VIEW OF ADVOCATE GENERAL

SHARPSTON

delivered on 26 January 2016 ( 1 )

[Translated from the French]

Case C‑601/15 PPU

J. N.(Request for a preliminary ruling from the

Raad van State (Council of State, the Netherlands))

‛Urgent preliminary ruling procedure — Third-country national who, having lodged an asylum application, is detained on grounds of protection of national security or public order within the meaning of point (e) of the first subparagraph of Article 8(3) of Directive 2013/33/EU — Person having the right to remain in the Member State pending the examination of his asylum application in accordance with Article 9 of Directive 2013/32/EU — No pending deportation procedure — Validity of point (e) of the first subparagraph of Article 8(3) of Directive 2013/33/EU in the light of Article 6 of the Charter of Fundamental Rights of the European Union’

1. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (‘the Reception Directive’) ( 2 ) lists the grounds on which a Member State may order that an applicant for international protection be detained. These include the ground in point (e) of the first subparagraph of Article 8(3) of the Reception Directive relating to ‘protection of national security or public order’ (‘the provision at issue’). In its request for a preliminary ruling, the Raad van State (Council of State, the Netherlands) asks the Court whether that provision is valid in the light of the right to liberty and security guaranteed by Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That question has been brought before the Court in a dispute concerning a decision of 14 September 2014 ordering the detention in the Netherlands of an asylum applicant who has been convicted several times for criminal offences, mainly for theft, and against whom an expulsion order, accompanied by an entry ban, was made before he submitted his most recent asylum application.

Legislative framework

International law

Geneva Convention

2. Under Article 31(1) of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 and which entered into force on 22 April 1954, ( 3 ) as supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967 and which entered into force on 4 October 1967 (‘the Geneva Convention’), Contracting States may not impose penalties, on account of their illegal entry or presence, on refugees who come directly from a territory where their life or freedom was threatened within the meaning of Article 1 of that Convention and enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

3. Under Article 32(1) of the Geneva Convention, Contracting States may not expel a refugee who is lawfully in their territory save on grounds of national security or public order.

The ECHR

4. Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), signed at Rome on 4 November 1950, entitled ‘Right to liberty and security’, provides: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. … 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.’

5. Article 15 of the ECHR, entitled ‘Derogation in time of emergency’, provides, in paragraph 1, that, ‘in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law’. The right to liberty and security is one of the rights from which the States Parties may derogate in such circumstances. ( 4 )

EU law

TEU and TFEU

6. Article 4(2) TEU provides, inter alia, that the European Union must ‘respect … essential State functions, including … maintaining law and order and safeguarding national security’ and that ‘national security remains the sole responsibility of each Member State’.

7. The third subparagraph of Article 6(1) TEU provides that the rights, freedoms and principles in the Charter must be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, which set out the sources of those provisions.

8. Under Article 72 TFEU, Union policy under Title V of Part Three of that Treaty, which concerns the area of freedom, security and justice, does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. Article 78(1) TFEU, which is part of the same title, states that the Union is to develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. That article further provides that, in particular, that policy must be in accordance with the Geneva Convention.

The Charter

9. Under Article 6 of the Charter, everyone has the right to liberty and security of person.

10. Article 51(1) of the Charter states inter alia that the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.

11. Article 52 of the Charter (‘Scope and interpretation of rights and principles’) forms part of Title VII, entitled ‘General provisions governing the interpretation and application of the Charter’. It provides: ‘1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. … 3. In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by [it]. This provision shall not prevent Union law providing more extensive protection. … 7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.’

The Reception Directive

12. The preamble of the Reception Directive states, inter alia, that a common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union’s objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the European Union. ( 5 ) The preamble also states that, in particular, the detention of applicants for international protection should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking such protection. In accordance in particular with Member States’ international legal obligations and with Article 31 of the Geneva Convention. ( 6 ) Applicants may therefore be detained only in very clearly defined exceptional circumstances laid down in the Reception Directive and subject to the principle of necessity and proportionality with regard both to the manner and the purpose of such detention. ( 7 ) Furthermore, detention should not exceed the time reasonably needed to complete the relevant procedures. ( 8 ) According to recital 17 of that directive, ‘the grounds for detention set out in this Directive are without prejudice to other grounds for detention, including detention grounds within the framework of criminal proceedings, which are applicable under national law, [irrespective of] the third-country national’s or stateless person’s application for international protection’. Lastly, the preamble of the Reception Directive states that the directive respects fundamental rights and observes the principles recognised in particular by the Charter and that it seeks to ensure full respect for human dignity and to promote the application of, inter alia, Article 6 of the Charter. ( 9 )

13. Under Article 2 of the Reception Directive: ‘… (a) “application for international protection”: means an application for international protection as defined in Article 2(h) of [the Qualification Directive ( 10 )]; (b) “applicant”: means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken; … (h) “detention”: means confinement of an applicant by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement [ ( 11 ) ]; …’

14. Article 8 of the Reception Directive, entitled ‘Detention’, provides: ‘1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with [the Procedures Directive ( 12 )]. 2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3. An applicant may be detained only: (a) in order to determine or verify his or her identity or nationality; (b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant; (c) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory; (d) when he or she is detained subject to a return procedure under [the Return Directive ( 13 )], in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision; (e) when protection of national security or public order so requires; (f) in accordance with Article 28 of [the Dublin III Regulation ( 14 )]. The grounds for detention shall be laid down in national law. 4. Member States shall ensure that the rules concerning alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place, are laid down in national law.’

15. Under Article 9 of the Reception Directive, entitled ‘Guarantees for detained applicants’: ‘1. An applicant shall be detained only for as short a period as possible and shall be kept in detention only for as long as the grounds set out in Article 8(3) are applicable. Administrative procedures relevant to the grounds for detention set out in Article 8(3) shall be executed with due diligence. Delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention. 2. Detention of applicants shall be ordered in writing by judicial or administrative authorities. The detention order shall state the reasons in fact and in law on which it is based. 3. Where detention is ordered by administrative authorities, Member States shall provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant. When conducted ex officio, such review shall be decided on as speedily as possible from the beginning of detention. When conducted at the request of the applicant, it shall be decided on as speedily as possible after the launch of the relevant proceedings. … Where, as a result of the judicial review, detention is held to be unlawful, the applicant concerned shall be released immediately. 4. Detained applicants shall immediately be informed in writing, in a language which they understand or are reasonably supposed to understand, of the reasons for detention and the procedures laid down in national law for challenging the detention order, as well as of the possibility to request free legal assistance and representation. 5. Detention shall be reviewed by a judicial authority at reasonable intervals of time, ex officio and/or at the request of the applicant concerned, in particular whenever it is of a prolonged duration, relevant circumstances arise or new information becomes available which may affect the lawfulness of detention. …’

The Procedures Directive

16. Under Article 1 of the Procedures Directive, that directive’s purpose is to establish common procedures for granting and withdrawing international protection pursuant to the Qualification Directive.

17. Article 2(q) of the Procedures Directive defines ‘subsequent application’ in essence as a further application for international protection made after a final decision has been taken on a previous application.

18. Article 9(1) of that directive provides that applicants must be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision at first instance on the application for international protection and that that right does not constitute an entitlement to a residence permit. Under Article 9(2), Member States may make an exception only where, inter alia, a person makes a subsequent application referred to in Article 41 of that directive.

19. Article 26 states, in essence, that Member States may not hold a person in detention for the sole reason that he or she is an applicant; that the grounds for, and conditions of detention, and the guarantees available to detained applicants must be in accordance with the Reception Directive; and that detention must be accompanied by the possibility of speedy judicial review in accordance with that directive.

20. Under Article 33(2)(d) of the Procedures Directive, Member States may consider an application for international protection as inadmissible if the application is a subsequent application, where the applicant has presented no new elements or findings relating to the examination of whether he qualifies as a beneficiary of international protection by virtue of the Qualification Directive.

21. Article 40(2) of the Procedures Directive provides that, before a decision on admissibility pursuant to Article 33(2)(d) thereof may be taken, a subsequent application must be subject first to a preliminary examination as to whether new elements or findings have arisen or have been presented by the applicant relating to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of the Qualification Directive. Article 40(3) provides, in essence, that as a rule the application is to be examined further if the preliminary examination reveals new elements or findings which significantly add to the likelihood that it will be granted. If that is not the case however, Article 40(5) of the Procedures Directive provides that the application shall be considered inadmissible in accordance with Article 33(2)(d) thereof.

