Opinion of the Advocate General — ECLI:EU:C:2014:295
Date: 2014-04-30
Language of the case: German
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

summary having been set out, it is now appropriate to address the different cases. B – Joined Cases C‑473/13 and C‑514/13 115. By their question, the national courts ask the Court, in essence, whether Article 16(1) of the Directive must be interpreted as precluding legislation of a Member State which, in the light of its federal structure, allows the federated States to place third-country nationals awaiting removal in prison when there are no specialised detention facilities in the territory of the competent federated State. 116. I would state, here and now, that the question whether the Directive requires, and if so within what period, the immediate building of a minimum number of detention centres does not, to my mind, fall within the context of the present questions. The issues raised by those questions centre on the individual cases submitted to the Court and amount, in fact, to asking whether a Member State may, without pleading extraordinary situations, make a rule of the exception in the second sentence of Article 16(1) of the Directive. 117. I would recall, in fact, that Ms Bero was held in a prison because there were in the Land of Hesse no specialised detention facilities capable of accommodating women. It is also clear from the observations submitted by Ms Bero that she was not separated from ordinary prisoners and persons held on remand. 118. As for Mr Bouzalmate, he was held in a separate area of the Munich city prison, the Land of Bavaria not having any specialised detention facilities. 119. In their order for reference, the Bundesgerichtshof and the Landgericht München ask whether such ground, invoking the federal structure of Germany, may legitimately be relied upon under Article 16(1) of the Directive. 120. On the one hand, they argue that the national authorities must ensure the detention of third-country nationals awaiting removal in specialised facilities regardless of where they are situated in national territory. They consider that there is therefore no need to take into account the powers reserved to each of the federated States for the purpose of implementing the principles laid down in Article 16(1) of the Directive. In such a situation, the detention of the persons concerned would therefore be contrary to the requirements of the Directive. 121. On the other hand, the national courts point out that, under Article 4(2) TEU, the Union must respect the federal structure of the Member States. 122. In its observations, the German Government recalls that Article 4(2) TEU in fact requires the legislature of the Union to respect the national identity of Member States inherent in their fundamental political and constitutional structures, as regards local and regional autonomy included. Therefore, it considers that, under the division of competences organised by the Basic Law, the Länder should be free to determine whether, and to what extent, they must create and manage specialised detention facilities, having regard to their size, their geographical situation and the number of persons detained for the purpose of removal and should also be free to decide, where appropriate, whether to establish administrative cooperation with other Länder. Therefore, the German Government maintains that the administrative sovereignty of a Land would be compromised if the latter could not place migrants awaiting removal in a prison within its purview on the ground that elsewhere in the national territory there are specialised detention facilities. 123. In the light of those factors, the German Government therefore considers that the exception referred to in the second sentence of Article 16(1) of the Directive must cover the situation in which a Member State is faced with a lack of specialised detention facilities in the territory of the competent federal State, but is nevertheless required to respect the division of powers established by the institutional rules of the State. 124. It is true that, under the second sentence of Article 16(1) of the Directive, a Member State may order the detention of an illegally staying migrant in a prison in situations where it ‘cannot’ detain him in a specialised detention facility. However, that provision does not further specify the grounds which would make it impossible for a Member State to do so. 125. In those circumstances, does the EU legislature leave it to the discretion of every Member State to determine the grounds on which an individual may be detained, not in specialised detention facilities, but in prison? 126. The German and Netherlands Governments give the answer ‘Yes’ to that question. In their interpretation, they avoid linking Article 16 with Article 18 of the Directive, though Article 18 clarifies Article 16 most particularly, to the point that the two articles must, in my view, be read in conjunction one with the other; moreover, the wording of Article 18 clearly states that it derogates from Article 16. 127. Thus, Article 16(1) of the Directive lays down a principle, the carrying out of detention in a specialised facility, and provides for a derogation, when the Member State cannot do so. 128. Article 18 of the Directive expressly provides for the situation in which such a derogation is conceivable, namely: when the Member State is faced with ‘emergency situations’, the expression which is the title of that article. 129. At this point, moreover, it is possible here and now to raise the question why the EU legislature expressly provided for a derogation based on the emergency of a situation if such a derogation were as natural and normal as claimed by the German and Netherlands Governments. What would be permitted for reasons of administrative convenience should be permitted a fortiori in emergency situations without there being any need for the Directive to specify this. 130. Clearly, therefore, in the scheme of the Directive, it is necessary to regulate strictly the grounds that may relied on by the Member States for the purpose of ordering detention in prison, not only because this involves the most serious measure restrictive of freedom allowed under the Directive, but also because it involves a derogation and it is therefore necessary to point out the limits of the latitude given to the Member States laid down by the Directive itself in order to ensure its effectiveness. 