Opinion of the Advocate General — ECLI:EU:C:2025:486
Date: 2025-06-26
Language of the case: Dutch
Procedure: Reference for a preliminary ruling
Origin: Netherlands

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:  
13 December 2023 
Referring court:  
Raad van State (Netherlands) 
Date of the decision to refer:  
13 December 2023 
Appellant:  
A. M. 
Respondent:  
Staatssecretaris van Justitie en Veiligheid 
  
Subject matter of the main proceedings 
Appeal against a judgment of the rechtbank (District Court), by which an 
application of a foreign national based on Article 20 of the Treaty on the 
Functioning of the European Union for a derived right of residence was rejected 
and the rechtbank did not accede to the foreign national’s request to refer 
questions for a preliminary ruling. 
Subject matter and legal basis of the request 
Interpretation of the third paragraph of Article 267 of the Treaty on the 
Functioning of the European Union, in particular the scope of the obligation to 
state reasons where there is an exception, recognised by the case-law of the Court 
of Justice, to the obligation of a national court or tribunal whose decisions are not 
amenable to appeal to refer questions for a preliminary ruling. 
 
i This is a fictitious name which does not correspond to the real name of any party to the proceedings. 
EN 
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Questions referred for a preliminary ruling 
Must the third paragraph of Article 267 of the Treaty on the Functioning of the 
European Union, read in the light of the second paragraph of Article 47 of the 
Charter of Fundamental Rights of the European Union, be interpreted as 
precluding national legislation such as Article 91(2) of the Vreemdelingenwet 
2000 (Law on foreign nationals of 2000), under which the Afdeling 
bestuursrechtspraak van de Raad van State (Administrative Law Division of the 
Council of State), as a national court whose decisions are not amenable to appeal, 
can rule summarily, without substantiating which of the three exceptions to its 
obligation to refer occurs, on a question raised about the interpretation of EU law, 
whether or not in conjunction with an explicit request for a preliminary ruling? 
Provisions of European Union law and international law relied on 
Treaty on European Union: Article 6 
Treaty on the Functioning of the European Union (‘TFEU’): Article 267 
Charter of Fundamental Rights of the European Union (‘the Charter’): Articles 47 
and 52 
Convention for the Protection of Human Rights and Fundamental Freedoms (‘the 
ECHR’): Article 6 
Case-law of the Court of Justice relied on 
Judgment of 6 October 1982, CILFIT v Ministero della Sanità, 283/81, 
EU:C:1982:335 
Judgment of 6 September 2012, Trade Agency, C-619/10, EU:C:2012:531 
Judgment of 9 September 2015, Ferreira da Silva e Brito and Others, C-160/14, 
EU:C:2015:565 
Judgment of 9 September 2015, X and van Dijk, C-72/14 and C-197/14, 
EU:C:2015:564 
Judgment of 15 March 2017, Aquino, C-3/16, EU:C:2017:209 (‘the judgment in 
Aquino’) 
Judgment of 10 May 2017, Chavez-Vilchez and Others, C-133/15, 
EU:C:2017:354 (‘the judgment in Chavez-Vilchez’) 
Judgment of 19 November 2019, A.K. and Others (Independence of the 
Disciplinary Chamber of the Supreme Court), C-585/18, EU:C:2019:982 
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Judgment of the Court of Justice of 6 October 2021, Consorzio Italian 
Management and Catania Multiservizi, C-561/19, EU:C:2021:799 (‘the judgment 
in Consorzio’) 
Judgment of 29 June 2023, International Protection Appeals Tribunal and Others 
(Attack in Pakistan), C-756/21, EU:C:2023:523 
Opinion of Advocate General Richard de la Tour in Joined Cases Staatssecretaris 
van Justitie en Veiligheid (Ex officio review of detention), C-704/20 and C-39/21, 
EU:C:2022:489 
Case-law of the European Court of Human Rights relied on 
Judgment of 2 October 2014, Hansen v. Norway, 
CE:ECHR:2014:1002JUD001531909 (‘the judgment in Hansen’) 
Judgment of 24 April 2018, Baydar v. the Netherlands, 
CE:ECHR:2018:0424JUD005538514 (‘the judgment in Baydar’) 
Judgment of 11 April 2019, Harisch v. Germany, 
CE:ECHR:2019:0411JUD005005316 (‘the judgment in Harisch’) 
Judgment of 24 March 2022, Zayidov v. Azerbaijan (No. 2), 