22. Article 41(1) of the Procedures Directive provides that Member States may derogate from the right to remain in the territory where a person has lodged a first subsequent application, which is not examined further pursuant to Article 40(5), merely in order to delay or frustrate the enforcement of a decision which would result in his or her imminent removal from that Member State; or where he makes another subsequent application in the same Member State, following a final decision considering a first subsequent application inadmissible pursuant to Article 40(5) or after a final decision has been taken to reject that application as unfounded. However, such a derogation is possible only in accordance with the principle of non-refoulement.

The Return Directive

23. Under Article 2(1) of the Return Directive, that directive applies to third-country nationals staying illegally in the territory of a Member State.

24. Article 3 of that directive contains the following definitions: ‘… 2. “illegal stay” means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State; … 4. “return decision” means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return; 5. “removal” means the enforcement of the obligation to return, namely the physical transportation out of the Member State; …’

25. Article 7(4) provides that Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days in connection with a return decision, inter alia, if the person concerned poses a risk to public policy, public security or national security.

26. Under Article 8(1), Member States must take all necessary measures to enforce the return decision if no period for voluntary departure has been granted or if the obligation to return has not been complied with within the period granted for voluntary departure.

27. Under Article 11(1), an entry ban must accompany a return decision if no period for voluntary departure has been granted or if the obligation to return has not been complied with. In other cases, an entry ban may, but need not necessarily, be ordered. Article 11(2) provides that the length of the entry ban is to be determined with due regard to all relevant circumstances of the individual case. In principle, the entry ban may not exceed five years unless the third-country national subject to that ban represents a serious threat to public policy, public security or national security. In that case, the entry ban may extend to 10 years. Under Article 11(5), those rules are without prejudice to the right to international protection.

28. Article 15(1) of the Return Directive provides: ‘Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.’

Netherlands law

The 2000 Law on foreign nationals

29. The 2000 Law on foreign nationals (Vreemdelingenwet 2000) provides, in Articles 8 and 59b:

The 2000 Decree on foreign nationals

30. Article 3.1 of the 2000 Decree on foreign nationals (Vreemdelingenbesluit 2000) provides, inter alia, that submitting an asylum application has the result, in principle, that the expulsion remains in abeyance unless, in particular, the foreign national has submitted a subsequent application after an earlier subsequent application was declared definitively inadmissible or was definitively rejected as manifestly unfounded and no new elements or findings have arisen which might have a bearing on the assessment of the application.

The dispute in the main proceedings and the question referred for a preliminary ruling

31. The appellant in the main proceedings, Mr N., is a Tunisian national who entered the Netherlands on 23 September 1995. He submitted a first asylum application there, which was rejected on 18 January 1996. Mr N.’s challenge to that decision was dismissed on 5 June 1997.

32. Mr N. submitted a subsequent asylum application on 19 December 2012, which he withdrew on 24 December 2012.

33. On 8 July 2013, Mr N. submitted another subsequent asylum application. By decision of 8 January 2014 (‘the return decision’), the Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, ‘the State Secretary’) rejected that application and ordered Mr N. to leave the European Union immediately. A 10-year entry ban in respect of the European Union accompanied the return decision. On 4 April 2014, the Rechtbank Den Haag (District Court, The Hague), sitting in Amsterdam (the Netherlands), rejected Mr N.’s appeal against that decision. That ruling has become final.

34. Furthermore, between 25 November 1999 and 17 June 2015, Mr N. committed 36 offences, most of which involved theft. He was convicted on 21 occasions for those acts and the sentences imposed varied from fines to three months’ imprisonment.

35. On 27 February 2015, Mr N., who was at the time in penal custody (‘strafrechtelijke detentie’), submitted his most recent subsequent asylum application (‘the most recent asylum application’). The referring court states that, in accordance with its case-law, the return decision therefore lapsed by operation of law with effect from that date. If the asylum application is rejected, the State Secretary may be required to make a new return decision.

36. In reply to a written question from the Court, the Netherlands Government stated that on 29 May 2015 the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) had informed Mr N. that it intended to reject his most recent asylum application. However, the competent authority has not yet taken a decision on that application.

37. On 1 July 2015, Mr N. was sentenced to three months’ imprisonment for theft and failure to comply with an entry ban in respect of the European Union. ( 15 ) While he was serving that sentence, the State Secretary decided, on 23 July 2015, to require him to undergo a medical examination, which showed that the applicant was not in a fit state to be heard on his most recent asylum application.

38. On 14 September 2015, at the end of the prison sentence, the State Secretary ordered that Mr N. be placed in administrative detention for foreign nationals (‘vreemdelingenbewaring’). ( 16 ) Whilst stating that Mr N. had been lawfully resident in the Netherlands for the purposes of Article 8(f) of the 2000 Law on foreign nationals following the submission of his most recent asylum application, the State Secretary considered that he had to be detained because he was ‘suspected of or had been convicted of an offence’ and he thus represented a threat to public order within the meaning of Article 59b(1)(d) of the 2000 Law on foreign nationals. ( 17 ) The decision at issue mentions, inter alia, a number of criminal offences that Mr N. had committed, the fact that he did not have any means of subsistence, a place of residence or fixed abode, and the fact that he had indicated that he did not wish to leave the Netherlands despite the return decision made against him. ( 18 ) The decision at issue also provides that, because of his state of health, Mr N. is to be placed in the special care unit of the designated detention centre. ( 19 )

39. By a ruling of 28 September 2015, the Rechtbank Den Haag (District Court, The Hague) dismissed Mr N.’s challenge to the decision at issue and application for damages.

40. In his appeal against that ruling before the referring court, Mr N. claims in particular that the detention measure to which he is subject is contrary to Article 5(1)(f) of the ECHR. That provision permits deprivation of liberty only with a view to deportation and cannot justify a detention measure applying to a third-country national residing lawfully in the Netherlands.

41. Against that background, the Raad van State (Council of State) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

The urgent procedure

42. In a letter of 17 November 2015, lodged at the Court Registry on the same date, the referring court requested the Court to deal with the reference for a preliminary ruling under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union (‘the Statute of the Court of Justice’) and Article 107 of the Rules of Procedure of the Court of Justice. The referring court stated in that letter that Mr N. was at that time deprived of his liberty. It stated, however, that since 23 October 2015 Mr N. had no longer been held in administrative detention for foreign nationals, but in penal custody. ( 21 ) The referring court nevertheless stated that Mr N. would undoubtedly be placed again in detention at the end of that sentence (on 1 December 2015), in accordance with the practice of the State Secretary.

43. On 24 November 2015, the Court decided to grant the referring court’s request for the request for a preliminary ruling to be dealt with under the urgent procedure and considered that the importance of the question raised warranted the attention of the Grand Chamber. In addition, the Court took the view that it was desirable not to restrict the written phase of the proceedure (as provided for in Article 109 of the Rules of Procedure) only to parties having a command of the language of the case (in this instance the parties in the main proceedings, the Kingdom of the Netherlands, the European Parliament, the Council of the European Union and the European Commission). It therefore requested the parties and other interested persons mentioned in Article 23 of the Statute of the Court of Justice to submit written comments on a number of questions pursuant to Article 24 of the Statute of the Court of Justice.

44. On 1 December 2015, the referring court sent the Court a letter stating that on that date the State Secretary had adopted a new decision on administrative detention for foreign nationals in respect of Mr N. That letter indicated that the detention was now based on Article 59b(1)(b) and (d) of the 2000 Law on foreign nationals. Thus, that new decision was no longer founded solely on the threat which Mr N. represented to national security or public order (point (d)), but also, in essence, on the fact that, in view of the risk that he might abscond, the applicant must be placed in administrative detention in order to obtain information essential for assessing his most recent asylum application (point (b)). That new decision is not at issue in the main proceedings, however.

45. Written observations were submitted by Mr N., the Netherlands Government, the Parliament, the Council and the European Commission, whilst the Belgian, Czech, Italian, Cypriot and Polish Governments replied in writing to the questions put by the Court. ( 22 ) Mr N., the Netherlands, Belgian and Greek Governments, the Parliament, the Council and the Commission took part in the hearing on 22 January 2016.

