Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 21 June 2022 ( )

Joined Cases C‑704/20 and C‑39/21

Staatssecretaris van Justitie en Veiligheid

v

C,

B (C‑704/20)

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

and

X

v

Staatssecretaris van Justitie en Veiligheid (C‑39/21)

(Request for a preliminary ruling from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch, Netherlands))

(Reference for a preliminary ruling – Area of freedom, security and justice – Detention of third-country nationals – Fundamental right to liberty – Article 6 of the Charter of Fundamental Rights of the European Union – Conditions governing the lawfulness of detention – Directive 2008/115/EC – Article 15 – Directive 2013/33/EU – Article 9 – Regulation (EU) No 604/2013 – Article 28 – Judicial review of the conditions governing detention and continued detention – Review by a court of its own motion of the conditions governing the lawfulness of detention – Grounds of judgments – Procedural autonomy of the Member States – Principles of equivalence and effectiveness – Fundamental right to an effective judicial remedy – Article 47 of the Charter of Fundamental Rights)





I. Introduction

1. The issues surrounding the review by a national court of its own motion of a plea alleging breach of EU law have been examined by the Court on several occasions in a number of different areas of EU law. Consideration of those issues against the backdrop of the detention of third-country nationals, with the protection of the right to liberty at stake, ( ) provides ample opportunity to revisit the approach taken thus far. Given the importance of that right and the essential role played by the courts in protecting it, procedural rules restricting the judiciary in that area are viewed with a degree of wariness.

2. These requests for a preliminary ruling concern, in essence, the interpretation of Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, ( ) Article 9 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 ( ) and Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or stateless person, ( ) read in conjunction with Articles 6 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

3. These requests have been made in proceedings between, on the one hand, B, C and X, who are third-country nationals, and, on the other, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’) concerning the lawfulness of detention and continued detention.

4. The main question raised in the present reference for a preliminary ruling is whether a national court may, when it is required to review the lawfulness of detention or continued detention, be limited by a procedural rule of national law which prevents it from taking into account pleas or arguments not put forward by the applicant. It is thus necessary to determine whether, under EU law, that court may, or even must, examine of its own motion the conditions governing the lawfulness of detention.

5. Given the diversity of the models established by the Member States in order to review the lawfulness of the detention of third-country nationals, it is not for the Court to say whether one model is better than another. Its role is to ascertain whether the procedural rules of national law are an acceptable means of implementing obligations under secondary EU law or whether, on the contrary, such rules undermine the effectiveness of EU law and should therefore be set aside by the national courts.

6. In this Opinion, I will propose that the Court rule, in answer to the question referred for a preliminary ruling relating to the review by a court of its own motion of the conditions governing the lawfulness of detention, that Article 15 of Directive 2008/115, Article 9 of Directive 2013/33 and Article 28 of Regulation No 604/2013, read in conjunction with Articles 6 and 47 of the Charter, must be interpreted as meaning that a national court which is called upon to review the lawfulness of the detention or continued detention of a third-country national must verify, on the basis of the facts and points of law it deems relevant, whether the general and abstract rules which lay down the conditions and procedures governing such a measure have been complied with, irrespective of the pleas and arguments put forward by that third-country national in support of his or her action. Those same provisions preclude a procedural rule of national law which has the effect of preventing that court from carrying out that verification of its own motion and from releasing the third-country national, even though it would find such detention to be in breach of EU law.

II. Legal context

A. European Union law

7. The present cases revolve around Article 15 of Directive 2008/115, Articles 8 and 9 of Directive 2013/33, Article 28 of Regulation No 604/2013 and Articles 6 and 47 of the Charter.

B. Netherlands law

1. The Law on foreign nationals

8. Article 59(1)(a) of the Vreemdelingenwet 2000 (Law on foreign nationals of 2000) of 23 November 2000, as amended with effect from 31 December 2011 for the purpose of transposing Directive 2008/115 into Netherlands law, ( ) provides that, if required in the interests of public policy or national security, a foreign national who is not lawfully resident may be placed in detention by the State Secretary with a view to his or her removal.

9. Under Article 59(5) of the Vw 2000, the duration of the detention referred to in Article 59(1) thereof may not exceed six months. However, in accordance with Article 59(6) of the Vw 2000, the period referred to in paragraph 5 of that article may be extended by a further period of 12 months if, despite all reasonable efforts, removal is likely to take longer because of a lack of cooperation on the part of the foreign national with regard to his or her removal or because the documents required from third countries for that purpose are still outstanding.

10. Article 59a of the Vw 2000 states that foreign nationals to whom Regulation No 604/2013 applies may, in compliance with Article 28 of that regulation, be detained with a view to their transfer to the Member State responsible.

11. Article 59b of the Vw 2000 provides that certain foreign nationals who have applied for a residence permit may be detained if such detention is necessary to establish the identity or nationality of the applicant or to obtain the information necessary for the assessment of the application, in particular if there is a risk of the foreign national absconding.

12. Article 91(2) of the Vw 2000 states:

‘If [the Afdeling bestuursrechtspraak van de Raad van State (Administrative Jurisdiction Division of the Council of State, Netherlands)] considers that a complaint raised is not capable of leading to annulment, it may confine itself to that assessment in the grounds of its decision.’

13. Article 94 of the Vw 2000 is worded as follows:

‘1. Where [the State Secretary] has taken a decision imposing a measure involving deprivation of liberty referred to in Articles … 59, 59a and 59b, he or she shall notify the [court with jurisdiction] thereof no later than the twenty-eighth day following service of that decision, unless the foreign national has by then brought an appeal. As soon as the [court has been notified], the foreign national shall be deemed to have lodged an appeal against the decision imposing a measure involving deprivation of liberty. That appeal shall also seek an award of compensation.

…

4. The court shall forthwith set the date for a hearing. The hearing shall take place no later than 14 days after receipt of the application or the notice. …

5. … The written judgment shall be delivered no later than seven days after the hearing. …

6. If the court before which proceedings are brought finds that the application or enforcement of the measure is contrary to this Law or, after weighing up all the interests involved, that the measure is not justified, it shall uphold the appeal. In those circumstances, the court shall order that the measure be lifted or that the conditions of its enforcement be varied.

…’

14. Article 96 of the Vw 2000 provides:

‘1. If the appeal referred to in Article 94 is declared unfounded and the foreign national lodges an appeal against the extension of the deprivation of liberty, the court shall terminate the preliminary investigation within one week of receipt of the application. …

…

3. If the court before which proceedings are brought finds that the application or enforcement of the measure is contrary to this Law or, after weighing up all the interests involved, that the measure is not reasonably justified, it shall uphold the appeal. In those circumstances, the court shall order that the measure be lifted or that the conditions of its enforcement be varied.’

2. The Code of Administrative Law

15. Article 8:69 of the Algemene wet bestuursrecht (General Law on administrative law) ( ) of 4 June 1992 provides:

‘1. The court before which proceedings are brought shall give its ruling on the basis of the application, the documents produced, the preliminary investigation and the consideration of the case at the hearing.

2. The court shall supplement the pleas in law of its own motion.

3. The court may supplement the facts of its own motion.’

16. Under Article 8:77 of the Awb:

‘1. The written decision shall contain:

…

b. the grounds for the decision,

…’

III. The disputes in the main proceedings and the questions referred for a preliminary ruling

A. The disputes concerning B and C (C‑704/20)

17. B, an Algerian national, expressed his intention to apply for asylum in the Netherlands. By decision of 3 June 2019, the State Secretary detained him under Article 59b of the Vw 2000 for the purpose, inter alia, of obtaining the information necessary to assess his application.

