1 This request for a preliminary ruling concerns the interpretation of Article 20 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96).
2 The request has been made in proceedings between an applicant for international protection, AF, acting in his own name and as legal representative of his minor child BF, and the Ministero dell’Interno - U.T.G. - Prefettura di Milano (Ministry of the Interior - U.T.G. - Prefecture of Milan, Italy) concerning the decision of the Prefecture of Milan to withdraw from AF and his minor child, BF, all material reception conditions following AF’s repeated refusal to submit to his and BF’s transfer to an accommodation centre other the one where they are located.
3 Article 13 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60), entitled ‘Obligations of the applicants’, provides: ‘1. Member States shall impose upon applicants the obligation to cooperate with the competent authorities with a view to establishing their identity and other elements referred to in Article 4(2) of 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)]. Member States may impose upon applicants other obligations to cooperate with the competent authorities in so far as such obligations are necessary for the processing of the application. 2. In particular, Member States may provide that: (a) applicants are required to report to the competent authorities or to appear before them in person, either without delay or at a specified time; … (c) applicants are required to inform the competent authorities of their current place of residence or address and of any changes thereof as soon as possible. Member States may provide that the applicant shall have to accept any communication at the most recent place of residence or address which he or she indicated accordingly; …’
4 Article 28 of Directive 2013/32, entitled ‘Procedure in the event of implicit withdrawal or abandonment of the application’, provides: ‘1. When there is reasonable cause to consider that an applicant has implicitly withdrawn or abandoned his or her application, Member States shall ensure that the determining authority takes a decision either to discontinue the examination or, provided that the determining authority considers the application to be unfounded on the basis of an adequate examination of its substance in line with Article 4 of Directive [2011/95], to reject the application. Member States may assume that the applicant has implicitly withdrawn or abandoned his or her application for international protection in particular when it is ascertained that: (a) he or she has failed to respond to requests to provide information essential to his or her application in terms of Article 4 of Directive [2011/95] or has not appeared for a personal interview as provided for in Articles 14 to 17 of this Directive, unless the applicant demonstrates within a reasonable time that his or her failure was due to circumstances beyond his or her control; (b) he or she has absconded or left without authorisation the place where he or she lived …, without contacting the competent authority within a reasonable time, or he or she has not within a reasonable time complied with reporting duties or other obligations to communicate, unless the applicant demonstrates that this was due to circumstances beyond his or her control. …’
5 Recitals 22, 25, 26 and 35 of Directive 2013/33 state: ‘(22) When deciding on housing arrangements, Member States should take due account of the best interests of the child, as well as of the particular circumstances of any applicant who is dependent on family members or other close relatives such as unmarried minor siblings already present in the Member State. … (25) The possibility of abuse of the reception system should be restricted by specifying the circumstances in which material reception conditions for applicants may be reduced or withdrawn while at the same time ensuring a dignified standard of living for all applicants. (26) The efficiency of national reception systems … should be secured. … (35) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 6, 7, 18, 21, 24 and 47 of the Charter [of Fundamental Rights] and has to be implemented accordingly.’
6 Article 2 of that directive, entitled ‘Definitions’, provides: ‘For the purposes of this Directive: … (f) “reception conditions”: means the full set of measures that Member States grant to applicants in accordance with this directive; (g) “material reception conditions”: means the reception conditions that include housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance; … (i) “accommodation centre”: means any place used for the collective housing of applicants; …’
7 Article 3(1) of that directive is worded as follows: ‘This Directive shall apply to all third-country nationals and stateless persons who make an application for international protection on the territory … of a Member State, as long as they are allowed to remain on the territory as applicants, as well as to family members, if they are covered by such application for international protection according to national law.’
8 Article 7 of that directive, entitled ‘Residence and freedom of movement’, provides, in paragraphs 2 to 5: ‘2. Member States may decide on the residence of the applicant for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application for international protection. 3. Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national law. 4. Member States shall provide for the possibility of granting applicants temporary permission to leave the place of residence mentioned in paragraphs 2 and 3 … Decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative. … 5. Member States shall require applicants to inform the competent authorities of their current address and notify any change of address to such authorities as soon as possible.’
9 Under Article 12 of Directive 2013/33, entitled ‘Families’: ‘Member States shall take appropriate measures to maintain as far as possible family unity as present within their territory, if applicants are provided with housing by the Member State concerned. Such measures shall be implemented with the applicant’s agreement.’
