1 This request for a preliminary ruling concerns the interpretation of Article 16(1) and Article 18 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 (OJ 2008 L 348, p. 98).
2 The request has been made in proceedings for removal brought against K concerning the lawfulness of his detention in the Langenhagen (Germany) division of the Hanover (Germany) prison facility.
3 Recitals 3, 13 and 16 of Directive 2008/115 state: ‘(3) On 4 May 2005 the Committee of Ministers of the Council of Europe adopted “Twenty guidelines on forced return”. … (13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued. Minimum safeguards for the conduct of forced return should be established, taking into account Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders [(OJ 2004 L 261, p. 8)]. Member States should be able to rely on various possibilities to monitor forced return. … (16) The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.’
4 Article 15(1) of that directive provides: ‘Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.’
5 Article 16 of that directive provides: ‘1. Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners. 2. Third-country nationals in detention shall be allowed - on request - to establish in due time contact with legal representatives, family members and competent consular authorities. 3. Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided. 4. Relevant and competent national, international and non-governmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third-country nationals in accordance with this Chapter. Such visits may be subject to authorisation. 5. Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4.’
6 Under Article 17 of that directive: ‘1. Unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriate period of time. 2. Families detained pending removal shall be provided with separate accommodation guaranteeing adequate privacy. 3. Minors in detention shall have the possibility to engage in leisure activities, including play and recreational activities appropriate to their age, and shall have, depending on the length of their stay, access to education. 4. Unaccompanied minors shall as far as possible be provided with accommodation in institutions provided with personnel and facilities which take into account the needs of persons of their age. 5. The best interests of the child shall be a primary consideration in the context of the detention of minors pending removal.’
7 Article 18 of that directive, entitled ‘Emergency situations’, is worded as follows: ‘1. In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2). 2. When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist. 3. Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive.’
8 Paragraph 62a(1) of the Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on the residence, economic activity and integration of foreign nationals in the Federal territory) of 30 July 2004 (BGBl. 2008 I, p. 162), in the version in force from 29 July 2017 to 20 August 2019 (‘the Law on the residence of foreign nationals’), provided: ‘Detention for the purpose of removal shall take place in principle in specialised detention facilities. If there is no specialised detention facility in the Federal territory or if the foreign national poses a serious threat to the life and limb of others or to significant internal security interests, detention may take place in other prison accommodation; in those circumstances, the persons detained for the purpose of removal shall be accommodated separately from ordinary prisoners.’
9 Article 1(22) of the Zweites Gesetz zur besseren Durchsetzung der Ausreisepflicht (Second law to improve the implementation of the obligation to leave the territory) of 15 August 2019 (BGB1. 2019 I, p. 1294) (‘the Law of 15 August 2019’), provides: ‘Paragraph 62a(1) [of the Law on the residence of foreign nationals] is replaced by the following: “Individuals detained for the purpose of removal shall be kept separate from ordinary prisoners. Where several members of a family are detained, they shall be accommodated separately from other individuals detained for the purpose of removal. They shall be guaranteed adequate privacy.”’
10 Article 6 of that law provides: ‘Further amendment of [the Law on the residence of foreign nationals] with effect from 1 July 2022 Paragraph 62a(1) of [the Law on the residence of foreign nationals] is replaced by the following: “Detention for the purpose of removal shall take place in principle in specialised detention facilities. If there is no specialised detention facility in the Federal territory or if the foreign national poses a serious threat to the life and limb of others or to significant internal security interests, detention may take place in other prison accommodation; in those circumstances, the persons detained for the purpose of removal shall be accommodated separately from ordinary prisoners. Where several members of a family are detained, they shall be accommodated separately from other individuals detained for the purpose of removal. They shall be guaranteed adequate privacy.”’
11 Under Article 8 of the Law of 15 August 2019: ‘Entry into force 1. Subject to paragraph 2, this Law shall enter into force on the day following its publication. 2. Article 6 shall enter into force on 1 July 2022.’
