FMS and Others v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság.
Date: 2020-05-14
As regards, in the second place, the condition relating to urgency, it should be emphasised, first, that that condition is satisfied, in particular, when the person concerned in the main proceedings is currently deprived of his or her liberty and when his or her continuing detention depends on the outcome of the dispute in the main proceedings. In that regard, the situation of the person concerned must be assessed as it stood at the time when consideration was given to whether the reference should be dealt with under the urgent procedure (judgment of 17 March 2016, Mirza, C‑695/15 PPU, EU:C:2016:188, paragraph 34 and the case-law cited).
According to settled case-law, the placing of a third-country national in a detention centre, whether in the course of his or her application for international protection or with a view to his or her removal, constitutes a measure that deprives the person concerned of his or her freedom (judgments of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraphs 34 and 35; of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraphs 23 and 25; of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraphs 40 and 41; of 17 March 2016, Mirza, C‑695/15 PPU, EU:C:2016:188, paragraphs 31 and 35; and order of 5 July 2018, C and Others, C‑269/18 PPU, EU:C:2018:544, paragraphs 35 and 37).
Third, it also follows from the order for reference in Case C‑925/19 PPU that one of the applicants in the main proceedings  in that case is an infant child, whose mental and physical health is deteriorating because he is staying in the Röszke transit zone. It follows that a delay in taking a judicial decision would prolong the current situation and would thereby risk causing serious, possibly irreparable, harm to that child’s development (see, to that effect, judgment of 17 October 2018, UD, C‑393/18 PPU, EU:C:2018:835, paragraph 26).
According to settled case-law, the interpretation of a provision of EU law requires that account be taken not only of its wording, but also of its context, the objectives pursued by the rules of which it is part and, where appropriate, its origins (judgment of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, EU:C:2019:1111, paragraph 38 and the case-law cited).
Thus, under Article 5 of Directive 2008/115, when the competent national authority is contemplating the adoption of a return decision, that authority must necessarily observe the principle of non-refoulement (see, to that effect, judgments of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 49, and of 8 May 2018, K.A. and Others (Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 103).
The interpretation set out in paragraph 116  of this judgment is also consistent with the objective pursued by Directive 2008/115, which is the establishment of an effective removal and repatriation policy that fully respects the fundamental rights and dignity of the persons concerned (judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 48 and the case-law cited).
However, it follows from the Court’s case-law that the characteristics of the effective remedy referred to in Article 13(1) of Directive 2008/115 must be determined in a manner that is consistent 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 (judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 45, and of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 52).
Thus, while it is true that, according to Article 13(1) of Directive 2008/115, Member States may provide in their legislation that return decisions may be contested before authorities other than judicial authorities, when exercising such an option they must nonetheless comply with Article 47  of the Charter, which requires, as the Advocate General observed, in essence, in point 94  of his Opinion, that the decision of an authority that does not itself satisfy the conditions laid down in that article be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues (see, by analogy, judgments of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 55, and of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraph 39).
Accordingly, Article 47  of the Charter  requires the Member States to guarantee, at a certain stage of the proceedings, the possibility for the third-country national concerned to bring any dispute relating to a return decision adopted by an administrative authority before a court (see, by analogy, judgment of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraph 41).
It follows that national legislation under which the addressee of an administrative return decision cannot challenge the regularity of that decision before at least one judicial body does not comply with the requirements of Article 13(1) of Directive 2008/115 and of Article 47  of the Charter (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 57 and the case-law cited).
It follows that such legislation would be compatible with Article 13(1) of Directive 2008/115 only if the authority that determined such objections could be regarded as a court or tribunal for the purposes of Article 47  of the Charter, which assumes that that authority satisfies the requirement of independence, within the meaning of that article (see, to that effect, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraphs 37 and 41; of 25 July 2018, Minister for Justice and Equality (Deficiencies in the judicial system), C‑216/18 PPU, EU:C:2018:586, paragraphs 52 and 53; of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 120 and the case-law cited; and of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraphs 56 and 57).
