Judgment;Summary — ECLI:EU:C:2023:113
Date: 2023-02-16
Language of the case: Dutch
Court formation: Tenth Chamber
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary C-745/21 – 1 
Case C-745/21 
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: 
2 December 2021 
Referring court: 
Rechtbank den Haag zittingsplaats Zwolle (Netherlands) 
Date of the decision to refer: 
29 November 2021 
Applicant: 
L.G. 
Defendant: 
Staatssecretaris van Justitie en Veiligheid 
  
Subject matter of the main proceedings 
The main proceedings concern the appeal lodged by the applicant with the 
Rechtbank den Haag zittingplaats Zwolle (The Hague District Court, sitting in 
Zwolle) against the decision of 12 March 2018 of the Staatssecretaris van Justitie 
en Veiligheid (State Secretary for Justice and Security). By that decision, the State 
Secretary refused to examine the applicant’s asylum application on the grounds 
that Lithuania is responsible for doing so.  
Subject matter and legal basis of the request 
The request for a preliminary ruling, made pursuant to Article 267 TFEU, 
concerns, in particular, the question whether the best interests of the unborn child 
of the asylum seeker are relevant for the purposes of determining the Member 
State responsible, whether Article 16(1) of the Dublin Regulation can be applied 
in a situation where a dependency link may exist between the mother and the 
legally resident father of the child and whether that provision can apply to the 
relationship between the child and his or her father. 
EN NL
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-745/21 
 
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Questions referred for a preliminary ruling 
1. Does EU law preclude, in the determination by the Member State 
responsible for examining an asylum application, the attribution of an 
independent significance, pursuant to a provision of national law, to the 
interests of a child with which the applicant was pregnant at the time the 
application was made? 
2. a. Does Article 16(1) of Regulation No 349/2001 preclude the 
application of this provision where the applicant’s spouse is legally 
resident in the Member State to which the application is made? 
b. If that is not the case, did the applicant’s pregnancy entail dependence, 
within the meaning of that provision, on the husband by whom she was 
pregnant?  
3. If EU law does not preclude, in the determination by the Member State 
responsible for examining an asylum application, the attribution of an 
independent significance, pursuant to a provision of national law, to the 
interests of an unborn child, can Article 16(1) of Regulation No 343/2003 
apply to the relationship between the unborn child and the father of that 
unborn child who is legally resident in the Member State to which the 
application is made?  
Provisions of European Union law and national law relied on 
Charter of Fundamental Rights of the European Union, Article 24. 
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 (‘the Dublin Regulation’), recitals 13, 14, 16, 17 and 19, 
Articles 2, 6, 7, 9, 16, 17, 20 and 27.  
Article 16(1) of this regulation states: 
‘Where, on account of pregnancy [or] a new-born child, […] an applicant is 
dependent on the assistance of his or her child, sibling or parent legally 
resident in one of the Member States, or his or her child, sibling or parent 
legally resident in one of the Member States is dependent on the assistance 
of the applicant, Member States shall normally keep or bring together the 
applicant with that child, sibling or parent, provided that family ties existed 
in the country of origin, that the child, sibling or parent or the applicant is 
able to take care of the dependent person and that the persons concerned 
expressed their desire in writing.’ 
L.G. 
 