Remarks on the procedural treatment of the reference for a preliminary ruling

46. By taking the procedural steps described in point 43 above, the Court has undoubtedly contributed to ensuring that the present case was prepared in greater depth than a conventional urgent preliminary ruling procedure would have allowed. I should nevertheless like to make the following remarks.

47. The last paragraph of Article 267 TFEU provides that ‘if [a question referred for a preliminary ruling] is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay’. That rule makes sense only if the answer to the question referred to the Court for a preliminary ruling is relevant to, and has a bearing on, the detention of the person concerned. Otherwise it makes little difference whether the Court is fast or slow in dealing with the case.

48. Even if that condition is satisfied, however, there is nothing in my view to suggest that the Court should be required to proceed more quickly than the nature, sensitivity or complexity of the questions referred permit. That is in particular the case where the Court considers that preparing the case should include giving all the interested persons referred to in Article 23 of the Statute of the Court of Justice the opportunity to submit written observations. The Court does not have just one procedural tool for dealing with urgent references for a preliminary ruling. It has two, the second being the expedited preliminary ruling procedure under Article 105 of the Rules of Procedure. ( 23 ) One of the main differences between the latter procedure and the urgent preliminary ruling procedure is precisely the fact that all the interested persons may participate in its written phase. It is certainly possible to conduct such an expedited preliminary ruling procedure at a speed which takes due account of the rule contained in the last paragraph of Article 267 TFEU and that is therefore appropriate for dealing with a reference for a preliminary ruling such as this one.

Analysis

49. I shall structure my analysis as follows. After some preliminary remarks and clarifications regarding the criteria for examining the issue of validity which the Court is here asked to conduct, I shall place the provision at issue in the context of the Reception Directive’s legislative history. I shall then make two general comments on Article 8(3) of the Reception Directive, before turning to examine the provision at issue in detail. That will form the basis for considering, lastly, whether the present proceedings have disclosed any factor such as to affect the validity of the provision at issue.

Preliminary remarks

50. Mr N. was unlawfully resident in the Netherlands within the meaning of the Return Directive as from the date on which the ruling of the Rechtbank Den Haag (District Court, The Hague) of 4 April 2014, which confirmed the return decision, became final.

51. However, Mr N. submitted his most recent asylum application on 27 February 2015. Article 9(1) of the Procedures Directive provides in principle — as did the previous Procedures Directive ( 24 ) — that in such a case the applicant has the right to remain in the Member State of reception until the authority responsible for deciding on the application for international protection at first instance has made a decision in accordance with the procedures at first instance set out in Chapter III of that directive. ( 25 ) Article 9(2) of the Procedures Directive permits an exception to the rule contained in paragraph 1 of that article only subject to strict conditions, including in particular where there is a ‘subsequent application’ within the meaning of Article 41 of that directive. ( 26 )

52. As I have indicated, it is common ground in the present case that a decision on the most recent asylum application has still to be adopted. In addition, although Mr N. has already submitted a number of applications for international protection in the Netherlands in the past and none of them has been granted, there is nothing before the Court suggesting that the State Secretary decided to prohibit him from remaining in that Member State pending the examination of his most recent asylum application. ( 27 ) On the contrary, the Netherlands Government stated both in its written observations and at the hearing that such a decision had not yet been taken. In those circumstances, as the referring court and Mr N. rightly point out, Mr N. is currently lawfully resident in the Netherlands for the purposes of Article 9(1) of the Procedures Directive. He is therefore no longer subject to the Return Directive in accordance with Article 2(1) thereof, but is once again an ‘applicant’ within the meaning of Article 2(b) of the Reception Directive.

53. Furthermore, the decision at issue is based solely on Article 59b(1)(d) of the 2000 Law on foreign nationals, which transposed the provision at issue into Netherlands law. Unlike the new detention decision adopted on 1 December 2015, it is not based on the provision of Netherlands law which transposes point (b) of the first subparagraph of Article 8(3) of the Reception Directive. In the meantime, the Rechtbank Den Haag (District Court, The Hague), sitting in Haarlem (the Netherlands), has referred another request for a preliminary ruling concerning the validity of points (a) and (b) of the first subparagraph of Article 8(3) of the Reception Directive, which Article 59b(1)(a) and (b) of the 2000 Law on foreign nationals transposes into Netherlands law (Case C‑18/16 K., pending before the Court). However, the present case does not cover that question of validity and I shall therefore not address it in this View.

54. It is also common ground, first, that a situation such as that at issue in the main proceedings is concerned with the implementation of the Reception Directive by a Member State and that, in accordance with Article 51(1) of the Charter, it thus falls within the scope of the Charter, in particular Article 6 thereof; and, second, that Mr N., as an applicant for international protection, comes under the scope of that directive. It is also not disputed that a detention measure such as that at issue in the main proceedings, although it takes the form of administrative detention, ( 28 ) involves ‘confinement of an applicant by a Member State within a particular place, where [he] is deprived of his … freedom of movement’ within the meaning of Article 2(h) of the Reception Directive. That measure constitutes interference with Mr N.’s right to liberty and security, which is enshrined in Article 6 of the Charter.

The criteria for examining whether the provision at issue is valid

55. The referring court asks, in essence, whether the provision at issue is compatible with Article 6 of the Charter, read in the light of Article 5(1)(f) of the ECHR.

56. This raises the question, first, of the link between the protection of the right to liberty and security guaranteed by Article 6 of the Charter and the protection under Article 5 of the ECHR, as the two provisions are not worded in the same way.

57. Article 6 of the Charter simply protects, in general terms, the right of everyone to liberty and security of person. Article 52(1) of the Charter accepts limitations on the exercise of that right as long as such limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. ( 29 )

58. Under Article 52(7) of the Charter, however, reference must also be made to the Explanations relating to the Charter. Those explanations state that the rights in Article 6 of the Charter ‘are the rights guaranteed by Article 5 of the ECHR, and in accordance with Article 52(3) of the Charter, they have the same meaning and scope’. Thus, according to those explanations, ‘the limitations which may legitimately be imposed on [those rights] may not exceed those permitted by the ECHR, in the wording of Article 5’, which those explanations reproduce. ( 30 ) Therefore, the Court must examine the question of validity in the present proceedings having regard to Article 6 of the Charter, interpreted in the light of Article 5 of the ECHR.

59. Second, the referring court’s main concern is whether the provision at issue can be justified under one of the permissible exceptions to the right to liberty and security guaranteed by Article 6 of the Charter, namely the exception in point (f) of Article 5(1) of the ECHR. However, the validity of the provision at issue cannot be examined solely by reference to Article 6 of the Charter in conjunction with that point.

60. On the one hand, Article 5(1) of the ECHR contains further exceptions to the right to liberty and security. It is therefore necessary to assess whether they can justify detention under the provision at issue. ( 31 ) On the other hand, the question referred to the Court for a preliminary ruling in the present case relates more generally to the validity of the provision at issue in the light of Article 6 of the Charter. In order to give a full answer to that question and in the interest of legal certainty, it seems to me necessary to consider the other guarantees under those provisions and to examine whether the provision at issue, seen in the context of the provisions of the Reception Directive concerning detention, can be implemented in a manner which is fully consistent with them. ( 32 )

61. Moreover, I note at this stage in my analysis that point (f) of Article 5(1) of the ECHR is not relevant in the context of the dispute in the main proceedings.