10 Article 14 of that directive, entitled ‘Schooling and education of minors’, provides in paragraph 1: ‘Member States shall grant to minor children of applicants and to applicants who are minors access to the education system under similar conditions as their own nationals for so long as an expulsion measure against them or their parents is not actually enforced. … …’
11 Article 17 that directive, entitled ‘General rules on material reception conditions and health care’, provides in paragraphs 1 and 2: ‘1. Member States shall ensure that material reception conditions are available to applicants when they make their application for international protection. 2. Member States shall ensure that material reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health. Member States shall ensure that that standard of living is met in the specific situation of vulnerable persons, in accordance with Article 21 …’
12 Article 18 of that directive, entitled ‘Modalities for material reception conditions’, provides in paragraphs 1 to 3 and 6: ‘1. Where housing is provided in kind, it should take one … of the following forms: … (b) accommodation centres which guarantee an adequate standard of living; … 2. … in relation to housing referred to in paragraph 1(a), (b) and (c) of this Article Member States shall ensure that: (a) applicants are guaranteed protection of their family life; … 3. Member States shall take into consideration … the situation of vulnerable persons in relation to applicants within the premises and accommodation centres referred to in paragraph 1(a) and (b). … 6. Member States shall ensure that transfers of applicants from one housing facility to another take place only when necessary. …’
13 Article 20 of Directive 2013/33, entitled, ‘Reduction or withdrawal of material reception conditions’, states in paragraphs 1 to 5: ‘1. Member States may reduce or, in exceptional and duly justified cases, withdraw material reception conditions where an applicant: (a) abandons the place of residence determined by the competent authority without informing it or, if requested, without permission; or (b) does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law; or (c) has lodged a subsequent application as defined in Article 2(q) of Directive [2013/32]. In relation to cases (a) and (b), when the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the material reception conditions withdrawn or reduced. 2. Member States may also reduce material reception conditions when they can establish that the applicant, for no justifiable reason, has not lodged an application for international protection as soon as reasonably practicable after arrival in that Member State. 3. Member States may reduce or withdraw material reception conditions where an applicant has concealed financial resources, and has therefore unduly benefited from material reception conditions. 4. Member States may determine sanctions applicable to serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour. 5. Decisions for reduction or withdrawal of material reception conditions or sanctions referred to in paragraphs 1, 2, 3 and 4 of this Article shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 21, taking into account the principle of proportionality. Member States shall under all circumstances ensure access to health care in accordance with Article 19 and shall ensure a dignified standard of living for all applicants.’
14 Article 21 of Directive 2013/33, entitled ‘General principle’, provides that, in the national law transposing that directive, Member States are to take into account the specific situation of vulnerable persons, in particular minors and single parents with minor children. Under Article 22(1) of that directive, entitled ‘Assessment of the special reception needs of vulnerable persons’, Member States must, for the purposes of the effective implementation of Article 21 thereof, assess whether the applicant is an applicant with special reception needs. Member States must also indicate the nature of such needs.
15 Article 23 of that directive, entitled ‘Minors’, provides in paragraphs 1, 2 and 5: ‘1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. Member States shall ensure a standard of living adequate for the minor’s physical, mental, spiritual, moral and social development. 2. In assessing the best interests of the child, Member States shall in particular take due account of the following factors: … (b) the minor’s well-being and social development, taking into particular consideration the minor’s background; … 5. Member States shall ensure that minor children of applicants or applicants who are minors are lodged with their parents …’
16 Article 26 of that directive, entitled ‘Appeals’, states in paragraph 1: ‘Member States shall ensure that decisions relating to the granting, withdrawal or reduction of benefits under this Directive or decisions taken under Article 7 which affect applicants individually may be the subject of an appeal within the procedures laid down in national law. At least in the last instance the possibility of an appeal or a review, in fact and in law, before a judicial authority shall be granted.’
17 Article 17 of decreto legislativo n. 142 - Attuazione della direttiva 2013/33/UE recante norme relative all’accoglienza dei richiedenti protezione internazionale, nonché della direttiva 2013/32/UE, recante procedure comuni ai fini del riconoscimento e della revoca dello status di protezione internazionale (Legislative Decree No 142 implementing Directive 2013/33/EU laying down standards for the reception of applicants for international protection and Directive 2013/32/EU on common procedures for granting and withdrawing international protection) of 18 August 2015 (GURI No 214 of 15 September 2015), as amended by decreto-legge n. 20 - Disposizioni urgenti in materia di flussi di ingresso legale dei lavoratori stranieri e di prevenzione e contrasto all’immigrazione irregolare (Decree-Law No 20 laying down urgent provisions on legal entry flows for foreign workers and preventing and combating illegal immigration) of 10 March 2023 (GURI No 59 of 10 March 2023), which was converted into law, with amendments, by legge n. 50 (Law No 50) of 5 May 2023 (GURI No 104 of 5 May 2023) (‘Legislative Decree No 142’), entitled ‘Hosting persons with special needs’, provides, in paragraph 1: ‘The reception measures provided for in this decree shall take account of the specific situation of vulnerable persons, such as minors, … single parents with minor children …’