131. Emergency situations such as those defined in Article 18 of the Directive therefore constitute the only ground expressly provided for by the EU legislature for derogating from the obligation to place detainees in a specialised detention centre. Pursuant to that provision, the Member State may adopt urgent measures derogating from the principles set out in Articles 16(1) and 17(2) of the Directive when an unforeseen heavy burden is placed on the capacity of its detention facilities or on its administrative or judicial staff on account of an exceptionally large number of third-country nationals to be returned. 132. Is that the only ground that may be relied on? 133. The wording of the Directive does not seem to me to allow that question to be answered in the affirmative. However, it is possible to infer from that wording the nature of the circumstances that would be necessary if a Member State were to be able to invoke them for such purposes. 134. Indeed, Article 18(2) of the Directive expressly describes the derogations provided for in Article 18(1) as ‘exceptional measures’ and provides that, in such circumstances, the Commission must be informed of the start and the end of the measures in question. 135. It seems clear to me that only exceptional circumstances satisfying criteria of urgency or seriousness similar to those referred to in Article 18 of the Directive can justify exceptional measures requiring review in principle by the Commission. 136. I consider, therefore, that except in emergency situations to do with the influx of migrants, a Member State may order the detention in prison of a third-country national only if there are exceptional and legitimate grounds, such as those alleging necessity, showing uncontestably that the weighing up of interests requires that solution. When a Member State is facing difficulties related to the detention of migrants awaiting removal, it seems to me that it must indicate, assessing every case individually, the reasons why detention in a prison is required, on the understanding that such detention must guarantee the separation of the migrant from ordinary prisoners. It must, furthermore, give reasons for its decision with regard to the circumstances of the case and fulfil the obligations imposed on it by Article 18(2) of the Directive. It also seems to me, even though the Commission did not accept this idea at the hearing, that it must be possible for the migrant to bring proceedings, administrative at least, against the detention decision. 137. Accordingly, it is in the light of those considerations based on a simple reading of the wording of the provision itself, that I shall examine in turn the reasons given by the competent national authorities in the cases in the main proceedings and those given by the Governments of the Member States in their observations. 1. The reasons given by the Regierungspräsidium Kassel (Case C‑473/13) and the Kreisverwaltung Kleve (Case C‑514/13) 138. In Joined Cases C‑473/13 and C‑514/13, the competent national authorities rely on the powers reserved to each of the Länder and on the actual wording of Paragraph 62a(1) of the Aufenthaltsgesetz to justify the detentions at issue. That provision, as I have shown, confers on each of the Länder the right to order the detention of illegally staying migrants in prisons, when those Länder do not have in their territory specialised detention facilities. 139. It should be borne in mind that 10 Länder do not have such facilities. It is therefore clear from the documents produced by the national court in Case C‑514/13 that persons placed in administrative detention in Bavaria have been automatically detained, since 1 January 2012, in the prisons of Aschaffenburg, Munich or Nuremberg (52). 140. However, detaining an illegally staying migrant in a prison on the pretext that there are no specialised detention facilities in part of the territory of the Member State is not, in my view, an acceptable reason, for it does not in any case satisfy the criteria defined above. Indeed, that situation is in no way the result of a situation such as that expressly described in Article 18 of the Directive or one satisfying criteria of urgency or seriousness similar to those referred to in that provision. In fact, the impression which emerges is that there are no specialised detention facilities quite simply because they have not been built in some Länder and the capacity of existing accommodation facilities has not been used. 141. Moreover, it does not seem to me that the federal structure of the Member State is an obstacle to application of the principles of the Directive. 142. In that regard, it is important to recall two essential principles of the case-law of the Court. 143. First, the Court has consistently held that a Member State may not invoke national provisions or practices stemming from its federal organisation in order to justify any failure to fulfil obligations prescribed by a directive. (53) Thus, according to settled case-law, it is not for the EU institutions to take into account or even to rule on the division of competences by the institutional rules proper to each Member State, or on the obligations which may be imposed on the authorities of the federal State and those of the federated States respectively. (54) 144. Consequently, once a Member State has a specialised detention facility in its territory, with sufficient accommodation capacity, it must order the detention of the person concerned in that facility, and the federal organisation of that State and the geographical situation of that facility are of little importance. 145. Secondly, Member States must adjust their legislation so as to ensure observance of the fundamental rights of individuals. In particular, those States may not apply rules, even of criminal law, capable of jeopardising the attainment of the objectives pursued by a directive and so of depriving it of its effectiveness. According to the wording of the second and third subparagraphs of Article 4(3) TEU, the Member States ‘shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ and, in particular, ‘shall … refrain from any measure which could jeopardise the attainment of the Union’s objectives’, including those pursued by directives. That obligation is imposed on all the authorities of the Member States,, (55) whether the authorities of the federal State or those of the federated States when a Member State is organised on a federal basis. 