12 The explanatory memorandum to the draft law which led to the Law of 15 August 2019 stated, in particular: ‘The amendment to Paragraph 62a(1) means that, temporarily, in accordance with Article 18(1) of Directive 2008/115, individuals detained for the purpose of removal will not have to be kept in specialised detention facilities. Detention for the purpose of removal may, temporarily, take place in all detention facilities and, up to a maximum of 500 places, in prisons. It is still necessary to keep individuals detained for the purpose of removal separate from ordinary prisoners. The current rule regarding the accommodation to be provided for several members of the same family, set out in the third and fourth sentences of Paragraph 62a(1), as well as the requirements of Articles 16 and 17 of Directive 2008/115, remain applicable. In addition, the question as to whether prison accommodation is acceptable and lawful must still be considered in each particular case, for example, for individuals belonging to a vulnerable group. It is planned that the judicial authorities of the [Federal States] will make up to 500 places available for individuals detained for the purpose of removal, so that, taking into account the planned increase in the number of places in detention for the purpose of removal in the detention facilities of the [Federal States], approximately 1000 places in all will be available for detention for the purpose of removal. … Article 18(1) of Directive 2008/115 provides for the derogation, in emergency situations, from the separation requirement under Article 16(1) and from the requirement that families are to be provided with separate accommodation under Article 17(2). … The condition that must be met in order to make use of the derogation under Article 18(1) is that an exceptionally large number of third-country nationals to be returned places an excessive burden on the capacities of detention facilities or on the administrative or judicial staff. That condition is met in Germany’s case. Existing capacity in Germany (as at 27 March 2019) stands at approximately 487 places in detention for the purpose of removal across the Federal territory. Given the imbalance between the number of individuals under an enforceable obligation to leave the territory and the number of places in detention for the purpose of removal, an excessive burden is clearly being placed on those existing capacities. That excess over capacity is in fact creating a significant bottleneck which is impeding the implementation of enforceable obligations to leave the territory. Existing places in detention for the purpose of removal are already being best utilised at Federal level, through coordination among the [Federal States]. The Gemeinsame Zentrum zur Unterstützung der Rückkehr [(Joint Return Support Centre) (“the ZUR”)], created in 2017, is also endeavouring to improve the management of places in detention for the purpose of removal. The rate of places in detention that are occupied, across the Federal territory, through the intermediary of the ZUR, runs at about 10 percent. This means that, in practice, a large number of applications for detention cannot be submitted, even if the requisite conditions are satisfied. Furthermore, it was not foreseeable that demand would so outstrip capacity. The number of newly arriving applicants for protection having steadily decreased in the years up to 2015, the [Federal States] had, over the years, adapted capacities in detention for the purpose of removal to the then lesser demand, by decreasing the number of places. In response to the change in the situation in 2015 and the surge in the number of applicants for protection, the primary obligation of the Federal and State governments was to create capacity to meet the needs of individuals. That obligation arises, inter alia, from EU law, in particular, 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 (OJ 2013 L 180, p. 96) and Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), as well as the Convention for the Protection of Human Rights and Fundamental Freedoms. In those circumstances, the processing of new arrivals took priority over increasing detention capacity, the aim being to meet the requirements of Directive 2008/115 at a later date (following completion of the asylum application and appeal procedure). The very aim of the derogation rule laid down in Article 18 [of that directive] is to enable the authorities, in such situations, to give priority to the processing of new arrivals, without foreseeably infringing obligations in the future. … Once the exceptional situation had ended, the [Federal States] immediately began to increase detention capacities and they have already been able to increase the number of places in detention to 487 for the whole of the Federal territory (as at 27 March 2019). Given the time usually needed to complete a construction project or to create detention facilities for the purpose of removal, it has not yet been possible to bring the number of places in detention for the purpose of removal completely into line with current needs. Given the measures taken, it may be expected that the number of places in detention for the purpose of removal will meet those needs by 30 June 2022. The exceptional situation will continue until that date and, consequently, it is necessary to repeal Paragraph 62a(1), as currently worded, until that date. The legislation currently applicable will then enter into force once more.’
13 According to his own statements, K, a Pakistani national, entered the territory of the Federal Republic of Germany on 9 October 2015. On 24 May 2017, his application for asylum was rejected as manifestly unfounded.
14 The notice of intention to deport subsequently adopted concerning him has been enforceable since 7 June 2017.
15 On 11 August 2020, K was arrested on a coach travelling from Berlin to Brussels. On the same day, the Amtsgericht Meppen (Local Court, Meppen, Germany) ordered that he be detained for the purpose of removal until 25 September 2020 inclusive and he was detained in the Langenhagen division of the Hanover prison facility.
16 On 24 September 2020, the Landkreis Gifhorn (District of Gifhorn, Germany) requested the Amtsgericht Hannover (Local Court, Hanover, Germany) to order that K’s detention be extended until 12 November 2020. In its application, the District of Gifhorn stated that K was expected to remain in detention in the Langenhagen division of the Hanover prison facility.
17 By order of 25 September 2020, after hearing K, the Amtsgericht Hannover (Local Court, Hanover) ordered that he be detained in that division until 12 November 2020.
18 On 28 September 2020, K brought an appeal against that decision before the same court and was heard, in the context of those new proceedings, on 7 October 2020.
19 In the first place, the referring court, which considers that it has jurisdiction to hear K’s appeal only as regards his detention between 25 September and 2 October 2020, notes that the Langenhagen division entered into service in May 2000 and that it is managed by a prison officer. The prison facility in Hanover, of which that division forms part from an administrative perspective, is able to accommodate, as a whole, approximately 600 prisoners and is managed by a director, who is also responsible for the Langenhagen division. The Hanover prison facility, in its entirety, is placed under the supervision of the Minister for Justice.
20 That court also points out that the capacity of the Langenhagen division, which initially allowed it to receive up to 171 persons detained for the purpose of removal, has been significantly reduced. At present, it is possible to place 48 persons in detention there for the purpose of removal. The complex is surrounded by a high wire-mesh fence and consists of three two-storey buildings of similar size, the windows of which are fitted with bars, as well as another small building and an entry-exit system for cars, used as an entrance for facility staff and persons visiting the facility, as well as for the entry and exit of vehicles.
21 The first of those three buildings houses male third-country nationals detained for the purpose of removal. The second building hosts female and, depending on the rate of occupation, male third-country nationals detained for the purpose of removal. The persons detained in those buildings for that purpose may receive a visit every day, spend several hours in the fresh air, access the internet and have a mobile telephone. The rooms are not locked and are, as a rule, for single occupation only. However, at their request, several persons may be accommodated together in the same room. In the corridor there are communal showers and toilets, which are freely accessible throughout the day.
22 The third building, which had been temporarily closed since 2013, was used, at the very least since the adoption of the decision of 25 September 2020 and until 2 October 2020, to hold ordinary prisoners serving alternative custodial sentences or short custodial sentences of up to three months. The prison facility was intended to separate third-country nationals, detained for the purpose of removal, from those prisoners. There was no direct access between the buildings occupied by third-country nationals awaiting removal and the buildings in which the prisoners were held.