18. B appealed against that decision before the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch, Netherlands).

19. By judgment of 18 June 2019, that court, without ruling on the pleas relied on in support of the appeal, upheld that appeal on a ground not raised by B, being that the State Secretary had not acted with due diligence. The court therefore ordered that the detention measure be lifted and awarded compensation to B.

20. C is a national of Sierra Leone. By decision of 5 June 2019, the State Secretary, on the basis of Article 59a of the Vw 2000, detained C for the purpose of his transfer to Italy pursuant to Regulation No 604/2013.

21. C appealed against that decision before the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch).

22. By judgment of 19 June 2019, that court held that C’s pleas were unfounded but nonetheless upheld the appeal on the ground that the State Secretary had not organised the transfer to Italy with due diligence. The court therefore ordered that the detention measure be lifted and awarded compensation to C.

23. The State Secretary brought an appeal against those two judgments before the Raad van State (Council of State, Netherlands). The latter asks the Court of Justice to rule on the argument put forward by B and C, and by certain courts in the Netherlands, that EU law requires the courts to examine of their own motion all the conditions that a detention measure must satisfy in order to be lawful.

24. The referring court states that B and C were lawfully resident in the Netherlands when they were detained. While taking the view, in consequence, that the relevant rules on detention are, in the present cases, those contained in Directive 2013/33 and Regulation No 604/2013, the referring court seeks to have Directive 2008/115 also taken into account when examining the question referred, in so far as that directive governs a significant number of the aspects of detention.

25. That court states that all detention provided for by those EU legal instruments falls within the scope, in the Netherlands, of administrative procedure law, which does not allow the Netherlands courts to examine of their own motion whether conditions pertaining to lawfulness not invoked by the person concerned have been satisfied. The only exception to that principle concerns the review of compliance with rules of public policy, such as those relating to access to the courts, jurisdiction and admissibility.

26. According to the referring court, the conditions governing the lawfulness of the detention of a third-country national include those relating to arrest, identity checks, nationality and right of residence, transfer to the place where the hearing is to be held, the use of handcuffs, the right to consular assistance and to be accompanied by a lawyer and an interpreter at the hearing, the rights of the defence, the existence of a risk of flight or of absconding, the prospect of removal or transfer, the diligence shown by the State Secretary, procedural matters, such as the signature and time of the adoption of the detention measure, and whether detention is consistent with the principle of proportionality.

27. That court takes the view that there is no obligation under EU law for the courts to examine of their own motion all those conditions pertaining to lawfulness. It refers in that regard to the judgment of 7 June 2007, van der Weerd and Others. ( ) According to the referring court, it is apparent from that judgment that EU law does not require the courts to review of their own motion, in proceedings relating to the lawfulness of an administrative measure, compliance with the rules of EU law, unless those rules occupy, in the EU legal order, a position comparable to rules of public policy or it is impossible for the parties to put forward a plea alleging infringement of EU law in the proceedings concerned. It states that the conditions relating to detention are not of the same rank as national rules of public policy and, in the Netherlands, the foreign national would be able to raise pleas alleging infringement of those conditions.

28. In his appeal, the State Secretary relied on the case-law of the referring court applying that judgment of the Court of Justice concerning detention. The referring court points out, in that regard, that the Court has not yet ruled on whether the guidance provided by that judgment is also applicable to detention.

29. In order to explain the reasons for its question in that regard, the referring court sets out a number of the features of judicial review under Netherlands administrative procedure law. Thus, pursuant to Article 8:69(1) of the Awb, it is the action that has been brought which determines the scope of the dispute; the court is only required to raise of its own motion infringement of rules of public policy. In accordance with Article 8:69(2) of the Awb, the court must supplement the pleas in law of its own motion, meaning that the applicant need only set out his or her pleas in his or her own words, with the court then having to give legal expression to those pleas. The court is also empowered to supplement the facts of its own motion, under Article 8:69(3) of the Awb. Thus, the parties are expected to produce prima facie evidence, which may subsequently be supplemented by the court, for example by putting questions or calling witnesses.

30. The referring court also mentions additional rules and safeguards applicable in the context of the judicial review of detention, such as the automatic submission of a detention measure to judicial review by a court, the obligation to hear the third-country national in person, a swift judicial decision on the lawfulness of the detention and the right to free legal assistance.

31. According to the referring court, the principle of the procedural autonomy of the Member States lends support to the possibility of prohibiting the courts from raising facts or pleas of their own motion in the judicial review of detention measures. In that regard, the referring court states that, at the present juncture, it sees no reason to depart from its current case-law to the effect that the principles of equivalence and effectiveness do not necessarily preclude the application of the procedural rules of Netherlands law in relation to detention.

32. In respect of the principle of equivalence, the referring court notes that detention measures are subject to administrative law proceedings and that the principle applicable to all such proceedings is that the courts may not carry out a review of their own motion, except where a rule of public policy is concerned. Conditions relating to detention do not occupy, in the EU legal order, a position comparable to national rules of public policy.

33. As regards other national proceedings comparable to the detention of third-country nationals, the referring court states that Article 8:69 of the Awb applies to other administrative law measures relating to the detention of such nationals, in particular for the purposes of establishing their identity and right of residence or in the context of maintaining public order.

34. By contrast, neither Article 8:69 of the Awb nor any similar provision applies in criminal proceedings concerning pre-trial detention. The criminal courts are not, therefore, required to confine themselves to the pleas or arguments put forward by a suspect or the officier van justitie (Public Prosecutor’s Office, Netherlands) in relation to the deprivation of liberty. Nonetheless, the referring court points out that, in criminal proceedings, it is the criminal court itself which imposes the measure involving deprivation of liberty, marking a significant difference compared with administrative law measures, which moreover do not serve a punitive purpose. The only possible point of comparison with the review by a court of its own motion of a detention measure might be, from that court’s point of view, the review by a criminal court of the lawfulness of detention in police custody, where the criminal court is not required to confine itself to the pleas raised by the suspect. However, here too, differences between the two types of procedure preclude the finding that the procedural rules applicable to detention are incompatible with the principle of equivalence.

35. According to the referring court, Article 8:69 of the Awb also does not undermine the principle of effectiveness, since third-country nationals in detention have expeditious and free access to justice and may raise whatever pleas they wish. That conclusion is not invalidated by the Court’s case-law. It is true that the Court held in its judgment of 4 October 2012, Byankov, ( ) that the impossibility of reviewing an administrative measure restricting an EU citizen’s freedom of movement is incompatible with the principle of effectiveness. However, detention measures are different in scope and both EU law and Netherlands law provide for the possibility of reviewing them.

36. The referring court also observes that, according to B and C, the existence of a power for courts reviewing detention measures to act of their own motion must be inferred, first, from the judgments of 5 June 2014, Mahdi, ( ) and of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, ( ) from which it follows that the conditions pertaining to lawfulness must be examined independently of the pleas raised, and, secondly, in particular, from the judgments of 17 December 2009, Martín Martín, ( ) and of 17 May 2018, Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen, ( ) which, in the view of B and C, are relevant by analogy in so far as they require the courts to carry out a review of their own motion in relation to consumer rights in order to correct the imbalance between consumers, on the one hand, and sellers and suppliers, on the other.