146. In Germany, the powers relating to the implementation of EU law are shared between the federal State and the federated States. It must, however, be pointed out that, in accordance with Paragraph 35(1) of the Basic Law, all the authorities of the federal State and the federated States are to provide mutual legal and administrative assistance, and that this does not compromise the administrative sovereignty of the Länder relied on by the German Government in its observations. 147. In accordance with that provision, Paragraph 5(1)(2) of the German Law on non-contentious administrative proceedings (Verwaltungsverfahrensgesetz) allows the authorities of the federated States to submit requests for mutual administrative assistance when one federated State is prevented from adopting administrative measures on the basis of, inter alia, the lack of necessary facilities or the lack of staff. 148. Saarland has accordingly entered into an administrative cooperation agreement allowing it to place third-country nationals awaiting removal in the specialised facility of Ingelheim located in Rhineland-Palatinate. Of the 152 places available in that facility, 50 are put at the disposal of Saarland. (56) Hamburg also concluded a cooperation agreement to ensure the detention of women and minors in specialised facilities located in the territory of Brandenburg. (57) That also seems to be the case with the Länder of Saxony and Schleswig-Holstein which, on the basis of the cooperation agreement with Brandenburg, place migrants in the specialised detention facilities of Berlin-Köpenick and Eisenhüttenstadt. (58) 149. In Case C‑514/13, the national court also expressly envisaged the use of mutual administrative assistance. Indeed, it is clear from the procedural documents of 10, 12 and 13 September 2013 that it expressly requested the authorities of Rhineland-Palatinate to place the person concerned in the specialised detention facility of Ingelheim. It is to be noted that that request was accepted before being rejected following the attempted suicide of the person concerned. 150. It seems to me, therefore, that the federal structure of Germany does not preclude the placing of illegally staying migrants in specialised detention facilities, even in cases where the competent Land does not have such facilities in its territory. 151. Indeed, in such a case, it seems to me that the measures relating to mutual administrative assistance, and in particular cooperation agreements between the various federated States, make it possible to ensure compliance with Article 16(1) of the Directive while respecting the federal structure of Germany. 2. The reasons given by the Governments of the Member States in their observations a) The migrant’s interests and welfare 152. According to the German and Netherlands Governments, there are circumstances in which the migrant’s interests and welfare would require his detention in a prison, thus justifying a derogation from the principles set out in the second sentence of Article 16(1) of the Directive. That detention would constitute a ‘more favourable measure’ for the purposes of Article 4(3) of the Directive, allowing the competent national authorities to provide a ‘personalised solution’ in the migrant’s interests for the purposes of recital (6) in the preamble to the Directive. (59) 153. The German Government states that, because of the average period of detention of ordinary prisoners, clearly longer than that of migrants, prisons offer a wider and more extensive range of activities, leisure and care than that provided in specialised detention facilities and better supervision too in terms of safety. Minors detained in facilities for young offenders could thus benefit from the specific care and teaching provided in those detention facilities for minors and participate, should they so wish, in activities with persons of the same age. As for persons having a particular condition, they could receive medical care not necessarily offered in specialised detention facilities. Finally, persons representing a risk to the safety of others could be better monitored because of the structure of the prison and supervised by qualified staff. 154. Moreover, according to the German Government, the detention of a migrant in a local prison would avoid the disadvantages related to the geographical distance of detention facilities. First of all, it would make it possible to ensure the effectiveness of the removal procedure. Next, it would save the migrant having to travel long distances and would facilitate not only continued contact with family and friends but also steps taken in any legal procedures. Finally, if a member of the family were held in the prison, the detention of the migrant in the same establishment would make it possible to reunite those family members. 155. I note that some of those arguments were raised by the Federal Republic of Germany in the answer which it provided to the CPT following the report of 22 February 2012. (60) 156. I consider that those arguments are highly dubious, with the exception, no doubt, of that concerning persons posing a risk to the safety of others, for whom the reference to the theory of a state of necessity seems to me expedient. 157. Although Article 5 of the Directive indeed requires Member States to take into account the best interests of the child, family life and the state of health of the person concerned when they implement the directive, it is clear that this is not to the effect suggested by the German and Netherlands Governments in their observations. 158. It true that there are situations in which it is preferable to be in a prison rather than in a detention facility. They are precisely those described by the EU legislature in Article 18 of the Directive or others similar to them in seriousness or urgency. Apart from those cases, it seems to me difficult to argue that detention in a prison may constitute a ‘more favourable measure’ or represent a ‘personalised solution’ for one awaiting removal, whether he is a minor or sick. To do so once again disregards the function of imprisonment which is designed as an instrument of punishment intended to ensure retribution for the offence committed. 159. In that regard, it is clear that Member States cannot rely on Article 4(3) of the Directive to order such a detention. 