CE:ECHR:2022:0324JUD000538610 (‘the judgment in Zayidov’) 
Judgment of 30 June 2022, Rusishvili v. Georgia, 
CE:ECHR:2022:0630JUD001526913 (‘the judgment in Rusishvili’) 
Provisions of national law relied on 
Vreemdelingenwet 2000 (Law on foreign nationals of 2000; ‘the Vw 2000’): 
Articles 9(1), 83c(1), 84 and 91(2) 
Algemene wet bestuursrecht (General Administrative Law Act; ‘the Awb’): 
Articles 8:10, 8:104 and 8:105 
Succinct presentation of the facts and procedure in the main proceedings 
1 By a decision of 8 October 2019, the Staatssecretaris van Justitie en Veiligheid 
(State Secretary for Justice and Security, Netherlands) rejected A.M.’s application 
for the issue of a document within the meaning of Article 9(1) of the Vw 2000 
certifying lawful residence as a Union citizen. By a judgment of 5 March 2021, 
the rechtbank declared A.M.’s appeal against that decision unfounded. A.M. has 
lodged an appeal against that judgment. 
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2 A.M. relies on a derived right of residence based on Article 20 TFEU, as the Court 
of Justice recognised in, inter alia, the judgment in Chavez-Vilchez. According to 
A.M., the rechtbank erred in not addressing his argument that it should have made 
a request for a preliminary ruling to the Court of Justice due to divergence in the 
national case-law on the burden of proof in relation to that right of residence. He 
requests the Afdeling bestuursrechtspraak van de Raad van State (Administrative 
Law Division of the Council of State; ‘the Division’) still to refer questions to the 
Court of Justice for a preliminary ruling. The Division considers that an exception 
to its obligation to refer questions for a preliminary ruling is applicable (acte 
éclairé), since the answer to A.M.’s question on the interpretation of the 
applicable EU law is apparent from the case-law of the Court of Justice, even 
though other national courts seem to favour a different interpretation. It wishes to 
rule on this case with a summarily reasoned ruling pursuant to Article 91(2) of the 
Vw, without substantiating why it is not referring questions to the Court of Justice 
for a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
3 According to A.M., the Division’s intention to rule with a summarily reasoned 
ruling is contrary to EU law. The Division must, on the basis of paragraph 51 of 
the judgment in Consorzio, state the reasons why it is not obliged to make a 
reference and which of the three exceptions recognised by the case-law of the 
Court of Justice (acte clair, acte éclairé, question irrelevant for the resolution of 
the dispute) applies. A.M. emphasises in that regard the importance of 
transparency in relation to the legal argumentation for a refusal to refer questions 
for a preliminary ruling and the risk of an incorrect interpretation of EU law, 
which is aggravated by an inadequate statement of reasons for that refusal. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
4 A national court whose decisions are not amenable to appeal must, as a general 
rule, state the reasons why it is not obliged to refer to the Court of Justice a 
question about the interpretation of EU law. This follows from paragraph 51 of the 
judgment in Consorzio. The Netherlands legislature has granted the Division the 
power, in certain cases, to rule on appeals in immigration cases with a summary 
statement of reasons. In such a summarily reasoned ruling, the Division confines 
its statement of reasons to the finding that the appeal is unsuccessful, without 
substantiating that finding further. It therefore also lacks an answer to a question 
raised by the parties about the interpretation of EU law and, by extension, the 
reason why the Division refuses to accede to a possible request to refer questions 
to the Court of Justice for a preliminary ruling. 
5 The Division considers that its practice of summary statements of reasons in 
immigration law satisfies the requirements to state reasons under EU law and the 
requirements of a fair hearing as laid down in the European Convention for the 
Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). However, 
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it considers that paragraph 51 of the judgment in Consorzio leaves room for doubt. 
