Opinion of the Advocate General — ECLI:EU:C:2023:189
Date: 2023-03-09
Language of the case: Dutch
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-568/21 – 1 
Case C-568/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
16 September 2021 
Referring court:  
Raad van State (Netherlands) 
Date of the decision to refer:  
25 August 2021 
Appellants:  
Staatssecretaris van Justitie en Veiligheid 
Respondents:  
E. and S., also on behalf of their minor children 
  
Subject matter of the main proceedings 
The main proceedings concern the appeal lodged by the staatssecretaris (State 
Secretary) with the Raad van State (Council of State) against the judgment of 
20 March 2020 of the rechtbank Den Haag (The Hague District Court), sitting in 
Amsterdam. In that judgment, the District Court annulled the decisions of the 
State Secretary of 29 January 2020 not to examine the applications of the foreign 
nationals for international protection.  
Subject matter and legal basis of the request 
The referring court asks the Court of Justice, pursuant to Article 267 TFEU, 
whether a diplomatic card issued by a Member State under the Vienna Convention 
on Diplomatic Relations constitutes a residence document within the meaning of 
Article 2(l) of the Dublin Regulation.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-568/21 
 
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Question referred for a preliminary ruling 
Must Article 2(1) of the Dublin Regulation be interpreted as meaning that a 
diplomatic card issued by a Member State under the Vienna Convention on 
Diplomatic Relations is a residence document within the meaning of that 
provision? 
Provisions of European Union law relied on 
Vienna Convention on Diplomatic Relations of 18 April 1961, Articles 2, 4, 7, 9, 
10 and 39. 
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 
stateless person, recitals 4 and 5, Articles 2, 12 and 14.  
Succinct presentation of the facts and procedure in the main proceedings 
1 The foreign nationals are third-country nationals who are a family. The father 
worked at his country’s embassy in Member State X and lived there with his 
family. They received diplomatic cards from the Ministry for Foreign Affairs of 
Member State X. After some years, the family left that Member State and lodged 
applications for international protection in the Netherlands. 
Course of the take charge procedure 
2 On 31 July 2019, the State Secretary held Member State X responsible for 
examining these applications pursuant to Article 12(1) or 12(3) of the Dublin 
Regulation.  
3 On 30 August 2019, Member State X rejected the take charge requests. That 
Member State is of the view that no visa or residence document had been issued to 
the foreign nationals and that they resided in Member State X solely on the basis 
of their diplomatic status. The foreign nationals travelled to Member State X and 
to the Netherlands by means of their diplomatic passports, as a result of which 
they did not require a visa. According to that Member State, the responsibility lies 
with the Netherlands pursuant to Article 14(2) of the Dublin Regulation.  
4 On 11 September 2019, the State Secretary asked Member State X to consider the 
take charge requests. The State Secretary – relying on a handbook of the Ministry 
for Foreign Affairs of Member State X for this purpose – is of the opinion that the 
diplomatic cards issued by Member State X constitute a residence document. 
According to the State Secretary, under Article 12(1) of the Dublin Regulation, 
responsibility lies with Member State X.  
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID AND OTHERS 
 
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5 On 25 September 2019, Member State X accepted the take charge requests 
pursuant to Article 12(1) of the Dublin Regulation.  
The decisions and the judgment of the District Court 
6 By decisions of 29 January 2020, the State Secretary refused to examine the 
foreign nationals’ applications for international protection as Member State X was 
responsible for doing so.  
7 The foreign nationals lodged an appeal against those decisions and argued before 
the District Court that Member State X was not responsible for their applications. 
Indeed, the authorities of Member State X had never granted them a residence 
document. In fact, they derived their right of residence directly from the Vienna 
Convention or from their diplomatic status (as the case may be). Their diplomatic 
cards are merely a confirmation thereof.  
8 The District Court declared that appeal well founded and annulled the decisions 
concerned. In particular, the District Court held that the diplomatic cards issued by 
Member State X could not be regarded as an authorisation or permission to stay, 
since the foreign nationals already had a right of residence in Member State X on 
the basis of the Vienna Convention. The diplomatic cards were therefore merely 
declaratory (and not constitutive) of that right of residence. According to the 
District Court, the State Secretary, who had wrongly held Member State X 
responsible for examining the applications for international protection, should 
carry out a substantive examination of those applications.  
9 The State Secretary lodged an appeal against that judgment with the referring 
court. 
Essential arguments of the parties to the main proceedings 
10 The State Secretary argued, primarily, that the diplomatic cards issued to the 
foreign nationals by Member State X do fall under the definition of a residence 
document within the meaning of Article 2(l) of the Dublin Regulation. By actually 
issuing these cards, Member State X confirmed that the foreign nationals have a 
right of residence under the Vienna Convention. The fact that this right of 
residence is derived directly from this Convention does not undermine this. The 
Dublin Regulation, which does not require a residence document under the law 
pertaining to foreign nationals, does not exclude the possibility that a diplomatic 
card may constitute a residence document within the meaning of the 
aforementioned provisions.  
11 In the alternative, the State Secretary argued that, in view of the general scheme 
and objectives of the Dublin Regulation, diplomatic cards should be regarded as a 
residence document. Member State X played the greatest role in the entry and stay 
of the foreign nationals on the territory of the Member States. The judgment of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-568/21 
 