160. Although that provision allows Member States to adopt or maintain provisions more favourable to illegally staying third-country nationals than those of the Directive, provided that such provisions are compatible with it, the Court pointed out, in El Dridi, (61) that the Directive does not allow those States to apply stricter standards in the area that it governs. (62) 161. However, it is clear that detention in a prison not only constitutes a stricter measure than those referred to in the context of forced removal, but also infringes the principles laid down by the Directive if that detention is not accompanied by the guarantees required by Article 16(1) thereof. 162. I shall now set out the arguments put forward by the German and Netherlands Governments in their observations. 163. First, minors detained in a facility for young offenders could benefit from specific care and teaching and participate in activities with persons of the same age. What care is this? While young persons placed in a facility for young offenders, therefore offenders, are admittedly in need of care falling within the scope of psychological supervision, I do not see why young migrants should, by definition, need it, not being offenders? 164. What I see there is the migrant being treated as if he were an offender, the very fact of his being placed in the minors’ unit leading to the separation of child from parents that the Directive specifically seeks to avoid. I cannot find in this any echo of Articles 1 and 24 of the Charter, particularly of Article 24(3) which provides that ‘every child shall have the right to maintain on a regular basis a personal relationship with both his or her parents’. 165. Furthermore, while the Directive provides that minors must be able to participate in activities suitable to their age, particularly sports and recreational activities, I very much doubt that the Union legislature could have had it in mind to make them take part in activities with young offenders, precisely because of the dangers of criminalisation that such a situation is liable to create. 166. Secondly, the claim that migrants suffering from a particular illness could benefit, in prisons, from appropriate medical care not necessarily available in detention facilities. It is clear that not every detention facility can be required to provide comprehensive health care. However, and in accordance with Article 16(3) of the Directive, I would point out that they must provide emergency health care and essential treatment of illness. If a health condition requires extensive treatment, I doubt that it is possible for prisons to be used as a place of hospitalisation. Quite clearly, moreover, beyond a certain level of severity, detainees themselves must receive care provided outside the establishment. 167. Thirdly, it is argued that detaining a migrant in the prison of the local Land would enable him to maintain contact with his family and friends. Such separation necessarily comes about inasmuch as the migrant is to be removed, and the fact of his relations being close by would not enable him to make use of provisions that might authorise him to remain in the territory of the Union. 168. Fourthly, moving the migrant to a far-off, specialised centre would damage the efficiency of the removal procedure. This argument is not, in my view, acceptable inasmuch as it is the very purpose of the specialised detention centre to facilitate all steps that make it possible to ensure that the individual is swiftly and efficiently returned to his country of origin in observance of the rights conferred on him. 169. Fifthly, a migrant could be detained in the same prison in which other members of his family are detained. I do not see why such detention would not be possible in a specialised detention facility where family reunification is the rule in accordance with Article 17(2) of the directive? This requirement of keeping families together seems to me, on the other hand, to mark the way in which the detention regime differs essentially from the custody regime and, in consequence, to prohibit recourse to the latter. In this regard, the constraints attaching to the regime of imprisonment in cells with timed meals and tasks, exceedingly short ‘exercise’ hours and sometimes having to wear a uniform, appear to me to be illustrated perfectly by the observations of the prison of Munich. b) The costs associated with the establishment of specialised detention facilities and the costs linked to transfers to distant detention facilities 170. The German Government observes that it would be prohibitively expensive to establish in each Land specialised detention facilities for all the persons concerned, that is to say, men, women and minors, especially given the relatively low number of those persons, and in particular of women and children. (63) It also considers that the Member State must enjoy some flexibility in the arrangement of those facilities, since the number of people to be detained is not stable and the period of their detention is no more than a few weeks to a few months. 171. The Netherlands, Swedish and Swiss Governments also rely on the heavy and disproportionate burden which could be involved in transferring a migrant and members of the responsible authorities over long distances to geographically distant detention facilities, which would cause delays and constitute a disproportionate obstacle to carrying out the return procedure. In that regard, the Netherlands Government specifically refers to the situation in which a Member State is likely to find itself when specialised detention facilities have no available places or are temporarily closed. 172. I understand that a Member State may be confronted with a problem of overcrowding in its detention facilities at a time when administrative detention is very widespread and it is also forced to close some of them because of, for example, alteration and renovation works. All the same, we must not lose sight of the fact that imprisoning migrants whose situation is irregular may well, in the same way, lead to the overcrowding of those establishments which would of itself give rise to significant costs. To my knowledge, many are the Member States that complain of endemic overcrowding in prisons. 