62. In that regard, the case-law of the European Court of Human Rights which the national court mentions, namely the judgments in R.U. v. Greece, Ahmade v. Greece and Nabil and Others v. Hungary, concerned situations in which asylum applicants considered that they had been arbitrarily deprived of their liberty whilst they were subject to an expulsion order. In those judgments the European Court of Human Rights held that possible violations of Article 5(1) of the ECHR had to be examined solely by reference to point (f) of that provision. ( 33 ) It pointed out in particular that that provision requires only that deportation be in progress. Thus, it does not offer the same protection as Article 5(1)(c) since detention may be justified on that basis even if it is not necessary, for example, to prevent a person committing an offence or fleeing. ( 34 ) Nevertheless, only the conduct of a removal or extradition procedure justifies detention for the purposes of Article 5(1)(f) of the ECHR. If the procedure is not carried out with due diligence, the detention ceases to be justified. ( 35 )

63. By contrast, in the dispute in the main proceedings it is clear from the order for reference not only that Mr N. has been lawfully resident in the Netherlands since 27 February 2015, but also that the submission of his most recent asylum application on that date caused the return decision to lapse. ( 36 ) In those circumstances, his detention could not be based on the objective of preventing unauthorised entry into the Netherlands (the first situation mentioned in Article 5(1)(f) of the ECHR). In the light of the case-law mentioned above, the second ground referred to in Article 5(1)(f) of the ECHR could also not justify that detention. Because the return decision had lapsed, the detention did not constitute action taken with a view to deportation or extradition.

64. Lastly, several parties and interested persons which submitted observations gave their views, in response to a question put to them by the Court, on whether Article 15 of the ECHR (for which there is no equivalent provision in the Charter) might be relevant to the question of validity raised in this case.

65. In that regard, it is true that the Explanations relating to the Charter make it clear that the Charter ‘does not affect the possibilities of Member States to avail themselves of Article 15 ECHR, allowing derogations from ECHR rights in the event of war or of other public dangers threatening the life of the nation, when they take action in the areas of national defence in the event of war and of the maintenance of law and order, in accordance with their responsibilities recognised in Article 4(1) [TEU] and in Articles 72 [TFEU] and 347 [TFEU]’. ( 37 )

66. However, as the Council and the Commission submit, there is no material before the Court to suggest that the Kingdom of the Netherlands relied on that clause or on any ‘state of emergency’ in the main proceedings in order to make an exception to fundamental rights and to justify the detention at issue. Rather, it is apparent from the observations of the Netherlands Government that it considers, in essence, that the decision at issue is consistent, in particular, with Article 6 of the Charter, read in the light of Article 5 of the ECHR. Furthermore, Article 15 of the ECHR cannot call into question the protection which Article 5 of the ECHR normally offers and therefore has no bearing on whether or not the provision at issue is compatible with Article 6 of the Charter.

The background to the provision at issue

67. The previous Reception Directive did not lay down specific provisions regarding detention. The previous Procedures Directive merely provided, in Article 18, that Member States could not hold a person in detention solely because he or she was applying for asylum and that, where an asylum applicant was detained, Member States were required to ensure the possibility of speedy judicial review. ( 38 ) As the Court held in its judgment in Arslan, ( 39 ) neither of those directives carried out ‘a harmonisation of the grounds on which the detention of an asylum seeker [could] be ordered’, since ‘the proposal of an exhaustive list setting out those grounds [had been] abandoned during the negotiations which preceded the adoption of [the previous Procedures Directive] and it [was] only in the context of the recasting of [the previous Reception Directive] that such a list [was] intended to be established at EU level’. ( 40 ) The Court concluded that it was for Member States to establish, in full compliance with their obligations arising from both international law and EU law, the grounds on which an asylum seeker could be placed or kept in detention. ( 41 )

68. In that sense, the list in the first subparagraph of Article 8(3) of the Reception Directive constitutes a novelty. In its Proposal for a Directive, the Commission noted that the insertion of a specific mechanism for the detention of applicants for international protection appeared to be justified in the light not only of Member States’ wide use of that kind of measure but also the developing case-law of the European Court of Human Rights. ( 42 )

69. The Proposal already covered cases of detention required for the protection of national security or public order. It referred in that regard to the Recommendation of the Committee of Ministers of the Council of Europe on measures for the detention of asylum applicants, which states in point 3, inter alia, that although ‘the aim of detention is not to penalise asylum seekers’, such a measure may prove necessary ‘when protection of national security and public order so requires’. ( 43 ) The preamble states that the Recommendation of the Committee of Ministers was itself inspired on that point by Conclusion No 44 (XXXVII) 1986 of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (UNHCR) of 13 October 1986 on the detention of refugees and asylum seekers. ( 44 )

70. In its legislative resolution of 7 May 2009 the Parliament did not suggest any substantive amendment to what later became Article 8 of the Reception Directive. ( 45 ) However, in its Amended Proposal presented on 1 June 2011, the Commission proposed, ‘in line with discussions in the Council’, stating in the first subparagraph of Article 8(3) that the list of grounds for detention which that provision contained was without prejudice to detention in criminal proceedings. ( 46 ) Although that drafting proposal was not adopted, ( 47 ) the principle which it contained can be found, in essence, in recital 17 of the Reception Directive. However, that recital covers, more generally, any ground for detention applicable under national law, unrelated to an application for international protection, and not only the grounds of deprivation of liberty in criminal law.

General comments on Article 8(3) of the Reception Directive

71. Two clarifications should be made at the outset with regard to Article 8(3) of the Reception Directive.

Detention of an ‘applicant’

72. In the first place, it is clear from the introductory sentence to the first subparagraph of Article 8(3) of the Reception Directive that the grounds set out in that provision can only justify a detention measure that is taken against an applicant within the meaning of Article 2(b) of that directive. According to the definition there contained, a person loses that status when a final decision has been taken on his application for international protection. Consequently, from the date when the competent national authority has taken a final decision on a person’s application for international protection, whether rejecting or granting it, a detention measure taken against that person can no longer be based on the provision at issue. ( 48 )

73. That finding does not, however, leave a Member State powerless against the threat to national security or public order which a foreign national who has been definitively refused international protection and who has been the subject of a return decision may represent. A Member State may, under the conditions laid down in Article 15 of the Return Directive, not only place, but also keep a foreign national in detention in such a situation in order to prepare his return and/or deport him. The need to protect national security or public order may justify such detention. Article 15(1) of the Return Directive mentions the risk of absconding or the situation in which the national concerned avoids or hampers the preparation of return or the removal process merely as examples of grounds for detention in such a context. ( 49 )

The autonomous character of each of the grounds for detention in the first subparagraph of Article 8(3) of the Reception Directive

74. In the second place, the issue whether the provision at issue could be interpreted as an autonomous provision was raised at the hearing. That question, which concerns above all the link between the ground for detention under the provision at issue and the other grounds mentioned in the first subparagraph of Article 8(3) of the Reception Directive, can be asked also of each of those other grounds. In my view, the answer should be ‘yes’.

75. It is true that the list of grounds for detention contained in the first subparagraph of Article 8(3) of the Reception Directive is exhaustive and must, as an exception to the principle expressed in paragraph 1 of that article, be construed strictly. ( 50 ) However, that cannot result in interpreting any one of those grounds in such a way that it would cease entirely to add value to one or more other provision. That would be the case, for example, if the provision at issue could be used only in conjunction with another ground for detention mentioned in the first subparagraph of Article 8(3). The very wording of the provision at issue confirms that it is entirely separate from the other grounds for detention set out in that article.

76. The autonomy of the provision at issue has, moreover, an additional meaning. First, the fact that an applicant for international protection was the subject of a return procedure before that application was lodged and that the procedure was simply suspended pending the examination of that application cannot, in itself, justify detention under the provision at issue. Second, applying that provision does not necessarily require that the detained person already be the subject of a return procedure under the Return Directive. I shall return to each of these aspects below. ( 51 )

Interpretation of the provision at issue

77. I now turn to the crux of the interpretation issue concerning the provision at issue: what is the meaning of the phrase ‘when protection of national security or public order so requires’?

Preliminary remarks

78. The Reception Directive does not define the expression ‘protection of national security or public order’. However, according to settled case-law, the meaning and scope of terms for which EU law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. When those terms appear in a provision which derogates from a principle, they must be read so that that provision can be interpreted strictly. ( 52 )

79. By providing that Member States may not hold a person in detention solely because he or she is an applicant for the purposes of the Procedures Directive, Article 8(1) of the Reception Directive seeks to ensure respect for the fundamental right to liberty and security of the third-country nationals concerned. As is clear from recital 15 of the Reception Directive, it is only in exceptional circumstances and by way of derogation that Member States are permitted to detain such an applicant, subject to the principles of necessity and proportionality with regard to both to the manner and the purpose of such detention. ( 53 )

80. In this context, it follows from Articles 4(2) TEU and 72 TFEU that Member States essentially retain the freedom to determine the requirements of public order and the requirements related to their national security, in accordance with their national needs, which can vary from one Member State to another and from one era to another. ( 54 )

81. However, as is clear from my description of the provision at issue above, ( 55 ) that provision serves to justify a possible exception by the Member States to an obligation intended to ensure respect for the fundamental rights of applicants for international protection when they are received in the Union. The requirements relating to protection of national security and public order must therefore be interpreted strictly and their scope cannot be determined unilaterally by each Member State without supervision by the institutions of the European Union, in particular the Court of Justice. ( 56 )

82. These requirements are particularly important since the provision at issue differs from the other grounds provided for in the first subparagraph of Article 8(3) of the Reception Directive in the broad wording it uses. That provision certainly cannot be interpreted so broadly that the strict limits on the detention of an asylum applicant under the Reception Directive could, in practice, be rendered nugatory.