23 The referring court is uncertain whether, during that period, the Langenhagen division was a ‘specialised detention facility’ within the meaning of Article 16(1) of Directive 2008/115, since that division also accommodated ordinary prisoners, in addition to persons detained for the purpose of removal, and it was not guaranteed that those two groups of persons would be accommodated separately there from a geographical and organisational point of view. The buildings in that division are located in each other’s immediate vicinity and are accessible - in particular to the staff of the prison facility - only through a common entrance area.
24 In addition, that court notes that, even though the Langenhagen division has its own director, the same prison staff are involved there in taking care of both convicted persons and persons detained for the purpose of removal.
25 In the second place, the referring court considers that the amendment made to Paragraph 62a(1) of the Law on the residence of foreign nationals by the Law of 15 August 2019, which allows, until 1 July 2022, a derogation from the obligation, arising from the first sentence of Article 16(1) of Directive 2008/115, to detain illegally staying third-country nationals in specialised detention facilities, is contrary to EU law.
26 Although, in order to derogate from Article 16(1) of Directive 2008/115, the German legislature did indeed rely on the existence of an emergency situation within the meaning of Article 18(1) of that directive, that court points out that, irrespective of whether, on the date of adoption of the Law of 15 August 2019, the conditions imposed by Article 18 of that directive were satisfied, it must, in any event, be held that this is no longer the case. Even if specialised detention facilities are faced with a heavy burden because of the distancing requirements relating to the COVID-19 pandemic, that burden is not, however, connected with the presence of an exceptionally high number of third-country nationals, as required by Article 18(1) of Directive 2008/115. Furthermore, the German legislature did not provide information regarding the occupancy rate of detention facilities, did not specify the estimated number of third-country nationals subject to an enforceable obligation to leave the territory and, among them, the number of illegally staying third-country nationals with regard to whom grounds for detention might exist.
27 In those circumstances, the referring court questions, first of all, whether the national court must, itself, determine whether there is an emergency situation, within the meaning of Article 18 of that directive, in each procedure concerning detention for the purpose of removal or whether, on the contrary, it must accept the finding made by the national legislature, without itself carrying out an examination in the specific case concerned.
28 In the event that the court ordering the detention is required to satisfy itself that there is an emergency situation, within the meaning of Article 18 of Directive 2008/115, the referring court considers that it is necessary to examine whether Article 16(1) of that directive requires it to disapply the Law of 15 August 2019 where no such emergency situation has been established.
29 If that question were to be answered in the affirmative, it would then be necessary to determine whether the organisational integration of the detention facility in the administration of justice alone is sufficient to preclude it from being regarded as a ‘specialised detention facility’ within the meaning of Article 16 of Directive 2008/115 and, if not, whether that classification as a ‘specialised detention facility’ is precluded by the fact that one of the buildings in that facility is used for the purpose of holding persons convicted of a criminal offence.
30 In those circumstances, the Amtsgericht Hannover (Local Court, Hanover) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must EU law, in particular Article 18(1) and (3) of Directive 2008/115, be interpreted as meaning that a national court deciding on detention for the purpose of removal must, in each individual case, examine the conditions laid down in that provision, in particular whether the exceptional situation persists, where the national legislature, on the basis of Article 18(1) [of that directive], has derogated from the conditions laid down in Article 16(1) [thereof] in national law? (2) Must EU law, in particular Article 16(1) of Directive 2008/115, be interpreted as precluding national legislation which on a temporary basis, until 1 July 2022, allows the placement of detainees awaiting removal in a prison facility despite specialised detention facilities being provided in the Member State and despite the fact that there is no emergency situation within the meaning of Article 18(1) of [that directive] which would make [this] absolutely necessary? (3) Must Article 16(1) of Directive 2008/115 be interpreted as meaning that a “specialised detention facility” to detain persons awaiting removal is not deemed to exist merely because: - the “specialised detention facility” [is indirectly] subject to supervision by the same government body as detention facilities for [ordinary] prisoners, namely the Minister for Justice, - the “specialised detention facility” is organised as a division of a prison and, while it has its own governor, is under the overall management of the prison facility as it is one of a number of divisions of that prison? (4) If Question 3 is answered in the negative: Must Article 16(1) of Directive 2008/115 be interpreted as meaning that accommodation in a “specialised detention facility” for detainees awaiting removal exists if a prison facility sets up a specific division as a detention facility, if that division operates for detainees awaiting removal a specific area with three buildings within the perimeter fence and one of those three buildings temporarily solely houses prisoners serving custodial sentences for default of payment of a fine or short custodial sentences, where the prison facility takes care to ensure detainees awaiting removal are separated from prisoners and where, in particular, every house has its own facilities (its own clothing store, medical facilities, gym) and, while the yard/outside space is visible from all houses, each house has its own area for use by the detainees which is surrounded by a wire-mesh fence that prevents direct access between houses?’
31 By decision of 18 November 2020, the President of the Court of Justice ordered that the present case should be accorded priority treatment under Article 53(3) of the Rules of Procedure of the Court of Justice.
32 By its third and fourth questions, which it is appropriate to examine in the first place and together, the referring court asks, in essence, whether Article 16(1) of Directive 2008/115 is to be interpreted as meaning that a specific division of a prison facility which, first, while having its own director, is subject to the management of that establishment and is subject to the authority of the minister who has authority over prison facilities and in which, second, third-country nationals are detained, for the purpose of removal, in specific buildings which have their own facilities and are isolated from other buildings in that division in which those with a criminal conviction are held, may be regarded as a ‘specialised detention facility’ within the meaning of that provision.