173. I understand too that transfer to specialised detention facilities can involve costs and call for arrangements to be made, even when the removal procedure is shortly to be put in hand. Now, no Member State could have imagined or even argued, when adopting the Directive, that the obligations and principles it lays down were to be given effect without any expense. On this head, it must also be held that placing migrants in prison is itself very costly in terms of space and of fitting out premises. It demands the thorough restructuring of certain quarters of those establishments in order for the detention regime to be in keeping with the rules of the Directive. Consequently, the savings claimed by the Member States seem to me to be quite illusory. Lastly, I should be interested to know the respective costs, for the same number of places, of a prison and of detention facilities. 174. In view of all those matters, I consider, therefore, that, with the exception of the emergency situations expressly referred to in Article 18 of the Directive, only exceptional circumstances satisfying criteria of urgency or seriousness similar to those referred to in that provision or relating to necessity can warrant a Member State’s being constrained to derogate from the principle laid down in the first sentence of Article 16(1) of the Directive and to order the detention of a third-country national awaiting removal in prison. 175. In my view, none of the grounds relied on in the main proceedings is of that nature. 176. In view of all those considerations, I consider, therefore, that Article 16(1) of the Directive must be interpreted as precluding legislation of a Member State that, in the light of its federal structure, allows the federated States to detain in prison third-country nationals awaiting removal when there are no specialised detention facilities in the territory of the competent federated State. C – Case C‑474/13 177. In Case C‑474/13, the Bundesgerichtshof asks the Court, in essence, whether, under Article 16(1) of the Directive, a Member State need not separate a third-country national detained in prison for the purpose of his removal from ordinary prisoners on the ground that the migrant consented to that arrangement. (64) 178. In other words, can a migrant detained for the purpose of his removal consent to being treated in the same way as an offender or a criminal? 179. In its order for reference, the Bundesgerichtshof considers that the person concerned should be able to consent to be detained with ordinary prisoners because of the ‘opportunity for contact with compatriots or people of the same age’. It argues, moreover, that the requirement of separation is intended only to improve the situation of the person concerned and that the waiver of such a requirement does not affect the essence of human dignity, the enforcement of a sentence not, in itself, being detrimental to human dignity. 180. The national court points out, however, that, under Article 16(1) of the Directive, the EU legislature provides no exception to the requirement of separation. Moreover, it asks whether there is not a risk of the requirement’s being circumvented inasmuch as ‘the authorities involved regularly make the people concerned sign pre-formulated declarations of consent or urge them to consent’. 181. In their observations, the Stadt Schweinfurt, Amt für Statistik und Meldewesen and the German and Netherlands Governments consider that such a practice is compatible with Article 16(1) of the Directive. 182. They rely, in essence, on the migrant’s interests and welfare, which require, in certain circumstances, derogation from the requirement of separation laid down by that provision. Being accommodated with ordinary prisoners would improve his situation and, therefore, satisfy the objective of that provision. 183. According to the German Government, that accommodation would, in particular, allow the person concerned ‘to make social contacts with compatriots during detention’, a view shared by the Netherlands Government, and facilitate visits by relatives and close friends. That accommodation would thus help to avoid the social isolation which the person concerned would face in a detention facility because of its geographical distance and the small number of people of the same nationality and speaking the same language in detention facilities. According to the German Government, such a situation would be more difficult to deal with than the disadvantages relating to accommodation with convicted persons. Moreover, the German Government argues that respect for human dignity does not prevent a migrant awaiting removal from being detained with ordinary prisoners, in the same conditions as the latter. On the contrary, observance of that principle entails respecting the wishes expressed by the person concerned to be detained with prisoners of the same nationality. 184. To conclude, they all argue that such a practice is capable of constituting a more favourable measure for the person concerned than a strict requirement of separation. According to the Netherlands Government, that practice is, therefore, in accordance with Article 4(3) of the Directive and would, for the purposes of recital 6 in the preamble to the Directive, make it possible to ‘develop tailor-made solutions in the foreigner’s interest’. 185. I firmly reject that interpretation and I think that it is clearly necessary to answer in the negative the question referred by the Bundesgerichtshof. 186. In its question, the national court refers to the situation in which the person concerned has ‘consented’ to be accommodated with ordinary prisoners by drawing up a written declaration of consent. However, the verb ‘to consent’ (‘einwilligen’ in German) implies a previous request. In the context of Case C‑474/13, that presupposes that the competent national authorities first ‘asked’ the person concerned, in one form or another, to waive that guarantee. 187. It is clear from the observations submitted by Ms Pham that she signed the following pre-formulated written declaration: ‘Pham Thi Ly, in detention I declare that I consent to be detained with prisoners. Nuremberg, 30 March 2012 Signature’ 188. In the light of the information at my disposal, I feel that the action taken by the national authorities was not motivated by the interests of Ms Pham, still less by any wish she may have expressed concerning the conditions of her detention. Nothing in the case-file, and still less the declaration signed by Ms Pham, makes it possible to assert that she expressly requested to be detained with compatriots. On the contrary, it is clear from the information at my disposal that she was not proficient in German and that, on 31 March 2012, only three female Vietnamese nationals were incarcerated in one of the 37 prisons in Bavaria. I consider that the action by the authorities was actually taken because of the lack of facilities capable of accommodating Ms Pham, and that those authorities, moreover, proposed no alternative to her detention. 