83. Lastly, I note that, in accordance with a general principle of interpretation, an EU act must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter. ( 57 ) Therefore, Member States must therefore not only interpret their national law falling within the scope of EU law in a manner consistent with EU law, but must also make sure that they do not base themselves on an interpretation of secondary legislation which would be in conflict with the fundamental rights protected by the EU legal order or with other general principles of EU law. ( 58 )

84. In the present case, this principle means that where Member States opt to provide that an applicant for international protection may be detained on the ground that protection of national security or public order so requires, in accordance with the provision at issue, they must ensure that such detention is fully consistent with the right to liberty and security that Article 6 of the Charter guarantees.

Independence vis-à-vis other grounds for deprivation of liberty applicable under national law

85. Furthermore, as the Italian Government and the Commission rightly argue, it is clear from recital 17 of the Reception Directive, which informs the scope of that directive, ( 59 ) that the ground for detention under the provision at issue, like the other grounds set out in the first subparagraph of Article 8(3) of the Reception Directive, is distinct from detention grounds under national law (including criminal law) which are applicable to any person, regardless of an application for international protection.

86. Recital 17 thus confirms that the Reception Directive is without prejudice to Member States’ ability to deprive an applicant for international protection of his liberty on the same grounds and under the same conditions as any other person under their authority, in particular their nationals and third-country nationals who reside lawfully on their territory. Consequently, for example, the provision at issue has no bearing on whether provisions of national law, permitting a person participating in a demonstration to be arrested and placed in temporary administrative detention if necessary to maintain or restore public order or security, may be applied to an applicant for international protection under the same conditions. Similarly, the Reception Directive does not harmonise Member States’ laws under which a person, whether or not he is an applicant for international protection, can be punished with imprisonment if he commits a crime (such as murder or rape).

87. Nevertheless, one of the functions of criminal law is precisely to protect society against threats to public order, and/or national security. Consequently, the analysis I have set out in the preceding points does not rule out that certain circumstances may fall under national criminal law and at the same time justify a detention measure under the provision at issue. Thus, to take an obvious example, preparatory acts for a terrorist attack can both constitute material elements of a criminal offence (giving rise, if appropriate, to imprisonment) and establish the need for preventive detention under the provision at issue. ( 60 ) As the Commission submits in essence, that provision enables a Member State, in such circumstances, to confer on the authority responsible for the asylum application the power to prevent a serious breach of national security or public order by itself ordering that the applicant be detained. ( 61 ) In such a case, however, the first subparagraph of Article 9(3) of the Reception Directive requires the Member State concerned to provide for a speedy judicial review of the lawfulness of the detention measure to be conducted ex officio and/or at the request of the person concerned and for the applicant to be immediately released if his detention is held to be unlawful. ( 62 )

The concepts of ‘national security’ and ‘public order’

88. In its judgment in T., ( 63 ) the Court has already had the opportunity to interpret the concepts of ‘national security’ and ‘public order’, which appeared in Article 24(1) of the previous Qualification Directive, ( 64 ) by analogy with the notions of ‘public security’ and ‘public order’ used in Articles 27 and 28 of Directive 2004/38/EC. ( 65 ) Whilst, as I have stated above, Member States remain free to determine the requirements of public order and public security, the Court has nevertheless held that the extent of the protection a society intends to afford to its fundamental interests cannot vary depending on the legal status of the person that threatens those interests. ( 66 )

89. The Court has thus ruled that the concept of ‘public security’ covers both a Member State’s internal and external security and that, consequently, a threat to the functioning of the institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security. ( 67 )

90. The Court has interpreted the concept of ‘public order’, in different contexts, to the effect that it presupposes, in any event, in addition to the perturbation of the social order which any infringement of the law involves, the existence of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. ( 68 ) As a result, any factual or legal element relating to the situation of the third-country national concerned which may shed light on whether his personal conduct poses such a threat is relevant when assessing that concept. ( 69 )

91. In my view, these clarifications are fully transposable to interpreting the concepts of ‘national security’ and ‘public order’ in the provision at issue.

92. I note, further, that recital 37 of the Qualification Directive, with which the provision at issue is to be interpreted consistently, provides an illustration of what may constitute a threat to national security or public order. According to that recital, ‘the notion of national security and public order … covers cases in which a third-country national belongs to an association which supports international terrorism or supports such an association’. ( 70 ) Membership of such an association, if duly demonstrated, could be sufficient to establish the need for a detention measure under the provision at issue.

An exclusively preventive function

93. In so far as it permits measures aimed at avoiding breaches of national security or public order, the function of the provision at issue is exclusively preventive.

94. This preventive character is closely linked to the requirement, in Article 8(2) of the Reception Directive, that detention under the provision at issue is possible only after an ‘individual assessment of each case’. That requirement entails examining whether factual or legal elements relating to the applicant’s situation show that his personal conduct justifies his detention by reason of the genuine, present and sufficiently serious threat that he represents to national security or public order. It is immaterial in this respect that the provision at issue does not expressly refer to the ‘risk’ which the applicant poses to public order or national security, unlike for example Article 7(4) of the Return Directive.

95. The requirement just mentioned means that a Member State cannot rely on a general practice or an assumption in order to determine the existence of a threat to national security or public order in accordance with the provision at issue, without duly taking into account the third country national’s personal conduct and the risk that that conduct poses. ( 71 )

96. For that reason, I cannot agree with the Commission when it submits that the provision at issue enables a Member State to detain asylum applicants if they are part of a sudden mass influx of migrants which threatens that State’s internal order and its capacity to deal with such an influx. Indeed, I note in this respect that, under Article 3(3) of the Reception Directive, that directive does not apply when the provisions of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof ( 72 ) are applicable.

97. Similarly, the fact that an applicant is suspected, or has already been convicted, of an act punishable as a criminal offence under national law cannot, in isolation, justify detaining him on the ground that the protection of national security or public order so requires. ( 73 ) Detention under the provision at issue, which has a preventive character, cannot have the purpose, per se, of punishing the applicant’s past conduct. Any other conclusion would cause difficulties under the ne bis in idem principle, since it would allow a person who has been convicted of one or more offences and who has served the relevant sentences to be ‘punished’ again for the same offences through detention under the provision at issue.

98. It is also worth mentioning here that the Court ruled in El Dridi ( 74 ) that the Return Directive, in particular Articles 15 and 16 thereof, precluded legislation of a Member State that provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remained, without valid grounds, on the territory of that State in violation of an order to leave that territory within a given period. A penalty of that kind would risk jeopardising the objective pursued by that directive, namely establishing an effective policy to remove and repatriate illegally staying third-country nationals. ( 75 ) It follows that, contrary to what the Netherlands Government suggests, the fact that a third-country national has been sentenced to such a penalty in the past cannot under any circumstances contribute to showing that, after submitting an application for international protection, he constitutes a present threat to national security or public order justifying his detention under the provision at issue.

99. On the other hand, as the Belgian Government essentially argues, in order to establish a threat to national security or public order the competent national authority does not necessarily have to suspect that the applicant has committed an act punishable as a criminal offence or, a fortiori, be able to show that that was the case, or that the applicant has already been convicted on that ground. An examination of all the relevant circumstances may lead to the suspicion, on the basis of reliable evidence, that an applicant is preparing to commit such an act and therefore represents a genuine, present and sufficiently serious threat to national security or public order.

