62024CJ0150_RES
Case C‑150/24 [Aroja] (
i
)
A
v
Rikoskomisario B
(Request for a preliminary ruling from the Korkein oikeus)
Judgment of the Court (Fourth Chamber) of 5 March 2026
(Reference for a preliminary ruling – Immigration policy – Common standards and procedures for returning illegally staying third-country nationals – Directive 2008/115/EC – Detention for the purpose of removal – Article 15(5) and (6) – Calculation of the length of the detention already completed – Aggregation of all of the previous periods of detention – Conditions – Enforcement of one and the same return decision – Second sentence of Article 15(3) – Prolonged detention beyond the initial maximum period laid down under Article 15(5) – Review by a judicial authority – National legislation making the implementation of that review contingent on an application by the detained person – Point in time when such a review must be carried out – Consequence where a review is not carried out in good time)
Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Detention for the purpose of removal – Maximum duration – Calculation – Aggregation of all of the previous periods of detention completed in a Member State with a view to the enforcement of one and the same return decision
(Charter of Fundamental Rights of the European Union, Art. 6; European Parliament and Council Directive 2008/115, Art. 15(5) and (6))
(see paragraphs 53-69, 73, operative part 1)
Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Detention for the purpose of removal – Review at reasonable intervals of time – Whether the initial maximum period of detention of six months has been exceeded – Obligation for a review by a judicial authority – Making the implementation of the review contingent on an application by the detained person – Not permissible
(European Parliament and Council Directive 2008/115, Art. 15(3) and (5))
(see paragraphs 75-79, operative part 2)
Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Detention for the purpose of removal – Possible extension of the detention – Decision of the administrative authority to extend the detention beyond the initial maximum period of six months – Review by a judicial authority – Obligation to carry out that review as speedily as possible after the adoption of the administrative decision
(European Parliament and Council Directive 2008/115, Arts 15(2), (3), (5) and (6))
(see paragraphs 80-89, operative part 3)
Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Detention for the purpose of removal – Possible extension of the detention – Decision of the administrative authority to extend the detention beyond the initial maximum period of six months – Absence of a review by a judicial authority in good time – Consequences – Automatic lifting of the detention – Absence – Conditions
(European Parliament and Council Directive 2008/115, Art. 15(1) to (6))
(see paragraphs 90-100, operative part 4)
Résumé
Hearing a request for a preliminary ruling from the Korkein oikeus (Supreme Court, Finland), the Court of Justice rules on the calculation of the maximum periods of detention for the purpose of removal of illegally staying third-country nationals and on the procedural safeguards applicable to extended periods of detention, in the light of Article 15 of Directive 2008/115. (
1
)
In September 2022, A, a Moroccan national, arrived illegally in Finland while he was subject to an entry ban covering the Schengen area. On the day of his arrival, he was detained for the first time for the purpose his removal to Morocco.
In September 2023, A was detained for the third time for the purpose of his removal to Morocco. On that date, he had already been detained for a total period of five months and 23 days. However, according to the referring court, the conditions for exceeding the initial maximum period of detention of six months were satisfied, given that implementation of the removal had been delayed due, on the one hand, to A’s lack of cooperation and, on the other, to the fact that the necessary documents had not been obtained from the Kingdom of Morocco. That third detention period was examined ex officio and maintained by the Etelä-Karjalan käräjäoikeus (District Court, South Carellia, Finland) after the initial maximum period of six months’ detention could have been exceeded.
After his appeal was dismissed, A applied for that decision to be set aside before the referring court. In support of his application, he claims that his detention is unlawful on the ground that the issue of exceeding the maximum period of six months was not dealt with in accordance with the applicable procedural rules. The referring court, for its part, is of the view that an interpretation according to which all the periods of detention completed must be taken into account in order to assess the maximum period of detention may be justified by the fact that, during those periods, A’s detention had the same legal basis.