189. It seems to me hard to accept that, quite apart from the distress which a migrant experiences in the light of his forced removal and the weakness of his position, a Member State may, in one way or another, ask him to waive a guarantee that EU law expressly confers on him on the ground that that State does not have the infrastructure necessary to detain him in specialised facilities or, where appropriate, to separate him from ordinary prisoners. 190. Once again, to concede that Member States need not trouble to separate a migrant from ordinary prisoners on the ground that he has consented to being with them would enable the national authorities to circumvent the requirement referred to in Article 16(1) of the Directive and, in the end, excuse a serious infringement by those States of their obligations under the Directive and their international commitments. 191. In Case C‑474/13, it therefore seems clear to me that such consent could not constitute a valid ground for the Member State to derogate from the requirement of separation in Article 16(1) of the Directive. 192. The wording of the second sentence of Article 16(1) of the Directive is perfectly clear and forms the basis, I would point out, of an unconditional and precise requirement. The EU legislature provides for no exception to the requirement of separation, so that a Member State may not, on the basis of the Directive, derogate from that principle, except in the emergency situations referred to in Article 18 thereof. 193. Moreover, the objectives of the Directive, which I shall not repeat, clearly militate against such a practice. 194. When a Member State considers that it need not separate migrants awaiting removal from ordinary offenders, it is engaging in conduct not only contrary to the purpose of the Directive, that is to say, to return them in a humane, dignified manner, in full observance of their fundamental rights, (65) but also disproportionate to the purpose of the detention. 195. Indeed, that State seeks to place the detention of a third-country national awaiting removal on the same footing as a measure enforcing a sentence, so that the illegally staying migrant is treated in the same way as a criminal, being detained in a place, in conditions and under a regime identical to those reserved to ordinary prisoners. 196. I can certainly share the view of the Bundesgerichtshof when it states as a principle that the enforcement of a sentence is not in itself detrimental to human dignity. The serving by a convicted person of a sentence lawfully imposed and lawfully delivered is, for him, by paying his debt to society, even a way of regaining his dignity as a citizen. However, is it possible without reservation to express the same view in relation to Ms Pham, who is placed in the situation of a person serving a sentence even though she is innocent of any offence under ordinary law? It seems to me that such a parallel cannot be drawn here. 197. Moreover, it seems to me more than hazardous, in the light of fundamental rights, to argue that detention within a prison makes it possible to ‘improve the situation’ of the migrant and thus overturn the principles set out in Article 16(1) of the Directive by claiming to protect the interests and dignity of an illegally staying migrant. Moreover, as I have noted in points 159 to 161 of this Opinion, such a practice is not to be justified under Article 4(3) of the Directive, for the measure involved is, in itself, much stricter than that provided for by the EU legislature. 198. Accordingly, I in no way support the view expressed by the national court in its order for reference, that the person concerned may waive that guarantee when there is, for example, ‘the opportunity for contact with compatriots or people of the same age’, a view which the Netherlands Government also shares. A prison is not a holiday club or even a social club. Moreover, when I examine the statistics compiled by the Land of Bavaria concerning the nationality of inmates as at 31 March 2012, the date on which Ms Pham was placed in detention, throughout the territory (66) (that is 37 prisons, 9 of which primarily accommodate women), (67) I note that only three detainees were of Vietnamese nationality, 7 were of African origin — which includes 57 countries and as many languages and dialects — and none was of Chinese, Iraqi, Lebanese or yet Albanian origin. The opportunity would, at all events, seem somewhat rare. 199. Lastly, I question the value of Ms Pham’s consent, having regard to the context in which it was given. 200. First of all, it is clear from the observations submitted by Ms Pham that she did not have sufficient language proficiency in German to understand the declaration that she signed and everything would suggest that that declaration was not translated. 201. Furthermore, the waiver in question is given in a situation of profound imbalance between the authorities responsible for carrying out the detention and the illegally staying migrant. It must not be overlooked that a person placed in detention for the purpose of removal is in a position of weakness vis-à-vis the authorities and it is conceivable that he gives his consent under pressure, however slight. As noted by the national court in its order for reference, ‘the authorities involved regularly make the people concerned sign pre‑formulated declarations of consent or urge them to consent’. 202. It is also necessary to take into account the psychological deprivation which the migrant is likely to experience during his detention and the difficulties which he may encounter, because of his language, for example, in acquainting himself with the rights conferred on him. Many are those who do not, at that stage, have the means to obtain legal assistance and who will not be fully aware of their rights at the very time when they are invited to waive them. Many will not discern the meaning and consequences of a declaration to that effect. That is why the Court cannot run the risk of recognising that consent given in such circumstances has any legal value. 