Autonomy of the provision at issue vis-à-vis a return procedure

100. The fact that an applicant has been the subject of a return decision before submitting his asylum application, or indeed has been convicted of not complying with that decision, is in itself unrelated to a finding that the applicant constitutes a genuine, present and sufficiently serious threat to national security or public order in the Member State concerned. ( 76 ) That is true even where such a return decision stems from the rejection of a preceding asylum application. ( 77 ) Contrary to what the Council argues, the fact that an applicant submits ‘another subsequent application’ for international protection in the same Member State following a final decision declaring a first subsequent application inadmissible, in accordance with Article 41(1)(b) of the Procedures Directive (which permits a Member State to make an exception from the right to remain in the territory), is in itself irrelevant in this regard.

101. That leads me to examine how the provision at issue relates to the ground for detention under point (d) of the first subparagraph of Article 8(3) of the Reception Directive. That ground concerns the situation of an applicant for international protection subject to a return procedure under the Return Directive who is detained in order to prepare his return and/or carry out the removal process. ( 78 )

102. In Arslan ( 79 ) the Court stated that the Return Directive did not apply to a third-country national who had applied for asylum during the period from the making of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision was known. Therefore, during that period, the detention of an asylum applicant for the purpose of removal cannot be based on Article 15 of the Return Directive even if, before he submitted that application, he was detained on the basis of that article because his conduct gave rise to the concern that he would abscond and frustrate his removal. ( 80 )

103. Even before the Reception Directive entered into force, however, the Court did take the view that the directive’s objective of ensuring the effective return of illegally staying third-country nationals would be undermined if an applicant who was detained under Article 15 of that directive could automatically secure release simply by making an application for asylum. ( 81 ) The Court stated that the progress of the procedure for examining that application certainly did not mean that the return procedure was thereby terminated, as the latter could continue if the application for asylum was rejected. ( 82 ) Consequently, neither the previous Reception Directive nor the previous Procedures Directive precluded a third-country national who had applied for international protection after having been detained under Article 15 of the Return Directive from being kept in detention on the basis of a provision of national law where it appeared, after an individual assessment of all the relevant circumstances, that the application had been made solely to delay or jeopardise this effective return and that it was objectively necessary to maintain detention to prevent the person concerned from permanently evading his return. ( 83 )

104. Point (d) of the first subparagraph of Article 8(3) of the Reception Directive now specifically lays down the framework for the detention measures which Member States can order in this kind of situation. Detention is possible under that provision only if, at the time the applicant submits his application for international protection, he is detained subject to a return procedure under the Return Directive in order to prepare his return and/or carry out the removal process and the Member State concerned can substantiate on the basis of objective criteria that there are reasonable grounds to believe that he is making the application merely in order to delay or frustrate the enforcement of the return decision made against him. Thus, point (d) of the first subparagraph of Article 8(3) of the Reception Directive clearly does not cover the situation where, at the time the person concerned submits his asylum application, he is either not deprived of his liberty or he is deprived of his liberty outside the scope of a return procedure under the Return Directive.

105. It was suggested at the hearing, in essence, that the provision at issue could be interpreted as permitting the detention of a third-country national who has been the subject of a return decision but has been at liberty up to that point, after he submitted an application for international protection, on the ground that the application aimed merely to delay or frustrate the enforcement of that return decision. In my view, such an interpretation cannot be accepted. It would not only render ineffective the first condition laid down in point (d) of the first subparagraph of Article 8(3) of the Reception Directive, which I have just mentioned, but would also be incompatible with the principle set out in Article 8(1) of that directive, since in such a case the detention would result from lodging the application for international protection. By extension, such an interpretation would raise problems in relation to Article 31 of the Geneva Convention, which Article 8(1) is intended, inter alia, to implement. As I have stated, point (d) of the first subparagraph of Article 8(3) of the Reception Directive only allows Member States, under certain conditions, to extend a detention measure already taken against a third-country national, in order to prepare his return and/or carry out the removal process as part of a return procedure.

106. Thus, the mere fact that, before lodging his application for international protection, an asylum applicant was subject to a return decision which has become final, possibly accompanied by an entry ban, does not preclude his detention for the first time under the provision at issue, provided the Member State concerned shows that the applicant represents a genuine, present and sufficiently serious threat to national security or public order. ( 84 )

107. The Commission argued at the hearing, in essence, that the provision at issue could be used to detain an applicant for international protection when derogating from his right to remain in the territory of the Member State concerned under Article 9(2) of the Procedures Directive in conjunction with Article 41 of that directive. In such a case the provision at issue would permit the applicant to be detained, even before a decision was taken on his application for international protection, where similar applications by the applicant have already been refused several times and there is a risk that he will disregard the order to leave the territory made against him.

108. I am not convinced by that argument. In the situation described above, the applicant is, by definition, staying ‘illegally’ on the territory of the Member State concerned within the meaning of Article 2(1) of the Return Directive. The provisions of that directive are therefore applicable. Any detention for the purpose of removal is perfectly possible, under Article 15 thereof, in order to prepare the return and/or carry out the removal process. In such circumstances the provision at issue does not therefore have any ‘legal vacuum’ to fill.

109. Finally, contrary to what Mr N., the Netherlands Government and the Parliament submitted at the hearing, I see no reason to apply the provision at issue only where the applicant has been the subject of a return decision before submitting his application. Such an interpretation finds no basis in the wording of the provision at issue or the Reception Directive more generally. It would also be liable seriously to undermine the effectiveness of that provision in so far as a Member State’s ability to prevent a serious breach of its national security or public order on the basis of that provision would depend primarily on the prior adoption of a return decision. But the threat which the Member State needed have to address might equally well become apparent during the examination of an asylum application, (well) before a return decision had been taken. ( 85 )

Relevance of an entry ban

110. How relevant is it that an entry ban within the meaning of Article 11 of the Return Directive accompanied a previous return decision?

111. In my view, that fact can never be decisive. It is true that paragraph 2 of that provision provides that an entry ban may be ordered for a length exceeding five years where the third-country national subject to that measure is considered to represent a serious threat to public policy, public security or national security. As the Belgian, Greek and Italian Governments and the Council pointed out, an entry ban on such grounds could therefore indicate that an asylum applicant represents such a threat.

112. However, under Article 11(5) of the Return Directive, an entry ban is without prejudice to the right to international protection which the person concerned may enjoy under EU law if he makes an application seeking such protection. By extension, such a ban is also without prejudice to the guarantees under the Reception Directive, including protection against detention which is not justified on the basis of one of the grounds mentioned in the first subparagraph of Article 8(3) thereof. Accordingly, the mere fact that in the past an applicant has been the subject of an entry ban in a Member State on grounds relating to protection of national security or public order does not relieve the competent national authority, when it considers possible detention on the basis of the provision at issue, of the task of examining whether that measure is justified in view of the present threat which the applicant represents to national security or public order. ( 86 )

An exceptional measure

113. In any event, the Reception Directive takes account of the fact that detention is a particularly drastic measure against an applicant for international protection, which may be adopted only in exceptional circumstances. ( 87 ) Thus, under Article 8(2) of that directive, a Member State may detain an asylum applicant on the ground that protection of national security or public order so requires only, on the one hand, ‘when it proves necessary’ and, on the other, ‘if other less coercive alternative measures cannot be applied effectively’. Such detention is therefore subject to a strict requirement of proportionality. Article 8(4) of the Reception Directive, which identifies alternatives to detention, such as regular reporting to the authorities or an obligation to stay at an assigned place (without therefore being detained) further confirms that the provision at issue constitutes a measure of last resort. However, such alternatives would not be appropriate, for example, to prevent the serious threat to national security or public order represented by an individual who, according to a consistent body of evidence, is preparing to commit a terrorist attack.

Final remarks

114. The interpretation of the provision at issue which I have set out above does not prevent a Member State from providing, on the basis of another ground for detention laid down in the first subparagraph of Article 8(3) of the Reception Directive, that an applicant for international protection may be detained when there is a risk that he will abscond. Thus, a detention may be ordered under point (b) of the first subparagraph of Article 8(3) in so far as it is necessary to enable the competent national authority to determine those elements on which the application for international protection is based. ( 88 ) Taken in isolation, the existence of such a risk cannot therefore be the basis for finding that an applicant for international protection represents a threat to national security or public order within the meaning of the provision at issue.