37. According to the referring court, the judgments of 5 June 2014, Mahdi, ( ) and of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, ( ) do not specify whether or not there is an obligation on the courts to review of their own motion all of the conditions which must, under EU law, be satisfied in order for detention to be lawful.

38. As regards the Court’s case-law on consumer rights, the referring court – while acknowledging that detainees in a sense constitute, like some consumers, a vulnerable group vis-à-vis the State Secretary and that an imbalance thus exists – draws attention to the difference between consumer cases, in which both parties in dispute are persons governed by private law, and detention cases, in which a natural person is pitted against an administrative authority. Since such an authority must act in the public interest and comply with general principles of sound administration, the imbalance between the parties to the dispute is less pronounced, administrative procedure law being specifically designed to correct that imbalance. By contrast, civil procedure law is theoretically based on the premiss that the parties are on an equal footing, which makes it necessary, in relation to consumer rights, to remedy the imbalance which arises inasmuch as, in that particular field, the individual usually faces a large company.

39. Finally, as regards Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ( ) paragraph 4 of which states that ‘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’, the referring court notes that the European Court of Human Rights (‘the ECtHR’) has never ruled that the courts should review of their own motion the conditions governing the lawfulness of a deprivation of liberty. On the contrary, it has held that the lawfulness of detention need not be assessed automatically by a court. ( ) It also does not follow from the case-law of the ECtHR that there is a presumption that detention is unlawful and that such detention therefore remains unlawful for as long as a court has not expressly declared it to be lawful. By contrast, the ECtHR has drawn attention to the importance of the detainee’s right to bring legal proceedings and thus to request a court to rule speedily on the lawfulness of his or her detention. ( )

40. At the same time, the referring court considers that it cannot necessarily be inferred from the foregoing considerations that Article 6 of the Charter, which guarantees the right to an effective remedy, does not require a court to review of its own motion the lawfulness of detention. EU law may indeed confer more extensive protection than the rights guaranteed by the ECHR.

41. In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does [EU] law, more particularly Article 15(2) of [Directive 2008/115] and Article 9 of [Directive 2013/33], read in conjunction with Article 6 of the [Charter], require a court of its own motion (ex officio) to assess whether all the conditions pertaining to detention have been met, including those where the foreign national has not disputed that compliance occurred, despite having had the opportunity to do so?’

B. The dispute concerning X (C‑39/21)

42. X is a Moroccan national born in 1973. By decision of 1 November 2020, the State Secretary detained him on the basis of Article 59(1)(a) of the Vw 2000, which forms part of the provisions by which the Netherlands implemented Directive 2008/115. That detention was said to be justified by the protection of public policy, on account of the risk that X would avoid checks and prevent his removal.

43. By judgment of 14 December 2020, the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch), dismissed the appeal brought by X against that detention measure. X brought an appeal against that judgment. By judgment of 2 June 2021, the Raad van State (Council of State) declared X’s appeal against the judgment of 14 December 2020 to be unfounded. ( )

44. On 8 January 2021, X brought an appeal before the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) against the continuance of the detention measure. It is in the context of that action that the request for a preliminary ruling submitted by that court has been made.

45. The referring court states that it will assess only the lawfulness of the continuation of X’s detention as from 8 December 2020. The lawfulness of the detention until 7 December 2020 was assessed in its judgment of 14 December 2020.

46. In support of his action, X argues that there is no prospect of removal within a reasonable time. In reply, the State Secretary observes that the procedure for requesting a travel document is still ongoing and that the Moroccan authorities have not indicated that such a document would not be provided.

47. The referring court considers it necessary to obtain guidance on the requirements stemming from EU law as regards the intensity of judicial review in cases involving the detention of third-country nationals.

48. While acknowledging the importance of the principle of the procedural autonomy of the Member States, that court does not rule out that both the requirements of equivalence and effectiveness attached to that principle and the fundamental rights enshrined in Articles 6, 24 and 47 of the Charter preclude the restrictions imposed on the Netherlands courts as regards their review of the lawfulness of the detention of third-country nationals in the situations covered by Directive 2008/115, Directive 2013/33 and Regulation No 604/2013.

49. After recalling the procedural rule of Netherlands law which prohibits a court, when examining the substance of the lawfulness of detention, from raising matters of fact or law of its own motion, the referring court observes that such a prohibition also applies where the person concerned is a ‘vulnerable person’ within the meaning of EU law, such as a minor.

50. The referring court points out that, where a court hearing an action brought against a detention measure nevertheless raises matters of fact or law of its own motion, the State Secretary automatically appeals to the Raad van State (Council of State) and is always successful.

51. In the main proceedings, the referring court has in its possession, in relation to the period commencing on 8 December 2020, a half-page interview report and a monitoring report, dated 8 January 2021, entitled ‘Model 120 – Information concerning removal’. The latter report, which is four pages long, is nothing more than a form in which the authorities set out the specific measures they will take in order to remove the person concerned. In essence, that report shows, first, that the authorities wrote again to the Moroccan authorities in order to ascertain whether the request for a travel document was being processed and, secondly, that during his departure interview on 6 January 2021, X stated that he had not taken any steps while in the detention facility to expedite his return to Morocco.

52. That court considers that it is impossible to glean from such a brief file all the relevant facts for assessing whether continued detention is lawful. In the present case, it seeks to ascertain why the Netherlands authorities are of the view, first, that there is a reasonable prospect of removal, in spite of the 21 written reminders sent in order to secure a travel document, and, secondly, that the imposition of a less coercive measure than detention should not be considered. In addition, even if those authorities were in a position to state to the requisite legal standard the reasons why other measures could not have been used to organise X’s deportation, without that deportation being prevented by X’s absconding, it enquires why the authorities have not ruled out detention on account of X’s personal situation. In that regard, it is apparent in particular from the file that X has an addiction problem. Consequently, it is necessary to ascertain what specific services exist in the detention facility to help X deal with that problem.

53. Since it is not empowered to examine such matters of its own motion, the referring court considers that it is denied the opportunity to assess the lawfulness of the continued detention in the light of all the relevant information. Such a situation could be regarded as being incompatible with the fundamental right to an effective remedy enshrined in Article 47 of the Charter, especially since it is not possible to appeal against judgments relating to the continuation of detention measures.

54. In order for judicial protection to be effective in this type of case, it is necessary, according to the referring court, for the courts to be able to ensure full respect for the fundamental right to liberty enshrined in Article 6 of the Charter. In the light of Article 5 ECHR, and Article 6 and Article 52(1) of the Charter, it is important for the courts to be able to ensure compliance with the rule that no one may be deprived of his or her liberty, except in certain exhaustively listed cases and in accordance with procedures prescribed by law. Thus, in the case of detention under Article 15 of Directive 2008/115, the courts should be able to verify, fully and thoroughly, whether the requirements laid down in that article are met. Netherlands law, as interpreted by the Raad van State (Council of State), does not ensure such a full review.

55. According to the referring court, it follows from EU law that a court hearing an appeal against detention under Directive 2008/115, Directive 2013/33 or Regulation No 604/2013 must, in view of the seriousness of such a measure, examine and assess of its own motion, actively and thoroughly, all the facts and information that are relevant to the lawfulness of the detention so that it may, wherever it considers such detention to be unlawful, order the immediate release of the person concerned.