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Burgerlijk Wetboek (Civil Code), Book 1, Article 2. 
This article states: 
‘The child with which a woman is pregnant shall be considered to be already 
born, so long as it is in his or her interests to do so. […]’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a foreign national of Syrian nationality. The Lithuania 
Representation in Belarus issued her with a visa valid from 10 August 2016 to 
9 November 2017. On 27 September 2017, she arrived in the Netherlands and on 
28 September 2017, she expressed her intention to seek asylum in the 
Netherlands. On 10 October, she married M.S., who has been granted asylum by 
the Netherlands and who has resided in the Netherlands since 2011.  
2 On 12 October 2017, the Netherlands requested Lithuania to take charge of the 
applicant, as Lithuania is deemed to be responsible for examining her asylum 
application under Article 12(2) or (3) of the Dublin Regulation. On 12 December 
2017, Lithuania agreed to do so. 
3 In light of this, on 2 February 2018, the State Secretary issued an intention to 
adopt a decision. The applicant contested this by arguing that she was pregnant.  
4 By decision of 12 March 2018, the State Secretary refused to examine the 
applicant’s application for a residence permit of limited duration issued to persons 
granted asylum on the grounds that Lithuania was responsible for doing so.  
5 The applicant gave birth to a daughter on 20 June 2018. A medical report 
indicated with a level of probability bordering on certainty that her husband was 
the biological father. As her daughter was born during the marriage, it is legally 
established that her husband is also the legal father of her daughter. In the 
meantime, the State Secretary has granted the applicant’s daughter an ordinary 
fixed-term residence permit so that she can reside with her father, who has a right 
of residence in the Netherlands.  
6 The applicant has lodged an appeal with the referring court against the 
aforementioned decision of 12 March 2018, which is deemed to be a transfer 
decision.  
Essential arguments of the parties to the main proceedings 
7 The applicant submits that the relevant circle of persons referred to in 
Article 16(1) of the Dublin Regulation is not restricted as compared to 
Article 15(2) of Council Regulation (EC) No 343/2003 (Dublin II). The broad 
interpretation which the Court has given to the latter provision (judgment of 
6 November 2012, K v Bundesasylamt Österreich, C-245/11) also applies to the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-745/21 
 
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aforementioned Article 16. In view of the interests of the child, it is not relevant 
that the family tie between the father and the (unborn) child did not exist in the 
country of origin.  
8 The State Secretary argues that the pregnancy of an asylum seeker at the time 
when the Member State responsible is determined does not mean that the point of 
departure must be the existence of that (as yet unborn) child. Taking the rights of 
that (unborn) child as the point of departure would be disproportionate to the 
rights arising from it. Article 2 of the Civil Code (Book 1) only relates to civil 
rights, not to rights of residence or the responsibility for examining an application 
for international protection. Furthermore, Article 24 of the Charter does not relate 
to the protection of an unborn child. Article 16 of the Dublin Regulation does not 
relate to a dependency link between spouses or life partners. The judgment of the 
Court cited by the applicant is outdated, except in so far as it emphasises the 
existence of a family tie in the country of origin. Furthermore, family life can be 
exercised with both parents in Lithuania.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The circumstances of the case and the provisions relied on lead to various 
questions concerning the interpretation of EU law. 
10 First, contrary to the defendant’s view, the obligation under Article 1:2 of the 
Civil Code does not relate solely to the determination of civil or property rights, 
but also (inter alia) to child protection law and health law. There is therefore an 
obligation under national law to consider the applicant’s unborn child to be 
already born, if that is deemed to be in his or her best interests. Consequently, the 
question arises as to whether EU law precludes the consideration of the interests 
of the unborn child as an independent factor when determining the Member State 
responsible for examining the asylum application and the taking of a transfer 
decision. In that regard, the referring court refers to a judgment of 23 January 
2019 (M.A. and Others, C-661/17) in which the Court held that Article 20(3) of 
the Dublin Regulation establishes the presumption that the preservation of family 
unity, involving both parents, is to be regarded as being in the child’s best 
interests. The father has a right of residence only in the Netherlands, so that family 
unity cannot be exercised in Lithuania.  
11 Second, the question that also arises in this context is whether Article 16(1) of the 
Dublin Regulation is applicable to the situation of the applicant and her husband. 
The latter does indeed reside legally in the Netherlands, but is not a child, sibling 
or parent. However, in the aforementioned judgment of 6 November 2012, the 
Court gave a broader interpretation to the predecessor of this provision 
(Article 15(2) of Regulation 343/2003). If the aforementioned Article 16 is 
applicable, the further question arises of whether the applicant’s pregnancy at the 
time constituted a dependency link in relation to her husband within the meaning 
L.G. 
 
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of that provision, having regard to the fact that the applicant has no family or other 
relations in Lithuania, does not know the language and has no means of support.  
12 Third, the referring court considers that there is, in principle, a dependency link 
between a very young child and its father, who is referred to in Article 16(1) of 
the Dublin Regulation as a family member (‘parent’). If EU law permits the 
interests of the unborn child to be taken into account, the question also arises as to 
whether the interests of the unborn child mean that the Netherlands was required, 
under Article 16(1) of the Dublin Regulation, to ensure, save in exceptional 
circumstances, that the unborn child could reside with its father in the Netherlands 
during the examination of the application for international protection.