The external aspect of the requirement of independence that characterises a court within the meaning of Article 47  of the Charter  requires that the body concerned exercise its functions wholly autonomously, without receiving orders or instructions from any source whatsoever, being thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgments of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 121, and of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 57 and the case-law cited).
More particularly, and in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive (judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 124).
It follows that national legislation which provides that a decision, such as that described in paragraph 123 of this judgment, must be contested by the person concerned before an authority that does not satisfy the conditions laid down in Article 47  of the Charter, without a subsequent judicial review of the decision of that authority being guaranteed, is incompatible with Article 13(1) of Directive 2008/115 and, moreover, fails to comply with the essential content of the right provided for in Article 47  of the Charter, in that it deprives the person concerned of any judicial remedy against a return decision relating to him or her (see, by analogy, judgments of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 72, and of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 165).
In that regard, it should be emphasised, first, that, in the light of the principle of primacy of EU law, where it is impossible for it to interpret national legislation in compliance with the requirements of EU law, any national court, acting in the exercise of its jurisdiction, has, as a body of a Member State, the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case before it (judgments of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 58 and 61, and of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 160 and 161).
It is clear from the Court’s case-law that Article 47  of the Charter  is sufficient in itself and 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 as such (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78; of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 56; and of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 162).
The same applies to Article 13(1) of Directive 2008/115, since the characteristics of the action provided for in that provision must be determined in accordance with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection (see, by analogy, judgments of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraphs 55 and 56, and of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 163).
Second, when there are no EU rules governing the matter, although it is for the domestic legal system of every Member State to designate the courts and tribunals having jurisdiction and 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 as enshrined in Article 47  of the Charter (judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 115).
In that regard, it should be borne in mind that, although EU law does not, in principle, require Member States to establish before their national courts, in order to ensure the safeguarding of the rights which individuals derive from EU law, remedies other than those established by national law (see, to that effect, judgments of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 40, and of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 51), the position is otherwise if it is apparent from the overall scheme of the national legal system in question that no legal remedy exists that would make it possible to ensure, even indirectly, respect for the rights that individuals derive from EU law, or again if the sole means whereby individuals can obtain access to a court is by breaking the law (see, to that effect, judgments of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 41, and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 104).
It is therefore for the national courts to declare that they have jurisdiction to determine the action brought by the person concerned in order to defend the rights guaranteed to him by EU law if the domestic procedural rules do not provide for such an action in such a case (see, by analogy, judgments of 3 December 1992, Oleificio Borelli v Commission, C‑97/91, EU:C:1992:491, paragraph 13, and of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 46).
It follows that the principle of primacy of EU law and the right to effective judicial protection, guaranteed by Article 47  of the Charter, require the referring court  to declare that it has jurisdiction to hear the actions brought by the applicants in the main proceedings  against the decisions of the asylum authority  rejecting their objections to the administrative decisions ordering them to return to their countries of origin and to disapply, if necessary, any national provision prohibiting it from proceeding in that way (see, by analogy, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 74 and the case-law cited).
In the words of Article 33(1) of Directive 2013/32, in addition to cases in which an application is not examined in accordance with Regulation No 604/2013, Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive 2011/95 where an application is considered inapplicable pursuant to that provision. In that regard, Article 33(2) of Directive 2013/32 sets out an exhaustive list of the situations in which Member States may consider an application for international protection to be inadmissible (judgments of 19 March 2019, Ibrahim and Others, C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraph 76, and of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraph 29).
In that regard, it must be precluded at the outset that the national legislation at issue in the main proceedings, namely Article 51(2)(f)  of the Law on the right of asylum, may constitute the implementation of the grounds of inadmissibility set out in Article 33(2)(a),(d) and (e) of that directive, as only the grounds of inadmissibility relating to the first country of asylum and the safe third country, set out, respectively, in Article 33(2)(b) and (c) of that directive, may be taken into consideration to that end (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraph 33).