56. As regards the Court’s case-law, the referring court observes that paragraph 49 of the judgment of 6 November 2012, Otis and Others, ( ) makes clear that for a court ‘to be able to determine a dispute concerning rights and obligations arising under EU law in accordance with Article 47 of the Charter, it must have power to consider all the questions of fact and law that are relevant to the case before it’. It also refers to paragraphs 36 and 40 of the judgment of 15 March 2017, Al Chodor, ( ) according to which detention is a serious interference with the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter, and to paragraphs 62 and 63 of the judgment of 5 June 2014, Mahdi, ( ) in which the Court held, inter alia, that besides the facts and evidence relied on by the administrative authority which ordered the initial detention and any observations of the third-country national concerned, the judicial authority ruling on an application for the extension of detention must be able to consider any other element that is relevant for its decision should it so deem necessary; its powers in the context of an examination can under no circumstances be confined just to the matters adduced by the administrative authority.

57. The referring court also cites paragraphs 140 and 142 of the judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, ( ) in which the Court pointed out that Article 47 of the Charter does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right on which they may rely and that, although it is for the domestic legal system of every Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States are, however, to ensure compliance in every case with the right to effective judicial protection of those rights.

58. Furthermore, the referring court observes that, as regards the obligation to state reasons laid down in Article 8:77(1)(b) of the Awb, there is an exception set out in Article 91(2) of the Vw 2000, to the effect that the Raad van State (Council of State), hearing an appeal against judgments relating to detention, may rule by means of an abridged statement of reasons, which is essentially confined to stating that the person concerned has not raised any valid grounds of complaint.

59. According to the referring court, such an exception deprives the persons concerned of their right to an effective remedy. It maintains that Article 47 of the Charter should be interpreted as meaning that access to justice, in matters relating to the law on foreign nationals, also includes the right to a reasoned decision on the substance by the court ruling at second and last instance, at least where, as here, all other administrative, criminal and civil court proceedings in the Member State in question are subject to an obligation to state reasons.

60. In those circumstances, the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Having regard to Article 47 of the [Charter], read in conjunction with Article 6 of the Charter and Article 53 of the Charter and in the light of Article 15(2)(b) of [Directive 2008/115], Article 9(3) of [Directive 2013/33] and Article 28(4) of [Regulation No 604/2013], are the Member States permitted to structure the judicial procedure for challenging the detention of a foreign national ordered by the authorities in such a way as to prohibit the courts from carrying out an ex officio review and assessment of all aspects of the lawfulness of the detention and, where a court finds of its own motion that the detention is unlawful, from ordering that the unlawful detention be ended and the foreign national released immediately? If the [Court] finds that such national legislation is incompatible with EU law, does that then also mean that, if the foreign national applies to the court for his or her release, that court is always required to carry out an active and thorough ex officio review and assessment of all the facts and factors relevant to the lawfulness of the detention?

(2) Having regard to Article 24(2) of the Charter, read in conjunction with Article 3(9) of [Directive 2008/115], Article 21 of [Directive 2013/33] and Article 6 of [Regulation No 604/2013], does the answer to Question 1 differ if the foreign national detained by the authorities is a minor?

(3) Does the right to an effective remedy guaranteed by Article 47 of the Charter, read in conjunction with Article 6 of the Charter and Article 53 of the Charter and in the light of Article 15(2)(b) of [Directive 2008/115], Article 9(3) of [Directive 2013/33] and Article 28(4) of [Regulation No 604/2013], mean that, where a foreign national requests a court of any instance to end the detention and order his or her release, that court must give an adequate substantive statement of reasons for any decision on that request, if the remedy is otherwise structured in the same manner as it is in this Member State? If the Court of Justice considers a national legal practice in which the court of second, and therefore highest, instance may confine itself to ruling without giving any substantive reasons to be incompatible with EU law, having regard to the way in which the legal remedy is otherwise structured in this Member State, does that then mean that such a power for the court of second and therefore highest instance in asylum and ordinary immigration cases must also be regarded as being incompatible with EU law, in the light of the vulnerable position of the foreign national, the considerable importance of immigration procedures and the fact that, in contrast to all other administrative procedures, in terms of legal protection, those procedures contain the same weak procedural guarantees for the foreign national as the detention procedure? Having regard to Article 24(2) of the Charter, are the answers to these questions different if the foreign national challenging a decision of the authorities concerning matters of immigration law is a minor?’

IV. Procedure before the Court

61. The Court had initially decided to apply the urgent preliminary ruling procedure to Case C‑39/21 PPU since, when the request for a preliminary ruling was made, X was in detention and thus deprived of his liberty and the Court’s answers to the questions referred could, moreover, be decisive for ending or continuing that detention. On account of its connection with that case, Case C‑704/20 had been treated in the same way.

62. Subsequently, the Court decided that those two cases should be dealt with under the ordinary procedure. That decision followed correspondence from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) dated 31 March 2021 informing the Court that it had terminated X’s detention by interlocutory decision of 26 March 2021.

63. By decision of 26 April 2021, the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) awarded X compensation on the ground that his detention had been unlawful and had caused him loss. However, pending the Court’s answers to the questions referred for a preliminary ruling, that court stayed the proceedings as to whether X is entitled to a higher amount of compensation.

64. Written observations have been lodged by X, the Netherlands Government and the European Commission. At an earlier stage, in the course of the urgent preliminary ruling procedure, C also submitted observations. A hearing was held on 1 March 2022.

V. Analysis

A. The question referred in Case C‑704/20 and the first question referred in Case C‑39/21

65. As a preliminary point, I should make clear that the provisions to be interpreted are, in Case C‑39/21, Article 15 of Directive 2008/115 and, in Case C‑704/20, Article 9 of Directive 2013/33 and Article 28(4) of Regulation No 604/2013. ( ) Although Case C‑704/20 concerns the judicial review of detention, whereas Case C‑39/21 concerns the judicial review of continued detention, I have deliberately chosen to refer to Article 15 of Directive 2008/115 and Article 9 of Directive 2013/33 in their entirety because, as I will explain below, it appears to me that there are lessons to be learned from a number of the provisions of each of those articles, which should be read together. ( )

66. In the context of the common standards adopted by the EU legislature, the legal basis for detention is essentially Articles 15 to 17 of Directive 2008/115, as regards illegally staying third-country nationals, and Articles 8 to 11 of Directive 2013/33 and Article 28 of Regulation No 604/2013, as regards third-country nationals and stateless persons seeking international protection.

67. The grounds for detention provided for by EU law are set out in Article 15 of Directive 2008/115, as regards illegally staying third-country nationals, and Article 8 of Directive 2013/33 and Article 28 of Regulation No 604/2013, as regards third-country nationals seeking international protection. By establishing the rules applicable to detention and continued detention, those provisions enable the conditions governing the lawfulness of detention measures to be identified. Those conditions concern in particular the powers of the body that adopted the detention measure, the risk of the detainee absconding, the suitability of other measures less restrictive than detention, the diligence of the authorities in connection with the removal procedure and the protection afforded to vulnerable persons.

68. With those clarifications in mind, I will examine the question referred in Case C‑704/20 and the first question referred in Case C‑39/21 together. To my mind, the role of the court does not have to be fundamentally different depending on whether it is to rule on the lawfulness of detention or on continued detention ( ) or on whether detention is ordered under Directive 2008/115, Directive 2013/33 or Regulation No 604/2013. Although the grounds for detention and the grounds for continued detention are not identical, the guiding principles for defining the role of the courts are the same in both situations.