33 In order to answer that question, it is necessary, in the first place, to interpret the concept of ‘specialised detention facility’ within the meaning of Article 16 of Directive 2008/115. It should be noted, in that regard, that neither Article 16 nor any other provision of Directive 2008/115 defines what is meant by that term. It follows that that concept must be interpreted in accordance with the usual meaning of its words in everyday language, whilst also taking into account the legislative context in which they occur and the purpose of the rules of which they are part (judgment of 1 October 2020, Staatssecretaris van Financiën (Reduced rate of VAT for aphrodisiacs), C‑331/19, EU:C:2020:786, paragraph 24 and the case-law cited).
34 In that regard, it should be noted, first, that the first sentence of Article 16(1) of that directive lays down the principle that the detention of illegally staying third-country nationals for the purpose of removal is to take place in specialised detention facilities (judgment of 2 July 2020, Stadt Frankfurt am Main, C‑18/19, EU:C:2020:511, paragraph 31 and the case-law cited).
35 It follows that specialised detention facilities within the meaning of that provision are intended to enable Member States to enforce a decision ordering, under Article 15 of Directive 2008/115, the detention of an illegally staying third-country national, namely a coercive measure that deprives the person concerned of his or her freedom of movement and isolates him or her from the rest of the population, by requiring him or her to remain permanently within a restricted and closed perimeter (see, to that effect, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraphs 223 and 225).
36 It also follows from the wording of Article 16(1) of that directive that specialised detention facilities are to be distinguished from prison accommodation, which means that the conditions of detention in those facilities must have certain specific features in relation to the normal conditions under which custodial sentences are enforced in prison accommodation.
37 Second, it follows expressly from Article 15(1) of Directive 2008/115 that the detention of a third-country national who is illegally staying on the territory of a Member State can, in the absence of other sufficient but less coercive measures that could be applied effectively, be justified only in order to prepare the return of that national and/or to carry out the removal process, in particular where there is a risk of absconding or where the national avoids or hampers the preparation of return or the removal process. Therefore, 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 may deprive that person of his or her liberty and detain him or her (judgment of14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraphs 268 and 269 and the case-law cited).
38 It follows that, when ordered for the purpose of removal, the detention of an illegally staying third-country national is intended only to ensure the effectiveness of the return procedure and does not pursue any punitive purpose, as the Advocate General observed in point 104 of his Opinion.
39 Third, it should be recalled that Directive 2008/115 seeks to establish an effective removal and repatriation policy that fully respects the fundamental rights and dignity of the persons concerned (judgment of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor), C‑441/19, EU:C:2021:9, paragraph 70 and the case-law cited).
40 In that regard, it is important, in particular, to point out that any detention covered by Directive 2008/115 is strictly circumscribed by the provisions of Chapter IV of that directive, 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 (judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 274 and the case-law cited).
41 Thus, detention measures adopted under Chapter IV of Directive 2008/115 must not, in particular, infringe the right to liberty of third-country nationals who are subject to such measures, as guaranteed in Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
42 In that regard, it must be borne in mind that, in so far as the Charter contains rights which correspond to those guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), Article 52(3) of the Charter provides that the meaning and scope of those rights must be the same as those laid down by that convention, while specifying that EU law may provide more extensive protection. For the purpose of interpreting Article 6 of the Charter, account must therefore be taken of Article 5 ECHR as the minimum threshold of protection (see, to that effect, judgment of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 37).
43 In accordance with the case-law of the European Court of Human Rights, Article 5(1) ECHR requires that ‘the place and conditions of detention must be appropriate’ and that ‘there must be a connection between the ground of permitted deprivation [of liberty] relied on and the place and conditions of detention’, taking account of the fact that such detention may apply to persons ‘who, as the case may be, have not committed offences other than those related to residence’ (ECtHR, 13 December 2011, Kanagaratnam and Others v. Belgium, ECHR:2011:1213JUD001529709, § 84, and ECtHR, 28 February 2019, H.A. and Others v. Greece, ECHR:2019:0228JUD001995116, § 196).
44 Fourthly, it must be noted that recital 3 of Directive 2008/115 refers to the ‘guidelines on forced return’ adopted by the Committee of Ministers of the Council of Europe. According to the tenth of those guidelines, third-country nationals detained for the purpose of removal ‘should normally be accommodated within the shortest possible time in facilities specifically designated for that purpose, offering material conditions and a regime appropriate to their legal situation and staffed by suitably qualified personnel’.
45 It follows from paragraphs 34 to 44 of the present judgment that a ‘specialised detention facility’ within the meaning of Article 16(1) of Directive 2008/115 is to be characterised by the arrangement and equipment of its premises and by organisational and operational arrangements which are such as to constrain the illegally staying third-country national who is detained there to remain permanently within a restricted and closed perimeter, while limiting such a constraint to what is strictly necessary in order to ensure effective preparation for his or her removal. Therefore, the conditions of detention applicable in such a facility must be such that they avoid, as much as possible, the detention of that national resembling detention in a prison environment, suitable for detention for punitive purposes.
46 Furthermore, those conditions of detention must be designed in such a way that both the fundamental rights guaranteed by the Charter and the rights enshrined in Article 16(2) to (5) and Article 17 of Directive 2008/115 are respected.