18 Article 23 of Legislative Decree No 142, entitled ‘Reduction or withdrawal of material reception conditions’, provides in paragraphs 1 to 4: ‘1. The Prefect of the province in which the structures referred to in Articles 9 and 11 are situated shall adopt a reasoned order withdrawing reception measures where: (a) the applicant does not report to the identified facility or abandons the accommodation centre without prior reasoned communication to the competent Prefecture - District Government Office; (b) the applicant does not appear at the hearing before the body examining the application; (c) the applicant submits a new application within the meaning of Article 29 of [decreto legislativo n. 25 - Attuazione della direttiva 2005/85/CE recante norme minime per le procedure applicate negli Stati membri ai fini del riconoscimento e della revoca dello status di rifugiato (Legislative Decree No 25 implementing Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status) of 28 January 2008 (GURI No 40 of 16 February 2008)], and its subsequent amendments; (d) it is established that the applicant has sufficient economic resources. 2. In cases of serious or repeated breaches by the applicant for international protection of the rules of the facility where he or she is housed, including intentional damage to movable or immovable property, or seriously violent behaviour, even outside the accommodation facility, the Prefect, without prejudice to the power to order the applicant’s transfer to another facility, shall adopt one or more of the following measures: (a) the temporary exclusion from participation in the activities organised by the manager of the centre; (b) the temporary exclusion from one or more of the services referred to in the second sentence of Article 10(1), apart from material assistance; (c) the suspension, for a period of not less than 30 days and not more than 6 months, or the revocation of the ancillary economic benefits provided for in the specifications referred to in Article 12. 2-bis. The measures referred to in the present article shall be adopted on an individual basis, in accordance with the principle of proportionality and taking account of the applicant’s situation, in particular the conditions set out in Article 17, and shall state the reasons on which they are based. The measures adopted by the Prefect with regard to the applicant shall be communicated to the competent district committee responsible for examining the application for international protection. 3. In the situation referred to in paragraph 1(a), the manager of the centre shall be required to inform the Prefecture - District Government Office immediately that the applicant has failed to report to or has abandoned the centre. If the asylum applicant is traced or voluntarily reports to the law enforcement authorities or to the assignment centre, the Prefect with competence for the district shall order, by means of a reasoned measure, on the basis of the evidence provided by the applicant, the possible restoration of the reception measures. Restoration shall be ordered only if the failure to appear or the abandonment was caused by force majeure or by unforeseeable circumstances or, in any event, due to serious personal reasons. 4. In the event of a breach of the rules of the centre, the manager of the centre shall issue a formal warning to the applicant and, where the conditions of the application of the measures referred to in paragraph 2 are met, shall immediately send a report of the facts to the Prefecture.’
19 AF and his child, BF, who was a minor at the time of the facts in the main proceedings, are applicants for international protection who reside in an accommodation centre in Milan.
20 On 1 June 2023, the Prefecture of Milan adopted a decision withdrawing material reception conditions in respect of AF and BF (‘the decision at issue in the main proceedings’). The referring court observes that, although the grounds of that decision refer to various events constituting breaches of the rules of the reception centre, seriously violent behaviour or facts having an impact on the conditions for eligibility for material reception conditions, the decision nevertheless has as its legal basis the provisions of Article 23(1)(a) of Legislative Decree No 142, which relate to the abandonment of the accommodation centre. The referring court infers from this that the withdrawal of those material reception conditions is based on AF’s repeated refusals to be transferred, with his child, to another accommodation centre, also located in Milan, which is essentially motivated by the fact that those applicants currently occupy accommodation for four persons.
21 AF brought an action for annulment and an interlocutory application for interim measures before the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy), which is the referring court, claiming that his refusal to be transferred to another accommodation centre is justified by the fact that BF is pursuing studies near the accommodation centre where they are located.
22 AF claims that, because of that withdrawal of material reception conditions, he will not be in a position to provide for his basic needs or for those of his minor child. In that regard, he alleges, inter alia, infringement of Article 21 of Directive 2013/33 and of Article 17 of Legislative Decree No 142, in that the decision at issue in the main proceedings does not take account of the fact that he and BF belong to the category of ‘vulnerable persons’, infringement of Article 23(1)(a) of Legislative Decree No 142, in that the refusal to submit to the transfer is not a situation referred to in that provision and infringement of Article 20 of Directive 2013/33 as interpreted by the Court in its judgments of 12 November 2019, Haqbin (C‑233/18, EU:C:2019:956), and of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions) (C‑422/21, EU:C:2022:616), which have given rise to a general principle applicable to all cases of withdrawal of material reception conditions, including where that withdrawal is not in the nature of a sanction.
23 With regard to AF’s application for interim measures, this was dismissed by the referring court by an order 25 July 2023 on the ground that the decision at issue in the main proceedings was an expression of the organisational power of the administration in relation to the management of reception centres.
24 AF brought an appeal against that order before the Consiglio di Stato (Council of State, Italy), which, by an order of 22 September 2023, upheld that appeal on the ground that the decision at issue in the main proceedings could infringe AF’s fundamental rights, in particular his right of access to basic needs, such as food, housing and clothing.
25 As regards the action for annulment, in the first place, the referring court states that, in order to bring the national legislation into line with Article 20 of Directive 2013/33, as interpreted by the case-law referred to in paragraph 22 above, Article 23(1) of Legislative Decree No 142 was amended in such a way that the power of the competent national authority to withdraw material reception conditions is henceforth an expression of a discretionary power, the exercise of which is subject to a specific assessment of all the relevant factors of the particular case. Consequently, it considers that, since the reason for the incompatibility of the national legislation with EU law has disappeared, the application of that legislation should no longer be ruled out. In particular, that national legislation now complies with the principle of proportionality and, inter alia, with the need to take account of the arguments of the person concerned.