69. I note at the outset that the EU legislature has laid down a number of common rules concerning the judicial review of detention and continued detention of third-country nationals.

70. Thus, the detention of an illegally staying third-country national must be ordered, in accordance with Article 15(2) of Directive 2008/115, ( ) by an administrative or judicial authority by means of a reasoned decision in writing. Where detention is ordered by an administrative authority, the Member State concerned is obliged either (in the case of Article 15(2)(a) of that directive) to ‘provide for a speedy judicial review of the lawfulness of detention’, or (in the case of Article 15(2)(b) of that directive) to grant ‘the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review’. Furthermore, Article 15(3) of that directive provides that detention must be ‘reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio’ and that, ‘in the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority’.

71. As regards third-country nationals and stateless persons seeking international protection, Directive 2013/33 lays down similar rules for both the judicial review of detention (Article 9(3) of that directive) and the judicial review of continued detention (Article 9(5) of that directive).

72. In all of those provisions, the EU legislature provides for a judicial review which may be carried out either at the request of the third-country national concerned or ex officio. Those provisions, which are intended, in the light of the importance of the fundamental right to liberty and the gravity of the interference with that right which detention represents, ( ) to protect third-country nationals against arbitrary detention, thus seek to ensure that there exists in all Member States judicial review of decisions on detention and on continued detention so that the lawfulness of those decisions can be scrutinised.

73. However, the EU legislature has not laid down common rules as regards the scope of the review to be carried out by a court in order to determine the lawfulness of detention or continued detention. In particular, it has not expressly provided that the courts must, when reviewing the lawfulness of detention, examine all the facts and points of law they deem relevant, irrespective of the pleas and arguments raised before them. The detailed rules for such review therefore fall within the procedural autonomy of the Member States.

74. It is necessary to ascertain whether Article 8:69(1) of the Awb, in so far as it restricts the role of the court called upon to review the lawfulness of detention or continued detention solely to the pleas and arguments relied on by a third-country national, is consistent with the limits on the procedural autonomy of the Member States.

75. In that connection, I recall that, according to settled case-law, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). ( )

76. It follows that two cumulative conditions, namely respect for the principles of equivalence and effectiveness, must be satisfied in order for a Member State to be able to assert the principle of procedural autonomy in situations governed by EU law. ( )

77. As regards the principle of effectiveness, the Court has previously held that every case in which the question arises as to whether a national procedural provision renders the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into account, where relevant, the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure. ( )

78. That said, it must be made clear that the principle of effectiveness is satisfied only if the procedural rule at issue is consistent with the right to effective judicial protection safeguarded by Article 47 of the Charter. ( ) Thus, the obligation for the Member States to ensure the effectiveness of the rights that the parties derive from EU law implies a requirement of judicial protection, guaranteed by Article 47 of the Charter, that is binding on the national court. That protection must be assured both as regards the designation of courts having jurisdiction to hear and determine actions based on EU law and as regards the definition of detailed procedural rules relating to such actions. ( )

79. Therefore, the issue around which the present cases revolve may be expressed as follows: is a procedural rule of national law which precludes a national court from examining of its own motion pleas alleging breach of EU law, in so far as it has the effect of preventing that court from reviewing the lawfulness of detention or continued detention in the light of all the grounds capable of justifying such a measure, if necessary by going beyond the pleas and arguments raised by the applicant, compatible with the right to effective judicial protection guaranteed by Article 47 of the Charter?

80. The Court has already held in other contexts in which the right to liberty guaranteed by Article 6 of the Charter is not in issue that the principle of effectiveness does not, in principle, require national courts to raise of their own motion a plea alleging breach of provisions of EU law, where the examination of that plea would require them to go beyond the limits of the dispute as defined by the parties, by relying on facts and circumstances other than those on which the party with an interest in the application of those provisions based its claim. ( )

81. According to the Court, that limitation on the power of the national court is justified by the principle that, in a civil suit, it is for the parties to take the initiative and, as a result, where national procedural law provides a genuine opportunity for the party concerned to raise a plea based on EU law, the national court is able to act of its own motion only in exceptional cases where the public interest requires its intervention. ( )

82. In that regard, I note that Article 8:69(1) of the Awb does not have the effect of preventing third-country nationals from raising one or more pleas alleging that their detention or continued detention is incompatible with the conditions laid down by the relevant rules of secondary EU law. ( ) The court before which proceedings are brought is therefore not prevented by that national provision from examining pleas alleging breach of EU law relied on by the applicant in support of an appeal against his or her detention or continued detention. That court may then, in the light of the pleas raised before it, carry out a review of unlimited jurisdiction, the importance of which was affirmed by the Court in its judgment of 5 June 2014, Mahdi. ( )

83. I recall, in that regard, that according to the Court, in the context of the review it is required to carry out, the national court must be able to rule on all relevant facts and points of law in order to determine whether the detention of the third-country national concerned is justified. Consequently, that court must be able to take into account both the facts stated and the evidence adduced by the administrative authority which requested detention and any observations that may be submitted by the third-country national. Furthermore, it must be able to consider any other element that is relevant for its decision should it so deem necessary. Accordingly, the powers of the judicial authority can under no circumstances be confined just to the matters adduced by the administrative authority concerned. ( ) Moreover, where the detention that was initially ordered is no longer justified, the judicial authority having jurisdiction must be able to substitute its own decision for that of the administrative authority. ( )

84. In arguing that Article 8:69(1) of the Awb is indeed compatible with EU law in the specific context of detention, the Netherlands Government contends, as I have stated above, that there are no restrictions on the ability of third-country nationals to submit to the national court all the complaints they consider relevant, and that the national court moreover has the ability to give legal expression to the facts adduced by those third-country nationals. The Netherlands Government adds that, unlike the situation under general administrative law, additional safeguards are provided for in relation to detention, including automatic review by a court (even in the absence of an appeal), a hearing and the assistance of a lawyer specialising in that field. Moreover, the competent administrative authority is under an obligation to check the criteria governing the lawfulness of detention and continued detention, which is the justification for the courts not being required to carry out as broad a review afresh, going beyond the complaints raised by the person concerned.

85. However, I do not think that the safeguards listed immediately above are capable of ensuring the effectiveness of the judicial protection which must be afforded to third-country nationals who are subject to detention or continued detention, since Article 8:69(1) of the Awb is liable to undermine the full effectiveness of the action seeking a court ruling on the lawfulness of such a measure.

86. As regards the right to liberty, which is guaranteed by Article 6 of the Charter, the right to effective judicial protection must not have loopholes or blind spots. Although the scope of the latter right varies depending on the specific context and the circumstances of each case, in particular the nature of the measure at issue, the context in which it was adopted and the legal rules governing the matter in question, ( ) I take the view that, since the right to liberty is at stake, the right to effective judicial protection must be rigorously and strictly guaranteed, by allowing a full review, in terms of scope and intensity, of the lawfulness of measures involving deprivation of liberty. To my mind, those considerations support an approach to the issues surrounding the review by national courts of their own motion of pleas alleging breach of EU law which should be specific to identifying potential interferences with the right to liberty.