As the Court has already held, it is clear from Article 38 of Directive 2013/32 that the application of the concept of ‘safe third country’, for the purposes of Article 33(2)(c) of that directive, is subject to compliance with the cumulative conditions laid down in Article 38(1) to (4) (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraphs 36, 40 and 41).
In this instance, as regards, in the first place, the condition laid down in Article 38(1) of Directive 2013/32, in the light of the wording itself of the national legislation at issue in the main proceedings, it would appear — and this is a matter for the referring court to determine — that the application of the ground of inadmissibility relating to the first situation referred to in that legislation is subject to compliance, in the third country concerned, with only some of the principles laid down in Article 38(1) of that directive, the requirement of compliance in that country with the principle of non-refoulement, in particular, being absent. The condition laid down in Article 38(1) of that directive has not, therefore, been satisfied (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraph 42).
As regards, in the second place, the conditions laid down in Article 38(2) of Directive 2013/32 and, in particular, that relating to the existence of a connection between the applicant for international protection and the third country concerned, the connection that the national legislation at issue in the main proceedings establishes between such an applicant and the third country concerned is based simply on that applicant’s transit through the territory of that country (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraph 44).
The Court has held that the fact that an applicant for international protection has transited through the territory of a third country cannot alone constitute a connection for the purposes of Article 38(2) (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraphs 45 to 47).
Furthermore, the obligation imposed on Member States by Article 38(2) of Directive 2013/32, for the purposes of applying the concept of ‘safe third country’, to adopt rules providing for the methodology applicable for assessing, on a case-by-case basis, whether the third country concerned satisfies the conditions for being regarded as safe for the applicant, and the possibility for the applicant to challenge the existence of a connection with that third country, cannot be justified if the mere fact that the applicant for international protection transited through the third country concerned constituted a sufficient or significant connection for those purposes (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraphs 48 and 49).
Consequently, the national legislation at issue in the main proceedings cannot constitute an application of the ground of inadmissibility relating to a safe third country, provided for in Article 33(2)(c) of that directive (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraph 51).
Nor, last, can such national legislation constitute an application of the ground of inadmissibility relating to the first country of asylum, laid down in Article 33(2)(b) of Directive 2013/32 (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraph 52).
It is sufficient to observe that, according to the very wording of subparagraphs (a) and (b) of the first paragraph of Article 35 of Directive 2013/32, a country can be considered to be a first country of asylum for a particular applicant for international protection only if that person has been recognised in that country as a refugee and can still avail him- or herself of that protection; or if he or she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement, provided that that person will be readmitted to that country (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraph 53).
Accordingly, it must be held that national legislation, such as Article 51(2) of the Law on the right of asylum, cannot be regarded as implementing one of the grounds of inadmissibility laid down in Article 33(2) of Directive 2013/32 (judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18, EU:C:2020:218, paragraph 55).
According to a consistent line of decisions, although questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance, the fact nonetheless remains that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. The justification for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. As is apparent from the actual words of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny zastępowany przez Prokuraturę Krajową (Disciplinary régime concerning judges), C‑558/18 and  C‑563/18, EU:C:2020:234, paragraphs 43 to 45 and the case-law cited).
Furthermore, under Article 94(c) of the Rules of Procedure, the referring court  must set out precisely the reasons for its uncertainty as to the interpretation of EU law (judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 28).
However, according to settled case-law, it is for the Court, in the procedure laid down by Article 267 TFEU providing for cooperation with the national courts, to provide the national courts with an answer which will be of use to it and enable it to decide the case before it and, to that end, the Court should, where necessary, reformulate the questions referred to it (judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 27 and the case-law cited).
In that regard, it should be observed that since Article 33 of Directive 2013/32, as observed in paragraph 149 of this judgment, sets out an exhaustive list of the cases in which an application for international protection may be rejected as inadmissible, that article sets out a rule whose content is unconditional and sufficiently precise to be relied on by an individual and applied by a court. It follows that that article has direct effect (see, by analogy, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraphs 98 and 99 and the case-law cited).