26 In the second place, the referring court considers that the decision at issue in the main proceedings must not be regarded as a sanction. In the present case, the competent national authority did not intend to exclude the applicant in the main proceedings from the reception system, but only to transfer him to another accommodation centre where he would have continued to enjoy complete protection. The withdrawal of the material reception conditions is therefore a direct consequence of his refusal to continue to benefit from those conditions in an accommodation centre other than the one in which he currently resides. In addition, it is of the opinion that the situation at issue in the main proceedings falls within the scope of Article 23(1)(a) of Legislative Decree No 142, since, like the situation expressly referred to in that provision, that is to say, where the applicant for international protection does not appear at the accommodation centre designated by the competent national authority or abandons that centre, such a refusal must be treated in the same way as voluntary withdrawal from the reception system. Thus, according to the referring court, depriving that applicant of the possibility of meeting his basic needs as a result of that refusal does not place him in a different situation from the one he would have been in if he had refused to be included in that reception system, the application of which would always require adherence by the person concerned to that reception system.
27 In the third place, the referring court notes, first of all, that the power to adopt a decision to withdraw material reception conditions is provided for in Article 20 of Directive 2013/33, which decision may take the form of a sanction, in accordance with Article 20(4) of that directive, or of an administrative measure following non-compliance with the objective conditions for access to the material reception conditions, in accordance with Article 20(1) to (3) thereof.
28 Next, it observes that, in the context of eligibility for material reception conditions, it is for the competent national authority to designate the accommodation centre where the applicant will reside and, where appropriate, to transfer him or her to another accommodation centre, in the light of assessments relating to the management and organisation of the reception of applicants for international protection and, in particular, the availability of places in each accommodation facility. It is apparent from the order for reference that, in the present case, the transfer of AF and of BF to an accommodation centre other than the one in which they are present is justified by the fact that they occupy accommodation intended for four persons, which therefore meets the needs of a larger family unit. In that regard, the referring court observes that, in those circumstances, the competent authority complied with paragraphs 49 and 50 of the judgment of 12 November 2019, Haqbin (C‑233/18, EU:C:2019:956) and Article 20(5) of Directive 2013/33 in deciding to transfer them to another accommodation centre in the same city, where AF and BF could continue to benefit from material reception conditions. In addition, AF’s refusal to be transferred to another accommodation centre was explained, not by the proven unsuitability of the new accommodation centre in view of his vital needs, but only by a greater proximity of the centre where he is accommodated to the school attended by BF, which, according to the referring court, cannot justify such a refusal, since BF’s education would, in any event, be ensured.
29 The referring court emphasises that, as is apparent from Article 20(1) to (3) of Directive 2013/33, as interpreted by the judgments of 12 November 2019, Haqbin (C‑233/18, EU:C:2019:956, paragraph 44), and of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions) (C‑422/21, EU:C:2022:616, paragraphs 37 and 38), that directive provides for the possibility for Member States to react to any abuses of the reception system by withdrawing material reception conditions. In the present case, it considers that AF’s refusal constitutes abusive conduct by which he exploits access to those conditions for his own purposes and, in practice, hinders the organisational power of the administration in relation to the management of accommodation centres, in particular the assignment of the beneficiaries of those conditions to an accommodation centre.
30 Thus, according to that court, given that the withdrawal of those conditions was, in the present case, the only measure that could have been adopted, bearing in mind the reason for the transfer to another accommodation centre, namely the size of the housing facility occupied by AF and BF and the lack of availability of a housing facility better suited to their situation in the accommodation centre where they are present, the exclusion of such a measure by Article 20 of Directive 2013/33 would effectively ‘paralyse’ the organisational power of the administration in relation to the management of accommodation centres and introduce, for applicants for international protection, a form of a ‘right to stay’ in the accommodation centre initially designated, when this is not provided for by either EU law or national law.
31 In those circumstances the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘D[o] Article 20 of Directive [2013/33] and the principles set out by the Court of Justice in its judgments of 12 November 2019, [Haqbin (C‑233/18, EU:C:2019:956),] and of 1 August 2022, [Ministero dell’Interno (Withdrawal of material reception conditions) (C‑422/21, EU:C:2022:616)] - in so far as they preclude the administrative authority of the Member State from ordering, as a sanction, the withdrawal of reception measures where that decision would be detrimental to the basic vital needs of the foreign national applying for international protection and of his [or her] family - preclude national legislation which permits, following a reasoned individual assessment, relating also to the necessity and proportionality of the measure, withdrawal of [the] reception [measures], not for sanctioning reasons, but because the conditions for being granted [those reception measures] are no longer met, in particular, on account of the foreign national’s refusal, on grounds which do not relate to covering basic vital needs and protecting human dignity, to agree to the transfer to another accommodation centre, designated by the administrative authority on account of objective organisational needs and guaranteeing, under the responsibility of the administrative authority itself, that the material reception conditions equivalent to those enjoyed at the centre of origin will be maintained, where the refusal to transfer and [the] subsequent decision ordering the withdrawal place the foreign national in the position of being unable to meet basic needs of personal and family life?’
32 As a preliminary point, it should be noted that it is apparent from the order for reference, first, that the decision at issue in the main proceedings withdrew all material reception conditions in respect of an applicant for international protection and his minor child on the ground that that applicant repeatedly refused to be transferred with that child to an accommodation centre other than the one in which they reside and, second, that that decision is based on a provision of national law which implements Article 20(1)(a) of Directive 2013/33.