87. I should point out, in that regard, that the Court has previously held that, in view of the importance of the right to liberty and the gravity of the interference with that right which detention represents, limitations on the exercise of the right must apply only in so far as is strictly necessary. ( ) Furthermore, every detention under Directive 2008/115, Directive 2013/33 or Regulation No 604/2013 is strictly circumscribed by the provisions of those directives and of that regulation so as to ensure, on the one hand, compliance with the principle of proportionality with regard to the means used and objectives pursued and, on the other, observance of the fundamental rights of the persons concerned. ( ) Thus, the detention measures adopted under the relevant provisions of secondary EU law must not contravene the right to liberty of the third-country nationals subject to such measures, as guaranteed by Article 6 of the Charter. ( )

88. Moreover, the characteristics of the appeals established by the Member States to enable third-country nationals to assert their rights must be determined in accordance with Article 47 of the Charter, which provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. ( ) When the Member States implement EU law, they are required to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter, a provision which constitutes a reaffirmation of the principle of effective judicial protection. ( )

89. Furthermore, it should be noted that, according to the Court, in so far as it is liable to interfere with the right to liberty of the third-country national concerned, enshrined in Article 6 of the Charter, a decision ordering his or her detention or the extension of such detention is subject to compliance with strict safeguards, namely, in particular, protection against arbitrariness. Such protection means, among other things, that detention may be ordered or extended only in compliance with the general and abstract rules laying down the conditions and procedures governing such a measure. ( ) It is the effectiveness of the judicial review of detention or continued detention which guarantees the rights that third-country nationals derive from those rules. ( )

90. It should also be stated that restricting the scope of the examination which the courts must carry out when reviewing the lawfulness of detention or continued detention constitutes a limitation on the right to an effective remedy before a tribunal within the meaning of Article 47 of the Charter which, in accordance with Article 52(1) of the Charter, can be justified only if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. ( )

91. I think it would be inconsistent both with the essence of the right to effective judicial protection, guaranteed by Article 47 of the Charter, which must be afforded to a person in detention, and with the protection of that person against arbitrary detention, flowing from Article 6 of the Charter, for a court to be prevented from releasing such a person, even when it finds, on the basis of the evidence before it, that such detention is unlawful. Any other interpretation would open a loophole in the protection against arbitrary detention, which would be at variance with the importance of personal liberty in a democratic society. ( )

92. The fact that a court may address only the pleas and arguments relied on before it, without being able to raise other pleas and arguments of its own motion, may result in a person being detained and kept in detention even though the conditions for such a measure are not met. It follows from a number of provisions of secondary EU law, which give concrete expression to the right to effective judicial protection guaranteed by Article 47 of the Charter, and the protection against arbitrary detention, flowing from Article 6 of the Charter, that immediate release is mandatory where detention is unlawful or is no longer justified. Thus, the last sentence of Article 15(2) of Directive 2008/115 states that ‘the third-country national concerned shall be released immediately if the detention is not lawful’. The immediate release of the person concerned is also required by Article 15(4) of that directive when detention is no longer justified, that is to say ‘when it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist’. Furthermore, Article 9(3) of Directive 2013/33 provides that ‘where, as a result of the judicial review, detention is held to be unlawful, the applicant concerned shall be released immediately’.

93. The procedural safeguards cited by the Netherlands Government do not, in my view, guard against the risk that, because it is impossible for the court before which proceedings are brought to raise certain pleas and arguments of its own motion, a person will be subject to detention or continued detention, even though the conditions for such a measure are not met, which clashes head-on with the provisions of secondary EU law mentioned immediately above, provisions that must be interpreted in a manner consistent with the fundamental rights protected by the Charter.

94. In such a situation, the judicial protection afforded to that person cannot, to my mind, be regarded as effective. In the context of an appeal against detention or continued detention, the effectiveness of that appeal must be viewed in the light of the mandatory nature of the release of the third-country national where the conditions for the adoption of such a measure are not met. It follows that effective judicial protection of a third-country national who is subject to detention or continued detention is not guaranteed if the court whose task it is to review the lawfulness of that measure is prevented, by a procedural rule of national law, from releasing that third-country national, even when it finds, on the basis of the evidence before it, that there are no valid grounds for detention. Furthermore, the application of such a procedural rule in the context of detention is liable to impair the full effectiveness of the general and abstract rules laying down the conditions and procedures governing such a measure, by depriving the third-country nationals concerned of the benefit of the rights they derive from those rules.

95. Accordingly, I consider that limiting the scope of judicial review solely to the pleas and arguments relied on by the applicant may result in infringement of the provisions of secondary EU law which require the national authorities to release a person who is subject to an unlawful measure of deprivation of liberty. Therefore, the automatic and mandatory nature of release, where the conditions for detention or continued detention are not met, limits, in my view, the freedom of action enjoyed by the Member States in order to establish the detailed procedural rules governing judicial remedies, by imposing on them an obligation as to the result to be achieved. That obligation consists in ensuring that those remedies are structured in such a way that they enable third-country nationals subject to detention to obtain a ruling that the competent national authorities cannot continue their detention if the conditions for such a measure are not met. In view of the importance of the right to liberty, which the Court has emphasised on numerous occasions, it seems to me to be particularly inappropriate to accept that a procedural rule of national law may have a hand in allowing doubt to persist as to the lawfulness of a measure ordering detention or continued detention. ( )

96. As for the argument put forward by the Netherlands Government, mentioned above, to the effect that the competent administrative authority is under an obligation to check the criteria governing the lawfulness of detention and continued detention, which is the justification for the courts not being required to carry out as broad a review afresh, going beyond the complaints raised by the person concerned, I would point out, as the Commission does, that the conditions governing the lawfulness of detention are binding on both the competent administrative authority and the courts. I therefore consider it questionable to take the view that that authority is required to examine in each case whether such conditions are met, while the role of the courts is limited in that regard pursuant to a procedural rule which prevents them from ruling beyond the complaints raised by the person concerned. Put another way, limiting the jurisdiction of the courts, when the jurisdiction of the administrative authority is not so limited, seems to me to be both inconsistent and incompatible with the mandatory nature of the conditions governing the lawfulness of detention.

97. Furthermore, I note that it is the courts which are the guardians of individual liberty. ( ) Consequently, a system under which the competent administrative authority is required to carry out an exhaustive examination of the conditions pertaining to detention, when the courts called upon to review the legality of such a measure do not enjoy such broad powers, appears to be imbalanced and is not capable of guaranteeing effective judicial protection for third-country nationals. The last word as to whether detention or continued detention satisfies the mandatory conditions laid down by law lies with the courts, not with the relevant administrative authority.

98. It follows from the foregoing that, where a court is called upon to review the lawfulness of detention or continued detention, that court must verify compliance with the general and abstract rules laying down the conditions and procedures governing such a measure. ( ) By limiting that verification to the pleas and arguments relied on by the applicant, the application of Article 8:69(1) of the Awb in the context of the review of the lawfulness of a detention measure is, in my view, incompatible with EU law, in so far as it does not comply with the principle of effectiveness.

99. In support of that finding of incompatibility, I would also point out that that procedural rule results in the situation whereby a measure involving deprivation of liberty is subject to a judicial review that differs in scope depending on whether the detention is ordered by an administrative authority or a criminal court.

100. In that regard, I note that the Raad van State (Council of State) indicates in its order for reference that Article 8:69 of the Awb does not apply to criminal proceedings. It follows that the criminal courts are not required to confine themselves to the pleas or arguments put forward by a suspect or a prosecutor in the context of their review of the deprivation of liberty at issue. The Raad van State (Council of State) maintains, in that regard, that in those circumstances it is the criminal courts themselves which impose such a measure, which, in its view, marks a significant difference compared with the adoption of a detention measure by the competent administrative authority.