The duty to disapply, if necessary, national legislation that is contrary to a provision of EU law which has direct effect is owed not only by the national courts but also by all organs of the State, including the administrative authorities, called on, in the exercise of their respective powers, to apply EU law (see, to that effect, judgments of 22 June 1989, Costanzo, 103/88, EU:C:1989:256, paragraphs 30 and 31; of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 38; and of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 78).
It is necessary to bear in mind, however, the importance, both in the legal order of the European Union and in the national legal orders, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become final after all rights of appeal have been exhausted or after the time limits prescribed for such appeals have expired can no longer be called into question (judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 38; of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 52; and of 2 April 2020, CRPNPAC and Vueling Airlines, C‑370/17 and C‑37/18, EU:C:2020:260, paragraph 88).
It should also be emphasised that, according to a consistent line of decisions, although a rule of EU law interpreted by the Court must be applied by an administrative body within the sphere of its competence even to legal relationships which arose and were formed before the Court gave its ruling on the request for interpretation, the fact nonetheless remains that, in accordance with the principle of legal certainty, EU law does not require that administrative bodies be placed under an obligation, in principle, to reopen an administrative decision which has become final following the expiry of reasonable time limits for legal remedies or by exhaustion of domestic remedies. Compliance with that principle prevents administrative acts which produce legal effects from being called into question indefinitely (judgments of 13 January 2004, Kühne & Heitz, C‑453/00, EU:C:2004:17, paragraphs 22 and 24; of 19 September 2006, i-21 Germany and Arcor, C‑392/04 and  C‑422/04, EU:C:2006:586, paragraph 51; and of 12 February 2008, Kempter, C‑2/06, EU:C:2008:78, paragraphs 36 and 37).
However, it is also apparent from the Court’s case-law that the administrative authority responsible for the adoption of an administrative decision is, in accordance with the principle of sincere cooperation arising under Article 4(3)  TEU, nonetheless under an obligation to review and possibly to reopen that decision if four conditions are fulfilled. First, the administrative body must, under national law, have the power to reopen that decision. Second, the administrative decision in question must have become final as a result of a judgment of a national court ruling at last instance. Third, that judgment must, in the light of a decision given by the Court subsequent to it, be based on a misinterpretation of EU law which was adopted without a question being referred to the Court for a preliminary ruling in the circumstances set out in the third paragraph of Article 267 TFEU. Fourth, the person concerned must have complained to the administrative body immediately after becoming aware of that decision of the Court (see, to that effect, judgments of  13 January 2004, Kühne & Heitz, C‑453/00, EU:C:2004:17, paragraph 28, and of 19 September 2006, i-21 Germany and Arcor, C‑392/04 and C‑422/04, EU:C:2006:586, paragraph 52).
The Court has further made clear, with regard to the fourth of those conditions, that the Member States may, on the basis of the principle of legal certainty, require an application for review of an administrative decision that has become final and is contrary to EU law as interpreted subsequently by the Court to be made to the competent administrative authority within a reasonable period (judgment of 12 February 2008, Kempter, C‑2/06, EU:C:2008:78, paragraph 59).
In fact, such an interpretation of that provision would have the consequence that the incorrect application of EU law might be repeated in each new application for international protection without any possibility of providing the applicant with an examination of his or her application that was not vitiated by the infringement of EU law. Such an obstacle to the effective application of the rules of EU law in relation to the procedure for the grant of international protection cannot reasonably be justified by the principle of legal certainty (see, by analogy, judgment of 2 April 2020, CRPNPAC v Vueling Airlines, C‑370/17 and  C‑37/18, EU:C:2020:260, paragraphs 95  and 96).