33 The view must therefore be taken that, by its question, the referring court asks, in essence, whether Article 20(1)(a) of Directive 2013/33 must be interpreted as precluding legislation of a Member State under which the competent authority may withdraw all material reception conditions from an applicant for international protection who refuses to be transferred to an accommodation centre other than the one in which he or she resides, even if, following that withdrawal, that applicant is no longer able to meet his or her vital needs and those of his or her family.
34 In that regard, it must be pointed out that, as is apparent from the definitions in Article 2(f) and (g) of Directive 2013/33, ‘material reception conditions’ means the full set of measures that Member States, in accordance with the directive, grant to applicants for international protection, which include housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance (judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 32).
35 Under Article 17(1) and (2) of Directive 2013/33, Member States must ensure that material reception conditions are available to applicants for international protection when they make their application and that the measures adopted for those purposes provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health. In the case of ‘vulnerable persons’, within the meaning of Article 21 of that directive, which include minors and single parents with minor children, the second subparagraph of Article 17(2) of that directive states that Member States must ensure that such a standard of living is ‘met’ (see, to that effect, judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraphs 33 and 34).
36 However, the requirement for Member States to ensure that material reception conditions are available to applicants for international protection is not absolute. The EU legislature laid down, in Article 20 of Directive 2013/33, which is in Chapter III thereof, entitled, like Article 20, ‘Reduction or withdrawal of material reception conditions’, the circumstances in which those conditions may be reduced or withdrawn (judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 35).
37 The possibility for Member States to reduce or withdraw, as the case may be, material reception conditions is explicitly provided for in paragraphs 1 to 3 of Article 20 of Directive 2013/33, which, as is apparent from recital 25 of that directive, concern essentially the possibility of abuse, by applicants for international protection, of the reception system established by the directive (judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 44).
38 In particular, under Article 20(1)(a) of that directive, Member States may reduce or, in exceptional and duly justified cases, withdraw material reception conditions where an applicant for international protection abandons the place of residence determined by the competent authority without informing it or, if requested, without permission.
39 Given that the national legislation at issue in the main proceedings implements that provision, it is necessary to determine whether it may apply to the situation of an applicant for international protection who refuses to be transferred to an accommodation centre other than the one in which he or she resides.
40 In accordance with settled case-law, it is appropriate, in interpreting a provision of EU law, to consider not only the wording of that provision but also its context and the objectives pursued by the rules of which it forms part (judgment of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions), C‑422/21, EU:C:2022:616, paragraph 28 and the case-law cited).
41 In the first place, as regards the wording of Article 20(1)(a) of Directive 2013/33, it should be noted, first, that the use of the verb ‘abandon’, in the context of the expression ‘abandons the place of residence determined by the competent authority’, refers, according to the usual meaning of that verb in everyday language, to a situation where an applicant for international protection voluntarily leaves that place of residence for a prolonged period, or even permanently.
42 Second, it should be noted that that expression, read in conjunction with the expressions ‘without informing [that authority]’ and ‘or, if requested, without permission’, in that provision, refers expressly to the failure to comply with the obligations relating to the residence of applicants for international protection imposed on them by the Member States pursuant to Article 7 of Directive 2013/33.
43 Under Article 7(2) and (3) of that directive, Member States have the power, first, to decide on the place of residence of applicants for international protection for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of their application and, second, to make provision of the material reception conditions subject to actual residence by the applicants in a specific place which they have determined. In accordance with Article 7(4) of that directive, Member States are to provide for the possibility of granting temporary permission to leave the place of residence mentioned in Article 7(2) and (3). In all cases, Article 7(5) of that directive obligates Member States to require applicants for international protection to inform the competent authorities of their current address and notify any change of address to such authorities as soon as possible.
44 Consequently, Article 20(1)(a) of Directive 2013/33 covers situations in which an applicant for international protection ‘abandons’ the place of residence determined by the competent national authority on the basis of Article 7(2) or (3) of that directive, by evading his or her obligation to notify a change of address, laid down in Article 7(5) of that directive, and/or, as the case may be, his or her obligation to obtain the permission referred to in Article 7(4), if that permission is necessary in order to leave that place.
45 In the second place, as regards the context of Article 20(1)(a) of Directive 2013/33, it should be noted that the situations to which it refers are somewhat analogous to those referred to in Article 20(1)(b) of that directive, namely cases where the applicant for international protection does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law.
46 That analogy is underlined by the second subparagraph of Article 20(1), which provides, in the cases referred to in points (a) and (b) of the first subparagraph of Article 20(1), that when the applicant for international protection is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, is to be taken on the reinstallation of the grant of some or all of the material reception conditions withdrawn or reduced.
47 It is apparent from the information provided in that second subparagraph that, in all the cases referred to in points (a) and (b) of the first subparagraph of Article 20(1) of Directive 2013/33, the withdrawal or reduction of material reception conditions provided for therein is the consequence of conduct on the part of the applicant for international protection whereby, by evading the obligations laid down in national law for the purposes of examining his or her application or implementing his or her right to remain in the territory of the Member State concerned as an applicant within the meaning of Article 3(1) of that directive, that applicant ceases to be available to the competent authority in such a way that he or she can no longer be located by that authority. When the applicant becomes available again because he or she has been ‘found’ or has ‘voluntarily report[ed]’ to that authority, his or her situation must be re-examined, in the light of the reasons for the ‘disappearance’, in order to determine whether those material reception conditions should be restored.