203. Furthermore, because the situation offered to Ms Pham constituted, for the reasons set out, a worsening of her lot, it seems that, in order for her rights to be observed, she ought to have been assisted by a legal advisor. It is apparent from the observations made at the hearing that she was assisted by a lawyer at a later stage of the proceedings. 204. Therefore and in the light of all those considerations, I consider that Article 16(1) of the Directive must be interpreted as precluding a Member State from considering that it need not separate a third-country national detained for the purpose of his removal in prison from ordinary prisoners on the grounds that he consented to being placed with them. VI – Conclusion 205. In the light of the above considerations, I propose that the Court should answer the questions referred as follows: (1) In Joined Cases C‑473/13 and C‑514/13: 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 must be interpreted as precluding legislation of a Member State that, in the light of its federal structure, allows the federated States to detain in prison third-country nationals awaiting removal when there are no specialised detention facilities in the territory of the competent federated State. (2) In Case C‑474/13: 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 must be interpreted as precluding a Member State from considering that it need not separate a third-country national detained for the purpose of his removal in prison from ordinary prisoners on the grounds that he has consented to being placed with them. 1 – Original language: French. 2 – Directive 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, ‘the Directive’). 3 – See Article 1 of the Directive and recitals (2) and (11) in the preamble thereto. 4 – El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraphs 39 and 41. 5 – Ibid., paragraph 42. 6 – In the judgment of Popovv.France of 19 January 2012, the European Court of Human Rights accordingly held that ‘placement in administrative detention [is] a measure of last resort for which no alternative [is] available’ (§ 119). See, also, Resolution 1707 (2010), in which the Parliamentary Assembly of the Council of Europe points out that ‘detention of … irregular migrants shall be exceptional and only used after first reviewing all other alternatives and finding that there is no effective alternative’ (paragraph 9.1.1). 7 – See, respectively, recitals (13), (16), (17) and (24) in the preamble to the Directive. 8 – Emphasis added. 9 – They are the Länder of Hamburg, Hesse, Baden-Württemberg, Bavaria, Mecklenburg-Western Pomerania, Lower Saxony, North Rhine-Westphalia, Saxony, Saxony-Anhalt and Thuringia. However, there are specialised detention facilities in the following Länder: Berlin, Schleswig-Holstein, Rhineland-Palatinate and Saarland acting in cooperation, Brandenburg and Bremen. 10 At the hearing we learned that the order placing Mr Bouzalmate in detention had been annulled. 11 – BGBl. 2004 I, p. 1950. 12 – Emphasis added. 13 – See, in particular, judgments in S.D. v. Greece, of 11 June 2009; Popov v. France; and Aden Ahmed v. Malta, of 23 July 2013. 14 – EU:C:2011:268. 15 – Paragraphs 46 and 47 and the case-law cited. 16 – In Czech, ‘Zajištění se zpravidla vykonává ve zvláštních zajišťovacích zařízeních’; in German, ‘Die Inhaftierung erfolgt grundsätzlich in speziellen Hafteinrichtungen’; in English, ‘Detention shall take place as a rule in specialised detention facilities’; in Finnish, ‘Säilöönotto tapahtuu yleensä erityisissä säilöönottolaitoksissa’; in Italian, ‘Il trattenimento avviene di norma in appositi centri di permanenza temporanea’; in Dutch, ‘Voor bewaring wordt in de regel gebruik gemaakt van speciale inrichtingen voor bewaring’; or yet in Polish, ‘Przetrzymywanie odbywa się z reguły w specjalnych ośrodkach detencyjnych’. 17 – See, also, the exception referred to in Article 18 of the directive, to which I shall return. 18 – Emphasis added. 19 – Ibid. 20 – Ibid. 21 – Ibid. 22 – Ibid. 23 – Ibid. 24 – See, inter alia, Ferriere Nord v Commission, C‑219/95 P, EU:C:1997:375, paragraph 15. 25 – See, inter alia, Endendijk, C‑187/07, EU:C:2008:197, paragraph 22 et seq. 26 – Emphasis added. 27 – Ibid. 28 – It is well established in the case-law of the European Court of Human Rights that any deprivation of liberty must, in addition to falling within one of the exceptions set out in Article 5(1)(a) to (f) of the ECHR, be ‘lawful’ (see, inter alia, Popovv. France, § 118 and the case-law cited). To that end, the European Court of Human Rights requires the existence of some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (ibid.). 29 – See, also, the eighth of the Ten guiding principles governing the circumstances in which the detention of asylum seekers and irregular migrants may be legally permissible, in which the Parliamentary Assembly of the Council of Europe points out that the place, conditions and regime of detention must be appropriate, and the issue paper ‘The Human Rights of Irregular Migrants in Europe’ [CommDH/IssuePaper(2007)1, Title III(ii)]. 30 Along the same lines, the Parliamentary Assembly of the Council of Europe, in the second of its 15 European rules governing minimum standards of conditions of detention for migrants and asylum seekers requires detainees to be accommodated in centres specifically designed for the purpose of immigration detention and not in prisons. In its fifth and sixth rules, it also demands that the material conditions for detention, and the detention regime, should be appropriate to the individual’s legal and factual situation. 31 – See, also, the explanations on the tenth and eleventh of the Twenty guidelines on forced return of the Council of Europe. 32 – See Popovv. France. 33 – The EU legislature is thereby transposing the case-law of the European Court of Human Rights according to which any deprivation of liberty can be consistent with Article 5(1)(f) of the ECHR only if it is carried out for the purpose of enforcement of deportation proceedings and is proportionate to that aim (see judgment of the European Court of Human Rights in Chahalv. United Kingdom of 15 November 1996, Reports of Judgments and Decisions 1996-V, § 112 and 113, and Popovv. France, cited above, § 140). 