47 In the second place, it is common ground that, in the context of Article 267 TFEU, the Court has no jurisdiction to apply the rules of EU law to a particular case. It is, therefore, for the national court to carry out the legal classifications necessary for the resolution of the dispute in the main proceedings. On the other hand, it is for the Court to provide the national court with all necessary information with a view to offering guidance in that determination (judgment of 3 July 2019, UniCredit Leasing, C‑242/18, EU:C:2019:558, paragraph 48 and the case-law cited).
48 From that point of view, it is important to note that it is for the referring court to determine, taking into account all the relevant factors and after an overall assessment of those factors, whether the place and conditions of detention, at issue in the main proceedings, considered as a whole, are appropriate to the detention ordered under Article 15 of Directive 2008/115.
49 To that end, it must be stated, first, that several relevant factors, capable of guiding the overall assessment which that court must carry out, are contained in, inter alia, the tenth and eleventh guidelines on forced return, adopted by the Committee of Ministers of the Council of Europe, to which recital 3 of that directive refers.
50 Second, as the Advocate General stated in point 124 of his Opinion, the mere fact that a place of detention, which has its own management structure, is connected administratively to an authority which also has powers with regard to prisons is not sufficient to preclude that place from being classified as a ‘specialised detention facility’ within the meaning of Article 16(1) of Directive 2008/115. Such a connection of a purely administrative nature is, in principle, irrelevant in that regard. The position would be different only if the application of certain conditions of detention were linked to such a connection.
51 Third, in accordance with the second sentence of Article 16(1) of Directive 2008/115, where a Member State cannot provide accommodation for third-country nationals awaiting removal in a specialised detention facility and must detain them in prison accommodation, those nationals must be kept separated from ordinary prisoners.
52 Therefore, the mere separation, within the same detention establishment, of illegally staying third-country nationals and ordinary prisoners is not sufficient grounds for regarding the part of that establishment in which those third-country nationals are detained for the purpose of removal as constituting a ‘specialised detention facility’ within the meaning of Article 16(1) of Directive 2008/115.
53 However, and provided that such separation is indeed guaranteed, the classification of an establishment as a ‘specialised detention facility’ is not automatically excluded on the ground that, as in the present case, a separate part of a complex in which third-country nationals are detained for the purpose of removal serves to hold persons convicted of criminal offences.
54 While such a situation must certainly be taken into account in the referring court’s assessment, that court must also pay particular attention to the arrangement of the premises specifically dedicated to the detention of third-country nationals, the rules which specify their conditions of detention and the specific classification and duties of the staff responsible for the establishment in which that detention takes place and determine whether, in the light of all those factors, the constraint imposed on the third-country nationals concerned is limited to what is strictly necessary in order to ensure an efficient removal procedure and avoids, as much as possible, that detention resembling detention in a prison environment, suitable for detention for punitive purposes.
55 From that point of view, the fact that the national rules on the enforcement of sentences are applicable, albeit by analogy, to the detention of third-country nationals awaiting removal is a strong indication that such detention does not take place in a ‘specialised detention facility’ within the meaning of Article 16(1) of Directive 2008/115.
56 Conversely, the fact that at least the greater part of the staff responsible for regulating the detention of third-country nationals with a view to their removal and the main persons responsible for the operation of the establishment in which the detention takes place have specialised training in such a framework is an indication militating in favour of the classification of that establishment as a ‘specialised detention facility’. The same is true of the fact that staff in direct contact with those third-country nationals are exclusively assigned to the establishment in which the detention of those third-country nationals takes place and not, simultaneously, to a facility which serves to hold persons convicted of criminal offences.
57 It follows from all the foregoing considerations that the answer to the third and fourth questions is that Article 16(1) of Directive 2008/115 must be interpreted as meaning that a specific division of a prison facility which, first, while having its own director, is subject to the management of that establishment and is subject to the authority of the minister who has authority over prison facilities and in which, second, third-country nationals are detained, for the purpose of removal, in specific buildings which have their own facilities and are isolated from the other buildings in that division in which those with a criminal conviction are held, may be regarded as a ‘specialised detention facility’ within the meaning of that provision, provided that the conditions of detention applicable to those nationals avoid, as much as possible, that detention resembling detention in a prison environment and provided that they are designed in such a way that the fundamental rights guaranteed by the Charter and the rights enshrined in Article 16(2) to (5) and Article 17 of that directive are respected.
58 By its first question, the referring court asks, in essence, whether EU law, and in particular Article 18(1) and (3) of Directive 2008/115, is to be interpreted as meaning that a national court which is called upon to order the detention or an extension of the detention, in a prison facility, of a third-country national for the purpose of removal must be able to verify compliance with the conditions laid down in Article 18 of that directive under which it is possible for a Member State to provide that that national is to be detained in a prison facility.
59 In the first place, it must be noted that detention and extension of detention are similar in nature, since both deprive the third-country national concerned of his or her liberty in order to prepare his or her return and/or carry out the removal process (see, to that effect, judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraph 44).
60 In the second place, it should be noted that Article 18(1) of Directive 2008/115 allows a Member State to take urgent measures concerning the conditions of detention of a third-country national derogating from those set out in Article 16(1) and Article 17(2) of that directive, in a situation where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of its detention facilities as long as that exceptional situation persists. Article 18(3) of Directive 2008/115 further states that paragraph 1 of that article does not allow Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under that directive.
61 It follows that a Member State which adopts legislation, such as that at issue in the main proceedings, pursuant to Article 18(1) of that directive, remains required to comply with the rules, other than those laid down in Article 16(1) and Article 17(2) of that directive, which govern the detention and extension of the detention of an illegally staying third-country national.