48 That interpretation is confirmed by Articles 13 and 28 of Directive 2013/32 on the common procedures for granting and withdrawing international protection.
49 First, Article 13(1) of that directive provides that Member States are to impose upon applicants for international protection the obligation to cooperate with the competent authorities with a view to establishing their identity and other elements referred to in Article 4(2) of Directive 2011/95, which are necessary to substantiate their application. Under Article 13(1), Member States may impose on those applicants other obligations concerning cooperation with the competent authorities in so far as those obligations are necessary for the processing of the application, including the obligation laid down in Article 13(2)(a) of Directive 2013/32 requiring those applicants to report to the competent authorities or to appear before them in person, either without delay or at a specified time. The latter obligation corresponds to one of the obligations which if not complied with may lead to the reduction or withdrawal of material reception conditions on the basis of Article 20(1)(b) of Directive 2013/33.
50 Similarly, one of the situations referred to in Article 20(1)(a) of that directive corresponds to the infringement of the obligations which may be imposed on applicants for international protection pursuant to Article 13(2)(c) of Directive 2013/32, namely the obligations to inform the competent authorities of their current place of residence or address and of any changes thereof as soon as possible, and the obligation to accept any communication at the most recent place of residence or address which they indicated accordingly.
51 Second, in accordance with points (a) and (b) of the second subparagraph of Article 28(1) of Directive 2013/32, Member States may presume that the applicant has implicitly withdrawn or abandoned his or her application for international protection, either where he or she has failed to respond to requests to provide information essential to his or her application in terms of Article 4 of Directive 2011/95, or has not appeared for a personal interview as provided for in Articles 14 to 17 of Directive 2013/32, or where he or she has absconded or left without authorisation the place where he or she lived, without contacting the competent authority within a reasonable time, or where he or she has not within a reasonable time complied with reporting duties or other obligations to communicate.
52 It must be stated that those situations correspond, in essence, to the situations in which the reduction or withdrawal of the material reception conditions may be decided, pursuant to Article 20(1)(a) or (b) of Directive 2013/33.
53 In the third place, as regards the objectives pursued by that directive, it must be borne in mind that, as is apparent from paragraph 43 above, the obligations laid down in Article 7 thereof are intended to enable Member States to adopt decisions relating to the freedom of movement and residence of applicants for international protection, which ensure, with due regard for their fundamental rights, that they remain available to the competent authorities for as long as they are allowed to remain on their territory for the purposes of examining their application for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of their application.
54 Consequently, an applicant for international protection who, in breach of those obligations, abandons the place of residence determined by the competent national authorities, without informing them or without permission, is de facto evading the scrutiny of those authorities and thus undermines the objectives of public interest, public policy or effective monitoring of his or her application, which are met by determining that place of residence.
55 It follows that, in such a situation, the reduction of the material reception conditions or, in exceptional and duly reasoned cases, their withdrawal amounts to a measure by which the Member States draw the appropriate conclusions from the failure to comply with the obligations imposed on the applicant for international protection by virtue of his or her duty to cooperate with the competent authorities in the examination of his or her application, or in close connection with that duty, by depriving that applicant, in part or in full, of the benefits to which he or she is entitled in respect of the reception in the territory of the Member State responsible for his or her application, the grant of which is contingent on the lodging and examination of that application.
56 However, an applicant for international protection who resides in an accommodation centre and refuses to comply with a decision to transfer him or her to another accommodation centre, while remaining in the first of those centres, cannot be regarded as an applicant who ‘abandons the place of residence determined by the competent authority without informing it or, if requested, without permission’, within the meaning of Article 20(1)(a) of Directive 2013/33.
57 First, even if it is accepted that, in a situation such as that referred to in paragraph 56 above, the competent national authority makes the applicant for international protection at issue subject to such a residence requirement in the new accommodation centre, that applicant cannot be regarded, in the event of his or her refusal to transfer, as having left that centre without informing the competent national authority or without permission, but must be regarded as effectively continuing to reside in the accommodation centre initially determined by that authority and, therefore, as remaining available to that authority and, if different, to the authorities competent to deal with his or her application for international protection.
58 Thus, in such a situation, unlike the one referred to in Article 20(1)(a) of Directive 2013/33, the whereabouts of the applicant for international protection are still known, with the result that, in that scenario, the obligation for the competent authorities, laid down in the second subparagraph of Article 20(1) of that directive, to adopt a duly reasoned decision, based on the reasons for that applicant’s ‘disappearance’, on the restoration of some or all of the material reception conditions that have been withdrawn or reduced would be devoid of purpose.
59 In the light of the foregoing, it must be held that the EU legislature did not intend to provide for the possibility for the Member States to withdraw or reduce those conditions on the basis of Article 20(1)(a) of Directive 2013/33, relating to the abandonment of the place of residence in the case of a refusal to comply with a transfer decision to another accommodation centre, since that refusal does not result in the ‘disappearance’ of the applicant for international protection, within the meaning of the second subparagraph of Article 20(1) of that directive.