115. That interpretation is also without prejudice to Member States’ ability to detain an asylum applicant in order to verify his identity or nationality or to decide on his right to enter the territory of the Member State, where less coercive measures cannot be applied effectively. Thus, points (a) and (c) of the first subparagraph of Article 8(3) of the Reception Directive expressly provide that detention may be based on those grounds, provided that all the guarantees offered by that directive in respect of detention are observed. ( 89 )

Validity of the provision at issue

116. In order to be compatible with Article 6 of the Charter, a detention measure under the provision at issue must be provided for by law, respect the essence of the right to liberty and security and, subject to the principle of proportionality, be necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. As I have explained in point 60 of this View, this requires examining whether such a detention measure falls within one of the exceptions mentioned in Article 5(1) of the ECHR and respects all the other guarantees offered in paragraphs 2 to 5 of that article. I shall now consider these requirements in more detail. The following observations do not seek to present exhaustively the relevant case-law of the European Court of Human Rights on interferences with the right to liberty and security guaranteed by Article 5 of the ECHR and, by extension, Article 6 of the Charter. They are confined to what seems necessary to answer the question of validity referred to the Court.

Can the provision at issue fall within one of the permissible exceptions to the right to liberty and security?

117. According to the settled case-law of the European Court of Human Rights, which is fully relevant when interpreting Article 6 of the Charter, subparagraphs (a) to (f) of Article 5(1) of the ECHR contain an exhaustive list of permissible grounds of detention and such a measure will not be lawful unless it falls within one of those grounds. ( 90 ) Those grounds must be interpreted narrowly as they are exceptions to the right to liberty and security. ( 91 )

118. I begin by pointing out that, in view of the exclusively preventive nature of the ground for detention mentioned in the provision at issue, which I have stressed above, ( 92 ) a detention measure ordered on that basis cannot in any circumstances fall within the exception to the right to liberty and security provided for in Article 5(1)(a) of the ECHR. That exception concerns a punishment imposed by a court depriving a person of his liberty and is therefore unconnected with preventive measures. ( 93 )

119. Detaining an asylum applicant under the provision at issue, within the limits of the scope of that provision which I have identified above, can nevertheless be linked to several of the other exceptions in Article 5 of the ECHR.

120. The first of these is laid down in Article 5(1)(c) of the ECHR, which essentially concerns preventive detention. ( 94 ) The European Court of Human Rights has ruled in this respect that the ground for detention relating to the need to prevent an individual committing an offence cannot be extended to a policy of general prevention directed against an individual or a category of individuals who present a danger on account of their continuing propensity to crime. That ground does no more than afford the Contracting States a means of preventing a concrete and specific offence. ( 95 ) It permits detention only in connection with criminal proceedings. ( 96 ) That is clear from its wording, which should be read in conjunction with Article 5(1)(a) and Article 5(3), with which it forms a whole and which states, inter alia, that an exception to the right to liberty and security requires that the person concerned be brought promptly before a judge or other officer authorised by law to exercise judicial power and that that person be entitled to trial within a reasonable time or to release pending trial. ( 97 ) The purpose of such a trial, where an individual is deprived of his liberty in order to prevent him from committing an offence, may be to impose criminal penalties on that person for preparatory acts to that offence. ( 98 ) However, the requirement of a trial certainly does not mean that arrest and detention cannot be ordered by an administrative authority (as in the example I gave in point 87 of this View). The European Court of Human Rights has ruled that Article 5(3) of the ECHR aims specifically to ensure prompt and automatic judicial control of a police or administrative measure depriving an individual of his liberty ordered in accordance with paragraph 1(c) of that article. ( 99 )

121. Furthermore, the autonomy of the provision at issue vis-à-vis a return procedure, which I highlighted in points 100 to 109 of this View, does not exclude ordering detention on that ground in the context of a return procedure where the applicant has been the subject of a return decision before submitting his application for international protection. In that case, such a detention measure could be justified on the basis of the second exception mentioned in Article 5(1)(f) of the ECHR.

122. As I have stated, ( 100 ) it is clear from the case-law of the European Court of Human Rights that that provision requires only that action is being taken with a view to deportation. It does not therefore offer the same protection as Article 5(1)(c) of the ECHR and consequently does not require, in particular, that the person concerned be brought immediately before a judge, as Article 5(3) prescribes for cases of deprivation of liberty based on Article 5(1)(c). The European Court of Human Rights held in its judgment in Nabil and Others v. Hungary that the mere fact that a person against whom a deportation order has been made has submitted an asylum application does not as such imply that the detention is no longer with a view to deportation: if that application is dismissed, that could open the way to executing the deportation order. ( 101 ) An analogy can be drawn here with the reasoning in Arslan (paragraph 60). ( 102 )

123. Nevertheless, only the conduct of a removal or extradition procedure justifies a deprivation of liberty on that ground, and only if the procedure is carried out with due diligence. ( 103 ) The second exception laid down in Article 5(1)(f) of the ECHR can therefore justify deprivation of an asylum applicant’s liberty only in so far as, in particular, his lodging an application for international protection did not result in the expulsion order made against him ceasing to have any legal effect. ( 104 ) In addition, a detention measure can be justified under Article 5(1)(f) only if it is carried out in good faith, if it is closely connected to the ground of detention relied on by the government concerned, if the place and conditions of detention are appropriate and, lastly, if the duration of that measure does not exceed that reasonably required for the purpose pursued. ( 105 ) In EU law, there is nothing in the Reception Directive, or indeed in the Procedures or Return Directives, to prevent those requirements from being satisfied.

124. In addition, I do not rule out that, as the Belgian Government, the Council and the Commission have argued, detention under the provision at issue might conceivably fall within the second exception laid down in Article 5(1)(b) of the ECHR, which permits an individual to be deprived of his liberty in order to secure the fulfilment of any obligation prescribed by law. In its judgment in Ostendorf v. Germany, the European Court of Human Rights recognised that that provision could justify detention in order to prevent the commission of an offence, namely disturbing public order by taking part in an altercation between hooligans, even if the detention was not in order to bring the person concerned before the competent legal authority and it did not therefore come under Article 5(1)(c) of the ECHR. ( 106 ) It is however necessary, inter alia, that the law permits the person concerned to be detained to compel him to fulfil a specific and concrete obligation incumbent on him, which he has until then failed to satisfy. ( 107 ) As applied to detention to prevent the commission of an offence, that requires inter alia that the place and time of the imminent commission of the offence and its potential victims have been sufficiently specified. ( 108 )

125. Lastly, the Council and the Commission argue that the possibility cannot be excluded that a detention measure under the provision at issue may fall within the exception laid down in Article 5(1)(e) of the ECHR, which provides in particular for the possibility of detaining an alcoholic, a drug addict or a vagrant. ( 109 ) The European Court of Human Rights has ruled that it was because such persons were, inter alia, a danger to public safety that they could be deprived of their liberty on that basis. ( 110 ) However, as I have explained in points 77 to 115 of this View, the scope of the provision at issue is restricted and applying it requires in particular that factual or legal elements relating to the applicant’s situation show that his personal conduct justifies detaining him by reason of the genuine, present and sufficiently serious threat that he represents to national security or public order. Against that background, I have serious reservations as to whether a detention measure ordered under the provision at issue could be justified on the basis of that exception.

Respect for the other guarantees relating to interference with the right to liberty and security

126. Article 6 of the Charter, read in the light of Article 5 of the ECHR, provides a number of additional guarantees, which are both substantive and procedural. ( 111 )

127. First, any interference with the right to liberty and security must be lawful. According to the case-law of the European Court of Human Rights, that requirement means, above all, that the detention must conform to the substantive and procedural rules of national law. ( 112 ) That is confirmed in Article 52(1) of the Charter, which requires any limitation on the exercise of the rights and freedoms recognised by the Charter to be provided for by law. In a case of detention such as that at issue in the main proceedings, that means respecting all the relevant provisions of the Reception Directive and of the applicable national law.