62 In the third place, it should be noted that, in so far as it is liable to infringe 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 an extension of his or her detention is subject to compliance with strict safeguards, namely - inter alia - protection against arbitrariness (see, to that effect, judgment of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 40). Such protection means, in particular, that detention may be ordered or extended only in compliance with the general and abstract rules laying down the conditions and detailed rules governing the ordering or extension of detention.
63 Furthermore, it would be contrary to the essential content of the right to effective judicial protection, guaranteed in Article 47 of the Charter, if no court were able to examine whether a decision ordering detention, under Directive 2008/115, is in compliance with the rights and freedoms guaranteed by EU law to third-country nationals staying illegally on the territory of a Member State (see, to that effect, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 290).
64 It follows that, where a court is called upon, within the exercise of its jurisdiction, to order, on the basis of a piece of legislation of a Member State implementing Article 18 of Directive 2008/115, that the detention of a third-country national for the purpose of removal be carried out in a prison facility or that the detention of that third-country national in such a facility be extended, that court must be in a position to ensure that its decision is preceded by an examination of the compatibility of such legislation with EU law and, therefore, to review whether that piece of legislation is consistent with what is permissible under that provision (see, by analogy, judgment of 28 January 2021, Spetsializirana prokuratura (Letter of rights), C‑649/19, EU:C:2021:75, paragraph 74 and the case-law cited).
65 To that end, that court must be able to rule on all relevant matters of fact and law in order to determine whether, in addition to the very principle of the detention of the third-country national concerned, the derogation rules under which that detention will be carried out, under Article 18 of Directive 2008/115, are justified. That court must, therefore, be able to take into account both the facts stated and the evidence adduced by the administrative authority requesting detention in a prison facility 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 (see, by analogy, judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraph 62).
66 Lastly, contrary to the German Government’s assertions, the obligation on the Member State concerned, in accordance with Article 18(2) of Directive 2008/115, to inform the Commission of the fact that it is resorting to exceptional measures authorised by paragraph 1 of that article, as is also the case where the reasons for applying those measures have ceased to exist, is not such as to alter that conclusion. That simple notification procedure does not amount to a judicial examination of the lawfulness of detention measures that may be ordered on the basis of that latter provision.
67 It follows from all the foregoing considerations that the answer to the first question is that Article 18 of Directive 2008/115, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that a national court which is called upon, in the exercise of its jurisdiction, to order the detention or an extension of the detention, in a prison facility, of a third-country national for the purpose of removal must be able to verify compliance with the conditions laid down in Article 18 of that directive under which it is possible for a Member State to provide that that national is to be detained in a prison facility.
68 By its second question, the referring court asks, in essence, whether Article 16(1) of Directive 2008/115 is to be interpreted as meaning that a national court may disapply legislation of a Member State which makes it possible, on a temporary basis, for illegally staying third-country nationals to be detained, for the purpose of their removal, in prison accommodation, separated from ordinary prisoners, where the conditions laid down in Article 18(1) of that directive for such legislation to comply with EU law are not or are no longer satisfied.
69 As a preliminary point, it should be noted that the Member States are authorised, pursuant to both the second sentence of Article 16(1) of Directive 2008/115 and Article 18 thereof, to derogate from the principle set out in the first sentence of Article 16(1) of that directive, according to which third-country nationals must be detained, for the purpose of removal, in specialised detention facilities (see, to that effect, judgment of 2 July 2020, Stadt Frankfurt am Main, C‑18/19, EU:C:2020:511, paragraphs 36 and 39).
70 In order to answer the second question referred, and notwithstanding the fact that the national legislation at issue in the main proceedings was adopted under Article 18 of Directive 2008/115, it is necessary, therefore, to determine the conditions under which a Member State may derogate, under not only Article 18 of that directive, but also under the second sentence of Article 16(1) thereof, from the obligation to have a detention measure carried out for the purpose of removal in a specialised detention facility, before examining whether, when neither of those provisions is applicable, a court or tribunal of a Member State may disapply the legislation of that Member State temporarily permitting the detention, for the purpose of removal, of third-country nationals in prison accommodation, separated from ordinary prisoners.
71 As regards, in the first place, Article 18 of Directive 2008/115, it should be noted, as a preliminary point, that, in so far as it permits Member States to derogate from certain principles laid down by that directive where the presence on their territory of an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacities of their specialised detention facilities, that provision must be interpreted restrictively.
72 It should be noted, in that regard, that the mere presence, on the territory of the Member State concerned, of an exceptionally large number of third-country nationals to be returned does not prove that the conditions laid down in Article 18(1) of Directive 2008/115 have been satisfied. In accordance with Article 15(1) of that directive, only some of those third-country nationals may be detained for the purpose of removal and, therefore, place an unforeseen heavy burden on the capacities of the specialised detention facilities of the Member State concerned.
73 Therefore, the implementation by a Member State of the power of derogation conferred on it by Article 18(1) of Directive 2008/115 means that that Member State must be able to demonstrate that the number of third-country nationals who are the subject of a decision ordering their detention for the purpose of removal is so great that it places an unforeseen heavy burden on the capacities of the specialised detention facilities located throughout its territory.
74 In that connection, as regards, first, the specific condition relating to the heaviness of the burden which must be placed on the capacities of the detention facilities of the Member State concerned, it should be noted, first of all, that, as the Advocate General stated, in essence, in point 59 of his Opinion, Article 18(1) of Directive 2008/115 does not require that the capacities of those specialised detention facilities be permanently and fully saturated, but only that those capacities be structurally close to saturation.