In the light of those factors, the referring court asks whether consecutive periods of detention, interrupted by periods of liberty, must be aggregated without exception, or if so and, on what grounds, previous periods of detention may be excluded from the calculation. It also has doubts regarding the time limits to which the judicial review of extended periods of detention is subject and the consequences of any irregularity in that review.
Findings of the Court
In the first place, the Court interprets Article 15(5) and (6) of Directive 2008/115 as meaning that, in order to determine whether the maximum period of detention laid down by a Member State under one of those provisions has been reached, it is necessary to aggregate all the periods of detention completed in that Member State by an illegally staying third-country national under Article 15 of that directive, with a view to the enforcement of one and the same return decision. That interpretation is not called into question by the fact that those periods of detention are interspersed with periods of liberty.
The Court recalls that any detention of a third-country national constitutes a serious interference with the right to liberty, enshrined in Article 6 of the Charter of Fundamental Rights of the European Union. It also states that such a measure is intended to ensure the effectiveness of the return procedure and does not pursue any punitive purpose.
Furthermore, the Court points out that making the possible aggregation of periods of detention subject to the presence of certain factual circumstances could undermine the objective of ensuring a common maximum period of detention in the Member States. Moreover, failure to take account of those periods would, depending on the circumstances, be likely to result in a breach of the principle of proportionality, which requires that any detention prior to removal must be as brief as possible.
As regards the risk of absconding and the fact that the national concerned avoids or hampers the preparation of return or the removal process the Court states that those factors constitute grounds for detention. However, allowing a new period of detention to begin to run on the basis of those grounds, when the enforcement of one and the same return decision is at issue, could deprive the maximum period of detention laid down by Directive 2008/115 of any practical effect. As regards the possibility of taking into account other factual circumstances characterising the situation of the national concerned, which are not specified and which are by nature variable and subjective, that would expose the persons concerned to a risk of arbitrariness, in view of the legal uncertainty which would ensue.
In the second place, since a review by a judicial authority of the decision to extend the initial detention period beyond six months must necessarily be carried out, the Court finds that the second sentence of Article 15(3) of Directive 2008/115 precludes the implementation of the review, by a judicial authority, of whether the initial maximum period of detention of six months under Article 15(5) of that directive has been exceeded from being made contingent on an application by the detained person.
In the third place, the Court points out that, in the absence of rules laid down by EU rules concerning the procedural requirements relating to the judicial review of reviews of detention in the case of prolonged periods of detention, the Member States remain competent, in accordance with the principle of procedural autonomy and subject to compliance with the principles of equivalence and effectiveness, to determine those requirements, whilst at the same time ensuring that fundamental rights are respected and that the provisions of EU law are fully effective . Therefore, subject to compliance with those principles, Member States are not required to provide that the review, by a judicial authority, of the decision of the administrative authority to extend the detention beyond the initial maximum period of detention is to take place before that period has been reached. That said, the principle of equivalence requires that that review must take place no later than the review provided for in Article 15(2) of Directive 2008/115 in the case of detention, given that the detention and the extension of the detention are similar in nature. It must therefore take place as soon as possible after the adoption of that decision.
Lastly, in the fourth place, the Court considers that the absence of a review, by a judicial authority in good time, of the administrative decision to extend the detention beyond the initial maximum period of six months provided for under Article 15(5) of Directive 2008/115 does not automatically entail the obligation to bring an immediate end to the detention where, at the time that judicial review is carried out, all the substantive conditions justifying continued detention are satisfied and the maximum period of detention provided for under Article 15(6) of that directive has not been reached. On that point, the Court recalls that the obligation for a review, by a judicial authority, of decisions of administrative authorities extending the detention beyond the initial maximum period of six months is not one of the conditions governing the lawfulness of detention under Directive 2008/115, but one of the conditions intended to ensure the right of third-country nationals detained by a Member State to effective judicial protection.
(
i
)	The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
(
1
)	Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).