101. That said, and even though those two types of measure pursue different aims, the fact remains that, in both cases, they involve a deprivation of liberty which must be decided upon only in accordance with conditions laid down by law. In my view, it is not enough to justify a difference as regards the scope of judicial review by reference to the fact that measures involving deprivation of liberty fall within two different branches of national law, namely criminal law and administrative law. Moreover, it would be paradoxical if a person suspected of having committed a criminal offence were to enjoy greater judicial protection than a person not suspected of having committed such an offence.

102. I would add that the procedural rule of national law at issue is, to my mind, incompatible with the fact that the burden of proving that that detention or continued detention is necessary and proportionate lies with the authority which decided to order such a measure. That rule may result in the court before which proceedings are brought being denied the opportunity to verify, inter alia, whether the competent administrative authority has indeed demonstrated that a less restrictive measure would not have been sufficient, unless the applicant has put forward a specific plea or argument. I consider that, irrespective of the pleas and arguments put forward by the applicant, that court must have the power to verify whether that authority has correctly discharged its burden of proof. If the court considers that the file submitted to it by that authority, supplemented, where appropriate, by the information obtained during the exchange of arguments before it, is insufficient to justify detention or continued detention, no procedural rule of national law must prevent it from immediately releasing the person subject to such a measure.

103. I also consider that arbitrary detention cannot reasonably be justified by the principle of legal certainty. Concerning the proper conduct of proceedings, particularly as regards the delays inherent in the examination of new pleas, ( ) I take the view that the speed with which judicial review must be carried out cannot justify a partial examination of the lawfulness of detention.

104. It should also be noted that, under EU law, detention or continued detention may be decided upon either by a judicial authority or an administrative authority.

105. I consider that the review carried out by a court when hearing an appeal against detention or continued detention should be of an intensity and scope equivalent to the intensity and scope of the review carried out by that court when it is required, under national law, to adopt such a decision.

106. The application of a procedural rule such as that at issue in the main proceedings is, in my opinion, liable to undermine the requirement that the review of the lawfulness of detention should be consistent across the Member States. A variable geometry system of review of the lawfulness of detention seems to me to be at odds with the fact that the conditions under which detention may be ordered are harmonised by secondary EU law. Differences in the scope of that review between the Member States are thus liable to undermine the effectiveness of the substantive rules governing, at EU level, the conditions for the detention or continued detention of a third-country national.

107. Thus, interpreting the relevant provisions of secondary EU law as requiring the court before which proceedings are brought to review compliance with the conditions to be met in order to detain or continue to detain a third-country national, irrespective of the pleas in law and arguments relied on by him or her, narrows the differences in the scope of the judicial protection afforded to such a national, depending on whether the Member State concerned has chosen to entrust the power to order detention or continued detention to a judicial authority or an administrative authority. Uniform judicial protection across the Member States undoubtedly contributes to ensuring the effectiveness of that protection, in line with Article 47 of the Charter.

108. In my view, the same requirement of uniformity in the judicial review of the lawfulness of detention also applies whether a Member State has decided that review should be automatic or upon application by the person concerned.

109. In short, I consider that the choice left to the Member States, on the one hand, between conferring the power to order detention or continued detention on an administrative authority or a judicial authority and, on the other, between allowing such a measure decided upon by an administrative authority to be reviewed by a court of its own motion or following an action challenging that measure, must not lead in practice to differences between the Member States as to the scope of judicial review of the lawfulness of the measure.

110. All of those considerations lead me to propose that the Court give the following answer to the question referred in Case C‑704/20 and to the first question referred in Case C‑39/21: Article 15 of Directive 2008/115, Article 9 of Directive 2013/33 and Article 28 of Regulation No 604/2013, read in conjunction with Articles 6 and 47 of the Charter, must be interpreted as meaning that a national court which is called upon to review the lawfulness of the detention or continued detention of a third-country national must verify, on the basis of the facts and points of law it deems relevant, whether the general and abstract rules which lay down the conditions and procedures governing such a measure have been complied with, irrespective of the pleas and arguments put forward by that third-country national in support of his or her action. Those same provisions preclude a procedural rule of national law which has the effect of preventing that court from carrying out that verification of its own motion and from releasing the third-country national, even though it would find such detention to be in breach of EU law.

B. The third question referred in Case C‑39/21

111. I recall that, under Article 8:77(1)(b) of the Awb, the national court hearing an action must give a decision in writing stating the grounds on which it is based. However, Article 91(2) of the Vw 2000 lays down an exception which applies where the Raad van State (Council of State) rules on appeal against judgments concerning detention. In those circumstances, if that court ‘considers that a complaint raised is not capable of leading to annulment, it may confine itself to that assessment in the grounds of its decision’.

112. The referring court is unsure whether the possibility afforded to the Raad van State (Council of State) of giving an abridged statement of reasons when ruling at second and last instance on the lawfulness of a detention decision is compatible with EU law.

113. The Netherlands Government submits that the third question referred in Case C‑39/21 is inadmissible.

114. It is true that the rule laid down in Article 91(2) of the Vw 2000, which relaxes the obligation to state reasons in appeal proceedings, is not intended to apply in the proceedings before the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) (Case C‑39/21), but only in the appeal proceedings brought before the Raad van State (Council of State) (Case C‑704/20). Nonetheless, I have difficulty in finding that the third question referred in Case C‑39/21 is entirely irrelevant in the context of proceedings before the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) concerning the continued detention of a third-country national.

115. I note that the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) sets out in its order for reference the reasons why the abridged statement of the grounds for decisions delivered on appeal by the Raad van State (Council of State) concerning the detention of a third-country national is liable to have repercussions on the conduct of subsequent proceedings before it relating to that person’s continued detention. In that regard, the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) draws attention to the importance of the decision at last instance in the proceedings as a whole, stating that, following a decision of the Raad van State (Council of State) dismissing an appeal against a measure ordering detention, that measure may continue without the third-country national being able to ascertain the grounds for that decision. ( ) In the context of a challenge to the continued detention of a third-country national, Netherlands law dictates that it is for that person’s lawyer to determine the scope of the dispute by setting out the facts and circumstances which the court must examine in order to rule on the lawfulness of the detention. According to the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch), that task may prove to be complicated in practice if the lawyer is not acquainted with the reasons why the Raad van State (Council of State) did not uphold the complaints he or she previously raised against the detention decision. ( )

116. Furthermore, inasmuch as the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) states, citing a decision of the Raad van State (Council of State), that the latter did not wish to refer a question to the Court of Justice for a preliminary ruling in that respect, ( ) it is hard to see what approach other than that taken by that court would have enabled the issues surrounding the compatibility with EU law of the abridged statement of the grounds for decisions delivered on appeal by the Raad van State (Council of State) to be brought before the Court, at least as far as the preliminary ruling procedure is concerned. ( )

117. In the light of all of those considerations, it is not, in my view, obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, or that the problem raised is hypothetical, ( ) since the answer to the question referred by the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch), as regards the abridged statement of the grounds for judgments delivered on appeal by the Raad van State (Council of State) concerning detention, is liable to have repercussions on subsequent proceedings relating to that same detention, such as proceedings challenging the continued detention of the person concerned, which is precisely what is at issue in the main proceedings in Case C‑39/21.