75 The fact that certain language versions of that provision, such as the German-language version, refer to an ‘overburdening’ (Überlastung) of the capacities of those facilities does not alter that finding. Other language versions of that provision merely refer to a ‘heavy’ burden, like the French (charge lourde) and Dutch (zwaar worden belast) language versions, or a ‘significant’, ‘considerable’ or ‘large’ burden, such as the Spanish, Italian and Lithuanian-language versions (importante, notevole and didelė).
76 According to settled case-law, a purely literal interpretation of one or more language versions of a text of EU law, to the exclusion of the others, cannot prevail since the uniform application of EU rules requires that they be interpreted, inter alia, in the light of the versions drawn up in all the languages. Where there is divergence between the language versions of an EU text, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part (judgment of 27 September 2017, Nintendo, C‑24/16 and C‑25/16, EU:C:2017:724, paragraph 72).
77 In that regard, although, as has been noted in paragraph 71 of the present judgment, Article 18 of Directive 2008/115 must indeed be interpreted strictly, that interpretation must, however, also be consistent with the objective pursued by that article and may not deprive it of its intended effect (see, to that effect, judgment of 11 September 2014, Fastweb, C‑19/13, EU:C:2014:2194, paragraph 40). The option of derogating from certain provisions of Directive 2008/115 which Article 18 of that directive grants the Member States, in order to enable them to guarantee the effectiveness of the return procedure despite the emergency situation with which they are faced, would be very much deprived of its intended effect if a Member State were to be prevented from adopting legislation permitting, during a certain period, the detention, for the purpose of removal, of third-country nationals in prison accommodation on the sole ground that, during that period, places would or might be available, albeit for a very short period and in very small numbers, in some specialised detention facilities located on its territory.
78 Accordingly, a Member State may adopt, under Article 18(1) of Directive 2008/115, legislation permitting the detention of third-country nationals for the purpose of removal in prison accommodation, even if it is not excluded that, during the period in which that Member State makes use of that option, places are temporarily available in certain specialised detention facilities in its territory.
79 As regards, second, the specific condition relating to the unforeseen nature of the burden which must be placed on the capacity of the detention facilities of the Member State concerned, it should be noted that, in accordance with Article 18(1) and (2) of Directive 2008/115, the measures derogating from Article 16(1) and Article 17(2) of that directive which may be adopted by a Member State under Article 18 thereof are urgent measures of an exceptional nature. Furthermore, the Court has already held that the national authorities responsible for applying national legislation transposing Article 16 of Directive 2008/115 must, in principle, be able to detain third-country nationals in specialised detention facilities (see, to that effect, judgment of 17 July 2014, Bero and Bouzalmate, C‑473/13 and C‑514/13, EU:C:2014:2095, paragraph 29).
80 The Member State concerned must, therefore, be able to demonstrate that, on the date on which it adopted such derogating measures, it could not reasonably be criticised for not having more fully anticipated the heavy burden that the number of third-country nationals subject to a detention decision would place, at that time, on the specialised detention facilities located on its territory or, at the very least, that it could not reasonably be criticised for not having adopted, at that time, sufficient structural measures to alleviate such a burden on the capacities of those specialised detention facilities.
81 It follows that a Member State cannot rely on, in particular, Article 18 of Directive 2008/115 where the heavy burden placed on the capacities of its specialised detention facilities is not the result of an unexpected increase in the number of third-country nationals subject to a detention measure, but is caused solely by the reduction in the number of places available in those specialised detention facilities or by a lack of forward planning on the part of the national authorities.
82 Third, it is also necessary for that Member State to be able to demonstrate that a heavy burden, within the meaning of paragraph 74 of the present judgment, persists throughout the period during which that Member State is relying on Article 18(1) of Directive 2008/115 in order to derogate from the principle set out in the first sentence of Article 16(1) thereof. It is expressly stated in Article 18(1) of that directive that such measures must cease to have effect as soon as the emergency situation described in that provision ceases to exist.
83 Furthermore, that Member State must be in a position to prove, throughout the period during which it is implementing Article 18(1) of Directive 2008/115, that it has not yet been possible for it to adopt sufficient structural measures, within the meaning of paragraph 80 of the present judgment, in order to alleviate that heavy burden placed on the capacities of those specialised detention facilities.
84 Article 18 of Directive 2008/115 therefore authorises a Member State to maintain in force legislation which makes it possible, on a temporary basis, for third-country nationals to be detained, for the purpose of removal, in prison accommodation so long as that Member State cannot reasonably be expected to put an end to the heavy burden, which has arisen unexpectedly and which is still placed on the capacities of all its specialised detention facilities, on account of the exceptionally high number of third-country nationals who are subject to a decision ordering their detention for the purpose of removal.
85 Compliance with those conditions may require the competent authorities of the Member State concerned to be obliged by law periodically to review whether such an emergency situation is still ongoing, at the very least where the legislation adopted by that Member State under Article 18 of Directive 2008/115 is intended to produce effects only over a short period, which may be renewable.
86 Fourthly, it should be recalled that, as has been stated in paragraph 61 of the present judgment, a Member State cannot, on the basis of Article 18(1) of Directive 2008/115, deprive an illegally staying third-country national of rights other than those conferred on him or her by Article 16(1) and Article 17(2) of that directive.
87 As confirmed by recitals 13 and 16 thereof, Directive 2008/115 expressly makes the use of coercive measures and, more specifically, detention measures, subject to the principle of proportionality with regard to the means used and objectives pursued.