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Court of Justice of 26 July 2017, Jafari, C-646/16, ECLI:EU:C:2017:586, is 
applicable by analogy.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 Some Member States regard a diplomatic card as a residence document, others do 
not.  
Interpretation of Article 2(l) of the Dublin Regulation 
13 In order to answer the question referred for a preliminary ruling, Article 2(l) of the 
Dublin Regulation must be interpreted in the light of the wording of this 
provision, the general scheme, context and objectives of the Dublin Regulation, 
and also of the Vienna Convention:  
– The definition of the term ‘residence document’ does not provide a clear 
answer to this question.  
The Dublin Regulation requires a residence document only in general terms, 
without expressly stating that it must be a document issued under national 
law. Furthermore, it must be an authorisation issued by the authorities of a 
Member State to reside on its territory, without specifying what that 
authorisation must entail.  
– The general scheme, context, objectives and history of the adoption of the 
Dublin Regulation are not conclusive either.  
The Dublin Regulation aims to establish a clear and workable method for 
determining the Member State responsible for an application for 
international protection (recitals 4 and 5). The case-law of the Court of 
Justice indicates, inter alia, that the Dublin Regulation seeks to avoid ‘forum 
shopping’ and that the responsibility for examining such an application lies 
with the Member State which a foreign national first entered or stayed in 
upon entering in the territory of the Member States. In the same vein, the 
Court of Justice has held that, in an area where there is freedom of 
movement, each Member State is answerable to all the other Member States 
for its actions concerning the entry and residence of third-country nationals. 
Each Member State must therefore bear the consequences thereof in 
accordance with the principles of solidarity and fair cooperation (see, inter 
alia, the judgments of 26 July 2017, Jafari, C-646/16, EU:C:2017:586, 
paragraphs 87-88; of 7 June 2016, Ghezelbash, C-63/15, EU:C:2016:409, 
paragraph 54; and of 21 December 2011, N.S. and Others, Joined Cases 
C-411/10 and C-493/10, EU:C:2011:865, paragraph 79).  
– The Vienna Convention lays down the rules governing diplomatic relations.  
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID AND OTHERS 
 
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Unlike the case of the head of the diplomatic mission, in the case of other 
members of the diplomatic staff and their families, the Ministry for Foreign 
Affairs has only to be notified of their appointment, arrival, final departure 
or termination of their functions. Prior notification of arrival and departure is 
not required. The sending State may freely appoint diplomatic staff 
(Articles 4, 7 and 10). The consequence of such appointment, which confers 
diplomatic status, is that the diplomat and his or her family members are 
entitled to the privileges and immunities provided for in this Convention, 
including the right to reside in the receiving State (Article 39). This 
Convention obliges the States Parties to the Convention to permit the 
residence of diplomatic staff and their families. The establishment of their 
right of residence does not depend on the issuing or refusal of a residence 
document by the receiving State.  
14 In the light of the foregoing, the referring court arrives at two possible 
interpretations:  
– A diplomatic card is a residence document, as a result of which Member 
State X is responsible for examining applications for international 
protection. 
– A diplomatic card is not a residence document, as a result of which the 
Netherlands is responsible for examining the aforementioned applications. 
Possibility 1: a diplomatic card is a residence document  
15 This interpretation is in line with the principle that the responsibility for 
examining an application for international protection lies with the Member State 
which a foreign national first entered or stayed in upon entering in the territory of 
the Member States (judgment of 26 July 2017, Jafari, C-646/16, EU:C:2017:586, 
paragraph 87, and the Explanatory Memorandum to the Proposal for Dublin III 
(COM(2008) 820 final, bullet point 3).  
16 In the present case, the foreign nationals have the strongest connection with 
Member State X. They entered in the territory of the Member States by virtue of 
the diplomatic relations between the sending State and Member State X, where 
they also worked and lived for several years. A different interpretation would 
mean that foreign nationals who work as diplomatic staff in a Member State and 
then wish to lodge an application for international protection, have a choice as to 
the Member State in which to do so. The establishment of uniform mechanisms 
and criteria for determining the Member State responsible seeks to prevent 
precisely this (judgment of 2 April 2019, H. and R., Joined Cases C-582/17 and 
C-583/17, EU:C:2019:280, paragraph 77).  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-568/21 
 
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Possibility 2: a diplomatic card is not a residence document  
17 It appears to follow from the Vienna Convention that, in the international 
movement of diplomats, it is not within the powers of the receiving State to grant 
or to refuse permission for diplomats to stay on its territory.  
18 In the present case, the father was appointed by the sending State as a staff 
member of the diplomatic mission in Member State X, by which he and his family 
acquired diplomatic status. Their right of residence in Member State X was a 
privilege based on that diplomatic status. They derived this privilege directly – 
without the intervention of the authorities of Member State X – from the Vienna 
Convention. The diplomatic card merely confirms the foreign nationals’ pre-
existing right of lawful residence in Member State X. According to the referring 
court, that strongly supports the interpretation that a diplomatic card does not 
constitute a residence document within the meaning of the Dublin Regulation. 
Conclusion 
19 According to the referring court, it is not possible to give an unambiguous answer 
to this question. That answer cannot be deduced directly from the applicable 
provision of the Dublin Regulation, the system established by that regulation and 
the relevant rules of international law. Nor is there any case-law of the Court of 
Justice on the Dublin Regulation that provides clarity on this point. Furthermore, 
it appears that Member States have different practices.  
20 Although the referring court takes the view that, in the present case, there is no 
question of authorisation by the authorities of Member State X, and therefore also 
not of a residence document, the referring court considers that, in view of the 
objectives and principles of the Dublin Regulation, a different interpretation 
cannot be ruled out.