128. Article 5(1) of the ECHR requires in addition that any detention should be consistent with the purpose of protecting the individual from arbitrariness, since a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the ECHR. ( 113 ) That condition requires, inter alia, that the implementation of the measure depriving a person of liberty must be free from any element of bad faith or deception on the part of the authorities and must conform to the purpose of the restrictions permitted by the relevant subparagraph of Article 5(1) of the ECHR, that there be a relationship between the ground of permitted detention relied on and the place and conditions of detention, and that there be a link of proportionality between the ground for detention relied on and the detention in question. ( 114 ) Detention is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest requiring detention. ( 115 )

129. The Reception Directive clearly contains guarantees against arbitrary detention. ( 116 ) Detention under Article 8 of that directive is, as I have said, a measure of last resort, which may be ordered only on a case-by-case basis and provided ‘other less coercive alternative measures cannot be applied effectively’. ( 117 ) Even where such detention is possible in principle, it may be ordered only ‘for as short a period as possible and … only for as long as the grounds set out in Article 8(3) are applicable’. ( 118 ) Those rules reflect the requirement of proportionality to which any limitation on the exercise of the rights and freedoms guaranteed by the Charter is subject. ( 119 )

130. Second, the provision at issue must be applied in accordance with the principle of legal certainty. It is therefore essential that the conditions for detention be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of lawfulness, a standard which requires every law to be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen — if need be, with appropriate advice — to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail. ( 120 )

131. Regarding a detention measure under the provision at issue, it is certainly true that that provision is formulated in particularly broad terms. However, examining whether such a measure satisfies the requirement of legal certainty requires that account be taken not only of that provision, but also of the national law implementing it and, where appropriate, other relevant national legislation. Consequently, as the Italian Government and the Parliament submit in essence, it is for any Member State intending to apply the provision at issue to define in a sufficiently precise way the cases in which it can be applied.

132. Third, any person arrested must be told, in simple, non-technical language that can be easily understood, the essential legal and factual grounds for detention. ( 121 ) Such a statement of reasons is necessary both to enable the detained person to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and also to put that court fully in a position to carry out the review of the legality of the decision in question. ( 122 )

133. Article 9(2) and (4) of the Reception Directive reflects this requirement to state reasons. Paragraph 2 concerns the statement of reasons for the actual decision ordering detention, whilst paragraph 4 relates to the information to be communicated to an applicant immediately after his detention. Where a detention measure is based on the provision at issue, that statement of reasons must include a clear and precise explanation of the reasons why the competent national authority considers that the applicant represents a genuine, present and sufficiently serious threat to national security or public order in the Member State concerned. In the light of the rule in Article 8(2) of the Reception Directive, that authority must also give a sufficiently detailed explanation of why it considers that no other less coercive alternative measures can be applied effectively in order to protect national security or public order. ( 123 )

134. Fourth, any interference with the right to liberty and security must respect procedural guarantees. Thus, I have already stated that deprivation of liberty under Article 5(1)(c) of the ECHR requires that the person concerned (the applicant for international protection where such deprivation of liberty is based on the provision at issue) be brought promptly before a judge or other officer authorised by law to exercise judicial power and that that person be entitled to trial within a reasonable time or to release pending trial. ( 124 ) As I have already pointed out, Article 9(3) of the Reception Directive specifically provides not only for ex officio judicial review (that is, independently of any proceedings brought by the applicant) of the lawfulness of detention ordered by an administrative authority, to be carried out as speedily as possible after the beginning of detention, but also for the applicant to be released immediately if his detention is held to be unlawful.

135. More generally, everyone who is deprived of his liberty by arrest or detention is entitled to initiate proceedings before a court challenging the lawfulness of his detention, on which that court has to decide speedily, and to obtain his release if the detention is unlawful. ( 125 ) Article 5(4) of the ECHR and, by extension, Article 6 of the Charter require a review wide enough to cover those conditions which are essential for a person to be detained lawfully in accordance with Article 5(1) of the ECHR. ( 126 ) Here too, the Reception Directive does not create any obstacle to the Member States satisfying that requirement when they implement the provision at issue. On the contrary, the rules in Article 9(3) and (5) of that directive seek to ensure that detention of an asylum applicant on the basis of Article 8 of that directive satisfies that requirement. ( 127 )

136. Fifth and lastly, Article 5(5) of the ECHR provides that everyone who is deprived of his liberty in contravention of the rules laid down in the first four paragraphs of that article has an enforceable right to compensation. In the light of the Explanations on Article 6 of the Charter, that latter provision must contain the same right. The Reception Directive does not contain any provision specifically instructing the Member States to lay down such an enforceable right to compensation. It is however necessary to take account of the specific legislative features of an EU act of this kind, which, according to the third paragraph of Article 288 TFEU, is binding, as to the result to be achieved, upon each Member State to which it is addressed but leaves to the national authorities the choice of form and methods to achieve that result. According to recital 35 in the preamble to the Reception Directive, that directive seeks specifically to promote, inter alia, the application of Article 6 of the Charter. That directive thus leaves Member States all the leeway necessary to comply with the requirement that I have just mentioned.

137. In conclusion, although the provision at issue does permit interference with the right to liberty and security guaranteed by Article 6 of the Charter, that limitation is, if that provision is interpreted in the manner I have set out in this View, not only provided for by law, but it also respects the essence of that right and appears necessary in order to allow the Member States, in accordance with the principles referred to in Article 4(2) TEU and Article 72 TFEU, to combat threats to their national security or their public order effectively. Examination of the question of validity put to the Court in the present case has not therefore disclosed any factor such as to affect the validity of the provision at issue.

138. I emphasise, however, that this conclusion, which stems from an objective examination of the validity of the provision at issue in the light of Article 6 of the Charter, is without prejudice to the outcome of Mr N.’s claim before the referring court. It is thus for the referring court alone, within the scope of those proceedings, to rule on whether or not the detention measure at issue in the dispute in the main proceedings is compatible with Article 6 of the Charter, read in the light of Article 5 of the ECHR.

Conclusion

139. In the light of all the above considerations, I suggest that the Court should declare that: — Examination of the question which the Raad van State (Council of State, the Netherlands) put to the Court of Justice of the European Union has not disclosed any factor such as to affect the validity of point (e) of the first subparagraph of Article 8(3) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection. — That conclusion is nevertheless subject to two qualifications. First, that provision must be interpreted as being applicable only where factual or legal elements relating to the situation of an applicant for international protection can show that his personal conduct justifies his detention by reason of the genuine, present and sufficiently serious threat that he represents to national security or public order in the Member State concerned. Second, its implementation must, in each specific case, comply with the right to liberty and security guaranteed by Article 6 of the Charter of Fundamental Rights of the European Union, read in the light of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950. — It is for the referring court, within the scope of the proceedings brought before it and taking into account all the relevant factual or legal aspects of the case, to determine whether the detention measure at issue in the dispute in the main proceedings could fall within the ground for detention mentioned in point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 thus interpreted.

( 1 ) Original language: French.

( 2 ) OJ 2013 L 180, p. 96. The Reception Directive repealed and replaced, with effect from 21 July 2015, Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the Member States (OJ 2003 L 31, p. 18, ‘the previous Reception Directive’). Under Articles 1, 2 and 4a(1) of Protocol No 21, annexed to the TEU and the TFEU, on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, the Reception Directive is not binding on those two Member States. The same applies to the Kingdom of Denmark pursuant to Protocol No 22 on the position of Denmark.

( 3 ) United Nations Treaty Series, vol. 189, p. 150, No 2545 (1954).

( 4 ) However, States Parties may not, even in such circumstances, derogate from certain other rights guaranteed by the ECHR, such as the right, under Article 3 of the ECHR, not to be subjected to torture or to inhuman or degrading treatment or punishment.

( 5 ) Recital 2.

( 6 ) Recital 15.

( 7 ) Recital 15.

( 8 ) Recital 16.

( 9 ) Recital 35.

( 10 ) Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9). The Qualification Directive replaced, with effect from 21 December 2013, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12, ‘the previous Qualification Directive’). Under Article 2(h) of the Qualification Directive, ‘“application for international protection” means a request made by a third-country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately’.

( 11 ) Article 10(1) of the Reception Directive provides that ‘detention of applicants shall take place, as a rule, in specialised detention facilities’ and that ‘where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the detained applicant shall be kept separately from ordinary prisoners’.

( 12 ) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60). The Procedures Directive repealed and replaced, with effect from 21 July 2015, Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures for gra