88 It follows that the national legislation implementing Article 18 of that directive must provide that the detention of a third-country national for the purpose of removal in prison accommodation may be ordered or extended only after examining, in each individual case, first, whether any place is currently available in one of the specialised detention facilities of the Member State concerned and, second, whether any other less coercive measure is conceivable.
89 Furthermore, the Member State applying Article 18 of that directive remains required to pay particular attention, in accordance with Article 16(3) and Article 17(3) to (5) of that directive, to the situation of vulnerable detainees and specifically to the situation of minors, whose best interests must be taken into account as a primary consideration.
90 Therefore, as the Advocate General noted, in essence, in point 70 of his Opinion, a vulnerable third-country national may not be detained, for the purpose of removal, in prison accommodation pursuant to Article 18 of Directive 2008/115 where such detention proves to be incompatible with the taking into account of the particular needs resulting from his or her vulnerable situation.
91 Lastly, where a Member State implements the option conferred on it by Article 18 of Directive 2008/115, the Member State concerned must also respect the fundamental rights enshrined in the Charter and, in particular, in Article 6 thereof. Therefore, in accordance with what has been noted in paragraphs 41 to 43 of the present judgment, that Member State must ensure that the conditions of detention of third-country nationals who are detained, for the purpose of removal, in prison accommodation, are differentiated, as much as possible, from the detention conditions of persons convicted of criminal offences who are held there. In that regard, it is important, in particular, that the Member State concerned ensure that such nationals are prevented, as far as possible, from coming into contact with persons sentenced to a term of imprisonment.
92 In the second place, the second sentence of Article 16(1) of Directive 2008/115 authorises the Member States, in exceptional circumstances, and other than in those expressly referred to in Article 18(1) of that directive, to detain illegally staying third-country nationals in prison accommodation, provided that they are separated from ordinary prisoners, for the purpose of removal, where, owing to the particular facts of the case, they cannot comply with the objectives pursued by that directive by detaining them in specialised detention facilities (judgment of 2 July 2020, StadtFrankfurt am Main, C‑18/19, EU:C:2020:511, paragraph 39).
93 The Court has thus held that such a provision, which is to be interpreted restrictively, permits, in particular, the detention in prison accommodation of a third-country national, for the purpose of removal, where he or she poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned, provided that he or she is separated from ordinary prisoners (judgment of 2 July 2020, Stadt Frankfurt am Main, C‑18/19, EU:C:2020:511, paragraphs 31 and 48).
94 Similarly, the total, sudden and temporary saturation of the capacities of all the specialised detention facilities located on the territory of a Member State, as distinct from the unforeseen heavy burden referred to in Article 18(1) of Directive 2008/115, could also result in that Member State being unable to comply with the objectives pursued by Directive 2008/115 while ensuring that all third-country nationals detained for the purpose of removal are placed in specialised detention facilities.
95 That would be the case if a Member State were faced with a saturation of its specialised detention facilities, as described in the preceding paragraph, and where it was clearly apparent that no less coercive measure than the detention of a particular third-country national to be returned would be sufficient to ensure the effectiveness of the return procedure concerning him or her.
96 In such a situation, it must be held that the second sentence of Article 16(1) of Directive 2008/115 permits, in principle, the temporary detention of that third-country national in prison accommodation, separated from ordinary prisoners.
97 That said, in view of the fact that that provision must be interpreted both restrictively and in a manner that is compatible with the scope of Article 18 of Directive 2008/115, detention in prison accommodation, in a situation such as that referred to in paragraph 95 of the present judgment, may, first of all, be ordered only for a short period, which may not exceed a few days, and only in order to enable the Member State concerned to take, as a matter of urgency, the measures necessary to ensure that the remainder of the detention of the person concerned will take place, as soon as possible, in a specialised detention facility. Furthermore, such detention ceases to be justified under the second sentence of Article 16(1) of that directive where the saturation of the specialised detention facilities of the Member State concerned persists for more than a few days or is repeated systematically and at short intervals.
98 It should also be borne in mind that such detention in prison accommodation must respect both the fundamental rights guaranteed by the Charter and the rights enshrined in Article 16(2) to (5) and Article 17 of Directive 2008/115.
99 In the third place, it should be noted that legislation of a Member State which makes it possible to order the detention of a third-country national for the purpose of removal in prison accommodation, when the conditions to which the second sentence of Article 16(1) of Directive 2008/115 and Article 18(1) of that directive make such a possibility subject are not satisfied, fails to have regard to the right to be detained only in specialised detention facilities that third-country nationals who are subject to a detention measure for the purpose of removal derive from the first sentence of Article 16(1) of that directive.
100 First, that provision is unconditional and sufficiently precise to have direct effect (see, to that effect, judgment of 28 April 2011, El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraph 47).
101 Second, in the light of the principle of the 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 (judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 139).
102 It follows that, unless national legislation such as that referred to in paragraph 99 of the present judgment can be interpreted in accordance with EU law, any national court, acting in the exercise of its jurisdiction, must refuse to apply such legislation in the case before it.
103 It follows from all the foregoing considerations that Article 16(1) of Directive 2008/115, read in conjunction with the principle of the primacy of EU law, must be interpreted as meaning that a national court must disapply legislation of a Member State which makes it possible, on a temporary basis, for illegally staying third-country nationals to be detained, for the purpose of their removal, in prison accommodation, separated from ordinary prisoners, where the conditions laid down in Article 18(1) and the second sentence of Article 16(1) of that directive for such national legislation to comply with EU law are not or are no longer satisfied.
104 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.