118. Consequently, I consider that the third question referred for a preliminary ruling in that case, in so far as it concerns the conformity with EU law of the practice of the Raad van State (Council of State) of giving an abridged statement of the grounds for its decisions when ruling at second and last instance on the lawfulness of a detention measure, must benefit from a presumption of relevance and be the subject of a substantive answer by the Court. The joinder of Cases C‑704/20 and C‑39/21 indeed militates in favour of that approach since it facilitates an understanding of the procedure for reviewing detention and continued detention in the Netherlands as a whole, before the different instances, in the light of the right to effective judicial protection guaranteed by Article 47 of the Charter.

119. As to the substance, I note that the introduction of a second level of jurisdiction against detention decisions and the rule allowing the Raad van State (Council of State) to adopt an abridged statement of reasons when dismissing actions brought before it are procedural rules implementing the right to an effective remedy against such decisions, as given concrete expression by Article 15(2) of Directive 2008/115, which is the only relevant provision in Case C‑39/21. ( ) Those procedural rules must observe the principles of equivalence and effectiveness. ( ) The observance of those principles must be analysed by reference to the role of the rules concerned in the procedure viewed as a whole, to the conduct of that procedure and to the special features of those rules, before the various national instances. ( )

120. From the point of view of the principle of equivalence, the referring court in Case C‑39/21 states that it is only in administrative proceedings concerning the law on foreign nationals brought by third-country nationals and EU citizens that there is an exception to the obligation to state the grounds for the decision and a power enabling the Raad van State (Council of State), ruling at second and final instance, to adjudicate without giving any substantive reasons.

121. In that regard, it follows from the Court’s case-law that the principle of equivalence requires equal treatment of claims based on a breach of national law and of similar claims based on a breach of EU law, but not equivalence of national procedural rules applicable to different types of proceedings. ( ) It is therefore appropriate, on the one hand, to identify the comparable procedures or actions and, on the other hand, to determine whether the actions based on national law are handled in a more favourable manner than comparable actions concerning the safeguarding of the rights which individuals derive from EU law. ( ) With regard to the comparability of actions, it is for the national court, which has direct knowledge of the detailed procedural rules applicable, to ascertain whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics. ( ) So far as concerns the similar handling of the actions, it must be borne in mind that every case in which the question arises as to whether a procedural rule of national law governing actions based on EU law is less favourable than those governing similar domestic actions must be analysed by the national court taking into account the role played by the rules concerned in the procedure as a whole, the conduct of that procedure and the special features of those rules, before the various national instances. ( )

122. I consider that the information available to the Court does not entitle it to find that the rule laid down in Article 91(2) of the Vw 2000 infringes the principle of equivalence, since the existence of more favourable treatment reserved for similar actions based on national law does not seem to me to be established. In those circumstances, it is for the referring court to ascertain whether that principle has been observed, taking into account the elements drawn from the case-law to which I have just referred.

123. As regards the principle of effectiveness, I have already stated that it does not involve requirements going beyond those deriving from fundamental rights – in particular from the right to an effective remedy – guaranteed by the Charter. ( )

124. The right to an effective judicial remedy against a detention decision, as given specific expression by Article 15(2) ( ) of Directive 2008/115, calls for either a review by a court of its own motion or the existence of a judicial remedy on the initiative of the person concerned, without requiring the establishment of two levels of jurisdiction. No such requirement is mentioned in Article 15(3) of that directive either, concerning continued detention or the extension of detention.

125. Moreover, it seems to me to be crucial – in the light of the right to effective judicial protection – that a third-country national who challenges his or her detention, and subsequently, as here, his or her continued detention, must be aware of the reasons for the dismissal of his or her appeal against the detention decision, which is the case since, under Netherlands law, the decision given by the court of first instance on that action must state the grounds on which it is based. I would add that, if the Court agrees with my proposed answer concerning the review by a court of its own motion of the conditions governing the lawfulness of detention, that statement of the grounds for the judgment at first instance will only be strengthened.

126. I would also point out that the circumstances under which the Raad van State (Council of State) may have recourse to an abridged statement of reasons are circumscribed by Netherlands law. It is clear from the explanations provided by the Netherlands Government that an abridged statement of reasons may be given only if the appeal brought against the decision of the court of first instance is dismissed. Moreover, inasmuch as the purpose of the appeal procedure is to enable the Raad van State (Council of State) to ensure the uniformity and development of the law, it is only on condition that those two requirements do not necessitate substantive reasoning that that court may have recourse to an abridged statement of reasons. As I understand the procedural rule at issue, the use of an abridged statement of reasons therefore indicates that the Raad van State (Council of State) endorses the reasoning and the outcome of the judgment at first instance.

127. In the light of those considerations, I consider that the procedural rule laid down in Article 91(2) of the Vw 2000, thus construed, complies with the principle of effectiveness.

128. It follows, in my view, that Article 15 of Directive 2008/115, read in conjunction with Articles 6 and 47 of the Charter, must be interpreted as not precluding national legislation allowing a national court ruling at second and last instance on appeal against a judgment at first instance adjudicating on the lawfulness of detention to give an abridged statement of the grounds for its judgment, inasmuch as doing so means that it endorses the reasoning and the outcome of the judgment at first instance, provided that the principle of equivalence is observed, which is a matter for the referring court to verify.

C. The second question and the last part of the third question referred in Case C‑39/21

129. The referring court asks the Court whether the answers to its first and third questions would be different if the third-country national placed in detention were a minor.

130. It should be borne in mind that, according to settled case-law of the Court, the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts. It follows that it is for the national courts alone which are seised of the case and which are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, obliged to give a ruling. ( )

131. However, the Court may refuse to rule on a question referred for a preliminary ruling by a national court, inter alia, where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical. ( )

132. The second question and the last part of the third question in Case C‑39/21 fall exactly within the latter situation. It is quite obvious that those questions bear no relation to the subject matter of the main proceedings, which do not involve a minor. Those questions are therefore hypothetical.

133. It follows that the second question and the last part of the third question in Case C‑39/21 are, in my view, inadmissible.

VI. Conclusion

134. In the light of the foregoing considerations, I propose that the Court give the following answers to the questions referred for a preliminary ruling by the Raad van State (Council of State, Netherlands) in Case C‑704/20 and by the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch, Netherlands) in Case C‑39/21:

(1) Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, Article 9 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 and Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or stateless person, read in conjunction with Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a national court which is called upon to review the lawfulness of the detention or continued detention of a third-country national must verify, on the basis of the facts and points of law it deems relevant, whether the general and abstract rules which lay down the conditions and procedures governing such a measure have been complied with, irrespective of the pleas and arguments put forward by that third-country national in support of his or her action. Those same provisions preclude a procedural rule of national law which has the effect of preventing that court from carrying out that verification of its own motion and from releasing the third-country national, even though it would find such detention to be in breach of EU law.

(2) Article 15 of Directive 2008/115, read in conjunction with Articles 6 and 47 of the Charter of Fundamental Rights, must be interpreted as not precluding national legislation allowing a national court ruling at second and last instance on appeal against a judgment at first instance adjudicating on the lawfulness of detention to give an abridged statement of the grounds for its judgment, inasmuch as doing so means that it endorses the reasoning and the outcome of the judgment at first instance, provided that the principle of equivalence is observed, which is a matter for the referring court to verify.

(3) The second question and the last part of the third question in Case C‑39/21 are inadmissible.