That consideration by the Court of Justice may be interpreted in several ways. The 
Division is therefore uncertain whether it, even with a summary statement of 
reasons, is obliged, under the third paragraph of Article 267 TFEU, read in the 
light of the second paragraph of Article 47 of the Charter, to state the reasons why 
it is not referring questions to the Court of Justice for a preliminary ruling. 
The legal power to provide a summary statement of reasons; background and 
context 
6 Article 91(2) of the Vw 2000 confers on the Division the power to confine its 
decision to the finding that a complaint raised is not capable of leading to the 
setting aside of the judgment of the rechtbank, without giving any further reasons. 
With a summarily reasoned ruling, the Division does not necessarily endorse the 
reasoning of the judgment of the rechtbank, but does endorse the outcome of that 
judgment. The Division can reach the same outcome on other grounds. The first 
condition for providing a summary statement of reasons is therefore that the 
appeal is unfounded and the judgment of the rechtbank is not set aside. Moreover, 
the Division uses this power only if there are no questions requiring a general 
answer in order to ensure the uniformity and development of the law or in the 
interests of judicial protection. That is the second condition. 
7 The Division states, first, that each Member State makes its own choices in order 
to safeguard judicial protection, the development of the law, legal certainty and 
the proper administration of justice. EU law does not require that appeals be made 
possible, nor does it require that such appeals take a particular form. When the Vw 
2000 entered into force, the legislature in the Netherlands opted to enable appeals 
in matters relating to the law on foreign nationals with a low admissibility 
threshold, combined with the possibility of ruling on such appeals with a summary 
statement of reasons. Since then, appeals have in principle been possible in all 
matters relating to the law on foreign nationals (Article 8:105 in conjunction with 
Article 8:104 of the Awb). 
8 By introducing the possibility of appeals in immigration cases before the Division, 
the legislature was attempting to ensure the uniformity of the law. Although the 
Division rules on the substance of any admissible appeal, it was entrusted with the 
task of concentrating on questions requiring a general answer in order to ensure 
the uniformity and development of the law or in the interests of judicial 
protection. The power to provide a summary statement of reasons in cases where 
such questions are not raised ensures the quality and workability of this system. 
9 The travaux préparatoires relating to the Vw 2000 emphasised that this new 
procedure constituted an extension of the judicial protection of foreign nationals 
due to the introduction for the first time of immigration appeals. At the same time, 
the Division was put in a position to deal quickly and efficiently with the large 
number of cases that were expected by being entitled to confine itself to a 
summary statement of reasons in the absence of questions requiring a general 
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answer in order to ensure the uniformity and development of the law or in the 
interests of judicial protection. The system therefore complies with the 
requirements of Article 6 of the ECHR while allowing the Division to fulfil its 
statutory function and to adequately ensure the uniformity of the law. The 
possibility of ruling on an appeal with a summary statement of reasons must 
therefore be considered in conjunction with appeals in which it provides a full 
statement of reasons. 
10 Over the last three years, from 2020 to 2023, the Vreemdelingenkamer (Foreign 
Nationals Division) delivered on average over 3 800 decisions in cases in main 
proceedings per year. The Division currently uses summary reasoning in 
approximately 85% of immigration rulings. In view of the importance of EU law 
for immigration law, many requests to refer questions for a preliminary ruling are 
made on appeal. It may take a relatively long time for the Division to justify why 
it is not required to refer questions on the substance of the case for a preliminary 
ruling. Such a justification requires a statement of reasons which is adapted to the 
substance of the case by reference to the grounds of the dispute and the facts of 
the case. If the Division considers that the judgment of the rechtbank must be 
upheld and that there are also no questions requiring a general answer in order to 
ensure the uniformity and development of the law or in the interests of judicial 
protection, the power to reason summarily in that context enables it to deal 
quickly and efficiently with a considerable number of appeals. 