34 – Council Directive of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18). 35 – Article 2(k) of Directive 2003/9. Emphasis added. 36 See El Dridi, paragraph 59. 37 – See recitals 13 and 16 in the preamble to the Directive. 38 – See, in that regard, the observations of the prison of Munich in Annex 2 to the order for reference in Case C‑514/13. 39 – COM(2005) 391 final. 40 – Emphasis added. 41 Since these references for preliminary rulings were made, the situation would seem to have changed. Thus, it appears from a decision of the Ministry of the Interior of the Land of Bavaria, adopted in November 2013, that the prison at Mühldof-am-Inn has now been restructured so as to set up a specialised detention centre capable of holding 82 persons, 14 of them women, pending their removal. This establishment was chosen because it is geographically close to Munich airport (see article in the Wochenblatt newspaper of 14 November 2013, entitled ‘Aus Mühldorfer ‘Kuschelknast” wird Bayerns einziges “Abschiebe-Gewahrsam”’). 42 – Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 November to 7 December 2010 [CPT/Inf (2012) 6, paragraph 33]. 43 – It is clear from the Response of the German Government to the Report of the CPT of 22 February 2012 (Response of the German Government to the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Germany from 25 November to 2 December 2010 [CPT/Inf (2012) 7] that migrants awaiting removal are detained in prison in separate units, segregated from the rest of the establishment, in the Länder of Brandenburg, Bremen, Rhineland-Palatinate, North Rhine-Westphalia and Lower Saxony (pp. 23 and 24). 44 – LG Leipzig — 07 T 104/11. 45 – See CPT/Inf (2012) 6, paragraph 31. 46 – LG Traunstein — 4 T 3104/12. 47 – ‘As a general rule, minors are not detained pending deportation. This is the case only in severely limited exceptional cases, and the principle of proportionality is strictly adhered to. As a rule, minors are placed in the custody of the youth welfare office’ [CPT/Inf (2012) 7, p. 24]. 48 – See the reply of Hesse in Annex 3a to the order for reference in Case C‑514/13, which states that ‘[w]ith regard to adult females and young people and children of both sexes, because they are few in number it is not possible to create suitable detention facilities. When such persons must be placed in administrative detention, it is provided in the prisons of Frankfurt am Main III (for women) and in juvenile detention facilities’ (free translation). 49 – See the reply of Saxony in Annex 3a of the order for reference in Case C‑514/13, which refers to its answer to question 49 of the parliamentary request of 5 September 2012 (Drucksache 17/10597), which states that ‘[c]oncerning the detention of adult females, due to the low number of women in detention (usually only one woman), it takes place — in the interests of avoiding total isolation — within the prison of Chemnitz, in a unit reserved for persons held on remand’ (p. 114, free translation). 50 – See, also, the order of the Bundesgerichtshof of 7 March 2012 (V ZB 41/12), in which the Supreme Court expressly refers to the separation of minors in detention from ordinary prisoners and emphasises the importance of the requirements laid down in Article 17(3) to (5) of the Directive. 51 – See the answers of the various Länder to question 52 of the parliamentary request of 5 September 2012, referred to above (pp. 124 to 127). 52 – See Annex 3a to the order for reference in Case C‑514/13. 53 – See Commission v Germany, C‑67/05, EU:C:2005:791, paragraph 9 and case-law cited. 54 – See, inter alia, Commission v Germany, C‑8/88, EU:C:1990:241, paragraph 13. 55 – See Impact, C‑268/06, EU:C:2008:223, paragraph 85 and case-law cited. See also, in that regard, the order of the Court in Région wallonne v Commission, C‑95/97, EU:C:1997:184, paragraph 7. 56 – See Annex 3b to the order for reference in Case C‑514/13. 57 – See the reply of Hamburg in Annex 3a to the order for reference in Case C‑514/13. 58 – See p. 3 of the French version of the observations of Ms Bero. 59 – Paragraph 29 et seq. of the observations of the Netherlands Government. 60 – See CPT/Inf (2012) 7. According to the Federal Republic of Germany, detention in a prison would make it possible, in certain situations, to have common facilities and personnel and to detain the individuals concerned in a place relatively close to their ‘residence’ (p. 24). See also the response of Hesse in Annex 3a to the order for reference in Case C‑514/13, which states that ‘[s]pecialised detention facilities are not provided for in Hesse and nor are they necessary’ (free translation). 61 – EU:C:2011:268. 62 – Paragraph 33. 63 – In its response to the report drawn up by the CPT, the Federal Republic of Germany also referred to economic arguments related to the establishment of specialised facilities and considered that, given the relatively low number of people actually in detention, the present system may be termed appropriate [CPT/Inf (2012) 7, p. 24]. See also response of Hesse in Annex 3a to the order for reference in Case C‑514/13, which states that ‘[s]pecialised detention facilities are not provided for in Hesse and nor are they necessary’ (free translation). 64 – That detention was also ordered by the authorities of Bavaria on the basis of Paragraph 62a(1) of the Aufenthaltsgesetz. Nothing in the case-file indicates why Ms Pham could not be detained in a specialised detention facility. Nevertheless, and given the evidence available to the Court in Joined Cases C‑473/13 and C‑514/13, it appears to me that that detention in prison is justified by the absence of specialised detention facilities in Bavaria. In so far as that justification cannot, in my view, be accepted in the light of the requirements laid down in Article 16(1) of the Directive, such detention is, therefore, illegal. However, in the event that that detention is justified on a legitimate ground, the question of whether it is lawful arises, in so far as the person concerned was accommodated with ordinary prisoners following her consent. 65 – See recitals 13, 16, 17 and 24 in the preamble to the Directive. 66 – Bayerisches Landesamt für Statistik und Datenverarbeitung — Strafvollzugsstatistik in Bayern 2012, Stichtagerhebung zum 31. März (Kennziffer B VI 6 j 2012, p. 10). 67 – See Internet address http://www.justizvollzug-bayern.de/JV/Anstalten/Zustaendigkeiten.