Last, it should be added that, in this instance, that determining authority adopted, in each of the two cases in the main proceedings, a decision rejecting the applications for asylum made by the applicants in the main proceedings  and a decision ordering them to leave Hungarian territory for Serbia, in a single act, as permitted under Article 6(6) of Directive 2008/115 (see, to that effect, judgment of  19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 49). It is apparent from the case files submitted to the Court that those concomitant decisions were confirmed by judicial decisions that became final.
In the second place, it should be emphasised that, unless he or she has been granted a right to stay or a residence permit as referred to in Article 6(4) of Directive 2008/115, a third-country national is staying illegally on the territory of a Member State, within the meaning of Directive 2008/115, as soon as his or her application for international protection is rejected at first instance by the determining authority, irrespective of the existence of an authorisation to remain pending the outcome of an appeal against that rejection (judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 59, and order of 5 July 2018, C and Others, C‑269/18 PPU, EU:C:2018:544, paragraph 47).
If those facts are correct, which it is for the referring court to ascertain, that applicant must, with effect from the date on which he made his new application for asylum, be again considered to be an applicant for international protection, coming within the scope of Directives 2013/32 and 2013/33. It should be further stated, moreover, that, even though he has come, with effect from the date on which his application for asylum was rejected at first instance, within the scope of Directive 2008/115, that applicant cannot be the subject of a detention measure on the basis of Article 15 of that directive while the appeal lodged against such a rejection is pending (judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraphs 61  and 62).
Such an interpretation is confirmed, second, by the origins of that provision. Thus, it is apparent from Title 3, paragraph 4 of the explanatory memorandum of the Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of asylum seekers in the Member States (COM(2008) 815 final), which gave rise to Directive 2013/33, that the legal regime of detention, established by that directive, is based on the Recommendation of the Committee of Ministers of the Council of Europe on measures of detention of asylum seekers, of 16 April 2003, and on the United Nations High Commissioner for Refugees (HCR) Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers of 26 February 1999 (see, to that effect, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 63, and of  14 September 2017, K., C‑18/16, EU:C:2017:680, paragraph 46).
It should be borne in mind, however, that the referring court  has exclusive jurisdiction to interpret national law and to assess the facts of the dispute before it and establish the consequences which they have for the judgment which it is required to deliver (see, to that effect, judgments of  11 December 2007, Eind, C‑291/05, EU:C:2007:771, paragraph 18, and of 30 January 2020, I.G.I., C‑394/18, EU:C:2020:56, paragraph 50). It follows that, with regard to the application of the relevant national legislation, the Court must proceed on the basis of the situation which the referring court considers to be established and that it cannot be bound by suppositions raised by one of the parties to the main proceedings (see, to that effect, judgments of 8 June 2016, Hünnebeck, C‑479/14, EU:C:2016:412, paragraph 36, and of 2 April 2020, Coty Germany, C‑567/18, EU:C:2020:267, paragraph 22).
In the first place, it should be observed that the first subparagraph of Article 8(3) of Directive 2013/33 lists exhaustively the various grounds that may justify the detention of an applicant for international protection and that each of those grounds meets a specific need and is self-standing (judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 59, and of 14 September 2017, K., C‑18/16, EU:C:2017:680, paragraph 42).
In addition, while it is true, as recital 17  of that directive states, that the grounds for detention set out in that directive are without prejudice to other grounds of detention, in particular the grounds of detention in the context of criminal proceedings, which are applicable under national law, independently of the application for international protection  lodged by the third-country national or stateless person, the fact nonetheless remains that the Member States must ensure, when establishing such grounds of detention, that they comply with the principles and the objective of Directive 2013/33 (see, by analogy, judgment of 6 December 2011, Achughbabian, C‑329/11, EU:C:2011:807, paragraph 46).
