 2008/115/EC should be interpreted as 
not precluding a national rule under which custody awaiting deportation can be 
enforced in an ordinary custodial institution, separately from prisoners serving 
criminal sentences, if the foreigner poses a significant threat to the life and [Or. 
10] limb of others or to significant internal security interests, detention in the 
present case would be lawful and the appeal unfounded. 
20 (a) The Chamber considers the complaint lodged by the person concerned 
against the prognosis of the Local Court and the appellate court concerning the 
enforceability of removal to be ineffective. Therefore, a statement of reasons has 
been dispensed with in that regard within the framework of the preliminary ruling 
procedure. 
21 (b) The person concerned does not claim that he was not kept sufficiently 
separated in the custodial institution from prisoners serving criminal sentences 
(which, regardless of the preliminary question, would have constituted an 
infringement of Article 16(1), sentence 2, of Directive 2008/115/EC see Senate, 
order for reference of 11 July 2013 — V ZB 40/11 [...]). 
22 The aforementioned provisions of German law are set out verbatim in the annex. 
[...] 
[Signatures; Formalities for authentication of the order] [Or. 11] 
REQUEST FOR A PRELIMINARY RULING OF 22. 11. 2018 — CASE C-18/19 
 
8  
Anonymised version 
 
 
Annexes 
I. Aufenthaltsgesetz (Gesetz über den Aufenthalt, die Erwerbstätigkeit 
und die Integration von Ausländern im Bundesgebiet) (Act on the Residence, 
Economic Activity and Integration of Foreigners in the Federal Territory) 
Paragraph 58a Deportation order 
(1) 1The supreme Land authority may issue a deportation order for a foreigner 
without a prior expulsion order based on the assessment of facts, in order to avert 
a special danger to the security of the Federal Republic of Germany or a terrorist 
threat. 2The deportation order shall be immediately enforceable; no notice of 
intention to deport shall be necessary. 
(2) 1The Federal Ministry of the Interior may assume responsibility if a special 
interest on the part of the Federation applies. 2The supreme Land authority must 
be notified accordingly. 3Deportation orders issued by the Federation shall be 
enforced by the Federal Police. 
(3) 1A deportation order may not be enforced if the conditions pertaining to a 
deportation ban pursuant to Paragraph 60(1) to (8) apply. 2Paragraph 59(2) and (3) 
shall apply accordingly. 3Assessment in this context shall be carried out by the 
authority deciding on the deportation order; this authority shall not be bound to 
findings reached in this connection in other proceedings. 4 
(4) 1Following announcement of the deportation order, the foreigner must be 
given an opportunity to contact a legal adviser of his choice without delay, unless 
he has secured the services of a lawyer beforehand; the foreigner must be 
informed of this entitlement, of the legal consequences of the deportation order 
and the available legal remedies. 2An application for temporary relief pursuant to 
the Code of Administrative Courts Procedure shall be filed within seven days of 
announcement of the deportation order. 3Deportation may not be enforced until 
the period in accordance with sentence 2 has expired and, if an application for 
temporary relief is filed in time, until the court has decided on said application. 
[Or. 12] 
Paragraph 62a Enforcement of custody awaiting deportation 
(1) 1As a general principle, custody awaiting deportation shall be enforced in 
specialised detention facilities. 2If there are no specialised detention facilities in 
the federal territory or if the foreigner poses a significant threat to the life and 
limb of others or to significant legally protected internal security interests, custody 
awaiting deportation may be enforced in other custodial institutions; in such cases 
CITY OF FRANKFURT AM MAIN 
 
9 
Anonymised version 
the persons in detention awaiting deportation shall be accommodated separately 
from prisoners serving criminal sentences. [...] 
(2) Detainees awaiting deportation shall be permitted to establish contact with 
legal representatives, family members, the competent consular authorities and 
relevant support and assistance organisations. 
[3] [...] [concerns minors in custody awaiting deportation] 
(4) Upon application, staff of relevant support and assistance organisations 
should be permitted to visit detainees awaiting deportation. 
(5) Detainees awaiting deportation shall be informed about their rights and 
obligations and the rules applied in the facility. [Or. 13] 
II. Gesetz über das Verfahren in Familiensachen und in den 
Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in 
Family Matters and in Matters of Non-contentious Jurisdiction) 
Paragraph 62 Availability of Complaint on Appeal after Conclusion of the 
Main Action 
(1) If the challenged decision was concluded in the main action, upon an 
application therefor the appellate court shall declare that the court’s decision in the 
first instance violated the appellant’s rights when the appellant has a justified 
interest in this determination. 
(2) In general, a justified interest exists when: 
1. there is a serious encroachment on a fundamental right, or 
2. there is a specific expectation of a recurrence. 
(3) If the complaint on appeal was lodged by the guardian ad litem for minors or 
the procedural curator, sentences 1 and 2 shall apply accordingly. 
Paragraph 70 Availability of Appeals on a Point of Law 
(1) An appeal on a point of law shall be available as a remedy to a participant 
when the appellate court or the Higher Regional Court in the first instance granted 
leave to appeal in the order. 
(2) 1An appeal on a point of law shall be admissible when: 
1. the legal matter is of fundamental significance, or 
2. the further development of the law or the interest in ensuring uniform 
adjudication requires a decision by the court hearing the appeal. 
REQUEST FOR A PRELIMINARY RULING OF 22. 11. 2018 — CASE C-18/19 
 
10  
Anonymised version 
2The court hearing the appeal shall be bound to the admissibility of the appeal. 
(3) 1An appeal on a point of law against an order by the court hearing the 
complaint on appeal shall be admissible without leave of the court in: 
1. [...] 
2. [...] 
3. matters concerning a deprivation of liberty. [Or. 14] 
2In cases under nos 2 and 3 of the first sentence, this shall apply only when the 
appeal on a point of law is directed toward the order imposing the involuntary 
commitment or the deprivation of liberty. 3In cases under no 3 of the first sentence 
and in derogation from the second sentence, the appeal on a point of law shall also 
be admissible without grant of leave if it is directed against an order rejecting or 
dismissing the deprivation of liberty in the proceedings referred to in 
Paragraph 417(2), sentence 2, no 5. 
(4) There shall be no appeal on a point of law against orders in proceedings 
concerning the order, modification, or rescission of an interlocutory order or an 
arrest. 
Paragraph 71 Deadline and Form of Appeal on a Point of Law 
[...] 
[...] [Or. 15] 
[...] 
[...] [confirmed by referring court in paragraph 8]