11 The Division makes use of the power to reason summarily in the following two 
situations. First, the Division confines itself to a summary statement of reasons in 
cases where the parties are challenging a ruling by which the rechtbank applies 
settled case-law of the Division, without explaining why such an application by 
the rechtbankis erroneous or defective or is no longer viable in the light of recent 
developments. Second, the Division confines itself to a summary statement of 
reasons in cases where the parties’ complaints are legitimately raised, but the 
Division nevertheless considers that the grounds of complaint cannot lead to the 
setting aside of the contested judgment because the outcome would not be 
different if the judgment of the rechtbank were not vitiated by the defects 
identified in the notice of appeal. These include, for example, complaints 
regarding failure by the rechtbank accurately to reproduce or expressly to discuss 
a ground of appeal, reasoning of the rechtbank that is not straightforwardly 
comprehensible, or failure to reproduce a foreign national’s personal details or 
reasons for making an asylum claim in full or accurately. 
12 In all these cases, there is no ground for the setting aside of the judgment of the 
rechtbank, nor are there any questions concerning the uniformity and development 
of the law or judicial protection in a general sense; that is, there are no questions 
of law requiring a preliminary reference. Once questions of EU law which are 
relevant to the resolution of the dispute and are not covered by the other 
exceptions of acte clair or acte éclairé are raised, the Division cannot reason 
summarily. 
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13 The summary statement of reasons provided by the Division does not affect the 
judicial protection of the foreign national concerned. Indeed, the substance of each 
immigration case is examined in detail by the rechtbank. In addition, the 
rechtbank always rules with a full statement of reasons; summary reasoning is not 
possible at first instance. The judicial protection of the foreign national is also 
guaranteed on appeal to the Division. In any event, the assessment of the Division 
that a judgment of the rechtbank is upheld is still based on a comprehensive 
assessment of the substance of the appeal, even if that assessment does not appear 
in the summary reasoning for the ruling. In their assessment, the judges 
responsible for ruling on the case are to take into account the notice of appeal, 
where appropriate the reaction of the opposing party, the judgment of the 
rechtbank and the procedural file containing the documents from the hearing of 
the appeal before the rechtbank and the administrative stage. They have access to 
the complete file containing all the relevant documents in that case. If the Division 
concludes that application of the summary statement of reasons is not possible, a 
fully reasoned judgment will follow. 
Article 47 of the Charter and Article 6 ECHR 
14 The first and second paragraphs of Article 47 of the Charter recognise the right of 
everyone to a fair trial and to an effective remedy before a tribunal. It is apparent 
from Article 52(3) of the Charter that the meaning and scope of Article 47 of the 
Charter are at least the same as those laid down by Article 6(1) of the ECHR. The 
right to a fair trial provided for in that provision includes, in particular, the right to 
an adequately reasoned judgment from which it is apparent that the court has truly 
heard the requests and observations of the parties (judgment in Zayidov, 
paragraph 91). That does not mean, however, that the court is required to give a 
detailed answer to every argument. The European Court of Human Rights 
(ECtHR) also examines the role of the relevant judicial body, for example the 
appellate court or a leave system in which the supreme national court must grant 
leave to appeal (judgments in Rusishvili, paragraphs 74 and 75, and Hansen, 
paragraphs 73 and 74). 
15 In the context of the general obligation to state reasons, the ECtHR has ruled on 
the statement of reasons for a decision to refuse a request that a reference be made 
to the Court of Justice for a preliminary ruling. It follows from this that (a) the 
court of last instance must specify on which of the three exceptions it is basing its 
refusal of the request (b) if that court has a legally granted power to rule on the 
case without a further statement of reasons, it shares the decision on the request to 
refer questions for a preliminary ruling in the overall assessment of the case and is 
not required to state separately the reasons why it does not make a reference. That 
is what the Division draws from the judgments in Baydar and Harisch. In the 
judgment in Baydar, the ECtHR accepted that summary reasoning implies 
recognition that a preliminary reference cannot lead to a different outcome. 
According to the ECtHR, ruling in this way on a request for a preliminary ruling 
in the circumstances described in that case is not contrary to Article 6(1) of the 
ECHR. 
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16 The method described in paragraph 13 ensures that the Division carefully 
examines questions raised concerning EU law as well as any request to refer 
questions for a preliminary ruling and, where appropriate, makes an order for 
reference. This constitutes a fair trial. The Division proceeds on the basis that its 
legal power to reason summarily complies with the general obligation to state 
reasons under the first paragraph of Article 47 of the Charter and Article 6 of the 
ECHR. It submits, provisionally, that its power to reason summarily if requested 
to refer questions for a preliminary ruling is also consistent with the case-law on 
Article 47 of the Charter. 