60 Second, as has been stated in paragraphs 51 and 52 above, the situations referred to in Article 20(1)(a) of Directive 2013/33 correspond, in essence, to some of the situations in which Member States may presume that the applicant for international protection has implicitly withdrawn or abandoned his or her application. As the Advocate General observed, in essence, in point 41 of his Opinion, that applicant’s refusal to comply with certain modalities for his support cannot, in itself, be evidence that he has implicitly withdrawn or abandoned his application.
61 Third, as stated in recital 25 of Directive 2013/33 and recalled in paragraphs 36 and 37 above, paragraphs 1 to 3 of Article 20 of that directive have the objective of ‘specifying the circumstances’ in which the material reception conditions may be reduced or withdrawn. Thus, as is reflected, moreover, in the wording of paragraph 1(a) of Article 20, the situations to which paragraphs 1 to 3 refer are listed exhaustively, with the result that the Member States cannot extend their application to situations which do not correspond to the scenarios covered by those provisions.
62 However, where, as in the present case, an applicant for international protection repeatedly refuses to submit to his or her transfer and to the transfer of his or her minor child to an accommodation centre other than the one in which they are present and consequently stays with that child in that centre, it cannot be ruled out that, having regard to all of the relevant circumstances, that conduct justifies the adoption by the competent national authority of a sanction on the basis of Article 20(4) of Directive 2013/33.
63 In that regard, in the first place, under Article 18(6) of that directive, Member States are to ensure that applicants are transferred from one housing facility to another only ‘when necessary’. It follows that, as the Advocate General observed, in essence, in point 49 of his Opinion, the transfer of an applicant for international protection may turn out to be necessary, in particular where the capacity of the reception facilities so requires, in the event that the suitability of those facilities to the specific needs of that applicant so demands or also where that applicant encounters difficulties in adapting to the accommodation centre where he or she is present. Moreover, it should be noted that, as the Court has held, in the situations envisaged in Article 20(4) of that directive, transfer to an accommodation centre other than the one where he or she is present may be decided by way of a sanction (see, to that effect, judgments of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 52, and of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions), C‑422/21, EU:C:2022:616, paragraph 43).
64 It is true that a decision ordering the transfer of an applicant for international protection from one housing facility to another on the basis of Article 18(6) of Directive 2013/33 constitutes a decision on the grant of the benefits provided for by that directive, within the meaning of Article 26 thereof, which, in accordance with that provision, must be capable of being the subject of an appeal within the procedures laid down in national law and, at the very least, in the final instance, an appeal or review before a judicial authority. Accordingly, it follows from Article 26 that if applicants for international protection consider that the accommodation to which they are to be transferred does not meet the requirements of Directive 2013/33, they may rely, before the court with jurisdiction, on their right to housing in accordance with the conditions laid down for that purpose by that directive (see, by analogy, 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 296 and 298).
65 However, except in the event of the annulment of the transfer decision at issue, the suspension of its effects or the withdrawal of that decision, the applicant is required to comply with the decision. Although it is apparent from Article 12 of that directive that the agreement of the applicant for international protection is required for the adoption of measures taken to preserve family unity, it does not follow, in particular, from the other provisions of that directive and, in particular, from Article 18, that a decision to transfer to another accommodation centre requires, outside that specific aspect, the consent of that applicant.
66 In the second place, Article 20(4) of Directive 2013/33 provides that Member States may determine the sanctions applicable ‘to serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour’ on the part of the applicant for international protection.
67 As regards, in particular, the concept of ‘serious breaches of the rules of the accommodation centres’, it should be noted, first, that, in the absence of clarification in Directive 2013/33 as to the scope of that concept, Article 20(4) of that directive leaves to the Member States the task of determining the obligations contained in those rules, non-compliance with which constitutes a ‘breach’ of those rules and is capable of leading to the application of a sanction, it being understood that that ‘breach’ must have a certain degree of seriousness.
68 Second, in the absence of an express limitation in the wording of that provision and having regard to the need to interpret the provisions of EU law in such a way as to preserve their effectiveness (see, by analogy, judgment of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions), C‑422/21, EU:C:2022:616, paragraph 30 and the case-law cited), the concept of ‘rules of the accommodation centres’ within the meaning of Article 20(4) of Directive 2013/33 must be interpreted broadly to include all of the rules applicable to such centres which must be observed by applicants for international protection during their stay in those centres.
69 It follows that the occupation of a housing facility in an accommodation centre by an applicant for international protection, who is the subject of a transfer decision to another accommodation centre, may constitute a breach of the rules applicable to the first accommodation centre, since, as a result of that decision, that housing facility is no longer allocated to that person and consequently, in accordance with those rules, he or she cannot stay there.
70 The seriousness of the breach referred to in Article 20(4) of Directive 2013/33 must be assessed in the light of all the circumstances of the case and, in particular, the duration of the unlawful stay in the housing facility at issue, its persistent nature, the measures that have already been taken in respect of the applicant for international protection by the manager of the accommodation centre and the competent national authority with a view to his or her departure from the housing facility concerned, whether or not the reasons for that stay are legitimate and the adverse consequences which that entails for the national system for the reception of applicants for international protection.