It follows that an applicant for international protection  who does not have the means of subsistence must be given either a financial allowance enabling him or her to be housed or housing in kind in one of the places referred to in Article 18 of that directive, which cannot be confused with the detention centres referred to in Article 10 of that directive. Accordingly, the grant to an applicant for international protection  without the means of subsistence of housing in kind, within the meaning of Article 18, cannot have the effect of depriving that applicant of his or her freedom of movement, subject to penalties that may be imposed on him pursuant to Article 20 of that directive (see, to that effect, judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 52).
In addition, Article 8(2)  of that directive provides that detention may be applied only when it proves necessary, on the basis of an individual assessment of each case and if other less coercive alternative measures cannot be applied effectively. It follows that the national authorities cannot place an applicant for international protection  in detention without having previously determined, on a case-by-case basis, whether such detention is proportionate to the aims which it pursues (judgment of 14 September 2017, K., C‑18/16, EU:C:2017:680, paragraph 48).
Thus, it is only where, in the light of an assessment of each specific situation, the enforcement of the return decision in the form of removal risks being compromised by the conduct of the person concerned that the Member States many deprive that person of his or her liberty and detain him or her (judgment of 28 April 2011, El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraph 39).
That circumstance is not one of those that would be liable to threaten the effectiveness of the return and removal procedures if a detention measure were not ordered (see, to that effect, judgment of 30 November 2009, Kadzoev, C‑357/09 PPU, EU:C:2009:741, paragraphs 68  and 70).
In the second place, it follows from Article 15(2) of Directive 2008/115 that the detention is to be ordered by administrative or judicial authorities, in writing, with reasons being given in fact and in law. The obligation to communicate those reasons is necessary both to enable the third-country national concerned to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his or her applying to the court having jurisdiction, and also to put that court fully in a position to carry out the review of the lawfulness of the decision in question (judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraphs 41  and 45).
Furthermore, as stated in recitals 13, 16 and 24 of Directive 2008/115, every detention ordered which is within the scope of the directive is strictly circumscribed by the provisions of Chapter IV thereof 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 third-country nationals concerned. Thus, it follows from the first subparagraph of Article 15(1) of that directive that detention may be ordered only after an examination of whether other less coercive measures were sufficient. In addition, as confirmed in recital 6 of that directive, decisions taken under that directive, including detention decisions, should, in accordance with the general principles of EU law, be adopted on a case-by-case basis and be based on objective criteria (see, to that effect, judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraphs 55  and 70).
In addition, Article 15(5) and (6) of that directive provides that each Member State is to set a limited period of detention, which may not exceed six months, and which may not be extended except for a limited period not exceeding a further 12 months and only in cases where, regardless of all the reasonable efforts of the national authorities, the removal operation is likely to last longer owing to a lack of cooperation by the third-country national concerned or delays in obtaining the necessary documents from third countries. As that maximum period can in no case be exceeded, the detained person must be released immediately as soon as the maximum detention period of 18 months is reached (see, to that effect, judgment of 30 November 2009, Kadzoev, C‑357/09 PPU, EU:C:2009:741, paragraphs 60  and 69).
In that regard, it should be observed, first, that Article 15 of Directive 2008/115 is unconditional and sufficiently precise and that it therefore has direct effect (see, to that effect, judgments of 28 April 2011, El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraph 46  and 47, and of 5 June 2014, Mahsdi, C‑146/14 PPU, EU:C:2014:1320, paragraph 54). For similar reasons, Article 9 of Directive 2013/33 must also be considered to have direct effect.
It follows that, in such a case, the national court must be able to substitute its own decision for that of the administrative authority that ordered the detention and to order either an alternative measure to detention or the release of the person concerned (see, to that effect, judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraph 62). However, an alternative measure to detention can be envisaged only if the reason that justified the detention of the person concerned was and remains valid, but that detention does not seem or no longer seems necessary or proportionate in the light of that reason.
Last, it should be borne in mind that, according to settled case-law, a national court seised of a dispute governed by European Union law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under European Union law (see, in particular, judgments of 19 June 1990, Factortame and Others, C‑213/89, EU:C:1990:257, paragraph 21, and of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 107).