Article 267 TFEU 
17 The Division still faces the question of whether its current practice of reasoning 
summarily is also compatible with the third paragraph of Article 267 TFEU, read 
in the light of Article 47 of the Charter, when a request for a preliminary ruling 
has been made. It asks whether it is then required to give a more detailed 
statement of the reasons why it is not required to make a reference, in particular 
whether it must explain which exception to the obligation to make a reference 
applies and for what reason. In paragraph 51 of the judgment in Consorzio, the 
Court held that ‘the statement of reasons for its decision must show either that the 
question of EU law raised is irrelevant for the resolution of the dispute, or that the 
interpretation of the EU law provision concerned is based on the Court’s case-law 
or, in the absence of such case-law, that the interpretation of EU law was so 
obvious to the national court or tribunal of last instance as to leave no scope for 
any reasonable doubt’. 
18 The Division understands that consideration as meaning that a summary statement 
of reasons is sufficient, since such a statement of reasons implies that, for one of 
the reasons mentioned in that paragraph, there is no obligation to refer. However, 
it may be inferred from several other language versions of the judgment that the 
statement of reasons must indicate which exception applies to the case. For 
example, the Italian version reads ‘deve far emergere o che’ and the French 
version ‘doivent faire apparaître soit que’. The English version states that the 
statement of reasons ‘must show either […], or’. The expression ‘either/or’ can be 
interpreted in an inclusive sense, in the manner of ‘and/or’, in which case it is not 
necessary to indicate which exception applies. However, it can also be interpreted 
in an exclusive sense as meaning that it is necessary to indicate which of the three 
exceptions applies. 
19 It is not apparent from a summarily reasoned ruling on the merits which of the 
three exceptions to the obligation to refer applies. The situation is different in the 
case of a declaration of inadmissibility, as in the judgment in Aquino. In that 
judgment, the Court of Justice held that a court adjudicating at last instance may 
decline to refer a question to the Court for a preliminary ruling where an appeal on 
a point of law is dismissed on grounds of inadmissibility specific to the procedure 
before that court, subject to compliance with the principles of equivalence and 
effectiveness. The reason for this is that the questions referred for a preliminary 
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ruling are not relevant to the outcome of the dispute in cases which are declared 
inadmissible and the substance of which is therefore not examined. A declaration 
of inadmissibility therefore implies which of the three exceptions to the obligation 
to refer applies. 
Provisional assessment by the Division 
20 The Division considers that the specific obligation to state reasons referred to in 
paragraph 51 of the judgment in Consorzio likewise does not apply if a 
substantive judgment with a summary statement of reasons implies the existence 
of an exception to its obligation to refer. In that regard, it considers it important 
that the courts of the Member States that have a system of granting leave to appeal 
or that apply stricter procedural rules on admissibility choose in advance which 
cases will be dealt with on the substance. If national legislatures have opted for 
such an advance selection, a decision not to hear an appeal brought does not result 
in a separate judicial statement of the reasons for not making a reference for a 
preliminary ruling despite a request to do so [see also, in that regard, question 2 of 
the request for a preliminary ruling in Case C-144/23, made by the Vrhovno 
sodišče (Supreme Court, Slovenia)]. The purpose and effect of summary 
reasoning by the Division are similar to a declaration of inadmissibility or a 
refusal in systems for granting leave to appeal. 
21 The Division proceeds on the basis that the scope of the obligation to state reasons 
in paragraph 51 of the judgment in Consorzio is not a priori more extensive for the 
sole reason that a request has been made to refer questions for a preliminary 
ruling. It seems absurd that an appeal in which a request has been made to refer 
questions for a preliminary ruling should, by definition, be provided with a more 
extensive statement of reasons than an appeal in which no such request has been 
made. In addition, the procedural power to reason summarily does not make it in 
practice impossible or excessively difficult to exercise the rights conferred by EU 
law. A summary statement of reasons implies that those rights are not at issue.