71 In that regard, as the Advocate General states, in essence, in point 50 of his Opinion, an applicant for international protection who occupies a housing facility meeting the needs of a family unit larger than his or her own, but who refuses to release it and who categorically and persistently objects, without any legitimate reason, to transfer to a housing facility adapted to his or her family situation, deprives the manager of the accommodation centre in question of the possibility of assigning the occupied housing facility to a family or to single applicants whose needs it meets. Thus, such a refusal is liable to compromise the effective management of the accommodation capacities of the Member State concerned and, ultimately, the pursuit of the objective set out in Article 18 of Directive 2013/33 of ensuring that applicants for international protection are housed in accommodation centres offering an adequate standard of living. It follows that, as the Advocate General observed in point 51 of his Opinion, such conduct may constitute a ‘serious [breach] of the rules of the accommodation centres’, within the meaning of Article 20(4) of that directive, such as to give rise to a sanction.
72 In the third place, as regards the nature of the sanctions that may be imposed under that provision, it should be recalled that, as the Court has ruled, that provision does not expressly exclude the possibility that a sanction may relate to the material reception conditions (see, to that effect, judgments of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 44, and of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions), C‑422/21, EU:C:2022:616, paragraph 37).
73 However, the Court has also ruled that a sanction that is imposed exclusively on the basis of one of the reasons mentioned in Article 20(4) of Directive 2013/33 and consists in the withdrawal, even if only a temporary one, of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with the requirement, arising from the third sentence of Article 20(5) of that directive, to ensure a dignified standard of living for the applicant for international protection, since it would preclude the applicant from being allowed to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene (judgments of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 47, and of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions), C‑422/21, EU:C:2022:616, paragraph 39).
74 Such a sanction would also amount to a failure to comply with the proportionality requirement under the second sentence of Article 20(5) of Directive 2013/33, in so far as even the most stringent sanctions, whose objective is to punish, in criminal law, the breaches or behaviour referred to in Article 20(4) of that directive, cannot deprive the applicant for international protection of the possibility of meeting his or her most basic needs (judgments of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 48, and of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions), C‑422/21, EU:C:2022:616, paragraph 40).
75 In the case of a sanction based on a reason set out in Article 20(4) of Directive 2013/33 and consisting in the reduction of material reception conditions, including the withdrawal or reduction of the daily expenses allowance, it is for the competent national authorities to ensure under all circumstances that, in accordance with Article 20(5) of that directive, such a sanction, having regard to the particular situation of the applicant for international protection as well as all of the circumstances of that case, complies with the principle of proportionality and does not undermine the dignity of the applicant (judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 51).
76 Furthermore, in the cases envisaged in Article 20(4) of Directive 2013/33, depending on the circumstances of the case and subject to the requirements set out in Article 20(5) of that directive, Member States may impose sanctions that do not have the effect of depriving the applicant for international protection of material reception conditions (see, to that effect, judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 52).
77 Lastly, it is important to note that, where applicants for international protection, as in the main proceedings, are a single parent with a minor child, that is to say ‘vulnerable persons’ within the meaning of Article 21 of Directive 2013/33, the authorities of the Member States, when imposing sanctions pursuant to Article 20(4) of that directive, must especially take into account, according to the second sentence of Article 20(5) thereof, the particular situation of those persons and the principle of proportionality (see, by analogy, judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 53).
78 In that regard, according to Article 23(1) of Directive 2013/33 the best interests of the child are a primary consideration for Member States when implementing the provisions of that directive. Under Article 23(2) of that directive, in assessing those best interests, Member States must in particular take due account of factors such as the minor’s well-being and social development, taking into particular consideration the minor’s background, as well as safety and security considerations (judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 54).
79 It should also be noted that, as is apparent from paragraph 63 above, that interpretation of Article 20(1)(a) and (4) of Directive 2013/33 is without prejudice to the power of the competent authorities to adopt, in particular with a view to ensuring effective management of the reception capacities, a decision to transfer an applicant for international protection to another accommodation centre which will be his or her new place of residence, in which he or she will continue to benefit from appropriate material reception conditions, provided that that decision complies with the requirements set out in that directive. Consequently, in a situation such as the one referred to in paragraph 71 above, Directive 2013/33, where appropriate, in compliance with the principle of proportionality and in so far as no other less restrictive measure can be adopted, does not preclude the competent authorities from using the coercive powers conferred on them by national law to implement the transfer of that applicant, while ensuring that the applicant’s fundamental rights and dignity are respected, in accordance with recital 35 of that directive.
80 In the light of all of the foregoing considerations, the answer to the question referred is that Article 20(1)(a) of Directive 2013/33 must be interpreted as precluding legislation of a Member State under which the competent authority may withdraw all material reception conditions from an applicant for international protection who refuses to be transferred to an accommodation centre other than the one in which he or she resides, without prejudice to the power to impose a sanction on that applicant, such as, in particular, the limitation of the material reception conditions, where that repeated refusal constitutes a serious breach of the rules of the accommodation centres, within the meaning of Article 20(4) of that directive, and provided that the conditions set out in Article 20(5) thereof are met.
81 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.